EXHIBIT 10.45
DATED 24TH DECEMBER, 1998
HELIOS (PARK ROYAL) LIMITED
and
LLOYDS BANK PLC (AS TRUSTEE OF THE
XXXXXXXX EXEMPT PROPERTY UNIT TRUST)
and
EXODUS INTERNET LIMITED
and
EXODUS COMMUNICATIONS INC
--------------------------------------
AGREEMENT FOR LEASE
relating to
XXXXX 0, 0 XXX 0 XXXXX 1 MATRIX PARK,
XXXXXXXXXX XXXX, XXXX XXXXX
XXXXXX XX00
-------------------------------------
WILDE SAPTE
0 Xxxxx Xxxxx
Xxxxxx XX0X 0XX
Tel. 0000 000 0000
Fax. 0000 000 0000
REF. SJG/PY0397894.06
TABLE OF CONTENTS
Clause Heading Page
1. DEFINITIONS AND INTERPRETATION............................ 1
1.1 Definitions............................................... 1
1.2 Interpretation............................................ 5
2. EXECUTION OF THE WORKS.................................... 6
2.1 Execution................................................. 6
2.2 Alterations............................................... 6
2.3 Fixtures and Fittings..................................... 7
2.4 Prohibited Materials...................................... 7
2.5 Liability for Design...................................... 7
2.6 CDM Regulations........................................... 7
3. TIME FOR COMPLETION OF THE WORKS.......................... 8
4. WARRANTIES................................................ 8
5. INFORMATION............................................... 8
5.1 Information as to Progress................................ 8
5.2 Monthly Progress Meetings................................. 8
5.3 Inspection................................................ 9
6. INSPECTION OF LANDLORD'S WORKS............................ 9
6.1 Inspection................................................ 9
6.2 Representations to Employer's Agent....................... 9
7. PRACTICAL COMPLETION...................................... 10
7.1 Inspection of the Works................................... 10
7.2 Further Inspection(s)..................................... 10
7.3 Snagging List............................................. 10
7.4 Copy Certificate and Snagging List........................ 10
8. TENANT'S WORKS............................................ 10
8.1 Tenant's Access........................................... 10
8.2 Consents and Tenant's Works............................... 11
8.3 No Interference with Works................................ 11
8.4 Tenant's Responsibility................................... 11
8.5 Indemnity................................................. 12
9. INSURANCE................................................. 12
9.1 Insurance of Works under Building Contract................ 12
9.2 Insurance of Works under Leases........................... 12
9.3 Insurance of Tenant's Works............................... 12
9.4 Evidence of Cover......................................... 13
10. GRANT OF LEASE, PARKING AREA DEED AND RENT DEPOSIT DEEDS.. 13
10.1 Grant..................................................... 13
10.2 Acceptance................................................ 13
10.3 Lease Terms............................................... 13
10.4 Completion................................................ 14
11. NOT USED.................................................. 14
12. OCCUPATION................................................ 14
12.1 Not used.................................................. 14
12.2 Occupation................................................ 14
13. RENT...................................................... 15
14. INSURANCE AND SERVICE CHARGE.............................. 15
15. DEFECTS................................................... 15
16. TENANT'S OBLIGATIONS...................................... 16
17. VAT....................................................... 16
18. INTEREST.................................................. 16
19. TITLE..................................................... 16
20. MATTERS AFFECTING THE LEASE............................... 17
20.1 Matters................................................... 17
20.2 No Requisitions........................................... 17
21. USER...................................................... 17
22. NON-MERGER................................................ 18
23. FORFEITURE AND TERMINATION................................ 18
24. ACKNOWLEDGEMENTS.......................................... 18
24.1 Acknowledgements.......................................... 18
24.2 Entire Contract........................................... 19
25. NOTICES................................................... 19
26. DISPUTES.................................................. 20
26.1 Disputes generally........................................ 20
26.2 Disputes over construction of Agreement................... 20
26.3 Disputes regarding Determination.......................... 20
26.4 Appointment of Expert..................................... 20
27. LANDLORD'S LIABILITY...................................... 21
27.1 Personal Obligations...................................... 21
27.2 Right to Assign........................................... 21
27.3 Assignment................................................ 21
28. GUARANTOR'S COVENANT...................................... 22
29. JURISDICTION.............................................. 23
29.1 English Law............................................... 23
29.2 English Courts............................................ 23
29.3 Service of Notices on Guarantor........................... 23
SCHEDULE 1 - Prohibited Materials................................. 25
ANNEXURES......................................................... 26
THIS AGREEMENT FOR LEASE is made the 24th of December 1998
BETWEEN:
(1) HELIOS (PARK ROYAL) LIMITED (Company Number 255294) of 0 Xxxxxxxx Xxxxxx
Xxxxxx X0X 0XX (the "DEVELOPER" which expression shall include any
assignee of the Developer's interest under this Agreement);
(2) LLOYDS BANK PLC (as Trustee for XXXXXXXX EXEMPT PROPERTY UNIT TRUST) of
00 Xxxxxxx Xxxxxx Xxxxxx XX0X 0XX (the "LANDLORD" which expression shall
include any assignee of the Landlord's interest under this Agreement);
(3) EXODUS INTERNET LIMITED (Company Number 3591136) whose registered office
is at Fountain Precinct Xxxx Xxxxx Xxxxxxxxx Xxxxx Xxxxxxxxx X0 0XX (the
"TENANT"); and
(4) EXODUS COMMUNICATIONS INC 2650 San Xxxxxx Expressway, Xxxxx Xxxxx
XX00000, XXX and whose address for service in England is Dibb Xxxxxx
Xxxxx (ref RSS) 000 Xxxxxx Xxxx Xxxxxx XX0X 0XX or such other address in
the UK as the Guarantor may from time to time notify in writing to the
Landlord and the Developer (the "GUARANTOR").
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
Where in this Agreement the following words begin with a capital letter
they have the following meanings (unless the context otherwise requires):
"AGREED TERM" means 25 years commencing on the Quarter Day (as defined in
the Leases) immediately preceding the Date of Practical Completion.
"ARCHITECT" means Xxxxxxx Xxxxx Partnership or such other professionally
qualified Architect as the Developer may from time to time appoint and
notify to the Tenant in writing.
"BUILDING CONTRACT" means the contract made between the Developer and the
Contractor for the construction of the Works dated 10 March 1998.
"CERTIFICATE OF PRACTICAL COMPLETION" means the certificate of practical
completion or statement of practical completion (as appropriate) issued
pursuant to the Building Contract to indicate that practical completion
has been achieved.
"CDM REGULATIONS" means the Construction (Design & Management)
Regulations 1994.
"CLAUSE" means a clause in this Agreement.
"COMMON PARTS" are as defined in the Leases.
"COMPLETION DATE" means five Working Days after the Date of Practical
Completion.
"CONDUITS" are as defined in the Leases.
"CONTRACTOR" means Tolent Construction Limited who has entered into the
Building Contract.
"DATE OF PRACTICAL COMPLETION" means the date on which the Works are
practically completed in accordance with the Building Contract being the
date specified in the statement of practical completion issued pursuant
to the Building Contract and the expressions "practical completion" and
"practically completed" shall be construed accordingly and without
reference to:
(a) any works of an unfinished nature which would normally be the
subject of a building contractor's snagging list
(b) any unfinished landscaping works the completion of which is to be
postponed in whole or in part to the next planting season
(c) any defects liability period.
"DEVELOPMENT" means Xxxxx 0-0 Xxxxx 0 Xxxxxx Xxxx Xxxxxxxxxx Xxxx Xxxx
Xxxxx Xxxxxx XX00.
"DOCUMENTS" means the plans numbered A3159:0:01C, A3159:0:09C,
A3159:0:10D to A3159:0:12D inclusive and A3159:0:18A and the
specification annexed hereto.
"EMPLOYER'S AGENT" means Gleeds Management Limited or such other
professionally qualified employer's agent as the Developer may from time
to time appoint and notify to the Tenant in writing.
"EMPLOYER'S REPRESENTATIVE" means the Employer's Agent or such other
person as the Developer shall notify to the Tenant in writing from time
to time.
"ESTATE" means the land at Matrix Xxxx Xxxxxxxxxx Xxxx Xxxx Xxxxx Xxxxxx
XX00 which is for the purpose of identification only edged green on the
Plan together with such additional land as the Landlord may from time to
time incorporate within the Estate and notify to the Tenant.
"LEASES" means the Xxxx 0 Lease, the Unit 6 Lease and the Unit 7 Lease to
be granted by the Landlord to the Tenant in the form of the drafts
annexed hereto.
"LICENCE FOR ALTERATIONS" means a licence in the form annexed relating to
the Tenant's Works (or such of them as require Landlord's consent under
the terms of the Leases) with the approved plans and drawings submitted
in accordance with Clause 8.2.1.
"LONG STOP DATE" means the date 30th March 1999 but if such date is not a
Working Day the immediately succeeding Working Day.
"PARKING AREA DEED" means the deed relating to car spaces used in
connection with Xxxx 0 Xxxx 0 and Unit 7 in the form annexed.
"PLAN" means the plan numbered A3159/01/38 attached hereto.
"PLANNING ACT" means the Town and Country Planning Xxx 0000 and any
statutory re-enactment or modification thereof.
"PLANNING PERMISSION" means planning permission number P/1997/0789 dated
26 August 1997.
"PREMISES" means Xxxx 0, Xxxx 0 and Unit 7 collectively and, where
relevant, each and every part of the same.
"PROHIBITED MATERIALS" means the materials referred to in Schedule 1.
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"RENT COMMENCEMENT DATE" means the date five months after the Date of
Practical Completion.
"RENT DEPOSIT DEEDS" means the rent deposit deeds each in the form
annexed in respect of (a) Xxxx 0, (x) Xxxx 0 xxx (x) Xxxx 0.
"REVIEW DATE" means the fifth anniversary of the date upon which the
Agreed Term commences and each fifth anniversary of such date thereafter.
"RPS" means RPS Consultants Limited of 0 Xxxxxxxx Xxxxxx Xxxxxx XX0 0XX.
"SCHEDULE" means a schedule to this Agreement.
"STRUCTURAL ENGINEER" means Xxxxxxx Xxxxx or such other professionally
qualified structural engineer as the Developer may from time to time
appoint and notify to the Tenant in writing.
"TENANT'S WORKS" means the fitting out works to the Premises to be
carried out by the Tenant pursuant to Clause 8 comprising the provision
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of all such interior fittings and equipment and the carrying out of all
such works as are necessary to enable the Tenant to carry on in the
Premises the Permitted User as defined in the Leases.
"UNIT 5" means that part of the Estate shown for the purpose of
identification only edged red on the plan annexed to the Unit 5 Lease.
"UNIT 5 LEASE" means the lease of Unit 5 to be granted by the Landlord to
the Tenant in the form of the draft annexed hereto.
"UNIT 5 RENT" means (Pounds)121,148 a year and subject to upward review
at the expiration of every fifth year of the Agreed Term.
"UNIT 6" means that part of the Estate shown for the purpose of
identification only edged red on the plan annexed to the Unit 6 Lease.
"UNIT 6 LEASE" means the lease of Unit 6 to be granted by the Landlord to
the Tenant in the form of the draft annexed hereto.
"UNIT 6 RENT" means (Pounds)100,641.50 a year and subject to upward
review at the expiration of every fifth year of the Agreed Term.
"UNIT 7" means that part of the Estate shown for the purpose of
identification only edged red on the plan annexed to the Unit 7 Lease.
"UNIT 7 LEASE" means the lease of Unit 7 to be granted by the Landlord to
the Tenant in the form of draft annexed hereto.
"UNIT 7 RENT" means (Pounds)100,850.75 a year and subject to upward
review at the expiration of every fifth year of the Agreed Term.
"VAT" means Value Added Tax or other tax of a similar nature.
"WORKING DAY" means a day (other than a Saturday or Sunday) on which
banks are open for business in the City of London.
"WORKS" means the construction of the Premises in accordance with the
Documents which state inter alia that the Works shall be designed and
constructed to comply with all statutory requirements, the Building
Regulations, the Fire Authority Regulations and requirements set out by
the statutory undertakings (i.e. gas, water and electric boards) and the
current edition of the IEE Regulations together with such Conduits and
Common Parts specified in the Documents.
1.2 INTERPRETATION
Save to the extent that the context or the express provisions of this
Agreement otherwise require:
1.2.1 headings and sub-headings are for ease of reference only and shall
not be taken into consideration in the interpretation or
construction of this Agreement;
1.2.2 all references to agreements documents or other instruments
include (subject to all relevant approvals) a reference to that
agreement document or instrument as amended supplemented
substituted novated or assigned from time to time;
1.2.3 all references to any statute or statutory provision shall include
references to any statute or statutory provision which amends
extends consolidates or replaces the same or which has been
amended extended consolidated or replaced by the same and shall
include any orders regulations codes of practice
instruments or other subordinate legislation made under the
relevant statute or statutory provision;
1.2.4 any reference to time of day shall be a reference to London time;
1.2.5 words importing the singular include the plural and vice versa;
1.2.6 words importing a particular gender include all genders;
1.2.7 "PERSON" includes any individual partnership firm trust body
corporate government governmental body authority agency or
unincorporated body of persons or association;
1.2.8 any reference to a public organisation shall be deemed to include
a reference to any successor to such public organisation or any
organisation or entity which has taken over the functions of such
public organisation;
1.2.9 references to "PARTY" means a party to this Agreement;
1.2.10 obligations and liabilities of a party comprising more than one
person are obligations and liabilities of such persons jointly and
severally;
1.2.11 "Landlord" includes any assignee of the Landlord's interest under
this Agreement.
2. EXECUTION OF THE WORKS
2.1 EXECUTION
The Developer shall carry out the Works in accordance with the Planning
Permission and all other relevant permissions and consents (which the
Developer will use all reasonable endeavours to obtain as soon as
possible) in a good and workmanlike manner with good quality materials
and otherwise in accordance with the terms of this Agreement (but for the
avoidance of doubt the Developer is not obliged to comply with any fire
or other regulations insofar as they concern the Tenant's Works).
2.2 ALTERATIONS
No alterations to the Documents shall be made without the prior approval
of the Tenant (such approval not to be unreasonably withheld) but such
approval shall not be required:
2.2.1 to an alteration required for the purpose of obtaining any
requisite permissions consents licences and approvals or complying
with any requirements properly made by any competent authority;
2.2.2 for the substitution of materials where those originally specified
are not obtainable either at all or at a reasonable cost or within
a reasonable time and where the substitute materials are of an
equivalent (or better) quality
PROVIDED THAT in any event the Developer shall within 5 Working Days
notify the Tenant of any alterations and provide full details relating
thereto including copy documents and an explanation of the relevant
circumstances.
2.3 FIXTURES AND FITTINGS
All items in the nature of the landlord's fixtures and fittings installed
as part of the Works shall become landlord's fixtures and fittings and
remain the property of the Landlord.
2.4 PROHIBITED MATERIALS
The Developer will not use or permit or suffer to be used in the Works
any Prohibited Materials.
2.5 LIABILITY FOR DESIGN
The Developer shall have the same liability to the Tenant in respect of
the design of the Works whether under statute or otherwise as would an
architect or as the case may be other appropriate professional designer
holding himself out as competent to take on work for such design.
2.6 CDM REGULATIONS
On the Date of Practical Completion the Developer shall give to the
Tenant a copy of the interim Health and Safety file then available
relating to the Works and within 20 Working
Days following the Date of Practical Completion the Developer shall give
to the Tenant a copy of the final Health and Safety File relating to the
Works prepared pursuant to the CDM Regulations.
3. TIME FOR COMPLETION OF THE WORKS
The Developer shall use all reasonable endeavours to ensure that the
Works are practically completed by 4 December 1998 unless prevented or
delayed by any cause which under the Building Contract entitles the
building contractor to an extension of time or any other cause or
circumstance not within the reasonable control of the Developer in which
case the Developer shall be entitled to an extension of time as shall be
reasonable in all the circumstances.
4. WARRANTIES
The Developer shall procure that prior to the Date of Practical
Completion there shall be delivered to the Tenant collateral agreements
executed as Deeds by each of the Contractor and the Employer's Agent and
within three months of the Date of Practical Completion there shall be
delivered to the Tenant collateral agreements executed as Deeds by each
of the Structural Engineer, the Architect and RPS such collateral
agreements to be substantially in the form of each of the drafts annexed
hereto provided that any amendment to the same shall only be made with
the consent of the Tenant such consent not to be unreasonably withheld or
delayed.
5. INFORMATION
5.1 INFORMATION AS TO PROGRESS
The Developer shall keep the Tenant informed of progress with the Works
and supply such other information in connection with the Works as the
Tenant may reasonably require from time to time.
5.2 MONTHLY PROGRESS MEETINGS
The Tenant shall be notified by the Developer of all site progress
meetings to which the Tenant shall be entitled to attend. Such
attendance by the Tenant shall be as a silent observer only.
5.3 INSPECTION
The Tenant shall have the right to appoint or nominate its own
representative to make inspections of the Works at its own cost and
subject to Clause 6.
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6. INSPECTION OF DEVELOPER'S WORKS
6.1 INSPECTION
Subject to the Tenant giving the Developer or the Employer's
Representative two Working Days' notice the Tenant or its duly authorised
agent shall be allowed at all reasonable times in the company of the
Employer's Representative to view the state and progress of the Works and
to inspect the workmanship and the materials used (but not to test any of
the materials) on the following conditions:
6.1.1 the person inspecting must report to the site office before making
an inspection and act in accordance with the instructions of the
Contractor's representatives;
6.1.2 the person inspecting must comply with all relevant safety and
security precautions and insurance requirements;
6.1.3 every inspection is entirely at the risk of the person inspecting;
6.1.4 there must be no communication with the building contractor about
the Works; and
6.1.5 the progress of the Works must not be impeded.
6.2 REPRESENTATIONS TO EMPLOYER'S AGENT
If as a result of an inspection the Tenant wishes to make representations
regarding the Works such representations shall be made exclusively to the
Employer's Agent who shall have regard to such representations.
7. PRACTICAL COMPLETION
7.1 INSPECTION OF THE WORKS
The Developer shall procure that the Tenant is given notice in writing of
the date on which the Employer's Representative intends to inspect the
Works with a view to issuing the Certificate of Practical Completion
pursuant to the Building Contract and shall procure that the Tenant is
afforded the opportunity of attending the inspection of the Works and
that the Employer's Representative has regard to any representations made
by or on behalf of the Tenant.
