EXHIBIT 10.3
DATED 27 June 1997
COUNTERPART
LEASE
Relating to land and office buildings
forming Unit No 32 at
Wellington Business Park
▇▇▇▇▇ Ride, Crowthorne
Berkshire
between
▇ ▇ ▇▇▇▇▇▇ & SONS LIMITED
and
ITERATED SYSTEMS LIMITED
PARK NELSON
▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
TEL: ▇▇▇▇ ▇▇▇ ▇▇▇▇
FAX: ▇▇▇▇ ▇▇▇ ▇▇▇▇
REF: 241 JRB SEW
LEASE: DATED 27 June 1997
1. PARTICULARS
1.1 The Landlord: ▇.▇. ▇▇▇▇▇▇ & SONS LIMITED whose registered office is at
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
1.2 The Tenant: ITERATED SYSTEMS LIMITED whose registered office is at ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ lYE
1.3. The Management Company: WELLINGTON PARK MANAGEMENT LIMITED whose
registered office is also at Victoria Road aforesaid
1.4 The Estate: The Landlord's Development known as Wellington Business Park
▇▇▇▇▇ Ride Crowthorne Berkshire which is for identification purposes only
shown edged blue on Plan No.1 hereto annexed the freehold interest in which is
in part owned by the Landlord and in part owned by the Management Company
1.5 The Premises: The building erected on the Estate and forming ▇▇▇▇ ▇▇.▇▇
within Group A of the said Development more particularly described in the 1st
Schedule hereto
1.6 The Registered Transfers: Transfers respectively dated the 31st December
1990, the 4th July 1992 and 29th June 1994 and 26th April 1995 all of which are
made between the Landlord (1) and the Management Company (2) and are transfers
of those parts of the Estate which are intended to become Common Parts for the
benefit of all occupiers of the Estate
1.7 Term: Fifteen years from the date hereof
1.8 Rent Commencement Date: The expiry of 3 months from the date hereof
1.9 Initial Rent: (Pounds)53,869.00 per annum
1.10 Review Dates: The 17th day of August in the years 2002, and 2007,
1.11 Interest Rate: Four per cent above the Base Rate of Lloyds Bank Plc or
its successors in business from time to time
1.12 Decorating Years: (a) External: in every 3rd and in the last year of the
Term
(b) Internal: in the 5th and the last year of the Term
1.13 Insurance Rent: Such sums as shall from time to time be payable by the
Landlord as a premium or premiums for the insurances effected or to be effected
in pursuance of Clause 7 hereof
1.14 Service Charge: The sums payable in accordance with clauses 2.2 and 4(c)
hereof in respect of the gross internal area of the Premises
(currently square metres)
1.15 Permitted User: The use specified in paragraph 2.1 of the 4th Schedule or
such other use as the Landlord may permit under paragraph 2.2 of that Schedule
1.16 Guarantor: Iterated Systems Inc. of ▇▇▇▇▇ ▇▇▇, ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇-▇▇▇▇ Georgia, U.S.A. and any Guarantor under the
terms of this Lease
1.17 Term Commencement date: The date hereof
2. DEFINITIONS
2.1 The terms defined in this clause and in the Particulars shall for all
purposes of this Lease have the meanings specified.
2.2 "Rent" means the rent ascertained in accordance with the 3rd Schedule and
Insurance Rent means the sum payable in accordance with clause 7.3 and Service
Charge means the yearly sum (due quarterly in advance) which is payable in
respect of the Premises by virtue of the Registered Transfers subject to the
proviso contained in paragraph 1.14 of the Particulars and the term 'Rent" does
not include the Insurance Rent or Service Charge but the term t1Rentst' includes
Rent Insurance Rent and Service Charge
2.3 "Pipes" means pipes sewers drains mains ducts conduits gutters watercourses
wire cables channels subways flues and all other conducting media including any
fixings louvres cowls and other covers
2.4 "Interest" means interest on the sums in question during the period from
the date on which the payment is due to the date of receiving payment in cleared
funds, both before and after any judgment, at the Interest Rate then prevailing
or should the Base Rate referred to in clause 1.11 cease to exist, such other
rate of interest as is most closely comparable with the Interest Rate to be
agreed between the parties or in default of agreement to be determined by a
person appointed by the President of the Law Society (acting as an expert and
not as an arbitrator)
2.5 "the Planning Acts" means the Town and Country Planning ▇▇▇ ▇▇▇▇ and all
statutes regulations and orders included by virtue of clause 3.12
2.6 "Insured Risk" means the risks described in Clause 7.1(1 )(a) hereof and
any other risk against which the Landlord shall have covenanted to insure
hereunder or at the time
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of the damage or destruction in question have effected insurance
2.7 "the Operational Covenants" means the covenants set out in the 4th Schedule
2.8 the 1954 Act" means Part II of the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
2.9 "neighboring property" means any land or buildings (whether already or
hereafter? to be erected and whether belonging to the Landlord or otherwise)
contiguous adjacent adjoining opposite or near to the Premises
2.10 "the Surveyor" means such professionally qualified Surveyor as the
Landlord may from time to time reasonably and properly nominate as the Surveyor
in respect of matters relating to the Premises (who may be a person employed by
or otherwise connected with the Landlord)
2.11 "Development" has the meaning given by Section 55 of the Town and Country
Planning ▇▇▇ ▇▇▇▇
2.12 This lease is a new tenancy within the meaning of section 1 of the
Landlord & Tenant (Covenants) ▇▇▇ ▇▇▇▇
3. INTERPRETATION
3.1 The expressions "the Landlord" and "the Tenant" wherever the context so
admits include their respective successors in title
3.2 Where the Landlord or the Tenant or any guarantor for the time being are
two or more individuals the terms "the Landlord" "the Tenant" and "the
Guarantor" include the plural number and obligations expressed or implied to be
made by or with such party are deemed to be made by or with such individuals
jointly and severally and where the context so permits such references shall
also apply to any one or more members of such association of individuals
3.3 Words importing the one gender include both other genders and words
importing the singular include the plural and vice versa
3.4 The expression "the Term" includes any period of holding over or extension
or continuance thereof whether by statute or common law and elsewhere in this
Lease the said expression includes such period where the context so admits
3.5 References to "the last year of the Term" include the final year of the
Term if the same shall determine otherwise than by effluxion of the time and
references to "the expiration of the Term" include such sooner determination of
the Term
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3.6 References to any right of the Landlord to have access to the Premises
shall be construed as extending to the Landlord's agents professional advisers
contractors workmen and others so authorised
3.7 References to "the Premises" in the absence of any provision to the
contrary include each and every part thereof together with the appurtenances
thereto and all additions alterations and improvements thereto and all Landlords
fixtures and fitting and plant machinery and equipment belonging to the Landlord
which are now or hereafter in or about the same
3.8 Any covenants by the Tenant not to do an act or thing shall be deemed to
include an obligation not knowingly to permit such act or thing to be done and
to use its reasonable endeavours to prevent such act or thing being done by a
third party
3.9 Whenever the consent or approval of the Landlord is required or requested
in relation to this Lease, such provisions shall be construed as also requiring
the consent or approval of any mortgagee of the Premises where the same shall be
required provided that the Landlord shall use its best endeavours to obtain the
consent of such mortgagee without unreasonable delay)
3.10 References to "consent of the Landlord" or words to similar effect mean a
consent in writing signed by or on behalf of the Landlord and to "approved" and
"authorised" or words to similar effect mean (as the case may be) approved or
authorised in writing by or on behalf of the Landlord
3.11 The terms "the parties" or "party" shall mean the Landlord and/or the
Tenant (as defined in Clause 3.1 hereof)
3.12 Any reference to a specific statute includes any statutory extension or
modification or re-enactment of such statute and any regulations or orders made
thereunder any general reference to "statute" or "statutes" includes any
regulations or orders made thereunder
3.13 The paragraph headings and marginal notes do not form part of this Lease
and shall not be taken into account in its construction or interpretation
4. DEMISE
The Landlord DEMISES to the Tenant the Premises TOGETHER with the rights
specified in Part 1 of the 2nd Schedule but EXCEPTING AND RESERVING to the
Landlord the rights specified in Part 2 of the 2nd Schedule TO HOLD the Premises
unto the Tenant for the Term SUBJECT TO the matters contained or referred to in
the
