Dated 15th June 2001
(1) THE PRUDENTIAL ASSURANCE COMPANY LIMITED
(2) FAIR, XXXXX INTERNATIONAL UK CORPORATION
LEASE
of
Geneva House, Birmingham International Park
Bickenhill Lane, Solihull, West Midlands
CMS Xxxxxxx XxXxxxx
Xxxxx Xxxxx
000 Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
T x00(0)00 0000 0000
F x00(0)00 0000 0000
LEASE
DATED 15th June 2001
PARTIES
1. Landlord THE PRUDENTIAL ASSURANCE COMPANY LIMITED whose
registered office is at 000 Xxxxxxx Xxxx, Xxxxxx XX0X
0XX;
2. Tenant FAIR, XXXXX INTERNATIONAL UK CORPORATION (a company
registered in California under number FC016585) whose
registered office is at 2nd Floor Concorde House Xxxxxxx
Xxxx Xxxxxxxxxx Xxxx Xxxxxxxx X00 0XX;
OPERATIVE PROVISIONS
1. Definitions and interpretation
1.1 Unless the contrary intention appears, the following definitions apply:
Common Parts the parts of the Estate comprising the
Main Estate Road (to the extent that they
have not been adopted as maintainable at
the public expense), balancing lake,
landscaped areas (including the Structural
Landscaping) which are not the
responsibility of an individual owner or
occupier of part of the Estate and all
other areas ways and amenities in the
Estate (including the Service Media)
provided or designated from time to time
by the Landlord or
the Management Company for common use and
enjoyment by the owners and occupiers of
the Estate, and each and every part of
them;
-1-
Conducting Media drains, sewers, conduits, flues, gutters,
gullies, channels, ducts, shafts,
watercourses, pipes, cables, wires and
mains;
Development The land and buildings now or at any time
during the Term erected thereon shown for
the purposes of identification only edged
blue on Plan 1 and each and every part of
it, being part of the Estate;
Development Road the road and footpaths serving the
Development, shown edged xxxxx on Plan 1;
Encumbrances the restrictions, stipulations, covenants,
rights, reservations, provisions and other
matters contained, imposed by or referred
to in the Property and Charges Registers
of H M Land Registry Title Number WM719791
so far as they relate to the Premises and
in the documents brief particulars of
which are set out in schedule 1 part 4;
Estate Birmingham International Park, Bickenhill,
Elmdon, Solihull, West Midlands shown for
the purpose of identification edged red on
Plan 2 and each and every part of it;
Insured Risks has the meaning given to it in schedule 3;
Interest interest at the rate of 4% over the base
rate of Barclays Bank Plc from time to
time (as well after as before judgment),
or such other comparable rate as the
Landlord may reasonably and properly
designate if the base rate ceases to be
published
-2-
Landlord includes all persons from time to time
entitled to the immediate reversion to
this Lease;
Lease includes any documents supplemental to
this Lease;
Main Estate Road the road and footpaths serving the Estate
and shown edged xxxxx on Plan 2, now known
as Xxxxxxx Way;
Management Company BIP Management Limited (Company Number
2923457) whose registered office is at
Xxxxxxxx Xxxxx, Xxxx Xxxxx, Xxxxxx, XX0X
0XX or other management company from time
to time providing the Services;
Outgoings (in relation to the Premises) all non-
domestic rates, (including rates for
unoccupied property), water rates, water
charges and all existing and future rates,
taxes, charges, assessments, impositions
and outgoings whatsoever (whether
parliamentary or local) which are now or
may at any time be payable, charged or
assessed on property, or the owner or
occupier of property, but "taxes" in this
context does not include value added tax,
nor any taxes imposed on the Landlord in
respect of the yearly rent reserved by
this Lease, or in respect of a disposal of
the interest in immediate reversion to
this Lease;
Perpetuity Period 80 years calculated from the date of this
Lease;
Plan 1 the plan marked "Plan 1" annexed to this
Lease;
Plan 2 the plan marked "Plan 2" annexed to this
Lease;
-3-
Planning Acts "the consolidating Acts" as defined in the
Planning (Consequential Provisions) Xxx
0000 and any other legislation relating to
town and country planning in force from
time to time;
Premises the property described in schedule 1 part
1 and each part of the Premises;
Retained Land the property comprised in titles WM6947,
WM365919 and WM518832
Service Media the pipes, ducts, wires, cisterns, tanks,
cables, meters, sewers, drains,
watercourses, mains, gutters and other
media which are in on over or under the
Estate or which provide or remove the
Utilities from to or through the Estate at
any time during the Perpetuity Period;
Structural Landscaping the landscape mound and the other areas of
landscaping within the Estate shown edged
green on Plan 2 and the balancing lake
shown on Plan 2 as varied in extent and
location from time to time by the Landlord
and/or the Management Company;
Tenant includes the Tenant's successors in title
and assigns in whom this Lease may for the
time being be vested;
Term the term of years granted by this Lease;
and
Unsecured Underletting an underletting of part of the Premises in
relation to which the underlessor and the
underlessee have agreed to exclude the
provisions of sections 24 to 28 of the
Landlord and Xxxxxx Xxx 0000 and their
agreement to do so has been duly
authorised beforehand by the court.
-4-
Utilities water, soil, surface water, electricity,
gas, oil, telephone; power, fire alarm
systems, telecommunications or other
services;
1.2 Any obligation on a party to this Lease to do any act includes an
obligation to procure that it is done.
1.3 includes the obligation on the Tenant not to permit or allow the
infringement of the restriction by any person.
1.4 References to liability include, where the context allows, claims,
demands, proceedings, damages, losses, costs and expenses.
1.5 The clause and paragraph headings in this Lease are for ease of
reference only and are not to be taken into account in the construction
or interpretation of any provision to which they refer.
1.6 Unless the contrary intention appears, references:
1.6.1 to numbered clauses and schedules are references to the relevant clause
in, or schedule to, this Lease; and
1.6.2 to a numbered paragraph in any schedule are references to the relevant
paragraph in that schedule.
1.7 Words in this Lease denoting the singular include the plural meaning
and vice versa.
1.8 References in this Lease to any statutes or statutory instruments
include any statute or statutory instrument amending, consolidating or
replacing them respectively from time to time in force, and references
to a statute include statutory instruments and regulations made
pursuant to it.
1.9 Words in this Lease importing one gender include both other genders,
and may be used interchangeably, and words denoting natural persons,
where the context allows, include corporations and vice versa.
1.10 For the purposes of this Lease, two companies are members of the same
group if one is the subsidiary of the other, or both are subsidiaries
of a third company, "subsidiary" having the meaning given to it in
section 736 of the Companies Xxx 0000.
1.11 At any time that the parties of the second or third parts to this Lease
are two or more persons, the expression "the Tenant" or "the Guarantor"
includes the plural number, and obligations in this tease expressed or
implied to be made with or by the Tenant or the Guarantor are to be
treated as made with or by such individuals jointly and severally.
-5-
2. The letting terms
In consideration of the rent reserved by, and the covenants in, this Lease:
2.1 the Landlord lets to the Tenant.
2.1.2 all the Premises;
21.2 together with the rights set out in schedule 1 part 2; and
2.1.3 except and reserved to the Landlord and its employees agents and
contractors and the owners and occupiers from time to time of the
Estate and the Retained Land the rights set out in schedule 1 part 3;
2.2 for the term of 15 years commencing on 15th June 2001 (determinable as
provided by this Lease) subject to the Encumbrances;
2.3 the Tenant paying during the Term.
2.3.1 the yearly rent of FOUR HUNDRED AND SIXTY SIX THOUSAND FIVE HUNDRED AND
THIRTY SEVEN POUNDS FIFTY XXXXX (#466,537.50) (subject to revision
under schedule 2) by equal quarterly payments in advance on the usual
quarter days in every year, the first (or a proportionate part) of such
payments in respect of the period commencing on 14th March 2002 and
ending on the following quarter day to be made on 16th March 2002;
2.3.2 as additional rent
2.3.2.1 The monies payable by the Tenant under schedules 3 and 4
commencing on 15th June 2001;
2.3.2.2 Interest payable by the Tenant under the terms of this
Lease; and
2.3.2.3 such value added tax as may be chargeable on the rent and
the other additional rents reserved by this Lease.
3. Tenant's covenants
The Tenant covenants with the Landlord during the Term as follows:
3.1 Rent
3.1.1 To pay the yearly rent reserved by this Lease, free from any deductions
and rights of set-off, at the times and in the manner required in
clause 2.3.1 and by means of a standing order to the Tenant's bankers.
3.1.2 To pay the additional rents reserved by this Lease at the times and in
the manner specified.
3.2 Interest
-6-
To pay Interest on so much of the rents, reviewed rents, and other
monies payable under this Lease as remain unpaid due from the date that
they became due until the payment is made to the Landlord.
3.3 Outgoings and Contributions
3.3.1 To pay Outgoings.
3.3.2 To refund to the Landlord on demand (where Outgoings relate to other
property including the Premises) a fair and proper proportion
attributable to the Premises, such proportion to be conclusively
determined by the Landlord or the Landlord's surveyor.
3.3.3 To reimburse the Landlord for loss of relief from non-domestic rates
for unoccupied property which would have been available to the Landlord
in respect of vacancy of the Premises after the termination of this
Lease but for the allowance of relief to the Tenant or any other person
formerly in occupation of the Premises for vacancy commencing before
the termination of this Lease.
3.3.4 To pay for all gas and electricity consumed on the Premises, all
charges for meters, and all standing charges.
3.4 Repair
To keep the Premises in good and substantial repair, maintained and in
clean condition (except in respect of damage by Insured Risks as
allowed in schedule 3).
3.5 Decorations
3.5.1 To decorate the inside of the Premises in the year 2006 and from then
in every subsequent fifth year of the Term and in the last three months
of the Term (however it may terminate) with two coats of good quality
paint or good quality polish, and with paper for those parts normally
papered, or other suitable and appropriate materials of good quality,
in a workmanlike manner (the decorations in the last three months of
the Term to be executed in such colours, patterns and materials as the
Landlord may reasonably and properly require).
3.5.2 To decorate the exterior of the Premises in the year 2006 and from then
in every subsequent fifth year of the Term and also in the last three
months of the Term (however it may terminate) with three coats of good
quality paint or polish, or other suitable material of good quality, in
a proper and workmanlike manner.
3.5.3 Not without the consent of the Landlord to alter, cover up or change
any part of the architectural decorations or the external colour of the
Premises.
3.6 Landlord's right of inspection and right of repair
-7-
3.6.1 To permit the Landlord and its employees or agents at all reasonable
and proper times upon not less than five working days written notice
(except in the case of emergency) to enter the Premises and examine
their condition and also to take a schedule of fixtures and fittings in
the Premises.