7.2 FURTHER INSPECTION(S)
In the event of the Employer's Representative not issuing the Certificate
of Practical Completion as anticipated the provisions of Clause 7.1 shall
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apply mutatis mutandis (except that the period of notice shall be three
Working Days instead of ten) as often as may be necessary until practical
completion of the Works is actually certified.
7.3 SNAGGING LIST
In the event of the Certificate of Practical Completion being issued
subject to a snagging list the Developer shall procure that the Works on
the snagging list are carried out as soon as is reasonably practicable
free of expense to the Tenant.
7.4 COPY CERTIFICATE AND SNAGGING LIST
2 Working Days after the issue thereof the Developer will provide the
Tenant with a copy of the Certificate of Practical Completion and any
snagging list.
8. TENANT'S WORKS
8.1 TENANT'S ACCESS
As from the Date of Practical Completion but subject to Clause 8.2 the
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Tenant shall be afforded access to the Premises for the purpose of
carrying out the Tenant's Works
8.2 CONSENTS AND TENANT'S WORKS
The Tenant shall:
8.2.1 to the extent that it has not already done so submit to the
Landlord for approval (such approval not to be unreasonably
withheld or delayed) within two months of the date hereof plans or
drawings in triplicate of the Tenant's Works and shall not
commence the Tenant's Works until such approval has been obtained
and the Licence for Alterations has been entered into by the
Landlord and the Tenant;
8.2.2 obtain all requisite licences consents and permissions of the
local planning and other authorities for the Tenant's Works and
shall provide copies thereof to the Landlord and shall not
commence the Tenant's Works until all such have been obtained;
8.2.3 carry out the Tenant's Works in a good and substantial manner with
good quality materials in accordance with the said plans and the
terms and conditions of all such licences consents and permissions
and to the reasonable satisfaction of the Landlord; and
8.2.4 permit the Landlord and the Employer's Agent at all reasonable
times to inspect the progress of the Tenant's Works and the
quality of the materials and workmanship used therein.
8.2A Once the plans and drawings of the Tenant's Works have been approved by
the Landlord in accordance with Clause 8.2.1 and subject to completion of
the Leases the Landlord and Tenant shall within 10 Working Days enter
into the Licence for Alterations.
8.3 NO INTERFERENCE WITH WORKS
The Tenant shall ensure that neither it nor its agents employees or
contractors do anything to impede the progress of the Works or the
Development.
8.4 TENANT'S RESPONSIBILITY
As between the Landlord, the Developer and the Tenant all materials goods
plant machinery equipment and other items used in connection with the
Tenant's Works shall be at the sole risk and responsibility of the Tenant
and all agents employees and contractors engaged in the Tenant's Works
shall be persons for whom the Tenant is responsible.
8.5 INDEMNITY
The Tenant shall be liable for and shall indemnify each of the Landlord
and the Tenant against any expense liability loss claim or proceedings in
respect of personal injury to or the death of any person whomsoever or
injury or damage whatsoever to any property real or personal arising out
of or in the course of or by reason of the carrying out of the Tenant's
Works.
9. INSURANCE
9.1 INSURANCE OF WORKS UNDER BUILDING CONTRACT
Until the Date of Practical Completion the Developer will cause the Works
to be insured in accordance with the Building Contract.
9.2 INSURANCE OF WORKS UNDER LEASES
Thereafter the Landlord will insure the Works or cause the same to be
kept insured against the Insured Risks as defined in the Leases in
accordance with the covenant on its behalf and subject to the conditions
therein contained.
9.3 INSURANCE OF TENANT'S WORKS
Until completion of the Tenant's Works the Tenant shall keep the Tenant's
Works insured (or shall procure such insurance) against the Insured Risks
(as so defined) and on
completion thereof shall advise the Landlord in writing of the value of
the Tenant's Works and within 14 days of receipt of such written advice
the Landlord shall insure or cause the same (insofar as they are
comprised within the Property as defined in the Leases to be kept insured
against the Insured Risks in accordance with the covenant on its behalf
and subject to the conditions therein contained.
9.4 EVIDENCE OF COVER
Each party will produce to the other whenever reasonably required written
evidence of such insurance cover.
10. GRANT OF LEASE, PARKING AREA DEED AND RENT DEPOSIT DEEDS
10.1 GRANT
Subject to previous compliance by the Tenant with the provisions of this
Agreement the Landlord will grant to the Tenant on the Completion Date
the Xxxx 0 Xxxxx, Xxxx 0 Lease and Unit 7 Lease for the Agreed Term and
shall enter into the Parking Area Deed with the Tenant and the Guarantor
and the Rent Deposit Deeds.
10.2 ACCEPTANCE
The Tenant and the Guarantor will accept the Leases, the Parking Area
Deed and the Rent Deposit Deeds and execute counterparts thereof but (for
the avoidance of doubt) it is hereby agreed that neither the Tenant nor
the Guarantor shall be obliged to accept any Lease unless there is a
simultaneous grant of all the Leases and of the Parking Area Deed.
10.2A On the Completion Date the Tenant shall pay over to the Landlord the
deposits payable in accordance with the terms of the Rent Deposit Deeds
but such payments shall not be payable unless there is a simultaneous
grant of all of the Leases and of the Parking Area Deed.
10.3 LEASE TERMS
10.3.1 The Unit 5 Lease shall be at the Unit 5 Rent and otherwise subject in
all respects to the terms and conditions set out in the Unit 5 Lease.
10.3.2 The Unit 6 Lease shall be at the Unit 6 Rent and otherwise subject in
all respects to the terms and conditions set out in the Unit 6 Lease.
10.3.3 The Unit 7 Lease shall be at the Unit 7 Rent and otherwise subject in
all respects to the terms and conditions set out in the Unit 7 Lease.
10.3.4 The following matters shall include in each of the Leases:
(A) The Review Date to be specified in Clause 1 of the Leases shall be
the Review Date as specified in this Agreement;
(B) The date to be specified in Clause 3(1) of the Leases shall be the
Quarter Day (as defined in the Leases) immediately preceding the
Date of Practical Completion;
(C) The date to be specified in Clause 4(1)(a) of the Leases shall be
the day before the Rent Commencement Date as specified in this
Agreement;
(D) The date to be specified in Clauses 4(1)(b) and 4(2) of the Leases
shall be the Rent Commencement Date specified in this Agreement;
(E) The date to be specified in Clause 5(1) of the Leases shall be the
Date of Practical Completion.
10.4 COMPLETION
Completion of the grant of each of the Leases shall take place at the
offices of the Developer's Solicitors Wilde Sapte of 0 Xxxxx Xxxxx
Xxxxxx XX0X 0XX or elsewhere as they may reasonably direct.
11. NOT USED
12. OCCUPATION
12.1 NOT USED
12.2 OCCUPATION
As soon as the Tenant shall have completed the Tenant's Works to the
reasonable satisfaction of the Landlord the Tenant shall notwithstanding
that the Leases may not then be completed take up occupation of and
commence trading at the Premises upon the terms and conditions of the
Leases and with the benefit of but subject to the rights (so far as
consistent with the physical state of the Development from time to time)
exceptions and reservations agreements and declarations and provisos
therein contained and the Landlord shall have and be entitled to all
remedies by distress action or otherwise for breach of any of the
covenants or conditions on the part of the Tenant as if the Leases had
actually been granted.
13. RENT
The Tenant shall be liable on and from the Rent Commencement Date until
the Leases shall be granted for the payment to the Landlord on the dates
specified in the Leases (the first payment to be made on the Rent
Commencement Date and to be in respect of the period from that date until
the next following quarter date) of sums equal to the amounts which would
have been payable by way of rent under the covenants of the Leases had
the same actually been granted on the Rent Commencement Date provided
nevertheless that any money so paid shall be set against the rent which
would otherwise be due under the Leases in respect of the same period.
14. INSURANCE AND SERVICE CHARGE
The Tenant shall also be liable on and from the Date of Practical
Completion until the Leases shall be granted for the payment to the
Landlord on the dates specified in the Leases of sums equal to the
amounts which would have been payable by way of insurance and service
charge under the covenants of the Leases had the same actually been
granted on the Date of Practical Completion provided nevertheless that
any money so paid shall be set against the insurance and service charge
which would otherwise be due under the Leases in respect of the same
period.
15. DEFECTS
Any defects shrinkages or other faults in the Works which shall appear
within the defects liability period or periods provided under the
Building Contract shall be certified by the Tenant in a schedule of
defects to be delivered by the Tenant to the Developer not later than 14
days prior to the date of expiry of each defects liability period and the
Developer shall take all reasonable steps to procure the making good of
all such defects as are covered by the defects liability clause in the
Building Contract and the Tenant shall give reasonable access to the
Contractor for this purpose.
16. TENANT'S OBLIGATIONS
The Tenant agrees to observe and perform the following stipulations:
16.1 Not to enter into possession of the Premises until the Date of
Practical Completion;
16.2 Not to assign or deal with its interest under this Agreement or
any part thereof but to take up occupation of the Premises itself
and commence trading therefrom as hereinbefore provided.
17. VAT
All payments of whatever nature which are payable under this agreement
are exclusive of VAT and the Tenant shall pay and keep each of the
Landlord and the Developer indemnified against all VAT which may from
time to time be charged on any monies payable by the Tenant under this
Agreement.
18. INTEREST
If any sum of money payable by the Tenant under this Agreement remains
unpaid for more than seven days after the date when payment is due the
Tenant shall pay interest on the amount due from time to time at the rate
of four per cent per annum above the base lending
rate from time to time of the National Westminster Bank PLC from the date
when payment was due until the date of payment (both before and after any
judgment).
19. TITLE
Title has been deduced to the Tenant's Solicitors (as the Tenant hereby
acknowledges) and the Tenant is deemed to have full knowledge thereof and
shall raise no objection or requisition relating thereto.
20. MATTERS AFFECTING THE LEASE
20.1 MATTERS
The Leases will be granted subject to and with the benefit of such of the
following as may apply:
20.1.1 all local land charges (whether registered or not before the date
of this agreement) and all matters capable of registration as a
local land charge or otherwise registrable by any competent
authority or pursuant to statute or like instrument;
20.1.2 all notices served and orders demands proposals or requirements
made by any local or other public or competent authority whether
before or after the date of this Agreement;
20.1.3 all actual or proposed charges notices orders restrictions
agreements conditions or other matters arising under any
enactment relating to Town and Country Planning;
20.1.4 all existing rights and easements and quasi-easements;
20.1.5 all matters in the nature of overriding interests as defined in
Section 70 of the Land Registration Xxx 0000; and
20.1.6 the matters contained mentioned or referred to in the documents
mentioned in the Leases.
20.2 NO REQUISITIONS
The Tenant is deemed to have full knowledge of all matters referred to in
Clause 20.1 and shall raise no objection or requisition in relation to
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any such matter.
21. USER
Neither the Landlord nor the Developer warrants that the Premises may
lawfully be used for any purpose authorised under the Leases.
22. NON-MERGER
The provisions of this Agreement so far as not performed prior to
completion of the Leases shall remain in full force and effect
notwithstanding the completion of the Leases.
23. FORFEITURE AND TERMINATION
23.1 If the Tenant commits any substantive breach of the provisions of this
agreement and fails to remedy such breach within twenty-one (21) days
after notice in writing by the Developer or the Landlord to the Tenant
specifying the breach or if an Event of Default (as that term is defined
in the Leases) occurs then in any such case the Developer or the Landlord
may at any time thereafter by notice in writing to the Tenant determine
this Agreement but without prejudice to any claim which the Developer or
the Landlord may have against the Tenant arising before the date of
determination Provided that notwithstanding such determination the Tenant
shall if and to the extent required by the Developer or the Landlord
remove at its own expense any works carried out by or on behalf of the
Tenant to the Building and reinstate the same and if the Tenant shall
default in carrying out any such works of removal and reinstatement
either of the Landlord or the Developer shall be entitled to carry out
such works at the Tenant's expense and all costs so incurred shall be
repaid by the Tenant forthwith upon demand.
23.2 If the Date of Practical Completion does not occur before the Long Stop
Date the Tenant shall have a right during the period of one month
following the Long Stop Date (as to which time shall be of the essence)
to terminate this Agreement by service of notice in
writing on the Developer and the Landlord. Such determination shall be
without prejudice to the rights or remedies available to any party to
this Agreement in relation to any antecedent breach of this Agreement and
the provisions contained in paragraph 23.1 relating to the removal of
Tenant's Works shall apply.
24. ACKNOWLEDGEMENTS
24.1 ACKNOWLEDGEMENTS
The Tenant hereby acknowledges and admits:
24.1.1 that it has not entered into this Agreement in reliance upon any
representation made by or on behalf of the Landlord and/or the
Developer but not embodied in this Agreement except to the extent
that the Tenant may be entitled to rely on any representation
made by the Developer's solicitors on behalf of the Developer in
any written reply to any enquiry made by the Tenant's solicitors
on behalf of the Tenant; and
24.1.2 that it has satisfied itself on all matters relating to user
under the Planning Act and accepts that it shall be deemed to
take the Premises with full knowledge thereof and shall raise no
requisition or objection in relation thereto.
24.2 ENTIRE CONTRACT
The parties agree that this Agreement constitutes the entire contract
between them and may not be varied except by written agreement between
them or their respective solicitors.
25. NOTICES
25.1 All notices requests demands approvals consents and other communications
under this Agreement shall be in writing and shall be deemed to be duly
given if delivered personally or sent by telex or facsimile or by prepaid
registered or recorded delivery mail to a party at its address set forth
above or at such other address as such party may specify from time to
time by written notice to the others and if by facsimile shall be deemed
to be given at the time of receipt and if by mail then shall be deemed to
be given on the second Working Day after the day of posting.
25.2 During such period that the Estate is vested in the trustee of Xxxxxxxx
Exempt Property Unit Trust no notice shall be deemed to be validly served
on the Landlord unless a copy of such notice is also served on Xxxxxxxx
Property Investment Management Limited at 00 Xxxxxxx Xxxxxx, Xxxxxx XX0X
0XX or such other address as the Landlord shall notify to the Tenant and
the Developer.
26. DISPUTES
26.1 DISPUTES GENERALLY
Any dispute or difference arising between the parties hereto as to their
respective rights duties and obligations hereunder or as to any matter
arising out of or in connection with the subject matter of this Agreement
(excluding any dispute or difference referred to in Clause 26.3) shall be
-----------
referred to and determined by an independent person who has been
professionally qualified in respect of the subject matter of the dispute
or difference for not less than ten years and who is a specialist in
relation to such subject matter such independent person to be agreed
between the parties or failing such agreement to be nominated by the
President or Vice-President or other duly authorised officer of the Royal
Institution of Chartered Surveyors on the application of any party
hereto.
26.2 DISPUTES OVER CONSTRUCTION OF AGREEMENT
Any dispute or difference arising between the parties hereto over the
meaning or construction of this Agreement (and also any dispute as to
whether a particular dispute or difference should be dealt with under
Clause 26.1) shall be referred to an independent solicitor or barrister
-----------
agreed between the parties hereto or failing such agreement nominated by
the President or the Vice-President or other duly authorised officer of
the Law Society on the application of any party hereto.
26.3 DISPUTES REGARDING DETERMINATION
Clauses 26.1 and 26.2 do not apply to disputes relating to the
---------------------
determination or purported determination of this Agreement under Clause
------
23.
--
26.4 APPOINTMENT OF EXPERT
Whenever a person is to be appointed under this Clause 26 the following
---------
provisions shall have effect:
26.4.1 the person shall act as an expert and not as an arbitrator and
his decision shall be final and binding upon the parties hereto;
26.4.2 the person shall consider (inter alia) any written
representations on behalf of any party (if made promptly) but
shall not be bound thereby;
26.4.3 the parties shall use all reasonable endeavours to procure that
the person gives his decision as speedily as possible;
26.4.4 the costs of appointing the person and his costs and
disbursements in connection with his duties under this agreement
shall be shared between the parties in such proportions as the
person shall determine or in the absence of such determination
equally between them; and
26.4.5 if the person becomes unable or unwilling to act then the
procedure hereinbefore contained for appointment of an expert may
be repeated as often as necessary.
27. LANDLORD'S LIABILITY
27.1 PERSONAL OBLIGATIONS
The obligations on the part of the Developer contained in this Agreement
shall be personal to the Developer and shall not be binding on the
Landlord nor the owner for the time being of the reversion to the
interest to be granted pursuant to the Leases.
27.2 RIGHT TO ASSIGN
The Landlord shall have the right to assign the benefit of this Agreement
by way of absolute legal assignment or by way of security or otherwise.
The Landlord shall within 10 Working Days after such assignment give
written notice (or procure that the assignee
gives such notice) to the Tenant of such assignment and setting out full
details of the assignee and its address for service.
27.3 ASSIGNMENT
If the Landlord assigns the benefit of this Agreement and the assignee
gives notice of such assignment to the Tenant the Tenant shall forthwith
following receipt of the notice of assignment acknowledge receipt of the
same and shall also acknowledge to the assignee that it shall not treat
this Agreement as repudiated by reason of any act or omission on the part
of the Landlord named in this Agreement without first giving not less
than 10 Working Days notice in writing to the assignee and allowing the
assignee a reasonable opportunity to remedy or procure remediation of the
breach (where capable of remedy).
28. GUARANTOR'S COVENANT
The Guarantor covenants with the Landlord and as a separate covenant with
the Developer that:
28.1 during the continuance of this agreement the Tenant shall observe
and perform the obligations covenants and conditions on the
Tenant's part contained in this agreement and in case of default
the Guarantor will observe and perform the obligations covenants
and conditions in respect of which the Tenant is in default and
make good to each of the Landlord and the Developer on demand and
indemnify each of the Landlord and the Developer against all
losses damages costs and expenses thereby arising or incurred by
the Landlord or the Developer (as appropriate);
28.2 the liability of the Guarantor under Clause 28.1 shall not be
-----------
affected in any way by:
28.2.1 any neglect or forbearance of the Landlord or the
Developer in enforcing the observance or performance of
the obligations covenants and conditions on the
Tenant's part;
28.2.2 any time or indulgence given to the Tenant by the
Landlord or the Developer;
28.2.3 any variation in the terms of this Agreement;
28.2.4 the death of the Tenant (if an individual) or the
dissolution of the Tenant or the Tenant otherwise
ceasing to exist; or
28.2.5 any other act matter or thing or the release of any
person apart from the express release in writing of the
Guarantor;
28.3 if during the continuance of this Agreement the Tenant (being a
company) is dissolved or if the liquidator of the Tenant or (if
the Tenant is an individual) the trustee in bankruptcy of the
Tenant disclaims this agreement the Guarantor shall upon written
notice from the Landlord given within three months after the date
of dissolution or disclaimer enter into an agreement for Lease of
the Premises (as tenant) upon the same terms as in this Agreement
(without however requiring any other person to act as guarantor)
such new agreement to take effect from the date of dissolution or
disclaimer and to be granted at the cost of the Guarantor who
shall execute and deliver to the Landlord a counterpart of it.