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documents specified in the 5th Schedule insofar as much matters affect the
Premises YIELDING AND PAYING to the Landlord:-
(a) the Rent, payable without any deduction by equal quarterly payments in
advance on the usual quarter days in every year, and proportionately for
any period of less than a year, the first such payment being a
proportionate sum in respect of the period from and including the Rent
Commencement Date to and including the day before the quarter day next
thereafter to be paid on the Rent Commencement Date, (the period prior to
the Rent Commencement Date being Rent free) and
(b) by way of further rent, the Insurance Rent payable within 7 days of written
demand in accordance with clause 7.3
(c) by way of further rent, the Service Charge (the first such payment to be a
fair and reasonable estimate by the Surveyor of the proportion due from and
including the date hereof until and including the quarter day next
thereafter to be paid forthwith)
5. THE TENANT COVENANTS with the Landlord:-
Rent
5.1.1 To pay the Rents on the days and in the manner set out in clause 4
5.1.2 If so required in writing by the Landlord to make such payments by
Banker's Order or Credit Transfer to any Bank in Great Britain and account that
the Landlord may from time to time nominate in writing
Outgoings and VAT
5.2 To pay and to indemnify the Landlord against:
(a) all rates (including uniform business rates) taxes assessments duties
charges impositions outgoings and obligations whatsoever which are now or during
the Term shall be charged assessed or imposed upon the Premises or upon the
owner or occupier of them whether parliamentary parochial or otherwise and
whether or not of a capital or non-recurring nature (and even though of a wholly
novel character) but excluding any payable by the Landlord in respect of the
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receipt of Rents or other payment made by the Tenant under this Lease or any
payable by the Landlord which was occasioned' by any Development or by any
disposition in dealing with or ownership of the Landlord's reversionary interest
in the Premises the Estate or the receipt of Rents in respect thereof
(b) Value Added Tax (or any tax of a similar nature that may be substituted for
it or levied in addition to it) properly chargeable (whether as the result of an
election by the Landlord or otherwise) in respect of any Rents or other payment
made by the Tenant under any of the provisions of or in connection with this
Lease or (insofar as the Landlord cannot recoup the same as an input credit)
incurred by the Landlord upon any payment made by the Landlord where the Tenant
agrees to reimburse the Landlord for such payment
Electricity, Gas and Other Services consumed
5.3 To pay to the suppliers and to indemnify the Landlord against all charges
for electricity gas and other services consumed or used at the Premises
(including meter rents) during the Term
Repair and Redecoration
5.4.1. To keep the whole of the Premises and all appurtenances and additions
thereto including (but not limited to) all roofs foundations structural and non
structural walls and partitions and any Pipes exclusively serving the same and
all plate and other glass and all plant and machinery and all fixtures and
fittings therein in good and substantial repair and in good decorative condition
and clean throughout the Term and if necessary for the purpose of carrying out
such repair (but not further or otherwise) then to rebuild renew or replace the
Premises or any part thereof and if the same affects the structure or exterior
of the Premises the Tenant will (unless the Landlord otherwise reasonably
requires) renew or replace the same in accordance with plans elevations sections
and specifications previously approved in writing by the Landlord (such approval
not to be unreasonably withheld or delayed) and in any event with good and
substantial materials and in a good and workmanlike manner (damage by any of the
Insured Risks excepted save to the extent that the insurance effected by the
Landlord shall be vitiated by any act or omission of the Tenant or anyone at the
Premises expressly or by implication with the Tenant's authority) and to keep
any part of the Premises which shall not be built upon in a clean and tidy
condition
5.4.2 To replace from time to time in good and workmanlike manner and with good
quality materials the Landlord's fixtures, fittings and appurtenances in the
Premises which become beyond repair at any time during or immediately prior to
the expiration of the Term
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5.4.3 So far as reasonably possible to keep all Pipes in the Premises
protected from frost where appropriate and keep the same cleansed and maintained
free from obstruction
5.4.4 Once in the year 2000 and every three years thereafter and also in the
last three months of the Term howsoever determined but not more than once in any
one year period) to paint with two coats of good quality paint or otherwise
cover with an appropriate protective and decorative finish all such parts of the
outside of the Premises as are usually or ought to be so painted or covered All
such works to be carried out in a good and workmanlike manner with good quality
materials and colour to be previously approved in writing by the Landlord (such
approval not to be unreasonably refused or delayed)
5.4.5 Once in the year 2002 and every five years thereafter and also in the
last three months of the Term howsoever determined (but not more than once in
any one year period) to paint with good quality paint or otherwise cover with an
appropriate protective and decorative finish all such parts of the inside of the
Premises as are usually or ought to be so painted or covered All such works to
be carried out in a good and workmanlike manner with good quality materials and
in the last year of the Term of a design material and colour to be previously
approved in writing by the Landlord (such approval not to be unreasonably
refused or delayed)
Alterations and Additions or Rebuilding
5.5.1 Not to commit or knowingly permit or suffer waste (including ameliorating
waste), on or at the Premises
5.5.2 Not to build erect construct or place any new or additional building or
structure on the Premises including (without prejudice to the generality of the
foregoing) any hut shed garage cycle shelter store caravan house on wheels or
any temporary or movable building or structure
5.5.3 Not at any time during the Term to make any structural alterations or
additions to the Premises whether internally or externally not to cut injure
maim or remove any of the walls beams columns or other structural parts of the
Premises or make any change in or to the existing design or appearance of the
Premises whether externally or internally PROVIDED that the Tenant may from time
to time without the consent of the Landlord but and subject to all necessary
planning and Building Regulation approval and Fire Officer's consent having been
first obtained and produced to the Landlord carry out non-structural internal
alterations which are not hereby expressly prohibited including (but not limited
to) the installation and removal of internal partitions which do not materially
adversely affect the operation or effectiveness of any air conditioning or
heating systems within the Premises
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5.5.4 To remove any additions alterations or improvements made to the Premises
at the expiration of the Term if so reasonably requested by the Landlord in
writing at least three months prior to the expiration of the Term and to make
good any part or parts of the Premises which may be damaged by such removal
5.5.5. Not to cut injure or remove nor, except in accordance with clauses 5.5.3
and
5.5.4, make any connection with the Pipes serving the Premises either
exclusively or in conjunction with other premises
5.5.6 To make connection with those Pipes that serve the Premises only in
accordance with the standards laid down from time to time by the relevant supply
authority and no appliance other than that for which the installation is
designed shall be connected to it
Statutory Obligations
5.6.1. At all times during the Term at the Tenant's own expense to observe and
comply in all material respects with the provisions and requirements of any and
every enactment (which expression in this covenant includes as well any and
every Act of Parliament already or hereafter 'to be passed as any and every
notice direction order regulation bye-law rule and condition already or
hereafter to be made under or in pursuance of or deriving effect from any such
Act) or prescribed or required by a public local or other authority so far as
they relate to or affect the Premises or the lessee thereof or any additions or
improvements thereto or the user thereof for any purposes or the employment
therein of any person or persons or any fixtures machinery plant or chattels for
the time being affixed thereto or being thereupon or used for the purposes
thereof
5.6.2 Save in respect of the construction of the building on the Premises