3.6.2 If any breach of covenant, defects, disrepair, removal of fixtures and
fittings or unauthorised alterations or additions are found on
inspection for which the Tenant is liable, then, on written notice from
the Landlord, to execute to the reasonable and proper satisfaction of
the Landlord or its surveyor all repairs, works, replacements or
removals required within two months (or sooner if necessary) after
receipt of notice.
3.6.3 If the Tenant fails to commence the works and comply with a notice
under clause 3.62, the Landlord may itself or by its workpeople or
agents enter the Premises and execute the repairs, works, replacements
or removals.
3.6.4 To pay to the Landlord on demand all reasonable and proper expenses
incurred under clause 3.6.3 (the expenses and any Interest on them to
be recoverable as rent in arrear).
3.7 Yield up in repair at the end of the Term
At the termination of this Lease or at such later time as the Landlord
recovers possession of the Premises from the Tenant.
3.7.1 quietly to yield up the Premises (with all additions and improvements
to the Premises and all fixtures in the Premises, other than tenant's
fixtures and fittings which the Tenant may be entitled to remove)
repaired, maintained, cleaned, decorated and kept in accordance with
the Tenant's covenants in this Lease (except in respect of damage by
Insured Risks as allowed in schedule 3);
3.7.2 if so requested by the Landlord, to remove from the Premises all the
Tenant's belongings, that is to say trade fixtures and fittings and all
notices, notice boards and signs bearing the name of, or otherwise
relating to, the Tenant (including in this context any persons deriving
title to the Premises under the Tenant) or its business; and
3.7.3 to make good to the reasonable satisfaction of the Landlord all damage
to the Premises resulting from the removal of the Tenant's belongings
from the Premises.
3.8 Landlord's right of entry for repairs, etc
3.8.1 To permit the Landlord or other owners, tenants or occupiers of any
adjoining or neighbouring property and their respective agents, workmen
and employees to enter the Premises at reasonable and proper times,
after giving to the Tenant not less than five working days written
notice (except in an emergency or where a third party has a right to
enter without giving such notice):
3.8.1.1 to alter, maintain or repair the adjoining premises or
property of the Landlord on the Development or person so
entering; or
-8-
3.8.1.2 to alter, maintain or repair anything serving such
property on the Development and running through or on the
Premises provided that the Landlord shall not be permitted
to construct any such thing under the building erected on
the Premises; or
3.8.1.3 to comply with an obligation to any third party having
legal rights over the Premises; or
3.8.1.4 in exercise of a right or to comply with an obligation of
repair, maintenance or renewal under this Lease; or
3.8.1.5 in connection with the development of any adjoining or
neighbouring land or premises, owned by the Landlord;
without payment of compensation for any nuisance, annoyance,
inconvenience, damage or loss caused to the Tenant, subject to the
Landlord (or other person entering) exercising the right as soon as
reasonably practicable in a reasonable and proper manner and making
good any damage caused to the Premises without unreasonable delay
Provided Always that the rights granted by this clause cannot
reasonably be exercised without the need for access to the Premises.
3.9 Alterations
3.9.1 Not to annex the Premises to other premises nor to make any structural
additions thereto of any kind whatsoever nor to build any additional
structure nor to impair the support or shelter of any neighbouring
property nor to alter the height of the Premises nor to cut main or
remove any of the principal or load-bearing or curtain walls or the
floor or ceiling slabs in such a manner as will affect the structural
integrity of the Premises nor to alter any Conducting Media in common
use or exclusively serving other premises nor to alter the external
appearance of the Premises nor to make any external structural
alterations to the Premises.
3.9.2 Not without the consent of the Landlord (not to be unreasonably
withheld or delayed) to make any other alterations or additions to the
Premises or the plant and machinery therein (but the erection,
alteration or removal by the Tenant of internal demountable
partitioning, and consequential adjustments of ducting, ceiling tiles,
light fittings and wiring, is authorised without such consent if the
plans of the partitions (or details of the alteration or removal of
partitioning) are deposited with the Landlord within 7 days prior to
commencement of the Works).
3.9.3 On the termination of this Lease, to reinstate the Premises to the
condition in which they were in at the grant of this Lease, such
reinstatement to be carried out under the supervision and to the
reasonable satisfaction of the Landlord or the Landlord's surveyor.
3.9.4 To procure that any alterations or additions to the Premises permitted
by the Landlord under clause 3.9.2 be carried out by a reputable
contractor.
3.10 Alienation
-9-
3.10.1 Not to assign or charge part only of the Premises.
3.10.2.1 Not to assign or charge the whole of the Premises without
the consent of the Landlord but, subject to the operation
of the following provisions of this clause 3.10.2, such
consent is not to be unreasonably withheld.
3.10.2.2 For the purposes of sub-section 19(1)(A) Landlord and
Xxxxxx Xxx 0000 (as amended) and in addition to any other
condition or requirement which the Landlord may reasonably
impose or any objection which the Landlord may reasonably
make the Landlord may withhold its consent to an
assignment of the Premises in any one or more of the
following circumstances:
(a) where the proposed assignee is a Group Company
except where that Group Company is of equal or
greater financial standing than the Tenant;
(b) where in the reasonable opinion of the Landlord
the proposed 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 enjoys diplomatic or
state immunity but this circumstance shall not
apply where the proposed assignee is the
Government of the United Kingdom or any department
therof;
(d) where in the reasonable opinion of the Landlord
the value of the Landlord's interest in the
Premises would he diminished or otherwise
adversely affected by the proposed assignment on
the assumption (whether or not a fact) that the
Landlord wished to sell its reversion the day
following completion of the assignment of this
Lease to the proposed assignee.
3.10.2.3 For the purposes of sub-section 19(1)(A) Landlord and
Xxxxxx Xxx 0000 (as amended) and in addition to any other
condition or requirement which the Landlord may reasonably
impose, the consent of the Landlord to an assignment of
the Premises may be granted subject to any one or more of
the following conditions:
(a) the delivery by the Tenant to the Landlord of an
authorised guarantee agreement the operative
provisions of which are in the form required in
Schedule 5 Part 2;
(b) the payment to the Landlord of all rents referred
to in clause 2 which have fallen due under this
Lease or any other deed supplemental to or in
pursuance of this Lease prior to the date of the
proposed assignment;
(c) the remedying of any subsisting material or
persistent breach of any Tenant's covenant or
condition in this Lease or any other deed
supplemental to or in pursuance of this Lease;
-10-
(d) where the Landlord reasonably so requires the
delivery to the Landlord of a deed of guarantee
entered into by one or more third party guarantors
reasonably acceptable to the Landlord in the form
contained in Schedule 5 Part 1 of this Lease;
(e) where the Landlord reasonably so requires the
delivery to the Landlord of a rent deposit deed
entered into by the proposed assignee (in such
reasonable form as the Landlord may from time to
time reasonably determine) together with payment
to the Landlord by way of cleared funds of such
sum as the Landlord may reasonably determine
provided always that this shall not exceed six
months rent);
PROVIDED THAT the Landlord shall not be entitled to
require both a guarantee (as referred to in paragraph (d)
above) and a rent deposit (as referred to in paragraph (e)
above)
3.10.3 Not to underlet the whole or any part of the Premises without the
consent of the Landlord (such consent not to be unreasonably withheld
or delayed).
3.lO.4 On the grant of an underlease, to obtain covenants by deed from the
underlessee direct with the Landlord in such form as the Landlord may
reasonably require that the underlessee will:
3.10.4.1 not assign, subunderlet or charge part only of the
premises underlet;
3.10.4.2 not part with or share possession or occupation of the
whole or any part of the premises underlet, nor grant
rights to third parties over them except by a permitted
assignment or subunderletting;
3.10.4.3 not assign, or charge or subunderlet the whole of the
premises underlet without obtaining the previous consent
of the Landlord under this Lease such consent not to be
unreasonably withheld or delayed;
3.10.4.4 provide for the inclusion in any subunderleases granted
out of the underlease (whether immediate or mediate) of
covenants to the same effect as those contained in this
clause 3.1O.4 and clause 3.10.5 and 3.10.7;
3.10.4.5 not subunderlet a part of the Premises (as opposed to the
whole) except by way of an Unsecured Underletting.
3.10.5 On the grant of any underlease:
3.10.5.1 to include provisions for the revision of the rent
reserved by the underlease in an upward-only direction to
correspond in time and effect with the provisions for the
revision of rent in this Lease;
3.10.5.2 not to reserve or take a premium or fine;
-11-
3.10.5.3 to reserve a rent which is the open market rent at the
time of the grant of the underlease;
3.10.5.4 to include provisions in the underlease to the same effect
as those in clause 3.10.2;
3.10.5.5 to include in such underlessee covenants as are not
inconsistent with, or impair the due performance and
observance of; the covenants of the Tenant in this Lease.
3.10.5.6 in the case of an underletting of part only of the
Premises to incorporate provisions whereby there is
reserved as rent a fair proportion of the cost of cleaning
lighting repairing maintaining and other costs and
exercises incurred in relation to any parts of the
Premises the use of which is common to the part underlet
and the remainder of the Premises.
3.10.6 Not to underlet or sub-underlet the Premises so as to sub-divide them
into more than two units of occupation on any one floor.
3.10.7 Not to underlet part only of the Premises except by way of and
Unsecured Underletting.
3.10.8 Not (except by assignment or underletting permitted under this clause
3.10) to:
3.10.8.1 part with or share possession or occupation of the whole
or any part of the Premises; or
3.10.8.2 grant any rights over the Premises to third parties.
3.10.9 The preceding provisions of this clause 3.10 do not apply to any
parting with possession or occupation or the sharing of occupation or
sub-division of the Premises to or with any member of a group of
companies of which the Tenant is itself a member if:
3.10.9.1 the interest in the Premises so created is and remains no
more than a tenancy at will ; and
3.10.9.2 the possession, occupation or subdivision are immediately
terminated if the Tenant and the relevant member cease for
any reason to be members of the same group of companies.
3.11 Registration of dispositions of this Lease
Within one month after a disposition of this Lease (a disposition being
an assignment, charge, transfer, underlease, assignment or surrender of
any underlease, or, on any transmission by death or otherwise,
documentary evidence of devolution affecting the Premises):
3.11.1 to produce the document effecting the disposition (and in each case a
certified copy for retention by the Landlord) to the Landlord's
solicitors; and
-12-
3.11.2 to pay to the solicitors a fee of(pound)50 for the registration.
3.12 Enforcement of underleases
3.12.1 Not without the consent of the Landlord (such consent not to be
unreasonably withheld or delayed) to vary the terms, or waive the
benefit, of any underlessee covenants or conditions in an underlease of
the Premises.
3.12.2 Not without the consent of the Landlord (such consent not to be
unreasonably withheld or delayed) to accept a surrender of any
underlease of the Premises.