29. JURISDICTION
29.1 ENGLISH LAW
This Agreement shall be governed by and construed in accordance with
English law.
29.2 ENGLISH COURTS
Each party to this Agreement submits to the exclusive jurisdiction of the
English courts in respect of all matters arising out of this Agreement
but the Landlord shall have the right to bring proceedings in the courts
of any other jurisdiction for the purpose of enforcing a judgment.
29.3 SERVICE OF NOTICES ON GUARANTOR
The Guarantor appoints Dibb Xxxxxx Xxxxx (ref RSS) of 000 Xxxxxx Xxxx
Xxxxxx XX0X 0XX as its agents (or such other person in the UK as the
Guarantor may from time to time nominate by written notice to the
Landlord and to the Developer) to accept on its behalf
service of all notices served in accordance with the provisions of this
agreement and to accept service of process in respect of all proceedings
arising out of this agreement.
AS WITNESS the hands of duly authorised signatories for the Landlord, the
Developer and the Tenant and executed as a deed by the Guarantor
SIGNED by )
for and on behalf of the DEVELOPER )
SIGNED by )
for and on behalf of the LANDLORD )
SIGNED by )
for and on behalf of the TENANT )
SIGNED as a DEED )
by the GUARANTOR acting by Xxxxxxx Xxxxxx its )
Authorised Signatory in accordance with the )
constitution of the company and the country in )
which it is incorporated
Authorised Signatory
SCHEDULE 1
(PROHIBITED MATERIALS)
The materials identified in the publication entitled "Good Practice in the
Selection of Construction Materials" produced by the British Council for Offices
and the British Property Federation
ANNEXURES
Annexure 1 - Documents
Annexure 2 - Xxxx 0 Xxxxx
Xxxxxxxx 0 - Xxxx 0 Lease
Annexure 4 - Unit 7 Lease
Annexure 5 - Plan
Annexure 6 - Contractor's Warranty
Annexure 7 - Employer's Agent's Warranty
Annexure 8 - Structural Engineer's Xxxxxxxx
Xxxxxxxx 0 - Xxxxxxxxx'x Xxxxxxxx
Annexure 10 - RPS's Warranty
Annexure 11 - Rent Security Deposit Deed relating to Unit 5
Annexure 12 - Rent Security Deposit Deed relating to Unit 6
Annexure 13 - Rent Security Deposit Deed relating to Unit 7
Annexure 14 - Licence for Xxxxxxxxxxx
Xxxxxxxx 00 - Xxxxxxx Xxxx Deed
DATED 24th December 1998
LLOYDS BANK PLC
(as trustee of Xxxxxxxx Exempt Property Unit Trust)
- and -
EXODUS INTERNET LIMITED
- and -
EXODUS COMMUNICATIONS INC
---------------------------------
L E A S E
of property known as
Xxxx 0 Xxxxx 0 Xxxxxx Xxxx,
Xxxxxxxxxx Road, Park Royal, London NW10
---------------------------------
XXXXX & OVERY
London
XX0000000.03
H.M. LAND REGISTRY
Land Registration Acts 1925-1988
County & District: London Boroughs & Ealing and Xxxxx
Title Number: AGL54738
Property: Xxxx 0 Xxxxx 0 Xxxxxx Xxxx, Xxxxxxxxxx Road, Park Royal,
London NW10
THIS LEASE is made on 24th December, 1998
BETWEEN:
(1) LLOYDS BANK PLC (registered number 2065) (as trustee of Xxxxxxxx Exempt
Property Unit Trust) whose registered office is at 00 Xxxxxxx Xxxxxx,
Xxxxxx XX0X 0XX (the "LANDLORD");
(2) EXODUS INTERNET LIMITED (registered number 3591136) whose registered office
is at Fountain Precinct Xxxx Xxxxx Xxxxxxxxx Xxxxx Xxxxxxxxx X0 0XX
(the "TENANT"); and
(3) EXODUS COMMUNICATIONS INC of 0000 Xxx Xxxxxx Xxxxxxxxxx, Xxxxx Xxxxx
XX00000, XXX (the "GUARANTOR").
This Lease is a new tenancy for the purposes of section 1 of the Landlord and
Tenant (Covenants) Xxx 0000.
THIS DEED WITNESSES as follows:
1. DEFINITIONS
In this Lease:
"AUTHORISED GUARANTEE AGREEMENT" means an authorised guarantee agreement as
defined in section 16 of the Landlord and Tenant (Covenants) Xxx 0000;
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which banks
are generally open in London for normal business;
"CAR SPACES" means the 20 parking spaces within the areas shown edged green
on the Plan from time to time designated by the Landlord for the Tenant's
use;
"CLEARING BANK" means a bank which is a member of CHAPS Clearing Company
Limited;
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"COMMON PARTS" means the roads, footpaths, service areas, car parks,
loading bays, landscaped and open areas, entrances and other areas from
time to time during the Term provided by the Landlord for common use by the
tenants of the Estate (but shall not include any such items as may
exclusively serve and be demised to a tenant of any Unit) but for the
avoidance of doubt the common parts shall always include the road coloured
xxxxx on the Plan and the Car Spaces and shall afford the Tenant access to
and from the Property and the Car Spaces;
"CONDUITS" includes those for sewage, water, gas, electricity,
telecommunications and data processing;
"DEFAULT INTEREST RATE" means four per centum per annum above the Interest
Rate;
"END OF THE TERM" includes the expiry of the Term by effluxion of time or
the determination of the Term by forfeiture, surrender, merger, notice or
in any other way;
"ESTATE" means Phases 1 and 0 Xxxxxx Xxxx Xxxxxxxxxx Xxxx Xxxx Xxxxx Xxxxxx
XX00 the present extent of which is shown edged green on the Estate Plan
but such expression shall mean such greater or lesser area which shall
include the Property and which shall from time to time be managed by the
Landlord as a single estate (including all buildings and other structures
on and all parts of such estate);
"ESTATE PLAN" means the plan numbered A3159/0/38 annexed to this Lease;
"GUARANTOR" includes the person named in this Lease as guarantor, if any,
and any other person who is for the time being a guarantor in respect of
the Tenant's obligations under this Lease and his personal representatives
and successors;
"INSURED RISKS" means fire, lightning, explosion, earthquake, aircraft and
other aerial devices and articles dropped from them, escape of oil, impact
by vehicles or animals, riot, civil commotion, strikes and labour
disturbances, storm, flood, bursting and overflowing of water tanks,
apparatus or pipes and other risks against which the Landlord reasonably
decides from time to time to insure and any other risks that the Tenant
shall reasonably require to be included and which the insurers shall accept
subject to such exclusions, limitations and excesses as are imposed by its
insurers and to the extent to which the risks mentioned in this definition
are insurable with the Landlord's insurers but shall include loss or damage
by acts of terrorism if and only to the extent that the Landlord has
insured against acts of terrorism;
"INTEREST RATE" means the base rate for the time being of Lloyds Bank Plc
or of another Clearing Bank designated from time to time by the Landlord or
if there is no such base rate the rate from time to time prescribed under
section 32 of the Land Compensation Xxx 0000;
"LANDLORD" includes the person for the time being entitled to the reversion
immediately expectant on the End of the Term;
"LEASE" means this lease, all deeds varying this lease and all licences and
consents granted under this lease or under any deed of variation;
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"LETTABLE AREAS" means all buildings on the Estate designed to be let for
commercial use;
"PARKING AREA" means the car parking areas forming part of the Estate
including the Car Spaces;
"PLAN" means the plan annexed to this Lease numbered A3159:0:01;
"PLANNING ACTS" means the Town and Country Planning Xxx 0000, the Planning
(Listed Building and Conservation Areas) Xxx 0000, the Planning (Hazardous
Substances) Xxx 0000, the Planning (Consequential Provisions) Xxx 0000 and
the Planning and Compensation Xxx 0000;
"PROPERTY" means the property described in Schedule 1 and every part of it
and all additions and alterations to it and includes (without limitation):
(a) every part of all buildings and other structures now or during the
Term on the property including walls, roofs, foundations, load-bearing
parts, doors, windows and Conduits exclusively serving the Property;
(b) landlord's fixtures and fittings including floor coverings;
(c) electrical and mechanical installations, plant, equipment and
machinery including (without limitation) lifts, heating plant, air
conditioning plant and ventilation plant and radiators;
(d) one half (severed vertically) of any wall separating the Property from
any adjoining Unit;
(e) service areas, loading bays and landscaped and open areas; and
(f) boundary walls and fences (if any);
"QUARTER DAYS" means 25th March, 24th June, 29th September and 25th
December in every year;
"RENT" includes all sums reserved as rent by this Lease and any interim
rent determined under the Landlord and Xxxxxx Xxx 0000;
"RETAINED AREAS" means the whole of the Estate other than the Units;
"REVIEW DATE" means 29th September in the year 2003 and in every fifth
year after that year for so long as the Term continues;
"REVIEW PERIOD" means the period starting with any Review Date up to the
next Review Date or starting with the last Review Date up to the End of the
Term;
"TENANT" includes the Tenant's successors in title;
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"TERM" means the term granted by this Lease and any statutory or other
continuation or extension of it or any holding over;
"TERM COMMENCEMENT DATE" means the date of commencement of the Term
specified in clause 3(1);
"UNITS" means the units of accommodation on the Estate that are let or
otherwise exclusively occupied or designed or intended for letting or
exclusive occupation and "Unit" shall mean any one of them;
"VAT" means value added tax and any imposition or levy of a like nature;
and
"VATA 1994" means the Value Added Tax Xxx 0000.
2. INTERPRETATION
(1) Where there are two or more persons included in the expressions "the
Landlord", "the Tenant" or "the Guarantor" each reference to the Landlord,
the Tenant or the Guarantor includes a separate reference to each of those
persons.
(2) Any reference, express or implied, to an enactment includes references to:
(a) that enactment as amended, extended or applied by or under any other
enactment (before or after this Lease);
(b) any enactment which that enactment re-enacts (with or without
modification);
(c) any subordinate legislation made (before or after this Lease) under
that enactment, as amended, extended or applied as described in
paragraph (a) above or under any enactment referred to in paragraph
(b) above; and
(d) any consents, licences and permissions given (before or after this
lease) under that enactment, as amended, extended or applied as
described in paragraph (a) above or under any enactment referred to in
paragraph (b) above or under that subordinate legislation and any
conditions contained in those consents, licences and permissions.
(3) Any reference, express or implied, to enactments generally includes
subordinate legislation and any legislation of the European Union that is
directly applicable in the United Kingdom and includes existing enactments
and those that come into effect during the Term.
(4) Sub-clauses (1) to (3) above apply unless the contrary intention appears.
(5) The headings in this Lease do not affect its interpretation.
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3. LEASE
(1) The Landlord lets the Property to the Tenant together with the rights set
out in Schedule 2 but except and reserving to the Landlord the rights set
out in Schedule 3 for the term of twenty five years commencing on and
including 29th September 1998 subject to all rights and covenants
affecting the Property including (without prejudice to the generality of
the foregoing) the matters contained or referred to in Schedule 4 at a
yearly rent ascertained in accordance with clause 4.
(2) The rights granted to the Tenant are granted in common with the Landlord,
any person authorised by the Landlord and everyone else having the like or
similar rights.
(3) This Lease does not include any rights other than those set out in Schedule
2.
(4) The rights excepted and reserved to the Landlord are also excepted and
reserved to those authorised by the Landlord and everyone else entitled to
them.
4. RENT AND RENT REVIEW
(1) RENT
The yearly rent shall be:-
(a) until 16th May 1999 the rent of one peppercorn (if demanded);
(b) from and including 17th May 1999 until the first Review Date the rent
of one hundred and twenty one thousand one hundred and forty eight
pounds ((Pounds)121,148); and
(c) during each successive Review Period a rent equal to the rent
previously payable under this Lease (or the rent which would be
payable but for any abatement or suspension of rent under this Lease)
or the revised rent ascertained in accordance with this clause,
whichever is the greater.
(2) RENT PAYMENT DATES
The yearly rent is payable without any deduction by equal quarterly
payments in advance on the Quarter Days. The first payment (which is an
apportioned sum) is to be made 17th May 1999, in respect of the period
commencing on 17th May 1999 and ending on 23rd June 1999.
(3) RENT REVIEW - METHOD
The revised rent for any Review Period may be agreed in writing at any time
between the Landlord and the Tenant or (in the absence of agreement)
determined not earlier than the relevant Review Date by an independent
valuer (acting as an expert and not as an arbitrator) of recognised
standing and having experience in letting and valuing property of a like
kind and character to the Property.
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(4) NOMINATION
The independent valuer may be nominated in the absence of agreement by or
on behalf of the president for the time being of the Royal Institution of
Chartered Surveyors on the application of either the Landlord or the Tenant
made not earlier than three months before the relevant Review Date.
(5) RENT REVIEW - AMOUNT
In the case of valuation the revised rent to be determined by the valuer
shall be such as he shall decide is the yearly rent at which the Property
might reasonably be expected to be let at the relevant Review Date
(a) after the expiry of a rent free period or a concessionary rent period
given for fitting-out purposes only of such length and the giving of
such other inducements (including, without limitation, any rental
concession, capital payment or contribution to fitting out-costs)
given for fitting out purposes only as in either case would be
negotiated in the open market between a willing landlord and a willing
tenant so that the yearly rent is that payable after the expiry of any
such rent free period or concessionary rent period and after the
giving of such inducement; and
(b) on the assumptions set out in sub-clause (6) but disregarding the
matters set out in sub-clause (7).
(6) ASSUMPTIONS
The assumptions are that at the relevant Review Date:
(a) the Property:
(i) is available to let on the open market by a willing landlord to
a willing tenant by one lease without a premium from either
party and with vacant possession for a term of 10 years or a
term equal to the residue then unexpired of the Term (whichever
be the longer) but in either event commencing on the relevant
Review Date with the rent payable from then;
(ii) is to be let as a whole on a lease which is to contain the same
terms as this Lease (other than the amount of the rent referred
to in sub-clause (1)(a) and (b) and any rent free or reduced
rent period allowed to the Tenant but including the provisions
for review of that rent at the same intervals as those in this
Lease) the first Review Date in that lease being the fifth
anniversary of the relevant Review Date;
(iii) is fit and available for immediate occupation and use with
connections to all mains services independently of any other
Unit and is ready to be fitted out for the incoming tenant's use
as authorised by this Lease; and
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(iv) may be used for any of the purposes permitted by this Lease
including any purpose which falls within the same use class
(under the Town & Country Planning (Use Classes) Order for the
time being in force) as the purpose permitted by this Lease;
(b) all the covenants in this Lease by the Landlord and the Tenant have
been performed and observed; and
(c) no work has been carried out to the Property which has diminished the
rental value and in case the Property has been destroyed or damaged it
has been fully restored.
(7) Disregards
The matters to be disregarded are:
(a) any effect on rent of the fact that the Tenant, its subtenants or
their respective predecessors in title have been in occupation of the
Property;
(b) any goodwill attached to the Property by reason of the carrying on at
it of the business of the Tenant, its subtenants or their predecessors
in title in their respective businesses; and
(c) any increase in rental value of the Property attributable to the
existence at the relevant Review Date of any improvement carried out
with consent of the Landlord (where required) but not under an
obligation to the Landlord or its predecessors in title to the
Property carried out by and at the cost of the Tenant, its subtenants
or their respective predecessors in title during the Term or during
any earlier period of occupation arising out of an agreement to grant
the Term.
(8) VALUER
In the case of determination by a valuer:
(a) the fees and expenses of the valuer including the cost of his
appointment shall be borne as he shall decide or in the absence of any
decision equally by the Landlord and the Tenant who shall otherwise
each bear their own costs;
(b) the valuer shall afford the Landlord and the Tenant an opportunity to
make representations to him; and
(c) if the valuer dies, delays or becomes unwilling or incapable of acting
or if for any other reason the president for the time being of the
Royal Institution of Chartered Surveyors or the person acting on his
behalf thinks fit he may discharge the valuer and appoint another in
his place.
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(9) MEMORANDUM
When the revised rent has been ascertained memoranda of it shall be signed
by or on behalf of the Landlord and the Tenant and annexed to this Lease
and the counterpart of it and the Landlord and the Tenant shall bear their
own costs in respect of the memoranda.
(10) INTEREST
If the revised rent payable with effect from any Review Date has not been
agreed by that Review Date rent shall continue to be payable at the rate
previously payable. Forthwith on the revised rent being ascertained the
Tenant shall pay to the Landlord any shortfall between the rent and the
revised rent payable up to and on the preceding quarter day together with
interest at the Interest Rate compounded quarterly on each part of the
shortfall from the date or respective dates on which each part would have
been due for payment had the revised rent been ascertained before the
relevant Review Date until the date of payment.
For the purpose of this clause the revised rent shall be deemed to have
been ascertained on the date when it has been agreed between the Landlord
and the Tenant or the date of the determination by the valuer.
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(11) COSTS
If either the Landlord or the Tenant fails to pay the relevant part of the
fees and expenses of the valuer under sub-clause (8) within 15 Business
Days of the same being demanded by the valuer the other shall be entitled
to pay the same and the amount so paid shall be repaid on demand by the
party chargeable and recoverable from that party as a debt due.
(12) TIME NOT OF THE ESSENCE
Time shall not be of the essence for the purposes of this clause 4.
5. SERVICE CHARGE
(1) The Tenant shall pay to the Landlord the Provisional Service Charge without
any deduction by equal quarterly payments in advance on the Quarter Days.