undertaken by the Landlord to execute as soon as reasonably practicable all
works and provide and maintain all arrangements which by or under any enactment
or by any Government Department Local Authority or other Public Authority or
duly authorised officer or court of competent jurisdiction acting under or in
pursuance of any enactment are or may be directed or required to be executed
provided or maintained at any time during the Term upon or in respect of the
Premises or any additions or improvements thereto or in respect of any user
thereof or employment therein of any person or persons or fixtures machinery
plant or chattels and whether by the landlord or tenant thereof
5.6.3 To indemnify the Landlord at all times during the Term against all proper
and reasonable costs charges and expenses of or incidental to the execution of
any works or the provision or maintenance of any arrangements so directed or
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required as aforesaid in respect of the Premises and not at any time during the
Term to do or omit or suffer to be done or omitted in or about the Premises any
act or thing by reason of which the Landlord may under any enactment incur or
have imposed upon it or become liable to pay any penalty damages compensation
costs charges or expenses
5.6.4 To pay to the Landlord within 7 days of a written demand a due and fair
proportion (to be determined by the Surveyor acting reasonably in all the
circumstances) of all proper and reasonable costs charges and expenses
(including Surveyors' Architects' and other professional advisers' fees)
properly and reasonably incurred by the Landlord of or incidental to complying
with all provisions and requirements of any and every enactment prescribed or
required by any public local or other authority in relation to the Premises
Access of Landlord and Notice to Repair
5.7.1 To permit the Landlord at all reasonable times by prior appointment (save
in the case of emergency) to enter upon the Premises for the purpose of:
(a) ascertaining that the covenants and conditions of this Lease on the part of
the Tenant have been observed and performed, and
(b) viewing the state of repair and condition of the Premises, and
(c) giving to the Tenant (or leaving upon the Premises) a written notice
specifying any repairs cleaning maintenance or painting that the Tenant has
failed to execute in breach of the terms hereof and to request the Tenant
expeditiously to execute the same
5.7.2 If within three months of the service of such a notice the Tenant shall
not have commenced and be proceeding diligently with the execution of the work
referred to in the notice to permit the Landlord to enter the Premises to
execute such work as may be reasonably necessary to comply with the notice and
to pay to the Landlord the cost of so doing and all expenses reasonably and
properly incurred by the Landlord (including legal costs and surveyor's fees)
within fourteen days of a written demand subject to the Landlord and/or its
agents doing as little damage to the Premises as is reasonably possible and
forthwith making good any damage so caused
Alienation
5.8.1 The Tenant will not assign transfer underlet or part with or share the
possession or occupation of the whole or any part of the Premises in any way
whatsoever except only that the Tenant may with the written consent of the
Landlord (which consent shall not unreasonably be withheld or delayed and shall
if granted be by deed of licence containing the covenants referred to in
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paragraph 5.8.2 of this sub-clause and such other provisions as the Landlord may
reasonably require):
(i) assign the Premises as a whole or
(ii) underlet the Premises as a whole or a whole floor or floors of the Premises
in either case at the higher of the passing rent or the market rent and
without taking any fine or premium and being subject to rent reviews not
less frequently than as provided for in this Lease and in any event at the
same times as herein provided
and PROVIDED THAT:-
the Landlord may withhold its consent to an application by the Tenant for
licence to assign in accordance with this lease if the conditions and criteria
set out in this proviso (which conditions are specified for the purposes of
section 19(1A) of the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ are not met that:
(1) at the time of the assignment there are no arrears of Rent due to the
Landlord under the terms of the Lease; and
(2) the Tenant making the application for Consent to Assign shall if the
Landlord reasonably so requires enter into an Authorised Guarantee
Agreement in favour of the Landlord in such form as the Landlord shall
reasonably require
(3) in the reasonable opinion of the Landlord the proposed assignee is of
sufficient financial standing to enable it to comply with the Tenant's
covenants in the Lease
5.8.2 The Tenant will not assign transfer or underlet part with or share the
possession or occupation of the Premises otherwise than in accordance with the
foregoing paragraphs of this sub-clause and after first obtaining the consent of
the Landlord in accordance with clause 5.8.1 by deed of licence as aforesaid
prepared by the Landlord's solicitors in such manner that:
(i) in the case of an assignment the intended assignee will (jointly and
severally if there be more than one intended assignee) covenant directly
with the Landlord to pay the Rents hereby reserved and to perform and
observe the covenants and conditions on the part of the Tenant herein
contained (including this present covenant) in the same manner as if such
covenants and conditions were therein repeated in extenso and
(ii) in the case of an underlease the intended underlessee will jointly and
severally if there be more than one intended underlessee) covenant directly
with the Landlord to observe and perform the covenants and conditions by
the Tenant herein contained in so far as they relate to the premises
underlet (except the covenants to pay the Rents reserved and to yield up
the Premises at the expiration of the Term but in all other respects so far
as they are capable of being observed and performed by an underlessee)
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including similar covenants not to further underlet or part with or share
the possession or occupation of the Premises and not to assign the whole of
the same without such consent as aforesaid
5.8.3 In any application to the Landlord for written consent under sub-clause
5.8.1(i) and (ii) the Tenant shall supply such details of the proposed assignee
or under-lessee as the Landlord shall reasonably require (including where
available a copy of its latest audited accounts or other information reasonably
satisfactory to the Landlord) and shall if reasonably so required in the case of
a proposed assignment to a private company offer the guarantee of persons or
parties whose names and addresses shall also be supplied with corresponding
information as to the financial position of such persons or parties and
the Tenant shall also in connection with any such application as aforesaid
procure that the proposed assignee or under-lessee (as the case may be) provide
three references including a Banker's reference in respect of the proposed
assignee or such alternative security as shall be reasonably acceptable to the
Landlord
5.8.4 Within one calendar month next after the making thereof without any
demand from the Landlord the Tenant will produce for registration by the
Landlord's solicitors a certified true copy of all assignments mortgages charges
transfers underleases tenancy agreements probates of ▇▇▇▇▇ letters of
administration assents and other dispositions which during the Term shall be
made in respect of the Premises or any part thereof or any estate or interest
therein howsoever remote or inferior and will leave the same with the Landlord
for that purpose and will pay the Landlord's solicitors reasonable and proper
fees for the registration of every such document
5.8.5 The Tenant will from time to time on written demand during the Term
furnish the Landlord with such particulars of all derivative interests of or in
the Premises or any part thereof howsoever remote or inferior including
particulars of the rent or rents payable in respect of such derivative interests
and such further particulars as the Landlord may reasonably require in respect
thereof
5.8.6 The Tenant will not without the previous consent in writing of the
Landlord (which consent shall not be unreasonably withheld or delayed) grant any
consent or approval under or any variation or release or amendment to any
underlease nor exercise any power to extend the same
5.8.7 The Tenant will take all such steps as are commercially appropriate to
enforce the performance and observance by every such underlessee of the Premises
all covenants to be imposed in accordance with the provisions hereof and shall
not at any time either expressly or by implication waive any breach thereof by
any such underlessee or assignee of such underlessee or a guarantor for the
same.