3.12.3 Diligently to enforce the underlessee covenants and conditions in any
underlease of the Premises and (if reasonably and properly required by
the Landlord) to exercise by way of enforcement the powers of re-entry
in the underlease.
3.12.4 Not without the consent of the Landlord to accept any sum or payment in
kind by way of commutation of the rent payable by an underlessee of the
Premises.
3.12.5 Not to accept the payment of rent from an underlessee of the Premises
otherwise than by regular quarterly (or more frequent) payments in
advance.
3.12.6 Duly and punctually to exercise all rights to revise the rent reserved
by an underlease of the Premises, and not to agree a revised rent with
an underlessee without the approval of the Landlord (such approval not
to be unreasonably withheld or delayed).
3.13 User
3.13.1 Not without the consent of the Landlord to use the Premises otherwise
than as offices falling within class B1(a) of the Town and Country (Use
Classes) Order 1987 (as in force on 1 June 1987) and for purposes
ancillary to those uses.
3.13.2 Nothing in this Lease implies or is to be treated as a warranty to the
effect that the use of the Premises for those purposes is in compliance
with the Planning Acts and all other statutes and regulations relating
to town and country planning from time to time in force.
3.14 Restrictions affecting use of the Premises
3.14.1 Not to allow any process, activity or storage on the Premises which
causes noise, fumes or vibration which can be heard, smelled or felt
outside the Premises
3.14.2 Not to store any petrol or other specially inflammable, explosive or
combustible substance in the Premises.
3.14.3 Not to use the Premises for any noxious, noisy or offensive trade or
business nor for any illegal or immoral act or purpose.
-13-
3.14.4 Not to do anything in the Premises which may be or grow to be a
nuisance, annoyance, disturbance, inconvenience or damage to the
Landlord or to the owners, tenants and occupiers of adjoining and
neighbouring properties.
3.14.5 Not to load or use the floors, walls, ceilings or structure of the
Premises so as to cause strain, damage or interference with the
structural parts, loadbearing framework, roof, foundations, joists and
external walls of the Premises.
3.14.6 Not to overload the lifts, electrical installation or Conducting Media
in the Premises.
3.14.7 Not to do or omit to do anything which may interfere with or which
imposes an additional loading on any ventilation, heating,
air-conditioning or other plant or machinery serving the Premises.
3.14.8 Not to use the Premises for the sale of alcoholic liquor for
consumption either on or off the Premises.
3.14.9 Not to allow any person to sleep in the Premises nor to use the
Premises for residential purposes.
3.14.10 Not to store any materials or goods outside the building comprised in
the Premises unless in a designated storage area approved by the
Landlord and all relevant authorities.
3.14.11 Not to burn rubbish or waste materials, paper, wood and other
combustible matter on the Premises except within boilers or
incinerators provided for the purpose and approved by the Landlord or
the Landlord's Surveyor.
3.14.12 Not to cause any land, roads or pavements abutting the Premises to be
untidy or in a dirty condition and in particular (but without prejudice
to the generality of the above) not to deposit on them refuse or other
materials.
3.14.13 Not to permit to be discharged into any Conducting Media forming part
of or serving the Premises:
3.14.13.1 any oil or grease or any deleterious, objectionable,
dangerous, poisonous or explosive matter or substance and
to take all measures to ensure that any effluent
discharged into the Conducting Media will not be corrosive
or otherwise harmful to the Conducting Media or cause
obstruction or deposit in them; or
3.14.13.2 any fluid of a poisonous or noxious nature or of a kind
likely to contaminate or pollute the water of any stream
or river.
3.14.14 Not to carry out any process or carry on any activity which will or may
lead to the Premises being placed on any register of contaminated land.
3.14.15 Not to use any portion of the Main Estate Road and the Development Road
for the parking of vehicles nor to carry out repairs or maintenance to
vehicles on the Main Estate Road or the Development Road.
-14-
3.14.16 Not to impede the use by any other person of the Estate Road or any
other area used by the Tenant in common and in particular not to load
or unload any vehicle unless the vehicle shall be in a loading area
provided from time to time for that purpose.
3.14.17 To observe and perform such rules and regulations which Birmingham
International Park (2000) Limited or the Management Company may from
time to time make and which the Landlord is obliged to observe pursuant
to a transfer of the Development dated 31st March 2000 and to observe
and perform the reasonable rules and regulations from time to time made
by the Landlord in accordance with the principles of good estate
management and which relate to the orderly and proper use of the
Development.
3.15 Advertisements and signs
3.15.1 Not to place or display on the exterior or the windows of the Premises
or inside the Premises so as to be visible from the exterior of the
Premises any name, writing, notice, sign, illuminated sign, display of
lights, placard, poster, sticker or advertisement other than;
3.15.1.1 a suitable sign of a size and kind first approved by the
Landlord or the Landlord's surveyor (such approval not to
be unreasonably withheld or delayed where the sign is
consistent with the other tenant's signs on the
Development and is consistent with the principles of good
estate management) showing the Tenant's name and trade;
3.15.1.2 such other notices as the Landlord may in its discretion
approve; and
3.16 Compliance with statutes, etc
3.16.1 Except where such liability may he expressly within the Landlord's
covenants in this Lease to comply in all respects with the provisions
of all statutes from time to time, and the requirements of any
competent authority, relating to the Premises or anything done in or on
them by the Tenant, and to keep the Landlord indemnified against
liability in consequence of the Tenant's failure to comply.
3.16.2 In particular (but without affecting the general operation of clause
3.17.1):
3.16.2.1 to execute all works and do all things on or in respect of
the Premises which are required under the Offices, Shops
and Railway Premises Xxx 0000;
3.16.2.2 to comply with all requirements under any present or
future statute, order, bylaw or regulation as to the use
or occupation of; or otherwise concerning, the Premises;
and
3.16.2.3 to execute with all due diligence (commencing work within
two months or sooner if necessary and then proceeding
continuously) all works to the Premises for which the
Tenant is liable under this clause 3.16 and of which the
Landlord has given notice to the Tenant;
-15-
and, if the Tenant does not comply with clause 3.16.2.3, to permit the
Landlord to enter the Premises to carry out the works and to indemnify
the Landlord on demand for the expenses of so doing (including
professional fees), such expenses and any Interest on them to be
recoverable as rent in arrear.
3.17 Planning permission
3.17.1 Not without the consent of the Landlord to make any application under
the Planning Acts, to any local planning authority for permission to
develop, including change of use of, the Premises.
3.17.2 To indemnify the Landlord against any development charges, other
charges and expenses payable in respect of planning applications
submitted by or on behalf of the Tenant or any person deriving title
under the Tenant or under the Tenant's control and to reimburse to the
Landlord the costs it may reasonably and properly incur in connection
with such consent.
3.17.3 To keep the Landlord indemnified against any reasonable and proper
expense incurred in consequence of the use of the Premises reverting to
the use existing before the application was made.
3.17.4 Immediately to give the Landlord full particulars in writing of grant
of planning permission submitted by or on behalf of the Tenant or any
person deriving title under the Tenant or under the Tenant's control.
3.17.5 Not to implement any planning permission if the Landlord makes
reasonable and proper objection to any of the conditions subject to
which it has been granted.
3.18 Compliance with town planning and environmental requirements
3.18.1 To perform and observe the requirements of the Planning Acts and all
other statutes and regulations relating to town and country planning
and environmental protection applying to the Premises, and to obtain
any development or other consent, permit or licence by reason of the
development, or manner of use, of or on the Premises by the Tenant.
3.18.2 To keep the Landlord indemnified against liability by reason of the
Tenant's failure to obtain any requisite development or other consent,
permit or licence or in complying with the requirements of statutes and
regulations.
3.18.3 To give full particulars to the Landlord of any notice or proposal for
a notice, or order or proposal for an order, made, given or issued to
the Tenant under the Planning Acts and all other statutes or
regulations relating to town and country planning, environmental
protection or otherwise within seven days after receipt by the Tenant.
3.18.4 Immediately to take all reasonable and necessary steps to comply with
any such notice or order.
-16-
3.18.5 At the request and cost of the Landlord, to make or join with the
Landlord in making such objections or representations against or in
respect of any proposal for such a notice or order as the Landlord may
consider expedient.
3.19 Claims made by third parties
3.19.1 To keep the Landlord indemnified against liability in respect of any
accident, loss or damage to person or property in the Premises.
3.19.2 To keep the Landlord indemnified against liability to third parties by
reason of breach by the Tenant of its obligations in this Lease.
3.20 Expenses of the Landlord
3.20.1 To pay to the Landlord on demand all reasonable and proper expenses
(including bailiffs and professional fees) incurred by the Landlord:
3.20.2 incidental to or in proper contemplation of the preparation and service
of a schedule of dilapidations during or after the termination of this
Lease and/or a notice under sections 146 and 147 of the Law of Property
Xxx 0000, even if forfeiture is avoided otherwise than by relief
granted by the court;
3.20.3 in the recovery or attempted recovery of arrears of rent or additional
rent due from the Tenant; and
3.20.4 in connection with every application for any consent or approval made
under this Lease (whether or not consent or approval is given) except
where a court has held that the Landlord has unreasonably withheld or
delayed its consent.
3.21 Obstruction of windows or lights and easements
3.21.1 Not to stop up or obstruct any windows of the Premises or any other
buildings belonging to the Landlord.
3.21.2 Not to permit any easement or similar right to be made or acquired
into, against or on the Premises.
3.21.3 Where any such easement or right is or is attempted to be acquired,
immediately to give notice of the circumstances to the Landlord, and at
the request and cost of the Landlord to adopt such course as it may
reasonably and properly require for preventing the acquisition of the
easement or right.
3.22 Value added tax
3.22.1 To pay value added tax on taxable supplies of goods and services made
by the Landlord in connection with this Lease, for which the
consideration is to be treated as exclusive of value added tax
chargeable on the payment.
3.22.2 Where the Landlord is entitled under this Lease to recover from the
Tenant the costs of goods and services supplied to the Landlord, but in
respect of which the Landlord makes no taxable supply to the Tenant, to
indemnify the Landlord
-17-
against so much of the input tax on the cost for which the Landlord is
not entitled to credit allowance under section 26 of the Value Added
Tax Xxx 0000.
3.22.3 To indemnify and keep the Landlord indemnified against loss arising
from the Landlord failing to recover, or being liable to repay or pay
value added tax and interest, fines and penalties resulting from the
breach of the obligations by the Tenant in the preceding two
subclauses, and against taxation incurred or suffered by the Landlord
on amounts under this indemnity.
3.23 Notices to let and for sale
3.23.1 To allow the Landlord or its agents to enter the Premises at any time:
3.23.1.1 within six months before the termination of this Lease to
fix on the Premises a notice board for reletting the
Premises; and
3.23.1.2 to fix on some part of the Premises a notice board for the
sale of the interest of the Landlord.