The first payment (which is an apportioned sum) is to be made on the date
hereof in respect of the period commencing 17th December 1998 and ending on
the next following Quarter Day.
(2) As soon as possible after every Accounting Date the Landlord shall prepare
and supply to the Tenant an account:
(a) showing the Gross Expenses, the Income and the Net Expenses for the
Financial Year referred to in the account;
(b) containing a fair summary of the items referred to in it; and
(c) certified by the Landlord or its agents (who may be the managing
agents for the Estate).
The account shall be conclusive evidence of all matters of fact referred to
it in it (save in the case of manifest error) and the Tenant shall be
afforded on request reasonable facilities for inspecting and taking copies
of the accounts and receipts and other documents supporting the account.
(3) In the case of the first Accounting Date after the date for commencement of
payment of the Provisional Service Charge specified in clause 5(1), if the
proportion of the Tenant's Share of the Net Expenses shown in the account
apportioned on a daily basis for the period from that date to the
Accounting Date:
(a) exceeds the amount already paid as Provisional Service Charge before
the first Accounting Date, the Tenant shall pay the excess to the
Landlord within 14 days of written demand; and
(b) is less than the amount already paid as Provisional Service Charge
before the first Accounting Date, the Landlord shall credit the excess
to the Tenant against the next quarterly payment of Provisional
Service Charge.
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(4) In the case of every subsequent Accounting Date, if the Tenant's Share of
the Net Expenses shown in the account for the period beginning on the day
after the previous Accounting Date and ending on that Accounting Date:
(a) exceeds the amount paid as Provisional Service Charge during that
period, the Tenant shall pay the excess to the Landlord within 14 days
of written demand; and
(b) is less than the amount paid as Provisional Service Charge during that
period, the Landlord shall credit the excess to the Tenant against the
next quarterly payment of Provisional Service Charge or repay the
excess in respect of the last year of the Term.
(5) If the Landlord fails to include in any account for a Financial Year a sum
expended or liability incurred in that year the Landlord may include such
sum or the amount of such liability in an account for any subsequent
Financial Year.
(6) All sums payable under this clause shall be reserved as rent.
(7) In this clause:
"ACCOUNTING DATE" means 31st December or any other date that the Landlord
may nominate;
"FINANCIAL YEAR" means a year ending on an Accounting Date;
"GROSS EXPENSES" means all the expenses incurred by the Landlord in
connection with the Estate including, without limitation, the matters
referred to in Schedule 7;
"GROSS INTERNAL AREA" has the meaning ascribed to that expression in the
Code of Measuring Practice published by the Royal Institution of Chartered
Surveyors and the Incorporated Society of Valuers and Auctioneers (4th
Edition);
"INCOME" means:
(a) any insurance money received under an insurance policy which the
Landlord was obliged to effect under this Lease where the Landlord has
incurred expenses in making good the insured loss itself; and
(b) any money received from any person (other than the service charge paid
by the tenants in the Estate) who was liable to contribute to the cost
of compliance with the Landlord's obligations under this Lease where
the Landlord has itself incurred the expense towards which that person
contributed;
"NET EXPENSES" means the amount by which Gross Expenses exceeds Income;
"PROVISIONAL SERVICE CHARGE" means:
(a) in respect of the period from the 17th December 1998 to the next
following Accounting Date, the annual sum of (Pounds)4,689.60; and
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(b) in respect of each subsequent Financial Year, the sum fixed from time
to time by the Landlord or its agents acting reasonably (who may be
the managing agents for the Estate) as being a reasonable estimate of
the Tenant's Share of the Net Expenses for the relevant Financial
Year;
"TENANT'S SHARE" means the same proportion of the Net Expenses as the Gross
Internal Area of the Property from time to time bears to the Gross Internal
Area of the Lettable Areas at such time provided always that if the
Landlord shall consider that having regard to the nature and degree of use
by the Tenant or other tenants on the Estate of the facilities covered by
the Gross Expenses or any other factors which the Landlord may reasonably
consider relevant some other proportion ought properly to be payable by the
Tenant the Landlord may substitute such other percentage as it shall
consider reasonable either with regard to all or any items making up the
Net Expenses provided that the proportion of the Net Expenses payable by
the Tenant shall not be increased by reason solely or in part of any
Lettable Areas being vacant or unlet.
6. TENANT'S COVENANTS
(1) INTRODUCTION
The Tenant covenants with the Landlord to comply with its obligations set
out in this clause and in clauses 5, 8 and 9.
(2) RENT
The Tenant shall:
(a) pay the yearly rent to the Landlord at the times and in the manner
referred to in clause 4 without any deduction; and
(b) not exercise or seek to exercise any right or claim to withhold rent
or any right or claim to legal or equitable set-off.
(3) OUTGOINGS
The Tenant shall:
(a) pay all present and future Outgoings assessed, charged or imposed on,
or payable in respect of the Property or the Car Spaces or assessed,
charged or imposed on, or payable by the owner or occupier of the
Property or the Car Spaces;
(b) pay the proportion properly attributable to the Property or the Car
Spaces of all Outgoings assessed, charged or imposed on or payable in
respect of the Property and other properties or the Car Spaces and
other car spaces or assessed, charged or imposed on or payable by the
owner or occupier of the Property and other properties or the Car
Spaces and other car spaces;
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(c) pay all charges for the supply to and consumption at the Property of
water, gas and electricity and all charges for telecommunications
(including equipment rents) and observe and perform all regulations of
the supply authorities;
(d) where such charges as are referred to in paragraph (c) are made in
relation to the Property and other properties or upon the owner or
occupier of the Property and other properties, pay the suppliers and
indemnify the Landlord against the proportion of those charges
properly attributable to the Property or its owner or occupier; and
(e) if the Landlord loses rating relief because it has been allowed to the
Tenant or any other person deriving title under the Tenant during the
Term, make good that loss to the Landlord.
Provided that the Tenant shall not be obliged to pay such sums referred to
above to the extent that the same have been recovered by the Landlord under
Clause 5.
In this sub-clause "OUTGOINGS" means rates, taxes, duties, charges,
assessments, impositions and outgoings whether parliamentary, parochial,
local or of any other description and whether of the nature of capital or
revenue and even though of a wholly novel character and the proportion
referred to in paragraphs (b) and (d) shall be determined by the Landlord
acting reasonably and shall be conclusive save as to questions of law and
save in cases of manifest error.
(4) REPAIR
The Tenant shall:
(a) put and keep the Property in good repair and condition, but shall not
be obliged to repair damage caused by an Insured Risk save where:
(i) the damage is not insured because of an exclusion, limitation or
excess imposed by the insurers; or
(ii) and to the extent that the insurance monies are irrecoverable in
whole or in part because of the act, default or omission of the
Tenant, any person deriving title under the Tenant or anyone at
the Property with the express or implied authority of any of
them;
(b) replace all the Landlord's fixtures and fittings in the Property which
become beyond repair during the Term with those of no lesser quality;
(c) keep all windows and other glass in the Property (both inside and
outside) clean, cleaning them at least once a month and more
frequently where necessary;
(d) keep any open area within the Property adequately surfaced (where
appropriate) in good condition, properly cultivated (where landscaped)
and free from weeds;
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(e) enter into and maintain throughout the Term fully comprehensive
maintenance contracts in respect of all plant, equipment and machinery
forming part of the Property with a reputable company or companies and
produce the contracts to the Landlord on demand with evidence that any
payments due under them are paid up to date;
(f) ensure that the electrical circuits within the Property comply with
the then current regulations of the Institute of Electrical Engineers
or other amended standards or recommended current codes of practice
(save that this shall not obligate the Tenant to upgrade the existing
circuits within the Property save where it is unlawful not to do so);
and
(g) notify the Landlord of all defects in the Property which are relevant
defects for the purpose of section 4 of the Defective Premises Xxx
0000.
(5) REDECORATION
The Tenant shall redecorate the exterior of the Property in every third
year and in the last year of the Term and the interior of the Property in
every fifth year and in the last year of the Term in colours and patterns
which, in the case of external decorations, shall be first approved by the
Landlord at all times during the Term and, in the case of internal
decorations, shall be first approved by the Landlord in the last year of
the Term. The Tenant shall also have all parts of the Property requiring
treatment for their preservation and protection treated in accordance with
the best approved manner for preserving and protecting them. All works
under this sub-clause shall be carried out in a good and workmanlike manner
and with suitable, good quality materials.
In this sub-clause the "last year of the Term" means the period of 12
months ending at the End of the Term and all approvals shall not be
unreasonably withheld or delayed by the Landlord.
(6) ENTRY BY THE LANDLORD
The Tenant shall:
(a) permit the Landlord to enter the Property to examine its condition and
take inventories;
(b) permit the Landlord to enter the Property to exercise any of the
rights reserved to the Landlord by this Lease and for any other
reasonable purpose connected with the management of the Estate subject
to the Landlord making good to the Tenant all damage to the Property
but not being obliged to compensate the Tenant for any loss suffered
by the Tenant or for any nuisance, annoyance, inconvenience, noise or
vibration;
(c) permit the Landlord and any person acting as valuer under clause 4 to
enter the Property and inspect and measure the Property for all
purposes connected with insurance of the Property, any action under
the Landlord and Xxxxxx Xxx 0000 Part II, or the implementation of
clause 4; and
(d) furnish all information relevant for those purposes as the Landlord or
anyone having a right of entry under this sub-clause may reasonably
request.
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Except in case of emergency the Landlord shall give the Tenant reasonable
prior written notice before exercising the right of entry and shall comply
with the Tenant's reasonable security and confidentiality requirements.
After notice or in case of emergency the Landlord may break into the
Property. Such rights shall be exercised in a reasonable manner and in
such a way so far as reasonably practicable as not to prevent the Tenant's
beneficial user and enjoyment of the Property and to use reasonable
endeavours not to damage or interfere with any equipment or machinery or
data transmission and storage facilities in the Property and shall make
good any damage caused.
(7) REMEDY BREACHES
The Tenant shall remedy all breaches of covenant notified by the Landlord
to the Tenant which the Tenant is liable to remedy under this Lease as soon
as possible and in any event within three months or sooner if appropriate
after service of the notice. If the Tenant fails to do so the Landlord may
enter the Property and remedy the breach and such entry shall be subject to
the same conditions as referred to in clause 6(6). All costs and expenses
incurred by the Landlord shall be paid by the Tenant within 14 days of
written demand.
(8) ALTERATIONS
Subject to the rights granted to the Tenant in Schedule 2 to this Lease the
Tenant shall:
(a) not make any alteration or addition to the Property (other than the
erection, alteration or removal of internal, non structural,
demountable partitioning) save as permitted by paragraph (b);
(b) not make any non-structural alteration to the Property (other than as
mentioned in paragraph (a)) without the prior consent of the Landlord
which shall not be unreasonably withheld or delayed; and
(c) before the End of the Term if required to do so by the Landlord but
not otherwise, remove any alteration or addition (including any made
before the beginning of the Term) and make good all damage caused by
the removal.
In this sub-clause a non-structural alteration is one which does not affect
the roof, foundations or exterior of the Property or any load-bearing part
of it.
(9) SIGNS
The Tenant shall:
(a) not display on the Property any signs visible from outside the
Property except those which in the Landlord's opinion are reasonably
necessary in connection with the business carried on at the Property
and which are in a form approved by the Landlord and are affixed in
positions approved by the Landlord (such approvals not to be
unreasonably withheld or delayed);
-14-
(b) at the End of the Term remove all signs (including any erected before
the beginning of the Term) and make good all damage caused by their
removal; and
(c) not affix to the Property any external radio, television or other
aerial or satellite dish or any pole, mast, flag or wire save with
the prior written consent of the Landlord such consent not to be
unreasonably withheld or delayed and in making such decision the
Landlord shall have due regard to the Tenant's use of the Property.
In this sub-clause "signs" includes signs, hoardings, posters, placards,
advertisements, letters, bills and inscriptions.
(10) USE
The Property shall not be used for any purpose other than a use within
Class B1, Class B2 or Class B8 of the schedule to the Town and Country
Planning (Use Classes) Order 1987 as that Order is in force at the date of
this Lease.
(11) USE OBLIGATIONS
The Tenant shall:
(a) use any open area within the Property only for the purpose for which
it is designed and not keep any caravan or temporary building on it;
(b) not leave the Property unoccupied for more than a month without
notifying the Landlord and providing the security arrangements
reasonably required by the Landlord and its insurers;
(c) not do anything on the Property which may become a nuisance or damage
to the Landlord or any nearby owner or occupier;
(d) not allow to pass into the Conduits serving the Property anything
that may obstruct them or cause damage, danger or pollution or
anything poisonous or radioactive;
(e) not bring onto or keep in the Property anything dangerous,
inflammable, explosive, or noxious save for materials ordinarily and
properly used in connection with alternative power generation
provided that such materials are safely stored and are otherwise in
accordance with all statutory requirements and the reasonable
requirements of insurers;
(f) not use the Property for any illegal purpose or for any dangerous,
noxious, or noisy occupation;
(g) not use the Property for the holding of public meetings or auction
sales or as a residence or sleep at the Property or keep any animal
on it;
(h) not overload the Property or its Conduits;
-15-
(i) remove all refuse on a reasonably frequent basis but no less than
once a week and keep the Property clean, tidy and in good order;
(j) not obstruct any road or footpath on the Estate and not do anything
as a result of which reasonable use of the Common Parts by others may
be impeded; and
(k) not park vehicles on or load or unload goods onto or from vehicles
save in those parts of the Property or the Common Parts designated by
the Landlord for that purpose.
(12) STATUTORY REQUIREMENTS
The Tenant shall comply with every enactment and with the requirements and
recommendations of every authority relating to or affecting the Property
or its use or the employment of anyone at the Property or any equipment or
chattels in the Property and whether applicable to the owner, landlord,
tenant or occupier of the Property save that this obligation shall not
include responsibility for compliance with anything relating to
remediation of any contamination affecting the Property which was caused
before the date hereof.
In this sub-clause "authority" includes every government department, local
or other authority and court of competent jurisdiction.
(13) NOTICES
The Tenant shall:
(a) give the Landlord a copy of every notice or order or any proposal for
a notice or order issued to the Tenant, its sub-tenants or any
occupier of the Property or left at the Property relating to the
Property or the Tenant's its sub-tenants or any occupiers use thereof
within five Business Days of its service;
(b) (if it is the Tenant's responsibility to so comply in accordance with
the terms of this Lease) take all steps necessary to comply with
every notice or order without delay; and
(c) at the request and cost of the Landlord make or join with the
Landlord in making such objections or representations in respect of
the notice, order or proposal as the Landlord shall reasonably
require.
(14) FIRE AUTHORITY REQUIREMENTS
The Tenant shall comply with all requirements and recommendations of the
appropriate authority and the Landlord's insurers and all reasonable
requirements of the Landlord as to means of escape from the Property in
case of fire or other emergency and as to the provision and maintenance of
fire detection equipment, fire alarm equipment and fire fighting
equipment.
(15) PLANNING ACTS
The Tenant shall:
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(a) comply with the Planning Acts in relation to the Property, any
operations carried out at the Property and its use and not commit any
breach of planning control (as defined in the Planning Acts);
(b) obtain from the local planning authority planning permission for the
carrying out of any operation on the Property or the institution or
continuance of any use which may constitute development within the
meaning of the Planning Acts;
(c) not make any application for planning permission without the
Landlord's prior consent (which shall not be unreasonably withheld or
delayed) to the making of the application, indemnify the Landlord
against all charges payable in respect of the application and repay to
the Landlord all reasonable and proper professional fees and expenses
properly incurred by the Landlord in connection with the application;
(d) forthwith after the grant or refusal of any application give the
Landlord a copy of the permission or the refusal;
(e) not make any alteration or addition to or change of use of the
Property (being an alteration or addition or change of use which is
prohibited by or for which the consent of the Landlord must be
obtained under this Lease and for which a planning permission must be
obtained) before planning permission for it has been produced to the
Landlord and acknowledged by the Landlord as satisfactory to it but so
that the Landlord may refuse to express satisfaction with the planning
permission on the grounds that anything contained in it or omitted
from it in the reasonable opinion of the Landlord would be or be
likely to be materially prejudicial to the Landlord's interest in the
Property during the Term or after the End of the Term such
acknowledgement from the Landlord shall not be unreasonably delayed;
(f) pay any charge imposed under the Planning Acts in respect of the
carrying out of any operation or the institution or continuance of any
use;
(g) unless the Landlord directs otherwise, carry out before the End of the
Term all works required to be carried out as a condition of any
planning permission which may have been granted and implemented during
the Term whether or not the date by which the planning permission
requires those works to be carried out falls within the Term;
(h) pay to the Landlord within 14 days of written demand a fair and
reasonable proportion of any compensation received by the Tenant
because of a restriction on the use of the Property under the Planning
Acts, any dispute as to the proportion to be referred to arbitration;
(i) produce to the Landlord all drawings, documents and other evidence
reasonably required by the Landlord to satisfy itself that this sub-
clause has been complied with;
(j) not implement any planning permission without providing reasonable
security if reasonably required for compliance with the conditions
imposed by that permission;
-17-
(k) not serve any purchase notice under the Planning Acts requiring any
authority to purchase the Tenant's interest in the Property without
first offering to surrender this Lease at the price which might
reasonably be expected to be obtained from the authority under the
purchase notice, any dispute as to the amount of the price to be
referred to arbitration;
(l) not to make any objection or adverse representation in respect of any
planning application made by or with the consent of the Landlord:
(i) within 12 months before the date specified in clause 15 of this
Lease if the Tenant has served the notice referred to in that
clause; or
(ii) within 12 months before the End of the Term unless the Tenant
has exercised its rights to take a new lease under the
provisions of the Landlord and Xxxxxx Xxx 0000;
and in either case this clause shall not prevent the Tenant making
such objections if it is entitled to do so under a lease of another
Unit on the Estate.
(16) OBSTRUCTION
The Tenant shall not:
(a) stop up, darken or obstruct any window or opening belonging to the
Property save as part of the Tenant's usual security measures; or
(b) give to any third party any acknowledgement that the Tenant enjoys
the access of light or air to any of the windows or openings in the
Property by the consent of a third party; or
(c) pay to any third party any sum of money or enter into any agreement
with any third party for the purpose of inducing or binding him to
abstain from obstructing the access of light or air to any windows or
openings.