5.8.8. Any underletting permitted under this lease shall be outside the
security of tenure provisions of the Landlord & ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ss24-28 as
amended and shall be at a rent which is the higher of the market rent or the
passing rent at that time or at the time of any review
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Nuisance etc. and Residential Restrictions
5.9.1 Not to do (or permit or suffer to remain upon the Premises) anything
which may be or become or cause a nuisance injury or damage to the Landlord or
its tenants or the occupiers of adjacent or neighbouring premises or to the
neighbourhood or any public local or other authorities
5.9.2 Not to use the Premises for a sale by auction or for any dangerous
noxious noisy or offensive trade or business nor for any illegal or immoral act
or purpose
5.9.3 Not to allow any person to sleep on any part of the Premises or to use
the Premises or any part thereof for residential purposes or keep any animal
fish reptile or bird thereon
5.9.4 If the Landlord shall ▇▇▇▇▇ any nuisance which the Tenant is under duty
to ▇▇▇▇▇ the Tenant shall pay all costs charges and expenses reasonably and
properly incurred in abating such nuisance and executing all such works as may
be necessary for abating such nuisance whether or not required in obedience to a
notice served by any local or other authority or by any other person entitled to
require the nuisance to be abated
Landlord's Costs
5.10 To pay to the Landlord all reasonable and proper costs fees charges
disbursements and expenses (including without prejudice to the generality of the
foregoing those payable to Counsel Solicitors Architects Surveyors Engineers
Consultants and Bailiffs) properly and reasonably incurred by the Landlord in
relation to:-
(a) every application made by the Tenant for a consent or licence required or
made necessary by the provisions of this Lease whether the same be granted
or refused (unless the consent or licence is unreasonably refused or
withheld) or proffered subject to any lawful qualification or condition or
whether the application be withdrawn
(b) any proceedings or contemplated proceedings relating to the Premises
(including the preparation and service of a notice) under Section 146 or
147 of the Law of Property ▇▇▇ ▇▇▇▇ notwithstanding that forfeiture is
avoided otherwise than by relief granted by the Court
(c) the recovery or attempted recovery of arrears of Rent or other sums due
from the Tenant, and
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(d) any steps taken in connection with the preparation and service of a
Schedule of Dilapidations during or within two months after the expiration
of the Term
Planning Acts
5.11.1 To comply with the provisions and requirements of the Planning Acts,
whether as to the Permitted User or otherwise, and to indemnify during the Term
and keep the Landlord indemnified against all liability whatsoever including
costs and expenses reasonably and properly incurred by the Landlord in respect
of any contravention by the Tenant
5.11.2 At the expense of the Tenant to obtain all planning permissions and to
serve all such notices as may be required for the carrying out of any operations
or user of the Premises by the Tenant which may constitute Development provided
that no application for planning permission shall be made without the previous
consent of the Landlord such consent not to be unreasonably withheld or delayed
in any case where the application for any implementation of such planning
permission will not create or give rise to any tax or other fiscal liability for
the Landlord or where the Tenant provides an indemnity against such liability to
the satisfaction of the Landlord or will not materially adversely affect in any
way the remainder of the Estate or the Landlord's reversionary interest in the
Premises
5.11.3 Subject only to any statutory direction to the contrary to pay and
satisfy any charge or levy that may hereafter be imposed under the Planning Acts
in respect of the carrying out or maintenance of any such operations or the
commencement or continuance of any such user
5.11.4 Notwithstanding any consent which may be granted by the Landlord under
this Lease not to carry out or make any alteration or addition to the Premises
or any change of use thereof until all necessary notices under the Planning Acts
have been served and all necessary permissions under the Planning Acts have been
obtained the Landlord has acknowledged that every necessary planning permission
is acceptable to it (such acknowledgement not to be unreasonably withheld or
delayed) the Landlord being entitled to refuse to acknowledge its acceptance of
a planning permission on the grounds that any condition contained in it, or
anything omitted from it, or the period referred to in it, would be materially
prejudicial to the Landlord's reversionary interest in the Premises whether
during or following the expiration of the Term:-
5.11.5 Unless the Landlord shall otherwise direct to carry out and complete
before the expiration of the Term:-
(a) any works stipulated to be carried out to the Premises by a date subsequent
to such expiration as a condition of any planning permission granted for
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any Development and begun by the Tenant before the expiration of the Term
and
(1,) any Development begun by the Tenant upon the Premises in respect of which
the Landlord shall or may be or become liable for any charge or levy under
the Planning Acts or otherwise
5.11.6 In any case where a planning permission is granted subject to conditions
and if the Landlord reasonably so requires to provide security for the
compliance with such conditions and not to implement the planning permission
until the security has been provided
Plans Documents and Information and Forwarding Notices
5.12 Within fourteen days of the receipt of notice of the same to give full
particulars to the Landlord of any permission direction notice or order or
proposal for the same relevant to the Premises or to, the use or condition
thereof (including (without limitation) any proposal for alteration of the
Valuation List under the General Rate Act 1967) made given or issued to the
Tenant or the occupier of the Premises by a Government Department Local or
Public Authority and if so required by the Landlord to produce such permission
notice order or proposal to the Landlord and also without delay to take all
reasonable or necessary steps to comply therewith
Indemnities
5.13 To be responsible for and during the Term to keep the Landlord fully
indemnified against all damage damages losses reasonable costs expenses actions
demands proceedings claims and liabilities made against or suffered or incurred
by the Landlord arising directly or indirectly out of:-
(a) any act omission or negligence of the Tenant or any persons at the Premises
with the Tenant's authority or
(b) any breach or non observance by the Tenant of the covenants conditions or
other provisions of this Lease
(c) the carrying out by the Tenant of any works on the Premises or any part
thereof or any change by the Tenant in the use made of the Premises or any
part thereof
Re-letting Boards
5.14 To permit the Landlord at any time by prior agreed appointment (which
shall not be unreasonably denied) during the last six months of the Term to
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enter upon the Premises and affix and retain upon any reasonable part of the
Premises so as not to cause undue inconvenience to the Tenant a notice for re-
letting the same and during such period to permit persons with written authority
of the Landlord or its agent at reasonable times of the day by prior agreed
appointment to view the Premises
Rights of Light and Encroachments
5.15.1 Not to stop-up darken or obstruct any windows or light belonging to the
Premises
5.15.2 Not to permit any new window light opening doorway path passage drain or
other encroachment or easement to be made or acquired to the detriment of the
Premises and if the same or any of them shall be made or acquired or attempted
to be made or acquired to give notice to the Landlord as soon as possible after
the Tenant becomes aware of the same and at the request and cost of the Landlord
to adopt such means as it may reasonably require or deem proper for preventing
any such encroachment or the acquisition of any such easement
Yield Up
5.16 At the expiration of the term to yield up the Premises in repair and in
accordance with the terms of this Lease to give up all keys of the Premises to
the Landlord and to remove all lettering and signs erected by the Tenant in upon
or near the Premises and forthwith to make good any damage caused by such
removal
Interest on Arrears
5.17.1 If the Tenant shall fail to pay all or any part of the Rents or any
other sum due under this Lease within fourteen days of the same becoming due
(but with the exception of the Rents no sum shall be deemed to have become due
until the same has been lawfully demanded by the Landlord) the Tenant shall pay
the Landlord Interest on the Rents or other sum in accordance with clause 2.4
hereof and such Interest shall be deemed to be Rent due to the Landlord but
shall not itself bear Interest
5.17.2 Nothing in the preceding clause shall entitle the Tenant to withhold or
delay any payment of the Rents or any other sum due under this Lease after the
date upon which it falls due or in any way prejudice affect or derogate from the
rights of the Landlord in relation to the said non-payment including but without
prejudice to the generality of the foregoing) under the proviso for re-entry
contained in this Lease
Notices
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5.18.
To ensure that at all times the Landlord or their agents and the local police
force have written notice of the name, home address and home telephone number of
a keyholder of the Premises
Sale of Reversion etc.
5.19 To permit upon reasonable notice at any time during the Term prospective
purchasers of or dealers in or agents instructed in connection with the sale of
the Landlord's reversion or of any interest superior to the Term to view the
Premises by prior agreed appointment (which shall not be unreasonably denied)
without interruption providing the same are authorised in writing by the
Landlord or its agents and cause as little inconvenience as reasonably possible
to the Tenant's trade or business
Defective Premises
5.20 As soon as possible after becoming aware of the same to give notice to the
Landlord of any defect in the Premises which might give rise to an obligation
upon the Landlord to do or refrain from doing any act or thing in order to
comply with the provisions of this Lease or the duty of care imposed on the
Landlord pursuant to the Defective Premises Act 1972 or otherwise and to keep
the Landlord fully indemnified from and against all loss or liability claims or
demands arising from any failure to give such notice and at all times to display
and maintain all notices which the Landlord may from time to time reasonably
require to be displayed at the Premises
Landlord's rights
5.21 To permit the Landlord at all times during the Term to exercise without
interruption or interference any of the rights granted or reserved to it by
virtue of the provisions of this Lease
Operational Covenants
5.22 To observe and perform the Operational Covenants
Freehold Title etc.