3.23.2 Not to remove or obscure any such notice board.
3.23.3 To permit all persons authorised by the Landlord or its agents at
reasonable times upon written notice to view the Premises (at
reasonable and proper hours) without interruption in connection with
any such letting or sale.
3.24 Encumbrances
To observe and perform by way of indemnity only the obligations and
restrictions comprising the Encumbrances so far as they relate to the
Premises and are capable of being enforced, and to keep the Landlord
indemnified against liability for the breach of the obligations and
restrictions except where the obligations are those of the Landlord
under the provisions of the Service Charge.
4. Provisos
The parties agree to the following provisos.
4.1 Proviso for re-entry
4.1.1 The Landlord may terminate this Lease by re-entering the Premises (or a
part of them) itself or by an authorised agent if:
4.1.1.1 any rent remains unpaid 21 days after becoming due for
payment (whether or not formally demanded); or
4.1.1.2 the Tenant fails to perform or observe any of its
covenants or the conditions in this Lease or allows any
distress or execution to be levied on its goods which is
not satisfied within 7 days; or
4.1.1.3 an event of insolvency occurs in relation to the Tenant or
any guarantor of the Tenant.
-18-
4.1.2 Re-entry in exercise of the rights in clause 4.1.1 does not affect any
other right or remedy of the Landlord for breach of covenant or
condition by the Tenant occurring before the termination of this Lease.
4.1.3 The expression an event of insolvency in clause 4.1.1 includes:
4.1.3.1 (in relation to a company or other corporation which is
the Tenant or a guarantor) inability of the company to pay
its debts, entry into liquidation whether compulsory or
voluntary (except for the purpose of amalgamation or
reconstruction), the passing of a resolution for a
creditors' winding-up, the making of a proposal to the
company and its creditors for a composition in
satisfaction of its debts or a scheme of arrangement of
its affairs, the application to the court for an
administration order, and the appointment of a receiver or
administrative receiver; and
4.1.3.2 (in relation to an individual who is the Tenant or a
guarantor) inability to pay or having no reasonable
prospect of being able to pay his debts, the presentation
of a bankruptcy petition, the making of a proposal to his
creditors for a composition in satisfaction of his debts
or a scheme of an arrangement of his affairs, the
application to the court for an interim order, and the
appointment of a receiver or interim receiver;
and in relation to the various events of insolvency they are, wherever
appropriate, to be interpreted in accordance and conjunction with the
relevant provisions of the Insolvency Xxx 0000.
4.2 Power for Landlord to deal with adjoining property
The Landlord may deal as it thinks fit with other property adjoining or
nearby belonging to the Landlord, and may erector permit to be erected
on such property any buildings irrespective of whether they affect or
diminish the light or air which may now or at any time be enjoyed by
the Tenant in respect of the Premises.
4.3 Compensation for disturbance
The Tenant is not entitled to claim any compensation from the Landlord
on quitting the Premises unless and to the extent that any statutory
tight to compensation precludes the operation of this clause.
4.4 Removal of property after determination of Term
4.4.1 If, after the Tenant has vacated the Premises following the termination
of this Lease, any property of the Tenant remains in the Premises, and
the Tenant fails to remove it within 28 days after being requested in
writing by the Landlord to do so, the Landlord may as the agent of the
Tenant sell such property and hold the proceeds of sale, after
deducting the costs and expenses of removal, storage and sale
reasonably and properly incurred by it, to the order of the Tenant.
4.4.2 The Tenant will indemnify the Landlord against any liability incurred
by it to any third party whose property has been sold by the Landlord
in the bona fide
-19-
mistaken belief (which is to be presumed unless the contrary is proved)
that it belonged to the Tenant and was liable to be dealt with as such
under this clause 4.4.
4.5 Notices, consents and approvals
4.5.1 Any notice served under or in connection with this Lease is to be in
writing and to be treated as properly served if compliance is made with
either the provisions of section 196 of the Law of Property Act 1925
(as amended by the Recorded Delivery Service Act 1962) or section 23 of
the Landlord and Xxxxxx Xxx 0000.
4.5.2 Any consent or approval required under this Lease shall be in writing
and shall be obtained before the act or event to which it applies is
carried out or done and shall be effective only if it is in such form
and upon such terms as the party giving it properly requires and
contains the statement "this is the form of consent or approval
required by the lease pursuant to which it is granted".
4.6 Services
4.6.1 It is hereby agreed between the parties with regard to the Services in
respect of the Estate to be provided by the Management Company the
Tenant shall not be required through the Service Charge to make any
payments or contributions at any time with regard to the following
matters:
(a) the cost charges and expenses in bringing the Main Estate
Road up to adoption standard, in remedying any defects or
carrying out any works required by the highway authority
prior to its adoption and in relation to its adoption; and
(b) the maintenance and repair of foul and storm water sewers
referred to in the draft Section 104 Agreement submitted
in 1996 and to be made between Birmingham International
Park Limited (1) Barclays Bank Plc (2) and the
Metropolitan Borough of Solihull (3)
4.6.2 It is hereby agreed between the parties that the Landlord will not
include in the service charge or the Landlord's Services any capital
costs relating to the initial construction or development of any part
of the Development.
4.6.3 For the avoidance of doubt it is agreed between the parties that for
the purposes of Schedule 4 the expressions "Account" "Advance Payment"
"Expenditure" "Management Company' "Service Charge" and "Services"
relate to the Services on the Estate and not to the Development Service
Charge.
5. Landlord's covenants
The Landlord covenants with the Tenant as follows.
5.1 Quiet enjoyment
That the Tenant paying the rents reserved by, and performing the
Tenant's covenants in this Lease, may lawfully and peaceably enjoy the
Premises
-20-
throughout the Term without interruption by the Landlord or by any
person lawfully claiming through, under or in trust for the Landlord.
5.2 To comply with all the covenants and conditions relating to the Estate
in so far as the same relate to the Development and are not the
responsibility of the Tenant or any other tenant or occupier of the
Development.
5.3 The Landlord agrees with the Tenant that it will if required by the
Tenant in writing take such action as the Tenant may reasonably require
to enforce against the Management Company the covenants conditions and
tights contained or referred to in the transfer of the Development
dated 31st March 2000 and made between the Landlord and Birmingham
International Park (2000) Limited in so far as the same relate to and
affect the Estate the Premises or the Service Charge subject to the
Tenant paying the Landlord's reasonable and proper costs of enforcing
such covenants conditions and rights.
6. Obligations in schedules to this Lease
The Landlord and the Tenant mutually covenant to observe and perform
their respective obligations and the conditions in the schedules.
7. Expert determination
7.1 In this Lease, where any issue is required to be dealt with by, or
submitted for the determination of, an independent expert, the
following provisions of this clause are to apply but, in case of
conflict with other provisions specifically relating to expert
determination elsewhere in this Lease, those other provisions are to
prevail to the extent of the conflict.
7.2 The expert is to be appointed by the parties jointly, or if they cannot
or do not agree on the appointment, appointed by whichever of the
following is appropriate:
7.2.1 the president from time to time of the Royal Institution of Chartered
Surveyors; or
7.2.2 the president from time to time of the Institute of Chartered
Accountants in England and Wales;
or in either case the duly appointed deputy of the president, or other
person authorised by him to make appointments on his behalf.
7.3 The person so appointed is to act as an expert, and not as an
arbitrator.
7.4 The expert so appointed must afford the parties the opportunity within
such a reasonable and proper time limit as he may stipulate to make
representations to him (accompanied by professional rental valuations,
reports or other appropriate evidence in the relevant circumstances)
and permit each party to make submissions on the representations of the
other.
-21-
7.5 The fees and expenses of the expert, including the cost of his
nomination, are to be borne as the expert may direct (but in the
absence of such a direction, by the parties in equal shares), but
(unless they otherwise agree) the parties will bear their own costs
with respect to the determination of the issue by the expert.
7.6 One party may pay the costs required to be borne by another party if
they remain unpaid for more than 21 days after they become due and then
recover these and any incidental expenses incurred from the other party
on demand.
7.7 If the expert refuses to act, becomes incapable of acting or dies, the
Landlord or the Tenant may request the appointment of another expert in
his stead under clause 7.2.
7.8 The determination of the independent expert, except in case of manifest
error, is to be binding on the Landlord and the Tenant.
7.9 Where in clauses 3.3.2 and 3.9.3 and in the definitions of Development
Service Charge and Service Charge Percentage in Part 1 of Schedule 4 a
matter is to be determined by the Landlord or the Landlord's surveyor
the Tenant shall be entitled within 20 working days of such
determination to dispute such determination and in such circumstances
the dispute shall be referred to an independent expert and the
provisions of this clause 7 shall apply
7.10 If the base rate of Barclays Bank Plc ceases to be published and the
Landlord designates another comparable rate, the Tenant shall be
entitled within 20 working days of such comparable rate being so
designated to dispute such rate and in such circumstances the
comparable rate of interest shall be such rate as is determined or
agreed by an independent expert in accordance with clause 7
8. Covenant status of this Lease
This Lease is a new tenancy within the meaning of section 1 of the
Landlord and Tenant (Covenants) Xxx 0000.
9. Contracts (Rights of Third Parties) Xxx 0000
9.1 Unless the right is expressly granted, it is not intended that a third
party has a right to enforce a provision of the Lease pursuant to the
Contracts (Rights of Third Parties) Xxx 0000.
9.2 The parties may rescind or vary the provisions of this Lease without
the consent of a third party to whom a right of enforcement has been
expressly granted.
10. Jurisdiction
10.1 This tease will in all respects be governed by and construed in
accordance with English law and the parties irrevocably submit to the
jurisdiction of the English courts
-22-
10.2 The Tenant's address in England for service of all notices and
proceedings is 2nd Floor Concorde House Trinity Park Xxxxxxxxxx Xxxx
Xxxxxxxx X00 0XX
Delivered as a deed on the date of this document.
-23-
SCHEDULE 1
The Premises
The land shown edged red on Plan 1 forming part of the land registered
at H M Land Registry and comprised in title number WM719791 being land
abutting the south side of Xxxxxxx Way and to the west of Bickenhill
Lane, Solihull, West Midlands and of which the Landlord is registered
as proprietor with absolute title and on which the building currently
known as Geneva House (but to be known as Fair Xxxxx House) is
constructed.
Part 2
Rights enjoyed with demise
1. A right of way in common with the Landlord, the Management Company and
all others from time to time so entitled for the Tenant, its lessees,
employees, licensees and others authorised by them to pass and xxxxxx
with or without vehicles for all purposes connected with the use and
enjoyment of the Premises over and along the Main Estate Road and the
Development Road until (if ever) they are adopted as public highways.