(17) OBSTRUCTION PROCEEDINGS
If any of the owners or occupiers of nearby land or buildings do or
threaten to do anything which obstructs the access of light or air to any
of the windows or openings in the Property the Tenant shall:
(a) notify the same forthwith to the Landlord; and
(b) permit and afford all reasonable assistance to the Landlord to bring
proceedings in the name of the Tenant and at the joint cost of the
Landlord and Tenant against any of the owners or occupiers of the
nearby land or buildings in respect of the obstruction.
-18-
(18) ACQUISITION OF RIGHTS
The Tenant shall not allow any easement to be acquired over the Property.
If any such easement is acquired or attempted to be acquired, the Tenant
shall give immediate notice of it to the Landlord and at the request of
the Landlord but at the cost of the Tenant adopt the course reasonably
required by the Landlord for preventing the acquisition of the easement.
(19) PARTY MATTERS
The Tenant shall pay a fair proportion of all costs and expenses payable
in respect of repairing, lighting, cleansing and maintaining anything used
in common by the Property and any other property to the extent that those
costs and expenses are not recovered under clause 5. The proportion shall
be determined by the Landlord and shall be conclusive save as to questions
of law and save in the case of manifest error.
(20) NEW GUARANTOR
If a guarantor's event of default occurs, the Tenant shall give notice to
the Landlord of the event within ten Business Days of its occurrence. If
the Landlord serves notice on the Tenant under this sub-clause within
thirty Business Days of service of the Tenant's notice, the Tenant shall
procure that guarantors reasonably acceptable to the Landlord shall
covenant by deed with the Landlord in the form set out in Schedule 5.
In this sub-clause a guarantor's event of default is any of the following:
(a) in the case of a Guarantor who is an individual:
(i) the death of the individual;
(ii) the individual being regarded as a patient under the Mental
Health Xxx 0000 section 94;
(iii) an application being made for an interim order in respect of
the individual or an interim order being made under the Act;
(iv) the making by the individual of a proposal for a voluntary
arrangement;
(v) a petition being presented for a bankruptcy order to be made
against the individual or a bankruptcy order being made;
(b) in the case of a Guarantor which is a company:
(i) a proposal being made to the company and to its creditors for a
voluntary arrangement;
(ii) a petition being presented for an administration order in
respect of the company or an administration order being made;
-19-
(iii) the company having an administrative or other receiver or a
manager appointed of the whole or any part of its property;
(iv) the company passing a resolution for winding up or a petition
being presented for the winding up of the company or a winding
up being made or the company being dissolved other than (in any
such case) a voluntary winding up of a solvent company for the
purposes of amalgamation or reconstruction;
(v) the company, having been registered as an unlimited company,
being re-registered as a limited company without the previous
consent of the Landlord;
(c) in the case of a Guarantor who is an individual or which is a company:
(i) the individual or the company entering into any kind of
composition, scheme of arrangement, compromise or arrangement
for the benefit of creditors or any class of creditors or
permitting or suffering any distress or execution to be levied
on his goods at the Property which remains unsatisfied for more
than 21 days;
(ii) there occurring in relation to the individual or the company in
any country or territory in which he carries on business or to
the jurisdiction of whose courts he or any of his property is
subject any event which corresponds in that country or
territory with any of those mentioned in paragraphs (a)(iii) to
(v) or (b) above or the individual or the company otherwise
becoming subject in any such country or territory to any law
relating to insolvency, bankruptcy or winding up.
(21) COSTS
The Tenant shall pay the reasonable and proper costs and expenses incurred
by the Landlord:
(a) in or in contemplation of any proceedings relating to the Property
under the Law of Property Xxx 0000 sections 146 and 147, or the
Leasehold Property (Repairs) Xxx 0000, the preparation and service of
any notice under those sections or the taking of steps subsequent to
such notice notwithstanding that forfeiture is avoided otherwise than
by relief granted by the Court;
(b) in the preparation and service of any notice to repair or any schedule
of dilapidations at any time during the Term or after the End of the
Term;
(c) in connection with the recovery of arrears of Rent or other sums due
to the Landlord under this Lease including the levy or attempted levy
of any distress; and
(d) in respect of any application for consent required by this Lease
whether or not the consent is granted (including any inspection of
works authorised by the consent and of any re-instatement of those
works).
Where the Landlord could recover the cost of services or advice under the
first part of this sub-clause if they were undertaken by a third party but
those services or that advice are provided by
-20-
the Landlord or by a company which is a member of the same group as the
Landlord (within the meaning of section 42 of the Landlord and Tenant Act
1954), the Tenant shall pay to the Landlord or to that company a reasonable
sum (plus VAT if payable) for such services or advice but not more than the
amount payable by the Tenant if those services or that advice had been
provided by a third party
(22) INDEMNITY
The Tenant shall:
(a) pay and make good to the Landlord every loss and damage incurred or
sustained by the Landlord as a consequence of every breach or non-
observance of the Tenant's covenants contained in this Lease and shall
indemnify the Landlord against all actions, claims, liabilities, costs
and expenses arising by reason of the breach; and
(b) indemnify and keep the Landlord indemnified from liability in respect
of all loss, damage, actions, proceedings, claims, demands, costs,
damages and expenses in respect of any injury to or the death of any
person or damage to any property or in respect of the infringement,
disturbance or destruction of any right by reason of or arising in any
way directly or indirectly out of:
(i) the state of repair or condition of the Property;
(ii) the act, omission or default of the Tenant, any person deriving
title under the Tenant or any person at the Property with the
express or implied authority of any of them;
(iii) the construction or existence of any additions or alterations
to the Property;
(iv) the use of the Property;
(v) anything now or in the future attached to or on the Property;
(vi) the use of vehicles on the Property;
(vii) the omission of the Tenant to give written notice to the
Landlord of any defects or items requiring repair of which the
Tenant is aware or ought reasonably to be aware; and
(viii) any breach by the Tenant or by any person deriving title under
the Tenant of any covenant by the Tenant or any condition
contained in this Lease.
Provided that the Tenant shall not be obliged to indemnify the
Landlord in respect of such matters to the extent that such damage
arises out of the Landlord's wilful misconduct or negligence.
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(23) NOTICES FOR SALE AND RE-LETTING
The Tenant shall:
(a) permit (at a suitable location which does not materially interfere
with or obstruct the access of light to the Property) the Landlord
during the six months before the End of the Term to affix to the
Property a notice (of a suitable size and nature) for re-letting it;
(b) permit (at a suitable location which does not materially interfere
with or obstruct the access of light to the Property) the Landlord at
any time during the Term to affix to the Property a notice (of a
suitable size and nature) for dealing with the Landlord's interest in
the Property; and
(c) permit all persons with written authority from the Landlord or the
Landlord's agent to view the Property upon the Landlord giving at
least 24 hours prior written notice and subject to such person
complying with the Tenant's reasonable security and confidentiality
requirements.
(24) REGULATIONS
The Tenant shall observe all reasonable regulations made by the Landlord
for the proper management of the Estate.
(25) CAR SPACES
The Tenant shall:
(a) not use the Car Spaces otherwise than for the purpose of the parking
of one private motor car in each Car Space and not to keep anything
else in the Parking Area including, without limitation, plant,
equipment, materials, containers of any description or any skip or
other receptacle for refuse or any caravan or temporary building;
(b) not without the express permission of the Landlord carry out any
repairs to any vehicle whilst it is in the Parking Area and if
permission is granted ensure that any repairs are carried out in such
manner as not to cause any nuisance, annoyance, inconvenience or
disturbance to the Landlord or any tenant or occupier of the Estate or
other user of the Parking Area;
(c) keep the Car Spaces and the surrounding area clean, tidy and free from
deposits of oil or grease;
(d) not cause any obstruction in the Parking Area;
(e) take all reasonable and proper precautions against fire occurring in
any vehicle using the Car Spaces;
-22-
(f) not do anything in the Parking Area which causes nuisance, annoyance,
inconvenience or disturbance to the Landlord or any tenant or occupier
of the Estate or other user of the Parking Area.
(26) FREEHOLD COVENANTS
The Tenant shall observe and perform the covenants contained in or referred
to in the documents specified in Schedule 4 so far as they relate to the
Property and are still subsisting and capable of taking effect and shall
indemnify and keep indemnified the Landlord from and against any non-
observance or non-performance of the same.
(27) YIELD UP
The Tenant shall:
(a) yield up the Property (except tenant's or trade fixtures including
those of the type listed on annexed schedule) to the Landlord at the
End of the Term with vacant possession and in accordance with the
Tenant's covenants contained in this Lease; and
(b) make good to the satisfaction of the Landlord all damage occasioned by
the removal of any tenant's or trade fixtures.
(28) RELEASE OF LANDLORD
If the Landlord or any former landlord applies for release of a covenant
under section 8 of the Landlord and Tenant (Covenants) Xxx 0000:
(a) the Tenant shall not object unreasonably to the release of the
Landlord or the former landlord; and
(b) if, following such an application, the Tenant serves notice objecting
to the release, but the Court makes a declaration that it is
reasonable for the covenant to be released, the Tenant shall indemnify
the Landlord and any former landlord against all loss, damage, costs
and expenses incurred or sustained by any of them as a result of the
objection of the Tenant.
7. LANDLORD'S COVENANTS
(1) INTRODUCTION
The Landlord covenants with the Tenant to comply with its obligations set
out in this clause and in clauses 5 and 9.
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(2) QUIET ENJOYMENT
For so long as the Tenant pays the Rent and performs and observes the
covenants by the Tenant and the conditions contained in this Lease the
Tenant may peaceably and quietly hold and enjoy the Property during the
Term without any lawful interruption by the Landlord or any person claiming
under or in trust for the Landlord.
(3) SERVICES
The Landlord shall use all reasonable endeavours to:
(a) maintain in good working order and repair all Conduits in, under or
upon the Estate which serve the Property (other than those which
exclusively serve the Property); and
(b) keep the surfaces of the Common Parts in good repair and cleaned at
regular intervals and reasonably well lit.
The Landlord will not be liable to the Tenant for any breach of these
obligations unless the Tenant has given the Landlord notice of the breach
and the Landlord is aware or should reasonably be aware of the breach and
has failed to remedy the breach within a reasonable time of service of the
notice.
8. ALIENATION
(1) RESTRICTIONS ON ALIENATION
The Tenant shall not:
(a) save to the extent permitted by the following sub-clauses of this
clause, part with possession of the whole or any part of the Property
or part with or share occupation of the whole or any part of the
Property or permit occupation by a licensee of the whole or any part
of the Property or hold on any trust the whole or any part of the
Property; nor
(b) if it is an unlimited company, incorporate itself as a limited company
without the prior consent of the Landlord (such consent not to be
unreasonably withheld or delayed).
(2) ASSIGNMENT
The Tenant shall not:
(a) assign part of the Property; nor
(b) assign the whole of the Property without the prior consent of the
Landlord which, subject to sub-clauses (3) and (4), shall not be
unreasonably withheld or delayed.
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(3) AGREEMENT AS TO CIRCUMSTANCES
The Landlord and the Tenant agree that the Landlord may withhold its
consent to an assignment if any one or more of the following circumstances
(which are specified for the purposes of section 19(1A) of the Landlord and
Tenant Act 1927) exist and it shall not be regarded as unreasonably
withholding its consent if it does so:
(a) any rent payable pursuant to clause 4(1) of this Lease agreed service
charge, insurance and VAT on such sums payable in accordance with this
Lease due from the Tenant under this Lease is unpaid;
(b) the Landlord reasonably determines that the proposed assignee is not a
person who is likely to be able both to comply with the tenant's
covenants in this Lease and to continue to be such a person following
the assignment;
(c) the proposed assignee or any proposed guarantor for it (other than any
guarantor under an authorised guarantee agreement) has the benefit of
state or diplomatic immunity or the Landlord determines that it is
likely to acquire that immunity;
(d) the proposed assignee is a company which is a member of the same group
(within the meaning of section 42 of the Landlord and Tenant Act 1954)
as the Tenant; and
(e) the proposed assignee or any proposed guarantor for it (other than any
guarantor under an authorised guarantee agreement) is a corporation
registered in or an individual resident in a jurisdiction in which a
judgement obtained in the courts of England and Wales will not
necessarily be enforced without any re-examination of the merits of
the case.
(4) AGREEMENT AS TO CONDITIONS
The Landlord and the Tenant agree that the Landlord may grant consent to an
assignment subject to any one or more of the following conditions (which
are specified for the purposes of section 19(1A) of the Landlord and Tenant
Act 1927) and it shall not be regarded as giving consent subject to
unreasonable conditions if it does so:
(a) that before the assignment the Tenant enters into and unconditionally
delivers to the Landlord an authorised guarantee agreement, such
agreement to be a deed and to contain the provisions in Schedule 6 or
at the Landlord's absolute discretion) such other provisions as the
Landlord shall reasonably prescribe and (in either case) such
ancillary provisions as the Landlord shall reasonably prescribe;
(b) that before the assignment any person (other than a former Tenant) who
at the time of the application for the consent is guaranteeing the
obligations and liabilities under this Lease of the Tenant covenants
by deed with the Landlord that the Tenant shall perform its
obligations under the authorised guarantee agreement required under
paragraph (a), the deed to contain provisions equivalent to those
contained in paragraphs 1 to 4 and 9 of Schedule 5 and an obligation
on the part of the covenantor (in the event of default on the
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part of the Tenant) to perform any obligation entered into by the
Tenant in the authorised guarantee agreement to take up a new lease,
and otherwise to be in such form as the Landlord reasonably requires;
(c) that before the assignment, if the Landlord determines it to be
necessary, one or more guarantors acceptable to the Landlord, acting
reasonably, covenant by deed with the Landlord in the form set out in
Schedule 5 (with "ASSIGNEE" substituted for "TENANT" in paragraphs 1
to 9 inclusive and with such other provisions as the Landlord
reasonably requires) in respect of the period during which the
assignee is bound by the tenant's covenants and the conditions in this
Lease;
(d) that all rent payable pursuant to clause 4(1) of this Lease agreed
service charge, insurance and VAT on such sums payable in accordance
with this Lease due from the Tenant under this Lease as at the date of
the assignment has been paid;
(e) that the assignment is completed and registered with the Landlord in
accordance with sub-clause (14) within three months of the date of the
consent and that if it is not, the consent shall be void but any of
the guarantees referred to in paragraphs (a) to (c) shall nevertheless
remain in full force and effect.
(5) FURTHER AGREEMENT
The Landlord and the Tenant agree that:
(a) the Landlord may withhold consent to an assignment in circumstances
which are not referred to in sub-clause (3) if it is reasonable to do
so and may grant consent subject to conditions which are not specified
in sub-clause (4) if the conditions are reasonable; and
(b) any power on the part of the Landlord to determine any matter for the
purposes of sub-clauses (3) or (4) shall be exercised reasonably.
(6) UNDERLETTING
The Tenant shall not:
(a) underlet part only of the Property;
(b) underlet the whole of the Property:
(i) without complying with the provisions of sub-clauses (7) to (11);
and
(ii) without the prior consent of the Landlord, which shall not be
unreasonably withheld or delayed.
(7) UNDERLETTING CONDITIONS
Not to underlet the whole of the Property without producing to the
Landlord:
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(a) an order of the Court under section 38(4) of the Landlord and Xxxxxx
Xxx 0000 authorising the inclusion in the intended underlease of an
agreement excluding sections 24 to 28 of that Act; and
(b) a written undertaking by the Tenant not to release the intended
undertenant from or otherwise waive or modify the agreement authorised
by the order
and without including the agreement in the intended underlease.
(8) COVENANTS ON UNDERLETTING
The Tenant shall procure that any intended undertenant covenants by deed
with the Landlord:
(a) to pay the rent to be reserved by and the other sums to be payable
under the underlease and to perform and observe, the tenant's
covenants and the conditions to be contained in the underlease
throughout the period during which the undertenant is bound by the
tenant's covenants and conditions in the underlease;
(b) without prejudice to paragraph (a), not to assign the underlet
property without:
(i) first obtaining a deed of covenant from the intended assignee in
favour of the Landlord in the same form (with the necessary
changes) as the deed referred to in this sub-clause, including
(without limitation) the covenants in this paragraph (b); and
(ii) if the Landlord reasonably requires, first obtaining a deed from
one or more guarantors acceptable to the Landlord, acting
reasonably, in favour of the Landlord guaranteeing the due and
punctual payment and performance of all the obligations and
liabilities of the intended assignee under the deed referred to
in sub-paragraph (i), the deed to contain provisions equivalent
to those contained in paragraphs 1 to 4 and 9 of Schedule 5 and
otherwise to be in such form as the Landlord reasonably requires.
(9) GUARANTEE ON UNDERLETTING
If the Landlord reasonably requires, the Tenant shall procure that, before
the underlease is granted, one or more guarantors acceptable to the
Landlord, acting reasonably, guarantee (by way of deed) to the Landlord, in
respect of the period during which the undertenant is bound by the tenant's
covenants and the conditions in the underlease, the due and punctual
payment and performance of all the obligations and liabilities of the
intended undertenant, the guarantee to contain provisions equivalent to
those contained in paragraphs 1 to 4 and 9 of Schedule 5 and otherwise to
be in such form as the Landlord reasonably requires.