5.23 To observe and perform all the obligations (other than those arising under
any registered charge or similar encumbrance) referred to in the Charges
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Register of title number B~60648 as disclosed by office copies dated 10th
February 1997 insofar as the same relate to or affect the Premises and to keep
the Landlord and the Management Company fully indemnified against all losses
costs claims demands or liabilities arising out of any future breach or non-
performance thereof by the Tenant its servants agents or visitors
6. THE LANDLORD'S COVENANTS with the Tenant:-
TO permit the Tenant peaceably and quietly to hold and enjoy the Premises
without any lawful interruption or disturbance from or by the Landlord or any
person claiming under or in trust for the Landlord
7. INSURANCE
The Landlord and the Tenant HEREBY MUTUALLY COVENANT with each other and agree
as follows:-
(1) that the Landlord will at all times during the Term (save to the extent
that such insurance shall be vitiated or the insurance monies shall be
irrecoverable in whole or in part by reason of any act neglect default or
omission of the Tenant or its servants agents or licensees) insure and keep
insured with such insurance office or underwriters of good repute as the
Landlord shall from time to time reasonably select
(a) the Premises against loss or damage by fire storm tempest earthquake
lightning explosion riot civil commotion malicious damage subsidence heave
landslip and impact by vehicles (including trains) and by aircraft and
articles dropped therefrom flood damage bursting and overflowing of water
pipes and tanks and such other risks (whether or not in the nature of the
foregoing) as either the Landlord or the Tenant may from time to time
reasonably require to insure against in the full reinstatement cost of the
Premises including the cost of demolition and site clearance (subject to
normal excesses) together with professional fees (including architects' and
surveyors' fees) and three years loss of rent and Value Added Tax on those
amounts to the extent applicable and to the extent that the Landlord may
not be able to recover that Value Added Tax from H.M. Customs and Excise
(b) any plant in the Premises comprising boilers connected piping and radiators
hot water storage vessels and motors and pumps associated with boiler plant
and any other plant which the Landlord may reasonably require to be
included against the risks of breakdown accidental damage explosion or
collapse as may be appropriate to the class of plant and such other risks
as the Landlord or the Tenant may from time to time reasonably decide to
17
insure against and for such sum as the Landlord shall from time to time
reasonably consider sufficient (subject to normal excesses) such insurance
to provide for periodical inspection to be arranged by the insurers
(c) the Landlord against any public liability or third party risks relating to
the Premises as the Landlord shall from time to time reasonably require
(2) PROVIDED ALWAYS that the sum insured under either paragraph (a) or
paragraph (b) of this sub-clause shall not be less than any amount notified
by the Tenant to the Landlord under sub-clause 7.2 of this clause
7.2. That the Tenant may from time to time by notice in writing sent by
registered post or recorded delivery to the Landlord at the Landlord's
registered office require the Landlord to increase the amount for which the
Premises or the plant referred to in sub-clause 7. 1(l)(b) of this clause (if
any) are insured and that the Landlord will within ten days after the date upon
which such notice is actually received in the Landlord's registered office
effect such increase accordingly
7.3 The Tenant shall pay the Insurance Rent on the date hereof for the period
from and including the Rent Commencement Date to the day before the next policy
renewal date and thereafter the Tenant shall pay the Insurance Rent within 7
days of written demand (which may be made not more than seven days in advance of
the next following policy renewal date)
7.4 That in the case of destruction or damage of the Premises from any Insured
Risk or the failure of any plant referred to in sub-clause 7. l(l)(b) of this
clause (from whatsoever cause) the Landlord and the Tenant shall apply all
monies received by virtue of any insurance (except monies received for fees and
loss of rent) as far as the same shall extend in so reinstating restoring and
rebuilding the Premises and/or the plant (as the case may be) and in case the
same shall be insufficient for that purpose the Landlord shall make up that
deficiency out of its own resources and unless such deficiency is a direct
result of the Tenant's own act neglect or default in which case the Tenant shall
make up that deficiency out of its own resources
7.5 Without prejudice to the generality of the foregoing it is agreed that the
Tenant will make up out of its own monies any reduction or shortfall in the
insurance monies as a direct result of any breach by the Tenant of the Tenant's
repairing covenants herein contained
7.6 The Tenant will at its own expense comply with all such requirements as may
from time to time reasonably be made by the insurers as a condition of the
continuation or renewal of any relevant insurance relating to the Premises
7.7 In the event of the Premises or any part thereof at any time during the
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Term being damaged or destroyed by whatever cause so as to be unfit for
occupation and use or incapable of reasonable access then the Rents hereby
reserved or a fair proportion thereof according to the nature and extent of the
damage sustained shall (unless payment of the policy monies shall be withheld in
whole or in part by reason of any act default or neglect of the Tenant or its
servants agents or licensees) be suspended until the Premises shall again be
rendered fit for occupation and use or capable of reasonable access and in case
of any difference between the Landlord and the Tenant as to the amount or period
of such suspension as aforesaid the same shall be referred to the sole
arbitration of an arbitrator to be nominated upon the application of either the
Landlord or the Tenant by the President or failing him the most senior officer
available of the Royal Institution of Chartered Surveyors
7.8 (a) That if any competent authority shall lawfully refuse permission for
or otherwise lawfully prevent any rebuilding or reinstatement of the Premises or
the same shall be otherwise frustrated or prove impossible or impracticable all
relevant insurance monies (so far as unapplied as aforesaid) shall (subject and
without prejudice to the rights of any other interested parties) be held upon
trust for the Landlord and the Tenant absolutely
(b) If the Premises shall not have been reinstated so that they are fit for
occupation and use within 33 months of the date of damage or destruction then
either party may within 3 months thereafter by serving 3 months notice determine
this Lease
7.9 If at any time and so long as the Landlord is itself an insurance company
or a company in the same group of companies as an insurance company the Landlord
shall (but without prejudice to the generality of its powers under the
foregoing provisions of this clause) be entitled subject to such insurance
company being of good repute to effect or keep on foot in its own office or in
the office of any other company in such group any policy of insurance which the
Landlord is under the provisions of this Lease required or authorised to effect
or keep on foot and the premiums charged by the Landlord or such other company
for effecting or keeping on foot such insurance shall for the purpose of any
covenant by the Tenant to pay or contribute towards the cost of insurance be
deemed to have been paid by the Landlord on the first day of the period of
insurance to which the relevant premium relates
7.10 The Landlord shall be deemed to have fulfilled its responsibility under
this Lease as to insurance notwithstanding that the insurance for the time being
in force is subject to exclusions excesses and conditions which are usually
required by the insurers and which cannot be omitted on reasonable terms and
(without prejudice to the generality of the foregoing) the Landlord shall not be
responsible for effecting any insurance under the provisions hereinbefore
contained against a peril which is for the time being uninsurable or which can
only be insured at a premium which in the view of the Landlord (acting
reasonably) is excessive and which the Tenant agrees is excessive (such
agreement not to be unreasonably withheld)
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7.11 The Tenant covenants with the Landlord:-
(a) to comply with all the reasonable requirements and recommendations of the
insurers
(b) not to do or omit anything that could cause any policy of insurance on the
Premises to become void or voidable wholly or in part nor (unless the
Tenant shall have previously notified the Landlord and have agreed to pay
the increased premium) anything whereby additional insurance premiums may
become payable
(c) not to store or bring onto the Premises any article substance or liquid of
a specially combustible inflammable or explosive nature and to comply with
the requirements and recommendations of the fire authority as to fire
precautions relating to the Premises
(d) to give notice to the Landlord forthwith upon the happening of any event
which might materially affect any insurance policy relating to the Premises
(e) to pay to the Landlord within 7 days of written demand the reasonable and
proper cost of any independent valuation of the Premises required by the
Insurers for Insurance purposes but not more than once in any three years
unless there are reasonable grounds for so doing)
(f) if at any time the Tenant shall be entitled to the benefit of any insurance
on the Premises which is not effected or maintained in pursuance of any
obligation herein contained to apply all monies received by virtue of such
insurance in making good the loss or damage in respect of which the same
shall have been received
7.12 The Landlord covenants with the Tenant in relation to the effected by the
Landlord pursuant to Clause 7.1 to:
(a) produce to the Tenant on demand a copy of the premium renewal receipt
(b) procure that the interest of the Tenant and any mortgagee is noted or
endorsed on the policy policy of insurance policy and the last
(c) produce to the Tenant on demand written confirmation from the insurers that
they have agreed to waive all rights of subrogation against the Tenant
8. THE MANAGEMENT COMPANY covenants with the Tenant:-
8.1 To observe and perform the Restrictive Covenants (defined in the Registered
20
Transfers) insofar as they relate to the Transferred Property
8.2 To observe and perform the Management Covenants (as defined in the
Registered Transfers) such observance and performance to be carried out at all
times in a manner which it reasonably considers to be in the interest of good
estate management and in the interest of the Estate as a whole
9. PROVISOS
Re-entry
9.1 If at any time during the Term:
(a) the Rent (or any of them or any part thereof) shall be in arrear and unpaid
for 21 days after becoming payable (whether formally demanded or not), or
(b) there shall be any material breach non-performance or non-observance by the
Tenant of any of the covenants and conditions on the part of the Tenant
contained in this Lease, or
(c) the Tenant being an individual (or being more than one individual any one
or more of them) becomes bankrupt or (being a company) enters into
liquidation whether compulsory or voluntary (save for the purpose of
amalgamation or reconstruction of a solvent company) or has a receiver
appointed of its undertaking or (in either case) enters into an arrangement
or composition for the benefit of its creditors the Landlord may at any
time thereafter (and notwithstanding the waiver of any previous right of
re-entry) re-enter the Premises of any part thereof in the name of the
whole and thereupon the Term shall absolutely cease and determine but
without prejudice to any rights or remedies which may then have accrued to
either party against the other in respect of any antecedent breach
(including the breach in relation to which re-entry is made) of any of the
covenants and conditions contained in this Lease
Floor Area
9.2 For all purposes in relation to this Lease the Net or Gross Internal Area
of the Premises are to be measured in accordance with the R.I.C.S. Code of
Measuring Practice Fourth Edition November 1993 or any subsequent amendment or
substitution thereof.