2. The right in common with the Landlord, the Management Company and
others from time to time so entitled to the free and uninterrupted use
of and the passage of the Utilities through the Service Media which now
are or may during the Perpetuity Period be in under or over the Xxxx
Xxxxxx Xxxx, Xxxxxxxxxxx Xxxx or other Common Parts, but the Landlord
or the Management Company may change the routes of the Service Media
unless and to the extent that it would interrupt or interfere with the
exercise of the right now granted.
3. The right of lateral and subjacent support and protection from the
remainder of the Estate and any adjoining or neighbouring land for the
Premises.
Part 3
Exceptions and reservations
1. The right to enter upon the Premises (on giving reasonable notice) with
employees, agents, contractors, plant and equipment in order to lay,
make, inspect, clean, repair and renew foul and surface water sewers
and drains and/or Service Media serving or to serve the Estate and/or
any adjoining or neighbouring land, but the persons exercising the
right are to make good all physical damage occasioned in the exercise
of the right PROVIDED THAT this right shall not extend to the laying of
any such sewers and drains and/or Service Media under any buildings
erected on the Premises.
2. The right to connect the sewers, drains and Service Media referred to
in paragraph 1 above to any sewers, drains and Service Media on or
under the Premises of suitable capacity, and the right to use any
sewers, drains and Service Media on or under the Premises.
- 24 -
3. The right for the Landlord, in common with the Tenant and all others
having the like right, to the free and uninterrupted use of and the
passage of the Utilities through Service Media which now are or may at
any time during the Perpetuity Period be in under or over the Premises.
4. The right of lateral and subjacent support and protection from the
Premises for the remainder of the Estate and any adjoining or
neighbouring land.
5. The right to erect or permit to be erected any buildings or other
structures, and to alter any building or other structure erected on the
Estate or the Retained Land or the Development notwithstanding
obstruction or interference with the passage and access of light and
air to any building now or in the future on the Premises, and so that
light and air enjoyed by the Premises over any part of the Estate or
the Main Estate Road, or the Development Road are to be enjoyed by the
licence or consent of the Landlord and not as of right.
6. All rights of entry upon the Premises referred to in clauses 3 and 4.
7. The right (where necessary or where a third party is exercising its
rights) to close the Main Estate Road and the Development Road for the
purposes of effecting repairs renewals improvements and maintenance and
for obtaining access to any Utilities Conducting Media or Service Media
and for any other reasonable purpose including the right to erect
scaffolding and all necessary ancillary rights provided that the
erection of such scaffolding does not involve the whole of the Main
Estate Road or the Development Road.
Part 4
Encumbrances
Date Description of Parties
document
26.04.1994 Deed BDS Properties Limited (1) BDS
Investments Limited (2)
Metropolitan Borough of Solihull
(3)
16.09.1994 Supplemental Deed BDS Properties Limited (1) BDS
Investments Limited (2)
Metropolitan Borough of Solihull
(3)
- 25 -
SCHEDULE 2
Rent reviews
1. The review dates
The yearly rent payable under this Lease is to be reviewed on the
expiry of the fifth and tenth years of the Term (referred to in this
schedule as the review dates and the relevant review date shall be
construed accordingly) and with effect on and from the relevant review
date, the reviewed rent (as agreed or determined in accordance with
this schedule) is to become payable as the yearly rent reserved by this
Lease.
2. Upward-only rent reviews
The reviewed rent is to be the greater of:
2.1 the yearly rent reserved under this Lease immediately preceding the
relevant review date (ignoring for this purpose any deduction from
suspension of or abatement of rent arising pursuant to paragraph 6 of
schedule 3 or by virtue of any statutory or extra statutory provision
or by agreement between the parties or in consequence of any lawful
deduction from rent made by the Tenant or for any other reason
whatsoever); and
2.2 the market rent of the Premises at the relevant review date.
3. The market rent
For the purposes of this Lease, the expression market rent means the
yearly rent at which the Premises might reasonably and properly be
expected to be let in the open market by a willing landlord to a
willing tenant:
3.1 with vacant possession;
3.2 for a term of 10 years from the relevant review date having a rent
review, in the same terms as this Lease, at the expiry of each period
of five years throughout the term;
3.3 without the payment of a premium by the willing tenant; and
3.4 subject to the provisions of this Lease, other than the length of the
term and the amount of rent, but including these provisions for rent
review;
but on the assumption, if not the fact, that at the relevant review
date:
3.5 the Premises have been fitted out ready for occupation and immediate
use for the willing tenant's business so that the willing tenant would
not require a rent or other allowance at the relevant review date for
that purpose (but this assumption does not affect the operation of
paragraph 4.3);
- 26 -
3.6 in case the Premises or the Estate or the Development have been
destroyed or damaged (or the Premises have been made unfit for use and
occupation by reason of damage to the Building or the Estate or the
Development) they have been fully reinstated (or rendered fit for use
and occupation);
3.7 the Premises and the building are in a state of full repair required by
this Lease and the covenants of the Tenant have been fully observed and
performed;
3.8 there is not in operation any statute, order or instrument, regulation
or direction which has the effect of regulating or restricting the
amount of rent of the Premises which might otherwise be payable;
3.9 the Premises may be lawfully used throughout the Term as offices; and
4. Matters to be disregarded
In agreeing or determining the market rent, the effect upon it of the
following matters are to be disregarded:
4.1 the occupation of the Premises by the Tenant;
4.2 any goodwill attached to the Premises by reason of the carrying on at
the Premises of the business of the Tenant;
4.3 any improvements to the Premises made by the Tenant with the consent of
the Landlord other than those:
4.3.1 made in pursuance of an obligation to the Landlord;
4.3.2 completed by the Tenant more than 21 years before the relevant
review date; or
4.3.3 for which the Landlord has made a financial contribution;
4.4 any works carried out by the Tenant which have diminished the market
rent; and
4.5 any works carried out by the Tenant prior to the grant of this Lease
including the Works (as defined in a licence for alterations to be
entered into between the Landlord and the Tenant immediately after
completion of this Lease);
and in this paragraph 4, reference to "the Tenant" includes
predecessors-in-title to the Tenant, and subtenants of the Tenant or of
the predecessors-in-title of the Tenant.
5. Procedure for determination of market rent
5.1 The Landlord and the Tenant are to endeavour to agree the market rent
at any time not being earlier than 6 months before the relevant review
date, but if they have not agreed the market rent three months before
the relevant review date
- 27 -
the amount of the market rent is to be determined by reference to the
arbitration of an arbitrator
5.2 The arbitrator shall be nominated by the Landlord and the Tenant
jointly, but, if they cannot or do not do so, then he shall be
nominated by the president for the time being of the Royal Institution
of Chartered Surveyors on the application either of the Landlord or of
the Tenant.
5.3 The reference to and award of the arbitrator shall be governed by the
Arbitration Xxx 0000
5.4 The arbitrator nominated is to be a chartered surveyor having not less
than ten years' experience of leasehold valuation of property being put
to the same or similar use as the Premises and of property in the same
region in which the Premises are situated.
5.5 If the arbitrator refuses to act, becomes incapable of acting or dies,
the Landlord or the Tenant may request the appointment of another
arbitrator as provided in paragraph 5.1
6. Time limits
Time is not of the essence in agreeing or determining the reviewed rent
or of appointing an arbitrator
7. Rental adjustments
7.1 If the market rent has not been agreed or determined in accordance with
the provisions of this schedule before the relevant review date, then,
until the market rent has been so agreed or determined, the Tenant will
continue to pay, on account, rent at the rate of yearly rent payable
immediately before the relevant review date.
7.2 The Tenant will pay to the Landlord, within seven days after the time
that the market rent has been agreed or determined, all arrears of the
reviewed rent which have accrued in the meantime, with interest equal
to the base rate of Barclays Bank PLC on each of the instalments of the
arrears from the time that it would have become due if the market rent
had then been agreed or determined until payment becomes due from the
Tenant to the Landlord under this paragraph 7.2.
8. Reviewed rent reserved in phases
The Landlord and the Tenant may, at any time before the market rent is
determined by an arbitrator, settle the reviewed rent in more than one
amount and agree to reserve the amounts increasing in phases until the
next review date or, if none, the expiry of the Term.
- 28 -
9. Memorandum of rent review
The parties shall cause a memorandum of the reviewed rent duly signed
by the Landlord and the Tenant to be endorsed on or securely annexed to
this Lease and the counterpart of this Lease.
- 29 -
SCHEDULE 3
Insurance provisions
1. Insured Risks
1.1 Insured Risks means the risks and other contingencies against which the
Premises are required to be, or which may be, insured under this Lease,
but subject to any exclusions, limitations and conditions in the policy
of insurance.
1.2 Insured Risks include (without limitation) fire, lightning, explosion,
xxxxx, xxxxxxx, flood, bursting and overflowing of water tanks,
apparatus or pipes, earthquake, aircraft (but not hostile aircraft) and
devices dropped from aircraft, riot and civil commotion, subsidence,
and such other risks as the Landlord may consider it prudent to insure.
1.3 If a risk or contingency itemised, or otherwise included, as an Insured
Risk, can no longer be insured or can only be insured at an uneconomic
rate, the risk or contingency shall cease to be treated as an Insured
Risk from the time that cover is withdrawn and the Landlord has
notified the Tenant of its withdrawal.
2. Tenant's liability for insurance premiums
2.1 The Tenant will pay to the Landlord on demand the insurance premiums
incurred by the Landlord.
2.2 Insurance premiums are to include all monies expended, or required to
be expended by the Landlord in effecting and maintaining cover against:
2.2.1 Insured Risks;
2.2.2 three years' loss of rent insurance;
2.2.3 such professional fees as may be incurred in connection with
rebuilding or reinstatement of the Premises;
2.2.4 the costs of demolition, shoring up, and site clearance works;
2.2.5 third-party and public liability risks; and
2.2.6 value added tax liability on such items.
2.3 The insurance cover may take into account cover for the effects of
inflation and escalation of costs and fees, the Landlord's estimate of
the market rent of the Premises as defined in schedule 2 in the context
of ensuing rent reviews and the termination of the Lease.
- 30 -
3. Tenant's obligations in relation to insurance cover
3.1 The Tenant will not do anything which may render void or voidable the
insurance of the Landlord on the Premises or which may cause insurance
premiums to be increased.
3.2 The Tenant will provide efficient fire extinguishers of a type required
by law and (if required) approved by the fire officer and will adopt
such other precautions against Insured Risks as the Landlord's insurers
require and which are normal in relation to a comprehensive insurance
policy.
3.3 If the insurance of the Landlord is vitiated in whole or in part in
consequence of an act or omission of the Tenant, persons occupying or
enjoying the use of the Premises through or under the Tenant, or their
respective employees, workmen, agents or visitors, the Tenant will pay
to the Landlord on demand a sum equal to the amount of the insurance
monies which have become irrecoverable in consequence of that act or
omission.