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(10) FORM OF UNDERLEASE
The Tenant shall procure that every underlease shall:
(a) contain the same tenant's covenants and other terms and conditions as
are contained in this Lease subject only to:
(i) such amendments as may be provided for in paragraphs (b) to (d);
and
(ii) such amendments as may reasonably be required by the Tenant,
having regard only to the duration of the proposed underlease,
and as may be approved by the Landlord, such approval not to be
unreasonably withheld;
(b) not permit any assignment, underlease or other dealing or disposal of
the Property which is prohibited by the terms of this Lease and
prohibit any further underletting of the whole or any part of the
Property;
(c) provide that where the underlease requires the undertenant to obtain
the landlord's consent, the undertenant shall be required to obtain
also the consent of the Landlord (such consent not to be unreasonably
withheld or delayed);
(d) contain provisions that require a review of the rent payable under the
underlease to open market rent in accordance with the provisions and
at the dates for review of the rent payable under this Lease, but this
paragraph shall not prohibit an underlease of the Property upon terms
that require review of the rent payable under the underlease at dates
additional to the dates for review of the rent payable under this
Lease;
(11) UNDERLEASE REQUIREMENTS
The Tenant shall:
(a) not grant any underlease at a fine or premium;
(b) not grant any underlease at a rent which at the time of the grant of
the underlease is less than the open market rent of the Property;
(c) not vary the terms of any underlease or release the undertenant from
any covenant or condition in the underlease without the prior consent
of the Landlord such consent not to be unreasonably withheld or
delayed and shall notify the Landlord of any surrender of any
underlease;
(d) not waive any breach of any of the covenants on the part of the
undertenant and the conditions contained in any underlease but take
all such reasonable steps as are lawfully available to the Tenant
(including re-entry) to enforce such covenants and conditions;
(e) procure that the rent reserved by any underlease is reviewed in
accordance with the provisions of the underlease but not agree any
revised rent with the undertenant without
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the prior consent of the Landlord (such consent not to be unreasonably
withheld), and if on any rent review under any underlease the revised
rent is to be determined by an independent third party, procure that
any reasonable representations which the Landlord may wish to make
concerning the revised rent are put forward to the third party at the
same time as the representations of the Tenant and as though they were
representations made by the Tenant; and
(f) procure that on any assignment of any underlease the outgoing
undertenant enters into an authorised guarantee agreement and, where
appropriate, guarantors enter into a contractual guarantee in each
case with the landlord under the underlease in accordance with the
provisions of the underlease.
In paragraphs (c) to (f) of this sub-clause an underlease includes any
lease where, by virtue of the grant of this Lease, the Tenant under this
Lease becomes the holder of the immediate reversion to that lease.
(12) ASSOCIATED COMPANIES
The Tenant may share the occupation of any part of the Property with a
company which is a member of the same group as the Tenant (within the
meaning of section 42 of the Landlord and Tenant Act 1954) for so long as
both companies remain members of that group and provided that:
(a) no relationship of landlord and tenant is created between the two
companies and no security of tenure is conferred upon the occupier;
and
(b) within 15 Business Days of the commencement of the sharing the Tenant
gives to the Landlord notice of the company sharing occupation and the
address of its registered office.
(13) CHARGING
The Tenant shall not
(a) charge part of the Property; or
(b) charge the whole of the Property by way of fixed security without the
prior consent of the Landlord, which shall not be unreasonably
withheld.
(14) REGISTRATION OF DEALINGS
Within 15 Business Days of every assignment, transfer, underlease or charge
of the Property or the creation or transfer of any interest derived out of
the Term or any devolution of the interest of the Tenant or any person
deriving title under the Tenant, the Tenant shall produce a certified copy
of the assignment, transfer, underlease or charge or (in the case of a
devolution) the document evidencing or under which the devolution arises
and pay the Landlord a registration fee of a reasonable amount, being not
less than (Pounds)25, in respect of each assignment, transfer, underlease,
charge or devolution.
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9. INSURANCE
(1) LANDLORD'S INSURANCE OBLIGATIONS
Unless the insurance is vitiated by any act, default or omission of the
Tenant, any person deriving title under the Tenant or any person at the
Property with the express or implied authority of any of them the Landlord
shall keep the Property (other than plate glass and tenant's or trade
fixtures) insured with insurers or underwriters selected by the Landlord in
accordance with the provisions of this clause to the extent to which the
Property is insurable and subject to all exclusions, limitations and
excesses imposed by the insurers.
(2) SUM AND RISKS INSURED
The Property shall be insured in a sum not less than its full reinstatement
cost (as determined from time to time by the Landlord) against loss or
damage by the Insured Risks.
(3) FEES
The insurance shall extend to:
(a) architects' and other professional fees in relation to the
reinstatement of the Property for a minimum sum of 15% of the amount
insured in respect of the Property;
(b) the costs of demolition and removal of debris; and
(c) loss of rent for such period as the Landlord may decide in an amount
which takes into account the Landlord's estimate of potential
increases in rent.
(4) PRODUCTION OF POLICY
Whenever reasonably required to do so by the Tenant and at the Tenant's
cost, but not more often than twice a year, the Landlord shall produce to
the Tenant at the Landlord's office a copy of the insurance policy or other
evidence of it and evidence of payment of the last premium.
(5) REINSTATEMENT
Subject to sub-clause (13) if the Property is destroyed or damaged by any
of the Insured Risks, then unless the insurance is vitiated by any act,
default or omission of the Tenant, any person deriving title under the
Tenant or any person at the Property with the express or implied authority
of any of them, the Landlord shall use reasonable endeavours to:
(a) obtain all consents and permissions necessary for reinstatement as
soon as reasonably possible;
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(b) subject to obtaining those consents and permissions, lay out as soon
as practicable all insurance monies received by the Landlord (other
than for fees and loss of rent) in reinstating the Property; and
(c) subject to the Tenant complying with its obligations in sub-clauses
(6)(a)(iii), (7) and(9) make good out of the Landlord's own monies any
deficiency (other than one arising from an exclusion, limitation or
excess imposed by the insurers).
(6) TENANT'S INSURANCE OBLIGATIONS
(a) The Tenant shall pay to the Landlord on demand:
(i) every premium payable by the Landlord (including any part of it
which the Landlord is entitled to retain by way of commission)
for insuring the Property in accordance with its obligations in
sub-clause (1) and for effecting insurance in respect of
liability to third parties including members of the public and
such other insurances as the Landlord reasonably considers
desirable;
(ii) where the policy includes the Property and other properties, the
proportion properly attributable to the Property of every
premium payable by the Landlord (including any part of it which
the Landlord is entitled to retain by way of commission) for
insuring the Property and the other properties in accordance
with its obligations in sub-clause (1) and for effecting (in
relation to the Property and the other properties) the other
insurances referred to in sub-paragraph (i), the proportion to
be determined by the Landlord whose determination shall be
conclusive save as to questions of law and save in case of
manifest error;
(iii) the amount of any excess deducted or deductible by the insurers
on any claim made by the Landlord; and
(iv) all costs and expenses reasonably incurred by the Landlord in
obtaining a valuation of the Property for insurance purposes
(provided this is limited to one such valuation every two
years).
All sums payable by the Tenant under paragraph (a)(i) shall be
reserved as rent.
(b) The Tenant shall insure all plate glass in the Property against all
risks with an insurance company approved by the Landlord in the joint
names of the Landlord and the Tenant and, on demand, produce a copy of
the insurance policy and evidence of payment of the last premium to
the Landlord.
(7) VITIATION
The Tenant shall not use the Property or carry on any business at the
Property or do or omit to do at the Property anything which may make void
or voidable any policy for the insurance of the Property or any nearby
property of the Landlord.
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(8) INCREASED PREMIUM
The Tenant shall:
(a) not without the prior consent of the Landlord use the Property or
carry on any business at the Property or do or omit to do at the
Property anything which may increase the premium payable for the
insurance; and
(b) if consent is given, repay on demand to the Landlord any resulting
increased insurance premium payable by the Landlord.
(9) IRRECOVERABLE REINSTATEMENT COST
If the Property is destroyed or damaged by any of the Insured Risks and the
insurance money under any insurance effected by the Landlord is wholly or
partly irrecoverable because of any act, default or omission of the Tenant,
any person deriving title under the Tenant or any person at the Property
with the express or implied authority of any of them the Tenant shall pay
to the Landlord within 14 days of written demand the whole or the
appropriate proportion of the cost of reinstating the Property. Any
dispute as to the amount of such proportion shall be referred to
arbitration.
(10) NOTICE OF DAMAGE
If the Property is destroyed or damaged by any of the Insured Risks the
Tenant shall give notice to the Landlord as soon as the destruction or
damage comes to the notice of the Tenant.
(11) DOUBLE INSURANCE
The Tenant shall not effect any insurance relating to the Property against
any of the Insured Risks. If the Tenant is entitled to the benefit of any
insurance in respect of the Property, the Tenant shall pay to the Landlord
all monies received by virtue of the insurance to enable the Landlord to
apply them in making good the loss or damage in respect of which they have
been received.
(12) CESSER OF RENT
If the Property or any part of it (or the means of access to or egress from
it) is destroyed or damaged by any of the Insured Risks so as to be unfit
for occupation or use the rent or a fair proportion of it according to the
nature and extent of the damage sustained shall be suspended until the
Property (or the means of access to or egress from it) has been reinstated
and made fit for occupation and use or until the end of three years from
the date of the destruction or damage, whichever first occurs. Any dispute
as to the amount of the proportion shall be referred to arbitration. This
sub-clause does not apply if and to the extent that the insurance monies in
respect of loss of rent are wholly or partially irrecoverable solely or
partly because of the act, default or omission of the Tenant or any person
deriving title under the Tenant or any person at the Property with the
express or implied authority of any of them.
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(13) PREVENTION OF REINSTATEMENT
The Landlord shall not be obliged to reinstate the Property in accordance
with sub-clause (5) while prevented by a supervening event. If the
Landlord is unable to commence reinstatement within twenty four months from
the date of destruction or damage because of a supervening event and the
Property or a substantial part of it is unfit for occupation or use either
party may determine the Term by serving notice on the other party at any
time within six months of the end of the twenty four month period. On
service of the notice the Term will cease but without prejudice to any
rights that any party may have against another for breach of any of their
respective covenants or the conditions contained in this Lease and all
insurance monies shall belong to the Landlord.
In this sub-clause a supervening event means any of the following:
(a) inability of the Landlord to obtain the consents and permissions
referred to in sub-clause (5) despite using all reasonable endeavours
to do so;
(b) grant of any of the consents or permissions subject to a lawful
condition with which it would be unreasonable to expect the Landlord
to comply or the Landlord being requested as a precondition to
obtaining any of the consents or permissions to enter into an
agreement with the planning authority or any other authority
containing conditions with which it would be unreasonable to expect
the Landlord to comply;
(c) some defect in the site upon which reinstatement is to take place so
that it could not be undertaken or could be undertaken only at a cost
unacceptable to the Landlord (acting reasonably);
(d) inability of the Landlord to obtain access to the site to reinstate;
(e) prevention of reinstatement by any cause beyond the control of the
Landlord.
10. RE-ENTRY
(1) If an Event of Default occurs then notwithstanding the waiver of any
previous right of re-entry the Landlord may re-enter the Property or any
part of it when the Term shall cease but without prejudice to any rights or
remedies which may then have accrued to any party against another in
respect of any antecedent breach (including the breach in respect of which
re-entry is made) of any of the covenants or obligations contained in this
Lease.
(2) In this clause an Event of Default is any one of the following:
(a) the Rent or any part of it is in arrear and unpaid for seven Business
Days after becoming payable (whether formally demanded or not); or
(b) a breach by the Tenant of any of the covenants by the Tenant in this
Lease; or
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(c) the Tenant (being a company) is deemed unable to pay its debts under
section 123 of the Insolvency Xxx 0000 or the Tenant or any Guarantor
(being a company) passes a resolution for winding-up or the directors
of any of them present a petition for winding-up or an order for the
winding-up of the Tenant or any Guarantor is made (other than (in any
such case) a voluntary winding-up of a solvent company for the
purposes of amalgamation or reconstruction) or the Tenant or any
Guarantor is dissolved; or
(d) the Tenant (being a company) has an administrative or other receiver
or a manager appointed of the whole or any part of its property or a
petition is presented for an administration order or an administration
order is made in respect of the Tenant or any Guarantor; or
(e) the Tenant (being a company) being registered as an unlimited company
is re-registered as a limited company without the previous consent of
the Landlord; or
(f) the Tenant (being an individual) presents a petition for a bankruptcy
order to be made against him or a bankruptcy order is made against the
Tenant or any Guarantor; or
(g) in relation to the Tenant (whether an individual or a company) a
proposal is made or the Tenant (whether a company or an individual)
enters into any kind of composition, scheme of arrangement, compromise
or arrangement for the benefit of creditors or any class of creditors
or permits or suffers any distress or execution to be levied on his
goods; or
(h) there occurs in relation to the Tenant in any country or territory in
which any of them carries on business or to the jurisdiction of whose
courts any of them or any of the property of any of them is subject to
any event which corresponds in that country or territory with any of
those mentioned in paragraphs (c) to (g) above or the Tenant
otherwise becomes subject in any such country or territory to any law
relating to insolvency, bankruptcy or winding up.
11. GUARANTEE
The Guarantor covenants with the Landlord in the terms set out in Schedule
5 in respect of the period during which Exodus Internet Limited is bound by
the Tenant's covenants and conditions in this Lease and any additional
period during which Exodus Internet Limited is liable under an authorised
guarantee agreement.
12. VALUE ADDED TAX
(1) If any VAT is chargeable on any supply made to the Tenant under the terms
of this Lease, the Tenant shall pay by way of additional consideration the
amount of that VAT and the Landlord shall provide a valid VAT invoice in
relation to such VAT to the Tenant.
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(2) Without limiting sub-clause (1) above, each sum reserved or payable by the
Tenant under the terms of this Lease is exclusive of VAT (if any) and is
accordingly to be construed as a reference to that sum plus any VAT in
respect of it, and where any sum is reserved as rent, the VAT is also
reserved as rent.
(3) If VAT is chargeable on any supply made by the Landlord to the Tenant for
which a sum is not reserved or payable under the terms of this Lease, the
Tenant shall pay that VAT to the Landlord against issue of a VAT invoice
five Business Days before the Landlord has to pay the VAT to Customs.
(4) Where under the terms of this Lease the Tenant is obliged:
(a) to make any payment to the Landlord or any other person (including,
without limitation, by way of service charge, indemnity or
reimbursement) by reference to any amount incurred or which will or
may be incurred by the Landlord or any other person; or
(b) otherwise to pay all or part of the consideration for any supply made
to the Landlord or any other person,
then without prejudice to sub-clauses (1) to (3) above, the Tenant shall
not be obliged to pay any amount in respect of VAT to the extent that it is
recoverable by the Landlord or any other person as appropriate.
(5) For the purposes of sub-clause (3) above, VAT is recoverable by a person,
if that person (or any company treated as a member of the same VAT Group as
that person) is entitled to credit for it as input tax under sections 25
and 26 VATA 1994. For the avoidance of doubt, VAT is not recoverable by a
person only because he could elect to waive exemption, but has not done so.
(6) Where for the purposes of this Lease it is necessary to calculate or
estimate the cost or value of anything, including any building, structure,
work, item, act or service, the cost or value shall be calculated or
estimated so as to include any VAT which will or may be incurred in
addition.
(7) This clause shall not affect the generality of clause 6(3) (Outgoings).
(8) Where the Tenant pays to the Landlord VAT in respect of any supply by the
Landlord to the Tenant, the Landlord shall issue the Tenant with a proper
VAT invoice in respect of that VAT.
(9) If the Landlord wishes to make an election to waive the exemption in
respect of the Property under paragraph 2 of Schedule 10, VATA 1994, the
Landlord shall notify the Tenant, no less than 20 Business Days before the
election is to take effect, of the election and the date on which it is
intended to take effect.
(10) If for any reason the election referred to in sub-clause (9) above is
validly revoked within three months after coming into effect, the Landlord
shall repay to the Tenant any VAT paid by the Tenant, five Business Days
after receipt by the Landlord from Customs of acknowledgement of the
revocation.
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13. TRUSTEE LIABILITY PROVISION
(1) Lloyds Bank Plc has entered into this Lease in its capacity as trustee of
Xxxxxxxx Exempt Property Unit Trust ("SEPUT") and therefore notwithstanding
any other provision contained in this Lease neither Lloyds Bank Plc nor any
successor trustee of SEPUT shall be obliged to meet any liability or claim
hereunder save to the extent that the same can be met by it out of the
Trust Assets.
(2) For the purposes of this clause "TRUST ASSETS" means the assets for the
time being held upon the trusts of SEPUT.
14. GENERAL
(1) INTEREST AND POWERS OF RECOVERY
If any Rent or other sum payable under this Lease is not paid on the day
falling 7 days after the date on which it is due it shall bear interest
from the date on which it is due until the date of payment at the Default
Interest Rate compounded quarterly. Every amount payable under this Lease
shall be reserved as rent and shall be recoverable as rent in arrear.
(2) DISPUTES
In relation to disputes:
(a) any statement in this Lease that any dispute shall be referred to
arbitration means that the dispute shall be determined by a single
arbitrator agreed by the Landlord and the Tenant and failing agreement
by a single arbitrator appointed by the president or his deputy for
the time being of the Royal Institution of Chartered Surveyors in
accordance with the Arbitration Acts 1950 to 1979 and 1996; and
(b) any dispute between the Tenant and any tenant or occupier of any other
property owned or leased by the Landlord about any right in connection
with the use of the Property and the other property or about any
boundary structure separating the Property from the other property
shall be determined by the Landlord acting reasonably.
(3) COMPENSATION
Subject to the provisions of section 38(2) of the Landlord and Xxxxxx Xxx
0000 neither the Tenant nor any person deriving title under the Tenant
shall be entitled on quitting the Property to any compensation under
section 37 of that Act.
(4) JOINT AND SEVERAL LIABILITY
Where the Tenant or any Guarantor is more than one person:
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(a) those persons shall be jointly and severally responsible in respect of
every obligation undertaken by them under this Lease; and
(b) the Landlord may release or compromise the liability of any of those
persons under this Lease or grant any time or other indulgence without
affecting the liability of any other of them.
(5) WHOLE AGREEMENT
This Lease contains the whole agreement between the parties relating to the
transaction contemplated by this Lease and supersedes all previous
agreements between the parties relating to the transaction.
(6) REPRESENTATIONS
The Tenant acknowledges that in agreeing to enter into this Lease, the
Tenant has not relied on any representation, warranty, collateral contract
or other assurance. The Tenant waives all rights and remedies which, but
for this sub-clause, might otherwise be available to it in respect of any
such representation, warranty, collateral contract or other assurance, but
nothing in this sub-clause shall limit or exclude any liability for fraud.
(7) RIGHTS OF ENTRY
All rights of entry exercisable by the Landlord extend to include (without
limitation) its employees, agents, surveyors, contractors and licensees
with or without plant, equipment, appliances and materials.
(8) INTERPRETATION OF COVENANTS
Any covenant by the Tenant not to do or omit anything shall be construed as
though the covenant was in addition a covenant not to permit or suffer to
be done or omitted that thing.