Effect of Waiver
9.3.1. Each of the Tenant's covenants shall remain in full force both at law
21
and in equity notwithstanding that the Landlord shall have waived or released
temporarily any such covenant or waived or released temporarily or permanently
revocably or irrevocably a similar covenant or similar covenants affecting other
adjoining or neighbouring premises belonging to the Landlord
9.3.2. Notwithstanding the acceptance of or demand for rent by the Landlord or
any agent of the Landlord with knowledge of a breach of any of the covenants on
the part of the Tenant herein contained the Landlord's right to forfeit this
Lease on the ground of such breach shall remain in force and the Tenant shall
not in any proceedings for forfeiture be entitled to rely upon any such
acceptance or demand as aforesaid as a defence
Rights Easements etc.
9.4 The operation of Section 62 of the Law of Property ▇▇▇ ▇▇▇▇ shall be
excluded from this Lease and the only rights granted to the Tenant are those
expressly set out or referred to in this Lease and the Tenant shall not during
the Term (whether by virtue of this Lease or otherwise) acquire or become
entitled by any means whatsoever to, any other easement from or over or
affecting the remainder of the Estate or any other land or premises now or at
any time hereafter belonging to the Landlord and not comprised in
this Lease
Representations
9.5 The Tenant acknowledges that this Lease has not been entered into in
reliance wholly or partly on any statement or representation made by or on
behalf of the Landlord except any such statement or representation that is
expressly set out in this Lease or has been made by the Landlord's Solicitors to
the Tenant's Solicitors in writing
Licences etc. Under Hand
9.6 Whilst the Landlord is a limited company or other corporation all licences
consents approvals and notices required or permitted to be given by the Landlord
shall be deemed sufficient if given under the hand of a Director the Secretary
or other duly authorised officer of the Landlord
Tenant's Property
9.7 If after the Tenant has vacated the Premises on the expiry or sooner
determination of the Term any property of the Tenant remains in or on the
22
Premises and the Tenant fails to remove it within seven days after being
requested in writing by the Landlord so to do or if after using its best
endeavours the Landlord is unable to make such a request to the Tenant within
fourteen days from the first attempt so made by the Landlord:
(a) the Landlord may as the agent of the Tenant sell such property provided
that the Tenant will indemnify the Landlord against any liability incurred
by it to any third party whose property shall have been sold by the
Landlord in the bona fide mistaken belief (which shall be presumed unless
the contrary be proved) that such property belonged to the Tenant
(b) if the Landlord having used its best endeavours is unable to locate the
Tenant the Landlord shall be entitled to retain the said proceeds of sale
absolutely unless the Tenant shall claim the same within six months of the
date upon which the Tenant vacated the Premises, and
(c) the Tenant shall indemnify the Landlord against any damage occasioned to
the building or any adjacent or neighbouring premises of the Landlord and
any proper actions claims proceedings costs expenses and demands made
against the Landlord which are directly caused by the presence of the
property in or on the Premises
Service of Notices
9.8 The provisions of section 196 Law of Property ▇▇▇ ▇▇▇▇ as amended by the
Recorded Delivery Service ▇▇▇ ▇▇▇▇ shall apply to the giving and service of all
notices and documents under or in connection with this Lease except that Section
196 shall be deemed to be amended as follows: the final words of Section 196
(4)" and that service.... be delivered" shall be deleted and there shall be
substituted; "....and that service shall be deemed to be made on the third
Working Day after the registered letter has been posted, "Working Day" meaning
any day from Monday to Friday (inclusive) other than Christmas Day Good Friday
and any statutory bank holiday"
9.9 This Lease shall be SUPPLEMENTAL to the Registered Transfers and in
particular the definitions of all words and phrases therein contained shall
wherever the context so permits in relation to the Schedules hereto also apply
to this Lease as if the same had been repeated herein in extenso
10. OPTION TO DETERMINE
IT IS HEREBY AGREED AND DECLARED that the Tenant has the option to determine
this Lease on the tenth anniversary of the Term Commencement Date by serving
upon the Landlord not less than six months prior written notice to that effect
without prejudice to any claim by either party against the other in respect of
23
any breach of any of the covenants on their respective parts herein
11. GUARANTOR
The Guarantor in consideration of this Lease being granted by the Landlord at
the instance and request of the Guarantor HEREBY COVENANTS with and guarantees
to the Landlord as set out in the Fifth Schedule hereto
12. THE GOVERNING LAW
The Law of England shall apply with regard to all matters concerning this Lease.