3.4 The Tenant may not insure the Premises for any of the Insured Risks in
such a manner as would permit the insurer of the Landlord to average
the proceeds of insurance or cancel insurance cover.
3.5 The Tenant will notify the Landlord immediately of the occurrence of
damage to the Premises by any of the Insured Risks.
3.6 If the Premises are damaged by Insured Risks, the Tenant will pay to
the Landlord on demand the amount of any uninsured excess to which the
insurance cover of the Landlord is subject.
3.7 The obligations of the Tenant to repair, and to yield up in repair, the
Premises, are to remain operative to the extent that the insurance of
the Landlord in respect of Insured Risks is vitiated or insurance
monies are withheld by reason of an act or omission of the Tenant,
persons occupying or enjoying the use of the Premises through or under
the Tenant, or their respective employees, workmen, agents or visitors,
but do not otherwise operate in respect of damage to the Premises by
Insured Risks.
3.8 The Tenant will pay the reasonable and proper cost of the revaluation
of the Premises for insurance purposes whenever reasonably required by
the Landlord provided such revaluation do not take place more than once
a year.
4. Landlord's obligation to insure and reinstate
4.1 The Landlord will keep the Premises insured with an insurer of repute
against Insured Risks and other items referred to in paragraph 2.2 for
the full cost of reinstatement, subject to such uninsured excess as the
insurer may reasonably and properly apply.
4.2 Following damage to or destruction of the Premises by an Insured Risk,
the Landlord will diligently apply, or procure the application of, the
proceeds of the insurance covering reinstatement and rebuilding costs
for those purposes, and
- 31 -
will make good any deficiency in the proceeds of the insurance out of
its own resources.
4.3 The obligations of the Landlord in paragraph 4.2 do not apply:
4.3.1 if the Landlord is unable, after using its reasonable and proper
endeavours to do so, to obtain any requisite planning permission or
other consents for the reinstatement or rebuilding of the Premises or
of a building of similar size, character and amenity;
4.3.2 if the Landlord's insurance is vitiated by reason of an act or omission
of the Tenant, persons occupying or enjoying the use of the Premises
through or under the Tenant, or their respective employees, workmen,
agents or visitors unless and until the Tenant has paid all sums due
from it under paragraph 3.3; or
4.3.3 if this Lease is, or is to be, determined under paragraph 7
4.4 Where the Premises are substantially damaged or destroyed, the Tenant
may not object to the reinstatement or rebuilding of the Premises in a
form which is not identical to the Premises immediately before the
damage or destruction occurred, if the Premises as reinstated or
rebuilt are of at least an equivalent or similar standard, and afford
amenities which are not inferior to or deficient from those enjoyed by
the Tenant before the damage or destruction.
5. Landlord's obligations in relation to insurance
5.1 The Landlord will use its reasonable and proper endeavours to procure
that its insurers waive entitlement to rights of subrogation against
the Tenant, persons occupying or enjoying the use of the Premises
through or under the Landlord, and their respective employees, workmen,
agents or visitors.
5.2 The Landlord will provide the Tenant with a copy of its insurance
policies (or other evidence of the conditions of insurance) on the
Premises, and (at the request of the Tenant) with a receipt for the
payment of the last premium or other evidence of renewal and up-to-date
details of the amount of cover.
5.3 The Landlord will promptly notify the Tenant of any changes in its
insurance cover or of the terms on which cover has been effected.
5.4 The Landlord may retain any discount on the insurance premiums or
commission offered to it by its insurer for its exclusive benefit.
6. Suspension of Rent
6.1 Paragraph 6.2 applies if the Premises are at any time during the Term
so damaged by an Insured Risk as to render the Premises or any part of
them unfit for occupation, use or enjoyment, except in the
circumstances referred to in paragraph 4.3.2.
- 32 -
6.2 The rent and additional rent reserved by this Lease, or a fair
proportion of them according to the nature and extent of the damage
sustained, shall be suspended and cease to be payable until the
Premises (excluding fitting-out works and replacement of contents) have
been reinstated and made fit for occupation, use and enjoyment.
6.3 A dispute as to the amount of the abatement of the rent or the duration
of the period of abatement is to be submitted to a single arbitrator,
by whose decision the parties are to be bound, who is to be appointed
by the parties jointly or, if they do not agree on the appointment, by
the president for the time being of the Royal Institution of Chartered
Surveyors (at the request of either party) and the arbitration is to be
conducted under the Arbitration Xxx 0000.
7. Option to determine
If for any reason beyond the control of the Landlord it proves
impracticable to commence rebuilding or reinstatement of the Premises
within two years of the damage by an Insured Risk, the Landlord may
within twelve months thereafter terminate this Lease by giving to the
Tenant written notice to that effect
8. Retention of insurance proceeds
On the termination of this Lease under paragraph 7, or if this Lease is
terminated by the operation of the doctrine of frustration, the
Landlord shall be entitled to retain the proceeds of insurance for its
exclusive benefit.
- 33 -
SCHEDULE 4
Service charge provisions
Part 1
Definitions
In this Schedule, the following words and expressions have the following
meanings unless the context otherwise requires:
Accountant a suitably qualified and experienced person
appointed by the Management Company to
perform the function of an accountant in
relation to the Expenditure (including an
employee of the Management Company or of a
member of the same group of companies as that
term is defined in Section 42 of the Landlord
and Tenant Act 1954);
Advance Payment a quarterly payment as referred to in
paragraph 1 of Part 3 of this schedule;
Computing Date December in every year or such other date as
the Management Company and/or the Landlord
may from time to time designate;
Development Advance Payment a quarterly payment as referred to in
paragraph 3 of part 3 of this schedule;
Development Common Parts the parts of the Development comprising the
Development Road (to the extent that they
have not been adopted as maintainable at the
public expense), and landscaped areas which
are not the responsibility of an individual
owner or occupier of part of the Estate or
the Management Company and all other areas
ways and amenities in the Development
provided or designated from time to time by
the Landlord for common use and enjoyment by
the owners and occupiers of the Development
(including any Conducting Media which do not
form part of the Service Media and are not
demised to the Tenant or any other tenant of
the Development), and each and every part of
them, which are not the responsibility of the
Management Company;
- 34-
Development Service Charge a fair and proper proportion attributable to
the Premises (to be conclusively determined
by the Landlord or the Landlord's surveyor by
a comparison of the plot area of the Premises
with the aggregate plot area of the buildings
(including the Premises) from time to time in
the Development) of the cost to the Landlord
of providing the Landlord's Services,
including reasonable and proper management
costs, fees, salaries, charges and expenses
and the expense of cleaning, lighting,
repairing, renewing, decorating, maintaining
and where necessary rebuilding any party
walls, fences, gutters, drains, roadways,
pavements, entrance ways, stairs and
passages, access ways and service areas which
are or may be used or enjoyed by an occupier
of the Premises in common with any other
person or persons;
Expenditure the aggregate of all reasonable costs fees
expenses and outgoings properly incurred by
the Management Company in providing the
Services including bank charges, interest on
borrowings from a reputable clearing bank at
normal commercial rates and Value Added Tax
which is not recoverable;
such sums as the Management Company
reasonably and fairly considers prudent to
reserve for future and anticipated
Expenditure from time to time whether or not
for periodically recurring items; and
such other sums (if any) as are required to
be treated as Expenditure under this
schedule;
Financial Year the period from the 1st of June 2001 to (and
including) the first Computing date and
thereafter between two consecutive Computing
Dates (excluding the first but including the
second Computing Date in the period);
Landlord's Services the services which the Landlord covenants to
provide in Part 5 of this schedule and as are
listed in Part 6 of this schedule
- 35 -
Services the services which the Landlord covenants in
Part 2 of this schedule to procure the
Management Company provides and as are listed
in Part 4 of this schedule;
Service Charge the Service Charge Percentage of the
Expenditure subject to the agreed deductions
in respect of the Premises in accordance with
clause 4.6.1;
Service Charge Percentage a fair and proper proportion attributable to
the Premises (to be determined by the
Landlord or the Landlord's surveyor by a
comparison of the plot area of the Premises
with the aggregate plot area of the buildings
(including the Premises) from time to time on
the Development)
Part 2
Landlord's covenants in relation to the Services
1. Subject to paragraph 4 of this Part of this schedule the Landlord
covenants with the Tenant to procure the Management Company provides
the Services set out in Part 4 in accordance with the principles of
good estate management, but:
1.1 neither the Landlord nor the Management Company is to be held
responsible for damage caused by any want of repair to, or defects in,
the Common Parts unless and until notice in writing of the want of
repair or defect has been given to the Landlord and the Management
Company (whether by the Tenant or the lessee or occupier of any other
part of the Estate) and the Management Company has failed to make good
or remedy the want of repair or defect within a reasonable time after
receipt of the notice or (in case of emergency) has failed to effect
such temporary repair as may be practicable;
1.2 nothing in this covenant prejudices the right of the Management Company
or the Landlord to recover from the Tenant or any other person the
amount or value of any loss or damage suffered by or caused to the
Management Company or the Landlord or the Common Parts by the
negligence or other wrongful act or default of the Tenant or other
person;
1.3 in supplying the Services, the Management Company may employ managing
agents contractors or such other suitably qualified persons as the
Management Company may from time to time reasonably think fit, whose
reasonable and proper fees, salaries, charges and expenses (including
any irrecoverable Value Added Tax) are to form part of the Expenditure;
- 36 -
2. The Management Company is not to be liable for any injury to or loss or
damage suffered by the Tenant or its successors in title the owners and
occupiers of the Premises or any part thereof caused by:
2.1 breakdown, absence, failure or insufficiency of the Services; or
2.2 defect in the Service Media or plant, machinery or apparatus used in
connection with the provision of the Services; unless
2.3 the injury loss or damage is covered by, and the Management Company
receives, payment under a policy of insurance effected by it in respect
of that risk; or
2.4 the injury loss or damage arises out of the failure of the Management
Company to comply with paragraph 2 of this Schedule; or
2.5 the breakdown, absence, failure, interruption, insufficiency or defect
could reasonably have been prevented or its effect ameliorated by the
exercise by the Management Company of reasonable care, attention,
diligence and skill or those undertaking the Services on its behalf.
3. The Landlord is not to be liable for any injury to or loss or damage
suffered by the Tenant or its successors in title the owners and
occupiers of the Premises or any part thereof caused by:
3.1 breakdown, absence, failure or insufficiency of the Services; or
3.2 defect in the Service Media or plant, machinery or apparatus used in
connection with the provision of the Services;
4. The Management Company may at its discretion withhold add to extend
vary or make any alterations to any of the Services from time to time
if the Management Company reasonably deems it desirable to do so for
the more efficient management security and operation of the Estate or
for the comfort of the owners and occupiers of the Estate generally.