(9) TENANT'S POSSESSIONS
If after the Tenant has vacated the Property at the End of the Term any of
the Tenant's possessions remain on the Property and the Tenant fails to
remove them within fifteen Business Days after being requested to do so by
the Landlord then:
(a) the Landlord may dispose of the possessions as agent for the Tenant;
(b) (if disposal is by sale) subject to paragraph (c) the Landlord shall
hold the proceeds of sale after deducting the costs and expenses of
removal, storage and sale incurred by it to the order of the Tenant;
(c) if the Tenant fails to claim the proceeds of sale within sixty
Business Days of the date of the sale, the Landlord may keep them;
(d) the Tenant indemnifies the Landlord against:
-37-
(i) any liability incurred by the Landlord to any third party whose
possessions have been sold by the Landlord in the mistaken
belief (which shall be presumed) that the possessions belonged
to the Tenant;
(ii) any damage caused to the Property by the possessions; and
(iii) all loss, damage, actions, proceedings, claims, demands, costs,
damages and expenses properly incurred or suffered by or brought
or awarded against the Landlord as a result of the presence of
the possessions on the Property after the Tenant has left it at
the End of Term.
(10) OTHER LAND
Nothing contained in or implied by this Lease shall:
(a) impose or be deemed to impose any restriction on the use of any land
or buildings not comprised in this Lease; or
(b) give the Tenant:
(i) the benefit of or the right to enforce or to have enforced or to
prevent the release or modification of any covenant, lease,
condition or stipulation entered into by any purchaser or tenant
from the Landlord in respect of any property not comprised in
this Lease; or
(ii) the right to prevent or restrict in any way the development of
any land not comprised in this Lease.
(11) SEVERANCE
To the extent that any provision of this Lease is rendered void by section
25 of the Landlord and Tenant (Covenants) Xxx 0000, that provision shall be
severed from the remainder of this Lease which shall remain in full force
and effect. In this sub-clause "provision" includes a clause, a sub-clause
or a schedule or any part of any of them.
(12) PERPETUITY PERIOD
The perpetuity period applicable to this Lease is 80 years beginning on the
date of this Lease and whenever in this Lease either the Landlord or the
Tenant is granted a future interest it must vest within that period and if
it has not it will be void for remoteness.
(13) NOTICES IN WRITING
Every notice, consent, approval or direction given under this Lease shall
be in writing.
-38-
(14) COUNTERPARTS
This lease may be executed in any number of counterparts, all of which,
taken together, shall constitute one and the same lease and any party may
enter into this lease by executing a counterpart.
15. BREAK CLAUSE
The Tenant may terminate this Lease on 29th September 2013 (the
"Termination Date") by giving to the Landlord not less than one year and
one day's prior written notice subject, to the Tenant:
(1) paying any arrears of rent payable pursuant to Clause 4(1) and VAT
thereon on or before the Termination Date;
(2) giving up vacant possession of the Property by the Termination Date
In such case the Term shall cease on the Termination Date and no party
shall have any further rights or obligations under this Lease, but this
shall not affect any rights or remedies which may have accrued at the
Termination Date to any party against the other in respect of any prior
breach of any of the covenants and conditions contained in the lease.
16. NOTICES
(1) Any notice or other document served under this Lease may be served in any
way in which a notice required or authorised to be served under section 196
of the Law of Property Xxx 0000 may be served.
(2) During such period that the reversion to this Lease is vested in the
trustee of Xxxxxxxx Exempt Property Unit Trust no notice shall be deemed to
be validly served on the Landlord unless a copy of such notice is also
served on Xxxxxxxx Property Investment Management Limited at 00 Xxxxxxx
Xxxxxx, Xxxxxx XX0X 0XX or such other address as the Landlord shall notify
to the Tenant.
17. GOVERNING LAW AND JURISDICTION
(1) This Lease is governed by and shall be construed in accordance with English
law.
(2) The Tenant and the Guarantor submit to the jurisdiction of the English
courts for all purposes relating to this Lease and appoint Dibb Xxxxxx
Xxxxx (ref RSS) 000 Xxxxxx Xxxx Xxxxxx XX0X 0XX (or such other person in
the UK as the Guarantor and the Tenant may from time to time nominate by
written notice to the Landlord) as agent of each of them for service of
process and so that each appointment shall be irrevocable until such time
as the Guarantor and the Tenant have given written notice to the Landlord
of an alternative person in the UK to accept service of process on their
behalf
-39-
I N W I T N E S S of which this Lease has been executed as a deed and has been
delivered on the date which first appears on page 1.
-40-
SCHEDULE 1
THE PROPERTY
Land on the north side of Xxxxxxxxxx Xxxx, Xxxx Xxxxx Xxxxxx XX00 which for the
purpose of identification only is shown edged red on the Plan with the building
on it having a Gross Internal Area (as defined in the Code) of 15,632 square
feet and known as Xxxx 0, Xxxxx 0 Xxxxxx Xxxx, Xxxxxxxxxx Road, Park Royal,
London, NW10. In this Schedule the Code means the fourth edition of the Code of
Measuring Practice published by the Royal Institution of Chartered Surveyors and
the Incorporated Society of Valuers and Auctioneers.
-41-
SCHEDULE 2
RIGHTS GRANTED TO THE TENANT
1. The right to use the Common Parts for all reasonable and appropriate
purposes connected with the use and enjoyment of the Property pursuant to
this Lease (subject to temporary interruption for repair and maintenance).
2. The right to park 20 motor cars in the Car Spaces.
3. The right to use the Conduits in the Estate which serve the Property
(subject to temporary interruption for repair, alteration or replacement).
4. The right of support and protection from the other parts of the Estate as
now enjoyed by the Property.
5. Subject to obtaining the prior written consent of the Landlord (such
consent not to be unreasonably withheld or delayed but which consent may be
made subject to reasonable requirements and conditions of the Landlord) the
right to lay within the Common Parts but along routes reasonably specified
by the Landlord additional Conduits to serve the Property.
6. Subject to the giving of reasonable prior notice to the Landlord and to
compliance with all reasonable requirements of the Landlord the right to
enter the Common Parts in order to maintain, repair, replace or alter any
Conduits now or hereafter exclusively serving the Property the Tenant
causing to others as little inconvenience and disturbance as practicable
and making good without delay all damage thereby occasioned.
-42-
SCHEDULE 3
RIGHTS RESERVED TO THE LANDLORD
1. The right to use the Conduits in the Property which serve other parts of
the Estate, the right to install new Conduits for the benefit of the
remainder of the Estate and the right to repair, maintain and renew
existing and new Conduits.
2. The right to enter the Property to exercise any of the rights referred to
in this Schedule or for the purposes set out in clause 6(6) PROVIDED THAT
such right shall only be exercised (except in case of emergency) by giving
reasonable prior notice to the Tenant and by complying with the Tenant's
reasonable security and confidentiality requirements.
3. All rights of light or air or other easements or rights over or belonging
to any other land or buildings (including other parts of the Estate).
4. The right to build, re-build or carry out any works on any other land or
buildings (including other parts of the Estate) even if it interferes with
the passage of light or air to the Property or causes nuisance, damage,
annoyance or inconvenience to the Tenant or occupier of the Property by
noise, dust, vibration or otherwise provided that it does not materially
affect the ability of the Tenant or the occupier to use the Property for
any purpose permitted by this Lease.
5. The support and protection from the Property enjoyed by other parts of the
Estate.
6. The right to build, alter and install and afterwards to maintain buildings,
structures and fixtures on, into or projecting over or under or taking
support from the Property (but those buildings, structures and fixtures
shall not become part of the Property).
-43-
SCHEDULE 4
MATTERS AFFECTING THE FREEHOLD
All matters registered or pending registration as at the date hereof in the
Property and Charges Registers of Title Number AGL54738 maintained by HM Land
Registry (with the exception of Financial charges, if any) and the Deed dated
7th August 1998 made between the Landlord and Railtrack insofar as such matters
affect the Property still subsist and are capable of enforcement.
-44-
SCHEDULE 5
GUARANTEE PROVISIONS
1. The Guarantor guarantees to the Landlord the due and punctual payment and
performance by the Tenant of all the tenant's obligations and liabilities
under this Lease and shall indemnify the Landlord against all losses,
damages, costs and expenses arising or incurred by the Landlord as a result
of the non-payment or non-performance of those obligations or liabilities.
2. The obligations of the Guarantor under this Lease:
(a) constitute a direct, primary and unconditional liability to pay on
demand to the Landlord any sum which the Tenant is liable to pay under
this Lease and to perform on demand by the Landlord any obligation of
the Tenant under this Lease without the need for any recourse on the
part of the Landlord against the Tenant;
(b) will not be affected by:
(i) any time or indulgence granted to the Tenant by the Landlord;
(ii) any legal limitation, disability or other circumstances
relating to the Tenant or any irregularity, unenforceability or
invalidity of any obligations of the Tenant under this Lease;
(iii) any licence or consent granted to the Tenant or any variation
in the terms of this Lease save as provided in section 18 of
the Landlord and Tenant (Covenants) Xxx 0000;
(iv) the release of one or more of the parties defined as the
Guarantor (if more than one); or
(v) any other act, omission, matter, event or thing whereby (but
for this provision) the Guarantor would be exonerated in whole
or in part from the guarantee other than a release by deed
given by the Landlord.
3. So long as this guarantee remains in force the Guarantor shall not:
(a) in the event of any bankruptcy, liquidation, rehabilitation,
moratorium or other insolvency proceedings relating to the Tenant,
claim or prove as creditor in competition with the Landlord; or
(b) be entitled to claim or participate in any security held by the
Landlord in respect of the obligations of the Tenant under this Lease;
or
(c) exercise any right of set-off against the Tenant.
-45-
4. If the Landlord brings proceedings against the Tenant, the Guarantor shall
be bound by any findings of fact, interim or final award or interlocutory
or final judgment made by an arbitrator or the court in those proceedings
in so far as the same relate to the subject matter of this Lease PROVIDED
THAT the Landlord shall have served a copy of the writ summons petition or
similar process which initiated such proceedings on the Guarantor before
the expiry of 7 days after such proceedings were initiated.
5. If:
(a) the Tenant (being a company) enters into liquidation and the
liquidator disclaims this Lease; or
(b) the Tenant (being a company) is dissolved and the Crown disclaims this
Lease; or
(c) the Tenant (being an individual) becomes bankrupt and the trustee in
bankruptcy disclaims this Lease; or
(d) this Lease is forfeited,
then within six months after the disclaimer or forfeiture the Landlord may
require the Guarantor by notice to accept a lease of the Property for a
term equivalent to the residue which would have remained of the Term if
there had been no disclaimer or forfeiture at the same rents and subject to
the same covenants and conditions (including those as to the review of
rent) as are reserved by and contained in this Lease (with the exception of
this Schedule).
6. The new lease and the rights and liabilities under it shall take effect as
from the date of the disclaimer or forfeiture and the Guarantor shall be
liable for all payments due under the new lease as from the date of
disclaimer or forfeiture as if the new lease had been granted on the date
of disclaimer or forfeiture.
7. The Guarantor or his personal representatives shall pay the Landlord's
costs of and accept the new lease and shall execute and deliver to the
Landlord a counterpart of it.
8. If the Landlord does not require the Guarantor to take a Lease of the
Property, the Guarantor shall pay to the Landlord on demand a sum equal to
the rent that would have been payable under this Lease but for the
disclaimer or forfeiture in respect of the period from the date of the
disclaimer or forfeiture until the date which is six months after the date
of the disclaimer or forfeiture or the date on which the Property has been
re-let by the Landlord, whichever first occurs.
9. If any VAT is payable by the Tenant to the Landlord under the terms of the
Lease, the Guarantor's obligation shall extend to that VAT. If the
Guarantor makes any payment in respect of VAT, the Landlord's obligation to
issue a VAT invoice to the Tenant under the Lease in respect of that VAT
shall not be affected, and the Landlord shall not be under any obligation
to issue a VAT invoice to the Guarantor in respect of that VAT.
-46-
SCHEDULE 6
AUTHORISED GUARANTEE PROVISIONS
1. The Guarantor guarantees to the Landlord the performance by the Assignee
throughout the Guarantee Period of each of the covenants falling to be
complied with by the tenant under this Lease and shall indemnify the
Landlord against all losses, damages, costs and expenses arising or
incurred by the Landlord as a result of such non-performance.
2. The obligations of the Guarantor under this guarantee will not be affected
by:
(a) any time or indulgence granted to the Assignee by the Landlord;
(b) any legal limitation, disability or other circumstances relating to
the Assignee or any irregularity, unenforceability or invalidity of
any obligations of the Assignee under this Lease;
(c) any licence or consent granted to the Assignee or any variation in the
terms of this Lease save as provided in section 18 of the Act;
(d) the release of one or more of the parties defined as the Guarantor (if
more than one); or
(e) any other act, omission, matter, event or thing whereby (but for this
provision) the Guarantor would be exonerated in whole or in part from
the guarantee other than a release under seal given by the Landlord.
3. The Guarantor is liable to the Landlord under this guarantee as sole or
principal debtor and the obligations of the Guarantor under this guarantee
constitute a direct, primary and unconditional liability to pay on demand
to the Landlord any sum which the Assignee is liable to pay under this
Lease and to perform on demand by the Landlord any obligation of the
Assignee under this Lease without the need for any recourse on the part of
the Landlord against the Assignee. If the Landlord brings proceedings
against the Assignee, the Guarantor shall be bound by any findings of fact,
interim or final award or interlocutory or final judgment made by an
arbitrator or the court in those proceedings.
4. If during the Guarantee Period the Assignee (being a company) enters into
liquidation and the liquidator disclaims this Lease, or the Assignee (being
a company) is dissolved and the Crown disclaims this Lease, or the Assignee
(being an individual) becomes bankrupt and the trustee in bankruptcy
disclaims this Lease, then within six months after the disclaimer the
Landlord may require the Guarantor by notice to enter into a new lease of
the Property for a term equivalent to the residue which would have remained
of the term granted by this Lease if there had been no disclaimer at the
same rents and subject to the same covenants and conditions (including as
to the review of rent) as are reserved by and contained in this Lease.
-47-
5. The new lease and the rights and liabilities under it shall take effect as
from the date of the disclaimer and the Guarantor shall be liable for all
payments due under the new lease as from the date of disclaimer as if the
new lease had been granted on the date of disclaimer.
6. The Guarantor shall pay the Landlord's costs of and accept the new lease
and shall execute and deliver to the Landlord a counterpart of it.
7. If the Landlord does not require the Guarantor to take a new lease of the
Property the Guarantor shall pay to the Landlord on demand a sum equal to
the rents that would have been payable under this Lease but for the
disclaimer in respect of the period from the date of the disclaimer until
the date which is six months after the date of the disclaimer or the date
on which the Property has been re-let by the Landlord, whichever first
occurs.
8. During the Guarantee Period the Guarantor shall not;
(a) in the event of any bankruptcy, liquidation, rehabilitation,
moratorium or other insolvency proceedings relating to the Assignee
claim or prove as creditor in competition with the Landlord; or
(b) be entitled to claim or participate in any security held by the
Landlord in respect of the Assignee's obligations to the Landlord
under this Lease; or
(c) exercise any right of set off against the Assignee.
9. To the extent that any provision of this guarantee does not conform with
section 16 of the Act, that provision shall be severed from the remainder
of this guarantee and this guarantee shall have effect as if it excluded
that provision.
10 If any VAT is payable by the Tenant to the Landlord under the terms of the
Lease, the Guarantor's obligation shall extend to that VAT. If the
Guarantor makes any payment in respect of VAT, the Landlord's obligation to
issue a VAT invoice to the Assignee under the Lease in respect of that VAT
shall not be affected, and the Landlord shall not be under any obligation
to issue a VAT invoice to the Guarantor in respect of that VAT.
11. In this Schedule:
"ACT" means the Landlord and Tenant (Covenants) Xxx 0000;
"ASSIGNEE" means [INSERT NAME OF ASSIGNEE IN RESPECT OF WHOM THE TENANT IS
ENTERING INTO THE AUTHORISED GUARANTEE AGREEMENT];
"GUARANTEE PERIOD" means the period during which the Assignee is bound by
the covenants by the Tenant in this Lease; and
"GUARANTOR" means the outgoing Tenant.
-48-
SCHEDULE 7
SERVICE CHARGE COSTS
1. The cost of inspecting, repairing, maintaining, cleaning, decorating and
lighting the whole of the Retained Areas (including any party walls
separating Lettable Areas) including any retaining walls situate on the
Estate and the boundary walls and fences of the Estate and all Conduits
serving the Estate (excluding those serving solely any of the Lettable
Areas).
2. The cost of providing the services referred to in clause 7(3).
3. The cost of the maintenance (including planting) of all open and landscaped
areas within the Retained Area.
4. The cost of the erection and maintenance of directional or other signs or
notice boards relating to the Estate or it occupiers.
5. The cost of the establishment and enforcement of regulations for the
benefit or better ordering of the Estate or any part of the Estate.
6. The cost of providing caretaking and security services to the Estate.
7. The cost of marking out the roads, footpaths, service areas, loading bays
and all other relevant parts of the Retained Areas.
8. The cost of refuse disposal.
9. The cost of all fuel for the functions referred to in the other paragraphs
of this Schedule.
10. All Outgoings (as defined in clause 6(3)) assessed, charged or imposed on
the Estate as a whole and the Retained Areas.
11. Any amount which the Landlord may be called upon to pay as a contribution
towards the expense of making, repairing, maintaining, cleaning or lighting
anything used by the Estate and any nearby property.
12. The cost of complying with, making representations against or contesting
the incidence of any enactment relating or alleged to relate to the Estate.
13. All professional fees reasonably and properly incurred by the Landlord in
connection with the administration and the general management of the Estate
including (without limitation):
(a) the Landlord's agent's fees in connection with management of the
Estate (excluding rent collection); and
(b) fees payable in connection with the service charge account.
-49-
14. The reasonable fees of the Landlord or any company associated with the
Landlord where the Landlord or that company, rather than a third party,
undertakes any obligations under this Lease or other function referred to
in this Schedule.
15. The interest and fees on borrowing any money to finance any of the
functions referred to in this Schedule.
16. Any other sum properly incurred by the Landlord in connection with the
management of the Estate.
-50-
SIGNED as a deed by )
Xxxxxxx Xxxxx Xxxxxx Trust Manager )
as attorney for LLOYDS BANK PLC )
in the presence of: )
Witness' /s/ X.X. Xxxxxxxxx
Signature: ..........................