IN WITNESS whereof the parties have duly executed this Instrument as a Deed the
day and year first before written
FIRST SCHEDULE
The Premises
"The Premises" means ALL THAT land (including 9 car parking spaces) and the
building erected thereon comprising Unit Number 32 within Group A on the Estate
the extent of which is for identification purposes only shown edged red on the
Plan No.2 hereto annexed TOGETHER with the benefit of any rights but SUBJECT to
all exceptions and reservations covenants conditions agreements and declarations
contained or mentioned in the Landlord's said Registered Title B~60648 as
disclosed by copy register entries dated 10th February 1997 insofar as they
relate to or affect the Premises and including:-
(a) all Tenant's additions and improvements to the Premises
(b) all the Landlord's fixtures and fittings now in or upon or which shall from
time to time be in or upon the Premises (whether originally affixed or
fastened to or upon the same or otherwise) except any such fixtures
installed by the Tenant and
(c) any Pipes that exclusively serve the Premises
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SECOND SCHEDULE
Part 1 - Rights Granted
The rights as incident or appurtenant to the occupation of the Premises hereby
granted by the Landlord in the following terms:-
(a) The benefit of the Subjective Easements reserved out of the Registered
Transfers so far as the same can relate to or are capable of benefiting the
Premises
(b) The benefit of all rights and easements reserved out of any previous or
future lease of or transfer of the title to any of the units so far as the
same can relate to or are capable of benefiting the Premises
(c) The supply of Services through the Conducting Media now or within the
Perpetuity Period (in each case as defined in the Registered Transfers)
laid or to be laid in under or over any part of the remainder of the Estate
now belonging to the Landlord or the Management Company (hereinafter
referred to as "the Rest of the Development") and intended to serve the
Premises and/or any other land
(d) The right to enter upon the Rest of the Development (but not any buildings
erected thereon) without thereby causing any material interference or
disturbance with the use and enjoyment of the same in order to deal with
the Premises and any Conducting Media in on or over the same
(e) All rights of support now subsisting from the Rest of the Development (to
the extent that such support now exists) and all existing or intended
rights to the overhang of ▇▇▇▇▇ gutters downspouts and similar services and
all necessary rights to maintain foundations within or under the Rest of
the Development
(f) A right of way at all times and for all purposes with or without vehicles
over and along the roadways on the Estate
PROVIDED that the person or persons exercising any of the rights of entry
hereinbefore granted shall cause as little damage and interference as reasonably
possible and make good all physical damage thereby occasioned as soon as
practically possible
SECOND SCHEDULE
Part 2 - Exceptions and Reservations
Exceptions and Reservations out of this demise as incident or appurtenant to the
ownership and occupation of the remainder of the Estate and each and every part
25
thereof in the following terms:
(a) The Supply of Services through the Conducting Media now or within the
Perpetuity Period laid or to be laid in or under or over the Premises and
intended to serve the remainder of the Estate and/or other land whether
jointly or exclusively
(b) the right to enter upon the Premises but not any buildings erected thereon)
without thereby causing any material interference or disturbance with the
use and enjoyment of the same by the Tenant in order to deal with any part
of the Units and/or the Conducting Media and/or the remainder of the Estate
PROVIDED that the person or persons exercising any rights of entry
hereinbefore reserved shall cause as little damage and interference to the
Premises as possible and make good all physical damage thereby occasioned
to the Tenant's reasonable satisfaction as soon as practically possible
(c) All rights of support now subsisting from the Premises (to the extent that
such support now exists) for the benefit of the remainder of the Estate and
any buildings roads or other structures now or hereafter to be erected or
constructed thereon within the Perpetuity Period and all existing rights to
the overhang of ▇▇▇▇▇ gutters downspouts and similar services and all
necessary rights to maintain foundations within or under the Premises
(d) For the Landlord (as developer) or its successors in title the right during
the first six months of the term to enter upon the Premises for the purpose
of carrying out and completing the construction of any of the other units
on the remainder of the Estate PROVIDED that the person or persons
exercising any rights of entry hereinbefore reserved shall cause as little
damage and interference to the Premises as possible and make good all
physical damage thereby occasioned to the Tenant's reasonable satisfaction
as soon as practically possible
THIRD SCHEDULE
Rent Review
1.1 The terms defined in this paragraph shall for all purposes of this Schedule
have the meanings specified
1.2 "Review Period" means the period between any Review Date specified in
paragraph 1.10 of the Particulars of this Lease and the expiry of the Term;
1.3 "the Assumptions" mean the following assumptions at the relevant Review
Date:
(a) that all the accommodation within the Premises is fully carpeted or
26
otherwise appropriately covered and that no work has been carried out on
the Premises by or with the consent of the Tenant its subtenants or their
predecessors in title during the Term which had diminished the rental value
of the Premises and if the Premises have been destroyed or damaged that
they have been fully restored,
(b) that the Premises are available to let by a willing Landlord to a willing
tenant without a premium but with vacant possessi6n and subject to the
provisions of this Lease (other than the amount of the Rent but including
the provisions for rent review at similar intervals as those in this Lease)
for a term of ten years and subject also to the provisions of the 1954 Act,
and
(c) that the covenants contained in this Lease on the part of the Tenant have
been fully performed and observed;
1.4 "the Disregarded Matters" mean:
(a) any effect on rent of the fact that the Tenant, its sub-tenant or their
respective predecessors in title have been in occupation of the Premises,
(b) any goodwill attached to the Premises by reason of the carrying on at the
Premises of the business of the Tenant its sub-tenants, or their
predecessors in title in their respective businesses,
(c) any increase in rental value of the Premises attributable to the existence
at the relevant Review Date of any improvement to the Premises which has
been carried out (with the consent of the Landlord where required) by the
Tenant its sub-tenants or their respective predecessors in title during the
Term or during any period of occupation prior thereto arising out of any
agreement to grant such term
1.5 "the Revised Rent" means the open market rental value of the Premises
current at the Review Date taking into account the Assumptions and disregarding
the Disregarded Matters
1.6 "the President" means the respective President for the time being of either
(a) the Royal Institution of Chartered Surveyors or (1,) the Incorporated
Society of Valuers and Auctioneers or the respective successors in title to each
such body, the duly appointed deputy of such President, or any person authorised
by such President to make appointments on his behalf
1.7 "the Independent Expert" means a person (being a Surveyor who customarily
practices in regard to property which is substantially similar in type and
nature to the Premises and who is acquainted with the market in the area in
which the Premises are situate) appointed by agreement between the parties or in
default of agreement within fourteen days of one party giving notice to the
other of its nomination or nominations then nominated by the President on the
application of either party or both of them jointly made not earlier than six
27
months before the Review Date or at any time thereafter (Provided that if there
shall be any dispute or difference as to which President has made the nomination
then the first in time shall apply and if it is not clear as to which is the
first in time then the Landlord's application shall prevail)
2. The Rent shall be:
(a) until the Review Date the Initial Rent specified in paragraph 1.9 of the
Particulars of this Lease, and
(b) during the Review Period, a rent equal to the Rent payable under this Lease
immediately prior thereto or the Revised Rent whichever shall be the
greater
3. The Revised Rent for the Review Period may be agreed in writing at any time
between the parties or (in the absence of agreement) determined not earlier than
the Review Date by the Independent Expert
4. The Independent Expert shall be requested to:-
(a) act as an expert and not as an arbitrator
(b) take into account any written submission received by him (and also sent to
the other party) within 20 days of his appointment and also that other
party's written comments thereon received by him within 45 days of his
appointment
(c) not have to hear oral submissions
(d) determine the Revised Rent in accordance with his own independent judgement
(e) make an award as to liability for the cost of such reference which shall be
final and binding upon the parties
(f) be discharged if he shall die unduly delay or become unwilling unfit or
incapable of acting and if for these or any other reason the President
shall upon the application of either party by notice in writing elect in
his absolute discretion to discharge him and appoint another Independent
Expert in his place
5. When the Revised Rent shall have been ascertained in accordance with this
Schedule, memoranda thereof shall be signed by or on behalf of the parties and
annexed to this Lease and its counterpart and the parties shall bear their own
costs in respect of this
6. If the Revised Rent payable on and from the Review Date has not been
ascertained by the Review Date Rent shall continue to be payable at the rate
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previously payable (such payments being on account of the Rent for the Review
Period) and within 7 days of the Revised Rent being ascertained (that is to say
the date when the same has been agreed between the parties or the date of the
Independent Expert's award) the Tenant shall pay to the Landlord any shortfall
between (a) what would have been paid on the Review Date and on any subsequent