5. The Landlord shall procure the Management Company uses its reasonable
endeavours to remedy or make good any breakdown, absence, failure,
insufficiency or defect of the Services or Service Media or other plant
machinery or apparatus referred to in paragraph 2 of this Part of this
schedule, for which the Management Company is responsible pursuant to
an obligation to the Landlord, within a reasonable time after becoming
aware of it, but neither the Landlord nor the Management Company is to
be held liable under this covenant:
5.1 for anything which the Tenant covenants to repair or make good under
this Lease; or
5.2 to the extent that the policy money due to the Management Company under
any relevant insurance policy effected by the Management Company in
respect of that matter has been wholly or partly refused or withheld in
consequence of
- 37 -
some act neglect or default of the Tenant its subtenants or its or
their or employees or agents or other persons under its or their
control.
6. The Landlord shall procure the Management Company prepares as soon as
possible after, and in any event no later than four months after the
end of, each Financial Year, accounts certified by the Accountant
showing the Expenditure for that Financial Year and containing a fair
summary of the various items comprising the Expenditure and shall
procure the Management Company supplies a copy of the accounts to the
Tenant and makes available the vouchers supporting such summary to the
Tenant (by prior appointment) for inspection, but:
6.1 if the receipts recovered by the Management Company in respect of any
Financial Year, after making all proper provisions including provision
for bad or doubtful debts, is or would be less than its expenditure and
outgoings, the Management Company may include the amount of the
shortfall in the Expenditure for that or a subsequent Financial Year;
6.2 if and to the extent that the shortfall is due to a provision for a bad
or doubtful debt owed to the Management Company by an owner lessee or
occupant of any of the part of the Estate or other person liable to
contribute to the Expenditure, the Management Company may apportion the
shortfall among the other persons liable to contribute to Expenditure
but only in the proportions in which they are between themselves liable
so to contribute, and any amount so apportioned to the Tenant shall be
included in the Service Charge payable by the Tenant in respect of that
or a subsequent Financial Year;
6.3 if the debt or part of it is later recovered, the Landlord is to repay
to the Tenant a due proportion of the amount the Landlord receives from
the Management Company by way of repayment of that debt;
7. If the total extent of property enjoying, or capable of enjoying, the
benefit of any of the Services is increased or decreased on a permanent
basis, or extended on a like basis to any adjoining or neighbouring
property and the percentage of the Expenditure payable to the
Management Company by the Landlord pursuant, to an obligation to the
Management Company is varied then the Service Charge Percentage shall
be varied with effect from the date the percentage payable by the
Landlord is varied and the percentage variation shall be determined by
the Landlord or the Landlord's surveyor (acting reasonably)
8. The Landlord shall procure the Management Company uses reasonable
endeavours to recover sums expended or liability incurred in the
Financial Year in which it expends the sum or incurs such liability or
in the next following Financial Year but the Management Company and the
Landlord is nevertheless not precluded from recovering it in a
subsequent Financial Year
- 38 -
Part 3
Tenant's Covenants
The Tenant covenants with the Landlord:
1. On each of the usual quarter days in every year, to pay to the Landlord
on account of the Service Charge for that Financial Year a quarter of
such sum as the Landlord has specified as a fair and reasonable
estimate of the Service Charge for that Financial Year based on the
Expenditure for the previous Financial Year and anticipated Expenditure
in the current Financial Year
2. If the Service Charge for a Financial Year:
2.1 exceeds the total Advance Payments made by the Tenant in respect of it,
to pay the excess to the Landlord on demand; or
2.2 is less than the total Advance Payments made by the Tenant in respect
of it, the overpayment will be credited to the Tenant against the next
Advance Payment and (if appropriate) subsequent Advance Payments.
3. On each of the usual quarter days in every year, to pay to the Landlord
on account of the Development Service Charge for that FinanciaL Year a
quarter of such sum as the Landlord has specified as a fair and
reasonable estimate of the Development Service Charge for that
Financial Year.
4. If the Development Service Charge for a Financial Year:
4.1 exceeds the total Development Advance Payments made by the Tenant in
respect of it, to pay the excess to the Landlord on demand; or
4.2 is less than the total Development Advance Payments made by the Tenant
in respect of it, the overpayment will be credited to the Tenant
against the next Development Advance Payment and (if appropriate)
subsequent Development Advance Payments.
5. To pay Interest on demand on any sum properly payable by the Tenant
pursuant to this Part of this schedule which is not paid within 14 days
after it becomes due.
Part 4
The Services
1. Keeping the Structural Landscaping in a neat and tidy condition and
properly cultivated and tending and renewing all plants shrubs and
trees within the Structural Landscaping as reasonably necessary.
2. Maintaining repairing and when necessary renewing the Common Parts.
3. Sweeping, cleaning, de-icing and gritting the Main Estate Road and
keeping the same clean and tidy.
- 39 -
4. Employing such workmen and/or contractors (including without prejudice
to the generality of the foregoing landscape architects or contractors)
as may be reasonably necessary in connection with the upkeep of the
Common Parts and the provision of the Services.
5. Insuring any risks for which the Management Company may be liable as an
employer of persons working on the Estate or as the owner of the Common
Parts or any part thereof as it shall reasonably think fit.
6. Operating maintaining and (if necessary) renewing the lighting
apparatus from time to time on the Common Parts and providing such
additional lighting apparatus as the Management Company may reasonably
think fit.
7. Paying all rates, taxes, duties, charges, assessments and outgoings
whatsoever (whether parliamentary parochial local or of any other
description) assessed charged or imposed upon or payable in respect of
the Common Parts except insofar as the same are the responsibility of
the individual lessee of any Unit.
8. Providing, maintaining, repairing, replacing and lighting estate signs
directions and other traffic signs and an estate directory board.
9. Abating a nuisance and executing such works as may be necessary to
comply with a notice served by a Local Authority in connection with the
Common Parts, except insofar as it the liability of or attributable to
the fault of an individual owner (including the Landlord in relation to
parts of the Estate (other than the Common Parts) of which the freehold
interest is for the time being vested in the Landlord).
10. Preparing and supplying to the owners and lessees of the Estate copies
of any regulations made by the Management Company governing the use of
the Common Parts.
11. Generally managing and administering the Common Parts and for that
purpose employing a firm of managing agents and (insofar as the
Management Company thinks fit) enforcing, or attempting to enforce, the
observance of the covenants of an owner or lessee of a part of the
Estate (the costs of such enforcement action forming part of
Expenditure only to the extent that they are not recovered from the
defaulting owner or lessee).
12. Employing such solicitors, auditors, accountants or other professional
persons as the Management Company reasonably thinks fit in connection
with the administration and management of the Management Company the
Common Parts the Expenditure and the Services.
13. Complying with the requirements and directions of any competent
authority and with the provisions of all statutes and all regulations
orders and bye-laws made thereunder relating to the Common Parts except
insofar as such compliance is the responsibility of any individual
owner or lessee or any part of the Estate.
-40-
14. The purchase, hire maintenance, renewal and insurance of such equipment
as the Management Company from time to time reasonably considers
necessary or desirable for the carrying out of the acts and things
mentioned in this Schedule.
15. (At the absolute discretion of the Management Company) providing
security at the Estate including such closed circuit television or
other surveillance apparatus as the Management Company thinks fit.
16. Administering the Management Company itself and arranging for all
necessary meetings thereof to be held and complying with all relevant
statutes and regulations and orders thereunder and (if the Management
Company thinks fit) employing a suitable person or firm to deal with
these matters.
17. The provision maintenance and renewal of any other equipment and the
provision of any other service which in the reasonable opinion of the
Management Company it is reasonable to provide in the interest of good
estate management.
Part 5
Landlord's covenants in relation to the Landlord's Services
1. The Landlord covenants with the Tenant to provide the Landlord's
Services set out in Part 6, but:
1.1 the Landlord is not to be held responsible for damage caused by any
want of repair to, or defects in the Development Common Parts unless
and until notice in writing of the want of repair or defect has been
given to the Landlord (whether by the Tenant or the lessee or occupier
of any other part of the Development) and the Landlord has failed to
make good or remedy the want of repair or defect within a reasonable
time after receipt of the notice or (in case of emergency) has failed
to effect such temporary repair as may be practicable;
1.2 nothing in this covenant prejudices the right of the Landlord to
recover from the Tenant or any other person the amount or value of any
loss or damage suffered by or caused to the Landlord or the Development
Common Parts by the negligence or other wrongful act or default of the
Tenant or other person;
1.3 in supplying the Landlord's Services, the Landlord may employ managing
agents contractors or such other suitably qualified persons as the
Landlord may from time to time reasonably think fit, whose reasonable
and proper fees, salaries, charges and expenses (including any
irrecoverable Value Added Tax) are to form part of the Development
Service Charge;
2. The Landlord is not to be liable for any injury to or loss or damage
suffered by the Tenant or its successors in title the owners and
occupiers of the Premises or any part thereof caused by:
2.1 breakdown, absence, failure or insufficiency of the Landlord's
Services; or
2.2 defect in the Service Media or plant, machinery or apparatus used in
connection with the provision of the Landlord's Services; unless:
- 41 -
2.2.1 the injury loss or damage is covered by, and the Landlord receives,
payment under a policy of insurance effected by it in respect of that
risk; or
2.2.2 the injury loss or damage arises out of the failure of the Landlord to
comply with paragraph 1 of this Part of this Schedule; or
2.2.3 the breakdown, absence, failure, interruption, insufficiency or defect
could reasonably have been prevented or its effect ameliorated by the
exercise by the Landlord of reasonable care, attention, diligence and
skill or those undertaking the Landlord's Services on its behalf.
3. The Landlord's liability in respect of breach of obligations under this
schedule is to cease on any transfer of the Landlord's interest in the
reversion to this Lease.
4. The Landlord may at its discretion withhold add to extend vary or make
any alterations to any of the Landlord's Services from time to time if
the Landlord reasonably deems it desirable to do so for the more
efficient management security and operation of the Development or for
the comfort of the owners and occupiers of the Development generally.
5. To use its reasonable endeavours to remedy or make good any breakdown,
absence, failure, insufficiency or defect of the Landlord's Services or
other plant machinery or apparatus referred to in paragraph 2 of this
Part of this schedule, for which the Landlord is responsible under this
Lease, within a reasonable time after becoming aware of it, but the
Landlord is not to be held liable under this covenant:
5.1 for anything which the Tenant covenants to repair or make good under
this Lease; or
5.2 to the extent that the policy money due to the Landlord under any
relevant insurance policy effected by the Landlord in respect of that
matter has been wholly or partly refused or withheld in consequence of
some act neglect or default of the Tenant its subtenants or its or
their or employees or agents or other persons under its or their
control.
Part 6
Landlord's Services
1. Keeping the landscaping in the Development Common Parts in a neat and
tidy condition and properly cultivated and tending and renewing all
plants shrubs and trees within the landscaping as reasonably necessary.