Rent payment days had the Revised Rent been determined on the Review Date and
(1,) the payments made by the Tenant on account (together with Interest on such
shortfall at 4% below the Interest Rate for the period from the date upon which
every such instalment was due up to the date of payment of the said shortfall)
FOURTH SCHEDULE
The Operational Covenants
1. Repair etc. and Decoration
1.1 To clean the windows and other glass in the exterior of the Premises both
internally and externally throughout the Term when reasonably necessary
1.2 To maintain the carpets and other floor coverings in the Premises in a
clean condition and to replace them as often as may be necessary including
carpets of a suitable colour and quality for office use in the Premises
1.3 To keep the Premises sufficiently supplied and equipped with all fire
fighting and extinguishing appliances from time to time required by law or by
the Local or other competent Authority or reasonably required by the Landlord or
the insurers and to maintain the same to their reasonable satisfaction and such
appliances shall be open to inspection and also not to obstruct or permit or
suffer to be obstructed the access to or means of working such appliances or the
means of escape from the Premises in the case of fire
2. User
2.1 Not to use the Premises except for the purpose of high quality offices
and/or other premises comprised within Class B 1 of the Town and Country
Planning (Use Classes) Order 1987
2.2 Not to use the Premises for any other purpose without the Landlord's
consent such consent not to be unreasonably withheld but subject nevertheless to
Clause 5.11.4 hereof)
2.3 Not to use the car parking spaces forming part of the Premises for any
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purpose other than the parking during the Tenant's normal business hours of
private and light industrial motor vehicles
3. Aerial Signs and Advertisements
3.1 Not without the consent of the Landlord (such consent not to be
unreasonably withheld or delayed) to erect any pole mast or wire (whether in
connection with telegraphic telephonic radio or television communication or
otherwise) upon any part of the outside of the Premises
3.2 Not without the consent of the Landlord to affix or to exhibit on the
outside of the Premises or to or through any window of the Premises any placard
sign notice fascia board or advertisement except the approved sign referred to
in paragraph 3.3. of this Schedule
3.3 At all times to display and maintain a suitable sign showing the Tenant's
trading name and business (and in the event of any approved sub letting of part
of the Premises a similar sign relating to that sub lessee) of a size design and
materials and in a position (within the recessed panel in the brickwork of the
Premises) previously approved in writing by the Landlord (such approval not to
be unreasonably withheld or delayed)
3.4 In respect of any matter so approved by the Landlord pursuant to this
clause the Tenant will comply with any reasonable direction given by the
Landlord's Insurers as to the insurance of anything so annexed or affixed to the
exterior of the Premises and will reimburse to the Landlord within 7 days of
written demand being made any additional insurance premium payable by the
Landlord therefor and pending any such insurance will keep the Landlord fully
indemnified against all claims or liabilities in any way relating to such
annexation or affixation and the Tenant will not stand or place or deposit any
goods articles or things for display sale or otherwise outside any part of the
Premises
4. Keep Tidy
4.1 Not to cause any land roads passage or pavement abutting on the Premises to
become obstructed untidy or in a dirty condition and not to carry out any works
or other operations outside the building upon the Premises
4.2 Not to bring or keep or suffer to be brought or kept stored (except in an
authorised bin store which the Tenant is hereby granted the right to use)
stacked or laid out upon any land within the Premises or the curtilage thereto
any materials equipment plant bins crates cartons boxes or receptacles for waste
or any other item which is or might become untidy unclean unsightly or in any
way detrimental to the amenity of the area generally
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4.3 Not to deposit or permit to be deposited any waste rubbish or refuse on any
part of the land within the Premises or the curtilage thereto and to place or
deposit all waste rubbish or refuse only in suitable receptacles and within the
area set aside for the purpose and to arrange for the removal of all waste
materials and rubbish which the local authority shall not dispose of
5. Roof and Floor Weighting
5.1 Not without the consent in writing of the Landlord (such consent not to be
unreasonably withheld or delayed) to:
(a) suspend any weight from the portal frames stanchions or purlins of the
Premises or use the same for the storage of goods or place any weight on
them unless the same are suitably strengthened, or
(b) have on the Premises any safes machinery goods or other articles which
shall be unduly noisy or which may strain or damage the Premises or cause
dangerous vibrations
5.2 On any application by the Tenant for the Landlord's consent under paragraph
5.1 the Tenant shall make available to the Landlord a report by the Tenant's
expert in relation to the floor loading proposed by the Tenant
6. Unloading and Parking and Obstruction of Access
6.1 Not to unload any goods or materials from vehicles and convey the same into
the Premises except through the approved entrance or entrances provided for the
purpose and not to cause congestion of the adjoining areas or inconvenience to
any other user of them
6.2 No road forecourt passageway or other area leading to or giving access to
the Premises shall be damaged or obstructed or used in such manner as to cause
in the reasonable opinion of the Landlord any nuisance damage or annoyance and
to comply with any reasonable directions and regulations of the Management
Company made from time to time with regard to the use thereof
7. Electricity Supply
Not to cause allow or suffer the electricity supply to the Premises to become
overloaded
8. Discharge into Pipes
Not to discharge into any of the Pipes serving the Premises or any other
property any oil grease or other deleterious matter or any substance which is a
source of danger to the drainage system of the Premises or such other property
or part thereof and not to cause or permit any excessive discharge which shall
create or contribute to an overload of the system
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9. Prohibited Uses
9.1 Not to use the Premises for any business connected with the Motor Trade or
for any public meeting exhibition or entertainment or as a hotel club or
amusement arcade or permit any musical instrument radio television or other
sound emitting equipment to be operated so as to be audible from outside the
Premises
9.2 Not to engage in any works or other operations or permit or store on the
Property any goods or other articles which may by reason of smell infection or
radioactivity affect any other goods or articles (of whatever kind and however
sensitive) elsewhere upon the Estate or generate an excessive degree of noise
and/or dust which may constitute a breach of the planning consent
FIFTH SCHEDULE
Guarantee provisions
1. That the Tenant will at all times during the Term pay the Rents and all
other sums covenanted to be paid by the Tenant at the respective times and in
the manner appointed for payment thereof and also will duly perform and observe
and keep the several covenants stipulations and conditions on the part of the
Tenant to be performed and observed and kept and that the Guarantor will pay and
make good to the Landlord all losses costs and expenses sustained by the
Landlord through the default of the Tenant in respect of any of the before-
mentioned matters PROVIDED ALWAYS that any neglect or forbearance of the
Landlord in endeavouring to obtain payment of the Rents and other sums as and
when the same shall become due or any delay on the part of the Landlord to take
any steps to enforce performance or observance of the said several covenants
stipulations and conditions shall not release or in any way lessen or affect the
liability of the Guarantor under the guarantee on the part of the Guarantor
hereinbefore contained
2. That if the Tenant being an individual shall become bankrupt or if the
Tenant for the time being is a company and shall enter into liquidation and the
Tenant's trustee in bankruptcy or the Liquidator of the Tenant shall disclaim
this Lease and if the Landlord shall within three months after such disclaimer
by notice require the Guarantor or the Guarantor's personal representatives or
assigns to accept a lease of the Premises for a term commensurate with the
residue which if there had been no disclaimer would have remained of the Term at
the same Rents and under the like covenants conditions provisions agreements and
declarations as are reserved by and contained in this Lease (the said new lease
and the rights and liabilities thereunder to take effect from the date of the
32
said disclaimer) then and in such case the Guarantor or the Guarantor's personal
representatives or assigns shall accept such lease accordingly and execute a
counterpart thereof and pay the Landlord's solicitors' costs and disbursements
of and incidental thereto
3. This guarantee shall enure for the benefit of the successors and assigns of
the Landlord under this Lease without the necessity for any assignment of the
benefit thereof permit any excessive discharge which shall create or contribute
to an overload of the system
4. This guarantee is also to take effect immediately on the assignment of the
Lease to the Tenant under clause 5.8 hereof and is to remain in force so long as
and to the extent that the Tenant is not released by law from liability for the
Tenant's covenants in the Lease
5. In the context of these guarantee provisions reference to the Tenant are to
the assignee only (in its capacity as Tenant) with respect to whom this
guarantee is given
THE COMMON SEAL of ITERATED SYSTEMS LIMITED was hereunto affixed in the presence
of:-
Director /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Secretary /s/ ▇. ▇▇▇▇▇▇▇
SIGNED SEALED AND DELIVERED in the presence of:
Witness /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, Notary Public
ITERATED SYSTEMS, INC. a Georgia Corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (Seal)
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ as ISI (GUARANTOR)
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Plan No. 1 - Overall Site Layout
34
Plan No. 2 - Conveyance Plan
35