2. Maintaining repairing and when necessary renewing the Development
Common Parts including keeping the Development Road in good repair and
condition and to a standard capable of adoption by the relevant
authority.
3. Sweeping, cleaning, de-icing and gritting the Development Road and
keeping the same clean and tidy.
4. Employing such workmen and/or contractors (including without prejudice
to the generality of the foregoing landscape architects or contractors)
as may be
- 42 -
reasonably necessary in connection with the upkeep of the Development
Common Parts and the provision of the Landlord's Services.
5. Insuring any risks for which the Landlord may be liable as an employer
of persons working on the Development or as the owner of the
Development Common Parts or any part thereof as it shall reasonably
think fit.
6. Operating maintaining and (if necessary) renewing the lighting
apparatus from time to time on the Development Common Parts and
providing such additional lighting apparatus as the Landlord may
reasonably think fit.
7. Paying all rates, taxes, duties, charges, assessments and outgoings
whatsoever (whether parliamentary parochial local or of any other
description) assessed charged or imposed upon or payable in respect of
the Development Common Parts except insofar as the same are the
responsibility of the individual lessee of any Unit, or of the
Management Company.
8. Abating a nuisance and executing such works as may be necessary to
comply with a notice served by a Local Authority in connection with the
Development Common Parts, except insofar as it the liability of or
attributable to the fault of an individual owner.
9. Preparing and supplying to the owners and lessees of the Development
copies of any regulations made by the Landlord governing the use of the
Development Common Parts.
10. Generally managing and administering the Development Common Parts and
for that purpose, if the Landlord thinks fit, employing a firm of
managing agents and (insofar as the Landlord thinks fit) enforcing, or
attempting to enforce, the observance of the covenants of an owner or
lessee of a part of the Development (the costs of such enforcement
action forming part of the Development Service Charge only to the
extent that they are not recovered from the defaulting owner or
lessee).
11. Employing such solicitors, auditors, accountants or other professional
persons as the Landlord reasonably thinks fit in connection with the
administration and management of the Development Common Parts and the
Landlord's Services.
12. Complying with the requirements and directions of any competent
authority and with the provisions of all statutes and all regulations
orders and bye-laws made thereunder relating to the Development Common
Parts except insofar as such compliance is the responsibility of any
individual owner or lessee, any part of the Estate, or the Management
Company.
13. (At the absolute discretion of the Landlord but at all times in
accordance with the principles of good estate management and for the
benefit of the tenants on the Development) providing security at the
Development including such closed circuit television or other
surveillance apparatus as the Landlord thinks fit.
14. The provision maintenance and renewal of any other equipment and the
provision of any other service which in the reasonable opinion of the
Landlord it is reasonable to provide in the interest of good estate
management.
- 43 -
SCHEDULE 5
Guarantee provisions
Part 1
Form of guarantee on assignment
1. Guarantee
1.1 The Guarantor guarantees to the Landlord that the Tenant will pay the
rents reserved by, and perform and observe the Tenant's covenants in,
this Lease, and the Guarantor will pay and make good to the Landlord on
demand any losses, damages, costs, and expenses suffered or incurred by
the Landlord if the Tenant fails to do so.
1.2 The guarantee in paragraph 1.1 remains in force for so long as, and to
the extent that, the Tenant is not released by law from liability for
the Tenant's covenants in this Lease.
1.3 The Guarantor also guarantees to the Landlord that the Tenant will
observe and perform its obligations under any authorised guarantee
agreement to be entered into by the Tenant under the terms of this
Lease, and will pay and make good to the Landlord on demand any losses,
damages, costs and expenses suffered or incurred by the Landlord if the
Tenant fails to do so.
1.4 For the purposes of this guarantee, references to the "Tenant" are to
the assignee of this Lease in relation to whom the guarantee to the
Landlord is given, and none other.
2. No waiver or release of liability
The Guarantor will not be released from liability under these
provisions because of:
2.1 forbearance, the granting of time or other indulgence of the Landlord;
or
2.2 a variation of this Lease which does not substantially alter the size
of the Premises or reflects in a new material obligation being imposed
on the Tenant, whether or not made with the consent of the Guarantor,
and the guarantee of the Guarantor in paragraph 1.1 is to operate in
relation to this Lease as it may be varied from time to time.
3. Guarantor to accept new lease upon disclaimer
3.1 If this Lease is terminated by re-entry by the Landlord or by
disclaimer, the Guarantor will (on notice given by the Landlord within
three months after the date of termination) take from the Landlord a
lease of the Premises.
3.2 The lease to be granted to the Guarantor under paragraph 3.1 is to be
on the following terms:
-44-
3.2.1 the term is to commence on the date of termination of this Lease and to
be equal to the residue of the Term which would have remained unexpired
at that date if this Lease had not then been terminated;
3.2.2 the yearly rent is to be the same as would have been payable under this
Lease if it had not been terminated and, if a rent review operative
from a review date before the grant of the lease had not been
completed, the Guarantor will complete the rent review with the
Landlord as if it had been the Tenant under this Lease in order to
establish the commencing yearly rent under the lease;
3.2.3 the lease is otherwise to be on the same terms and conditions as would
have applied under this Lease if it had not been terminated; and
3.2.4 the Guarantor is to succeed to the rights, and assume the liability, of
the Tenant under this Lease as if this Lease had not been terminated.
4. Subordination of rights of the Guarantor
4.1 The provisions of paragraph 4.2 are to apply unless the Landlord has no
subsisting claim against the Tenant for non-payment of rent or for
breach of obligation under this Lease.
4.2 The Guarantor may not:
4.2.1 seek to recover from the Tenant, or any third party whether directly or
by way of set-off, lien, counterclaim or otherwise or accept any money
or other property or security, or exercise any rights in respect of any
sum which may be or become due to the Guarantor on account of the
failure by the Tenant to observe and perform the tenant covenants in
this Lease;
4.2.2 (in competition with the Landlord) claim, prove or accept any payment
in a winding-up, liquidation, bankruptcy, composition with creditors or
other form of arrangement on the insolvency of the Tenant, for money
owing to the Guarantor by the Tenant; nor
4.2.3 exercise any right or remedy in respect of any amount paid by the
Guarantor under this Lease or any liability incurred by the Guarantor
in observing, performing or discharging the obligations and covenants
of the Tenant.
4.3 The Guarantor warrants that it has not taken, and undertakes with the
Landlord that it will not without the consent of the Landlord take, any
security from the Tenant in respect of this guarantee and, if security
is nevertheless taken, it is to be held on trust for the Landlord as
security for the respective liabilities of the Guarantor and the
Tenant.
- 45 -
Part 2
Form of authorised guarantee agreement
1. Guarantee
1.1 The Guarantor guarantees to the Landlord that the Tenant will pay the
rents reserved by, and perform and observe the Tenant's covenants in,
this Lease, and the Guarantor will pay and make good to the Landlord on
demand any losses, damages, costs, and expenses suffered or incurred by
the Landlord if the Tenant fails to do so.
1.2 The guarantee in paragraph 1.1 remains in force for so long as, and to
the extent that, the Tenant is not released by law from liability for
the Tenant's covenants in this Lease.
1.3 For the purposes of this guarantee, references to the "Tenant" are to
the assignee of this Lease in relation to whom the guarantee to the
Landlord is given, and none other and references to the "Guarantor" are
to the existing Tenant giving the guarantee to the Landlord
2. No waiver or release of liability
The Guarantor will not be released from liability under these
provisions because of:
2.1 forbearance, the granting of time or other indulgence of the Landlord;
or
2.2 a variation of this Lease which does not substantially alter the size
of the Premises or does not result in a material new obligation being
imposed on the Tenant, whether or not made with the consent of the
Guarantor, and the guarantee of the Guarantor in paragraph 1.1 is to
operate in relation to this Lease as it may be varied from time to
time.
3. Guarantor to accept new lease upon disclaimer
3.1 If this Lease is terminated by disclaimer, the Guarantor will (on
notice given by the Landlord within three months after the date of
termination) take from the Landlord a lease of the Premises.
3.2 The lease to be granted to the Guarantor under paragraph 3.1 is to be
on the following terms:
3.2.1 the term is to commence on the date of termination of this Lease and to
be equal to the residue of the Term which would have remained unexpired
at that date if this Lease had not then been terminated;
3.2.2 the yearly rent is to be the same as would have been payable under this
Lease if it had not been terminated and, if a rent review operative
from a review date before the grant of the lease had not been
completed, the Guarantor will
-46 -
complete the rent review with the Landlord as if it had been the Tenant
under this Lease in order to establish the commencing yearly rent under
the lease;
3.2.3 the lease is otherwise to be on the same terms and conditions as would
have applied under this Lease if it had not been terminated; and
3.2.4 the Guarantor is to succeed to the rights, and assume the liability, of
the Tenant under this Lease as if this Lease had not been terminated.
4. Subordination of rights of the Guarantor
4.1 The provisions of paragraph 4.2 are to apply unless the Landlord has no
subsisting claim against the Tenant for non-payment of rent or for
breach of obligation under this Lease.
4.2 The Guarantor may not:
4.2.1 seek to recover from the Tenant, or any third party whether directly or
by way of set-off, lien, counterclaim or otherwise or accept any money
or other property or security, or exercise any rights in respect of any
sum which may be or become due to the Guarantor on account of the
failure by the Tenant to observe and perform the tenant covenants in
this Lease;
4.2.2 (in competition with the Landlord) claim, prove or accept any payment
in a winding-up, liquidation, bankruptcy, composition with creditors or
other form of arrangement on the insolvency of the Tenant, for money
owing to the Guarantor by the Tenant; nor
4.2.3 exercise any right or remedy in respect of any amount paid by the
Guarantor under this Lease or any liability incurred by the Guarantor
in observing, performing or discharging the obligations and covenants
of the Tenant.
4.3 The Guarantor warrants that it has not taken, and undertakes with the
Landlord that it will not without the consent of the Landlord take, any
security from the Tenant in respect of this guarantee and, if security
is nevertheless taken, it is to be held on trust for the Landlord as
security for the respective liabilities of the Guarantor and the
Tenant.
- 47 -
Signed as a deed on behalf of FAIR, XXXXX )
INTERNATIONAL UK CORPORATION, )
a company incorporated in California by )
Xxxx X. Xxxxxxxx
and Xxxxxxxx X. Xxxx )
being persons who, in accordance with the )
laws of that territory, are acting under the )
authority of the company )
Authorised Signatory /s/ Xxxx X. Xxxxxxxx
------------------------
Xxxx X. Xxxxxxxx
CFO
Authorised Signatory /s/ Xxxxxxxx X. Xxxx
-----------------------
Xxxxxxxx X. Xxxx
- 48 -