Name : ........X.X. Xxxxxxxxx........
Address : Lloyds Bank
Securities Service
Xxx'x Xxxx Xxxxx
0, Xxx'x Xxxx
Xxxxxx XX0 0XX
-51-
LLOYDS BANK SECURITIES SERVICES
-------------------------------
POWER OF ATTORNEY FOR EXECUTION OF DOCUMENTS
--------------------------------------------
By this power of attorney given on the eigth day of July 1998 Lloyds Bank Plc
whose registered office is at 00 Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX ("the bank")
hereby appoints:
Xxxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxxx
Xxx Xxxxxx Bransgrove
Xxxx Xxxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxx Xxxx Xxxxxx
Xxxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxxxx Xxxxxxx Xxxxx
Xxxxxxxxxxx Xxxx Xxxxxxxx
Xxxxx Xxxxx
Xxxxxxx Xxxxxxx Xxxxxxxx
Xxxxxx Xxxx Kings
Xxxxx Xxxx Kitcat
Xxxx Xxxxxx Xxxx
Xxxxxx Xxxx Xxxxx
Xxxxxx Xxxxxxx XxXxxx
Xxxxxxxxxx Xxx Xxxxxx
Xxxx Xxxxxxxxxxx Xxxxxxxxxx
Xxxxx Xxxxxxx Xxxxxx
Xxxxxx Xxxxxxxxx Xxxxxx
Xxxxxx Xxxxx Xxxxx
Xxxxxxx Xxxxxx Xxxxxx
Xxxxxxx Xxxxxx Xxxxxx
Xxxx Xxxxxx Xxxxxx
Xxxxxxx Xxxxxx Xxxxx
Xxxxx Xxxxx Xxxxxx
Xxxxx Xxxxxx Xxxxxxx Xxxxx
Xxxxxx Xxxxxx Xxxxxxx
Xxxxxx Xxxxxx
Xxxxxx Xxxxxxx Xxxx
Xxxx Xxxxxxx Xxxxxxxx
Xxxx Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx Xxxxxxxxxx
Xxxxxxx Xxxxx Xxxxxx
Xxxxx Xxxxxxx Welpa
all of Lloyds Bank Securities Services, jointly and severally, to be attorneys
of the bank in its capacity as trustee, personal representative, nominee,
mortgagee or chargee, only for the purpose of carrying into effect matters
determined upon by the bank in any of these capacities, to sign, seal, execute
and deliver any deed or document considered necessary or desirable:
(1) to convey, transfer, assign, lease, let, underlet, surrender, sell or grant
options, rights of preemption or any other rights over any real or personal
property;
(3) to postpone, defer, subordinate or otherwise regulate the priority or
ranking of any mortgage, charge, debenture or other security;
(4) to vary, alter, amend, modify, revise, replace or substitute any deed or
document to which the bank is a party;
(5) to transfer any stocks, shares or other securities held by or registered in
the name or under the control of the bank and to authorise any person to
exercise any rights attached in any such stocks, shares or other
securities;
(6) to give such indemnities as may be necessary in favour of any person or
body of persons including without limitation indemnities in respect of
lost, destroyed or mislaid certificates, allotment letters or other
documents relating to stocks, shares or other securities;
(7) to grant easements or any other rights over or impose covenants or any
other restrictions on or consent to the letting, underletting, assignment,
surrender or alteration of any freehold or leasehold property;
(8) to assent to the vesting in any person of any real or personal property;
(9) to declare, constitute, regulate, record, vary, alter, amend or modify any
trust, settlement or family arrangement and to appoint or retire any
trustee, including the bank, of any trust, settlement or family
arrangement;
(10) to purchase, lease, acquire or otherwise take into the name of the bank or
under its control any real or personal property whatsoever or wheresoever
or any options, rights of preemption or any other rights over real or
personal property; and
(11) to manage, develop, refurbish, repair, reinstate or otherwise carry out any
works upon any real property whatsoever or wheresoever.
and generally for all or any of the purposes aforesaid to act as attorneys of
the bank. The common seal of the bank was affixed to this deed the date and
year first above written. Given under the common seal of Lloyds Bank Plc as a
deed.
Authorised signatory
Authorised counter signatory
Schedule referred to in Clause 6(27)
1. Permanent and temporary generator systems including enclosures and fuel
tanks with the associated electronic and manual switch gear.
2. Mechanical Systems ie. Air Conditioning, and condenser systems, air
handlers and electrical dampers.
3. Raised Flooring, Racking, Cage materials, cabinets and patch panels,
Mezzanine flooring.
4. UPS Battery Systems including electrical switch gear.
5. Any customer satellite dishes installed on roof or parking lot areas.
6. FM200 fire suppression canisters, piping and nozzles.
7. VESDA or smoke sensor stations in ceiling or floor area.
8. Inside or outside security cameras, access card reader stations, VCR,
multiplexer, monitors and computers.
9. Parition and conference room furniture systems and freestanding,
cabinets, storage units.
10. Telephone and voice mail system with desk stations and receptionist,
computers, servers, printers, phone sets.
11. Fibre Muxes or other Telco equipment installed in MPOE rooms.
12. Emergency distribution board and telephone backboard with connectors.
13. Maintenance bypass electronic and manual switch gear.
14. Transformers and Power Distributions Units installed on premises.
15. Kitchen appliances like microwaves, refrigerators and vending machines.
16. Console monitors, screen projection and screens in command centre.
17. Bulletproof/resistant glass.
18. Satellite dishes or other communications equipment installed on roof or
in parking lot.
DATED 24th December 1998
LLOYDS BANK PLC
(as trustee of Xxxxxxxx Exempt Property Unit Trust)
-and-
EXODUS INTERNET LIMITED
-and-
EXODUS COMMUNICATIONS INC
-----------------------
L E A S E
of property known as
Xxxx 0 Xxxxx 0 Xxxxxx Xxxx,
Xxxxxxxxxx Road, Park Royal, London NW10
-----------------------
XXXXX & OVERY
London
PY0407171.03
-1-
H.M. LAND REGISTRY
Land Registration Acts 1925-1988
County & District: London Boroughs & Ealing and Xxxxx
Title Number: AGL54738
Property: Xxxx 0 Xxxxx 0 Xxxxxx Xxxx, Xxxxxxxxxx Road, Park Royal,
London NW10
THIS LEASE is made on 24th December 1998
BETWEEN:
(1) LLOYDS BANK PLC (registered number 2065) (as trustee of Xxxxxxxx Exempt
Property Unit Trust) whose registered office is at 00 Xxxxxxx Xxxxxx,
Xxxxxx XX0X 0XX (the "LANDLORD");
(2) EXODUS INTERNET LIMITED (registered number 3591136) whose registered office
is at Fountain Precinct Xxxx Xxxxx Xxxxxxxxx Xxxxx Xxxxxxxxx X0 0XX
(the "TENANT"); and
(3) EXODUS COMMUNICATIONS INC of 0000 Xxx Xxxxxx Xxxxxxxxxx, Xxxxx Xxxxx
XX00000, XXX (the "GUARANTOR").
This Lease is a new tenancy for the purposes of section 1 of the Landlord and
Tenant (Covenants) Xxx 0000.
THIS DEED WITNESSES as follows:
1. DEFINITIONS
In this Lease:
"AUTHORISED GUARANTEE AGREEMENT" means an authorised guarantee agreement as
defined in section 16 of the Landlord and Tenant (Covenants) Xxx 0000;
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which banks
are generally open in London for normal business;
"CAR SPACES" means the 17 parking spaces within the areas shown edged green
on the Plan from time to time designated by the Landlord for the Tenant's
use;
"CLEARING BANK" means a bank which is a member of CHAPS Clearing Company
Limited;
-1-
"COMMON PARTS" means the roads, footpaths, service areas, car parks,
loading bays, landscaped and open areas, entrances and other areas from
time to time during the Term provided by the Landlord for common use by the
tenants of the Estate (but shall not include any such items as may
exclusively serve and be demised to a tenant of any Unit) but for the
avoidance of doubt the common parts shall always include the road coloured
xxxxx on the Plan and the Car Spaces and shall afford the Tenant access to
and from the Property and the Car Spaces;
"CONDUITS" includes those for sewage, water, gas, electricity,
telecommunications and data processing;
"DEFAULT INTEREST RATE" means four per centum per annum above the Interest
Rate;
"END OF THE TERM" includes the expiry of the Term by effluxion of time or
the determination of the Term by forfeiture, surrender, merger, notice or
in any other way;
"ESTATE" means Phases 1 and 0 Xxxxxx Xxxx Xxxxxxxxxx Xxxx Xxxx Xxxxx Xxxxxx
XX00 the present extent of which is shown edged green on the Estate Plan
but such expression shall mean such greater or lesser area which shall
include the Property and which shall from time to time be managed by the
Landlord as a single estate (including all buildings and other structures
on and all parts of such estate);
"ESTATE PLAN" means the plan numbered A3159/0/38 annexed to this Lease;
"GUARANTOR" includes the person named in this Lease as guarantor, if any,
and any other person who is for the time being a guarantor in respect of
the Tenant's obligations under this Lease and his personal representatives
and successors;
"INSURED RISKS" means fire, lightning, explosion, earthquake, aircraft and
other aerial devices and articles dropped from them, escape of oil, impact
by vehicles or animals, riot, civil commotion, strikes and labour
disturbances, storm, flood, bursting and overflowing of water tanks,
apparatus or pipes and other risks against which the Landlord reasonably
decides from time to time to insure and any other risks that the Tenant
shall reasonably require to be included and which the insurers shall accept
subject to such exclusions, limitations and excesses as are imposed by its
insurers and to the extent to which the risks mentioned in this definition
are insurable with the Landlord's insurers but shall include loss or damage
by acts of terrorism if and only to the extent that the Landlord has
insured against acts of terrorism;
"INTEREST RATE" means the base rate for the time being of Lloyds Bank Plc
or of another Clearing Bank designated from time to time by the Landlord or
if there is no such base rate the rate from time to time prescribed under
section 32 of the Land Compensation Xxx 0000;
"LANDLORD" includes the person for the time being entitled to the reversion
immediately expectant on the End of the Term;
"LEASE" means this lease, all deeds varying this lease and all licences and
consents granted under this lease or under any deed of variation;
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"LETTABLE AREAS" means all buildings on the Estate designed to be let for
commercial use;
"PARKING AREA" means the car parking areas forming part of the Estate
including the Car Spaces;
"PLAN" means the plan annexed to this Lease numbered A3159:0:01;
"PLANNING ACTS" means the Town and Country Planning Xxx 0000, the Planning
(Listed Building and Conservation Areas) Xxx 0000, the Planning (Hazardous
Substances) Xxx 0000, the Planning (Consequential Provisions) Xxx 0000 and
the Planning and Compensation Xxx 0000;
"PROPERTY" means the property described in Schedule 1 and every part of it
and all additions and alterations to it and includes (without limitation):
(a) every part of all buildings and other structures now or during the
Term on the property including walls, roofs, foundations, load-bearing
parts, doors, windows and Conduits exclusively serving the Property;
(b) landlord's fixtures and fittings including floor coverings;
(c) electrical and mechanical installations, plant, equipment and
machinery including (without limitation) lifts, heating plant, air
conditioning plant and ventilation plant and radiators;
(d) one half (severed vertically) of any wall separating the Property from
any adjoining Unit;
(e) service areas, loading bays and landscaped and open areas; and
(f) boundary walls and fences (if any);
"QUARTER DAYS" means 25th March, 24th June, 29th September and 25th
December in every year;
"RENT" includes all sums reserved as rent by this Lease and any interim
rent determined under the Landlord and Xxxxxx Xxx 0000;
"RETAINED AREAS" means the whole of the Estate other than the Units;
"REVIEW DATE" means 29th September in the year 2003 and in every fifth year
after that year for so long as the Term continues;
"REVIEW PERIOD" means the period starting with any Review Date up to the
next Review Date or starting with the last Review Date up to the End of the
Term;
"TENANT" includes the Tenant's successors in title;
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"TERM" means the term granted by this Lease and any statutory or other
continuation or extension of it or any holding over;
"TERM COMMENCEMENT DATE" means the date of commencement of the Term
specified in clause 3(1);
"UNITS" means the units of accommodation on the Estate that are let or
otherwise exclusively occupied or designed or intended for letting or
exclusive occupation and "Unit shall mean any one of them;
"VAT" means value added tax and any imposition or levy of a like nature;
and
"VATA 1994" means the Value Added Tax Xxx 0000.
2. INTERPRETATION
(1) Where there are two or more persons included in the expressions "the
Landlord", "the Tenant" or "the Guarantor" each reference to the Landlord,
the Tenant or the Guarantor includes a separate reference to each of those
persons.
(2) Any reference, express or implied, to an enactment includes references to:
(a) that enactment as amended, extended or applied by or under any other
enactment (before or after this Lease);
(b) any enactment which that enactment re-enacts (with or without
modification);
(c) any subordinate legislation made (before or after this Lease) under
that enactment, as amended, extended or applied as described in
paragraph (a) above or under any enactment referred to in paragraph
(b) above; and
(d) any consents, licences and permissions given (before or after this
lease) under that enactment, as amended, extended or applied as
described in paragraph (a) above or under any enactment referred to in
paragraph (b) above or under that subordinate legislation and any
conditions contained in those consents, licences and permissions.
(3) Any reference, express or implied, to enactments generally includes
subordinate legislation and any legislation of the European Union that is
directly applicable in the United Kingdom and includes existing enactments
and those that come into effect during the Term.
(4) Sub-clauses (1) to (3) above apply unless the contrary intention appears.
(5) The headings in this Lease do not affect its interpretation.
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3. LEASE
(1) The Landlord lets the Property to the Tenant together with the rights set
out in Schedule 2 but except and reserving to the Landlord the rights set
out in Schedule 3 for the term of twenty five years commencing on and
including 29/th/ September 1998 subject to all rights and covenants
affecting the Property including (without prejudice to the generality of
the foregoing) the matters contained or referred to in Schedule 4 at a
yearly rent ascertained in accordance with clause 4.
(2) The rights granted to the Tenant are granted in common with the Landlord,
any person authorised by the Landlord and everyone else having the like or
similar rights.
(3) This Lease does not include any rights other than those set out in Schedule
2.
(4) The rights excepted and reserved to the Landlord are also excepted and
reserved to those authorised by the Landlord and everyone else entitled to
them.
4. RENT AND RENT REVIEW
(1) RENT
The yearly rent shall be:-
(a) until 16th May 1999 the rent of one peppercorn (if demanded);
(b) from and including 17th May 1999, until the first Review Date the
rent of one hundred thousand six hundred and forty one pounds fifty
xxxxx ((Pounds)100,641.50); and
(c) during each successive Review Period a rent equal to the rent
previously payable under this Lease (or the rent which would be
payable but for any abatement or suspension of rent under this Lease)
or the revised rent ascertained in accordance with this clause,
whichever is the greater.
(2) RENT PAYMENT DATES
The yearly rent is payable without any deduction by equal quarterly
payments in advance on the Quarter Days. The first payment (which is an
apportioned sum) is to be made on 17th May 1999, in respect of the period
commencing on 17th May 1999 and ending on 23rd June 1999.
(3) RENT REVIEW - METHOD
The revised rent for any Review Period may be agreed in writing at any time
between the Landlord and the Tenant or (in the absence of agreement)
determined not earlier than the relevant Review Date by an independent
valuer (acting as an expert and not as an arbitrator) of recognised
standing and having experience in letting and valuing property of a like
kind and character to the Property.
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(4) NOMINATION
The independent valuer may be nominated in the absence of agreement by or
on behalf of the president for the time being of the Royal Institution of
Chartered Surveyors on the application of either the Landlord or the Tenant
made not earlier than three months before the relevant Review Date.
(5) RENT REVIEW - AMOUNT
In the case of valuation the revised rent to be determined by the valuer
shall be such as he shall decide is the yearly rent at which the Property
might reasonably be expected to be let at the relevant Review Date
(a) after the expiry of a rent free period or a concessionary rent period
given for fitting-out purposes only of such length and the giving of
such other inducements (including, without limitation, any rental
concession, capital payment or contribution to fitting out-costs)
given for fitting out purposes only as in either case would be
negotiated in the open market between a willing landlord and a willing
tenant so that the yearly rent is that payable after the expiry of any
such rent free period or concessionary rent period and after the
giving of such inducement; and
(b) on the assumptions set out in sub-clause (6) but disregarding the
matters set out in sub-clause (7).
(6) ASSUMPTIONS
The assumptions are that at the relevant Review Date:
(a) the Property:
(i) is available to let on the open market by a willing landlord
to a willing tenant by one lease without a premium from either
party and with vacant possession for a term of 10 years or a
term equal to the residue then unexpired of the Term
(whichever be the longer) but in either event commencing on
the relevant Review Date with the rent payable from then;
(ii) is to be let as a whole on a lease which is to contain the
same terms as this Lease (other than the amount of the rent
referred to in sub-clause (1)(a) and (b) and any rent free or
reduced rent period allowed to the Tenant but including the
provisions for review of that rent at the same intervals as
those in this Lease) the first Review Date in that lease
being the fifth anniversary of the relevant Review Date;
(iii) is fit and available for immediate occupation and use with
connections to all mains services independently of any other
Unit and with the inclusion of an internal dividing wall
between the Property and the adjacent Unit numbered 7 built
to the same specification as the internal dividing wall
between Units 5 and
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6 and is ready to be fitted out for the incoming tenant's use
as authorised by this Lease; and
(iv) may be used for any of the purposes permitted by this Lease
including any purpose which falls within the same use class
(under the Town & Country Planning (Use Classes) Order for
the time being in force) as the purpose permitted by this
Lease;
(b) all the covenants in this Lease by the Landlord and the Tenant have
been performed and observed; and
(c) no work has been carried out to the Property which has diminished the
rental value and in case the Property has been destroyed or damaged it
has been fully restored.
(7) DISREGARDS
The matters to be disregarded are:
(a) any effect on rent of the fact that the Tenant, its subtenants or
their respective predecessors in title have been in occupation of the
Property;
(b) any goodwill attached to the Property by reason of the carrying on at
it of the business of the Tenant, its subtenants or their predecessors
in title in their respective businesses; and
(c) any increase in rental value of the Property attributable to the
existence at the relevant Review Date of any improvement carried out
with consent of the Landlord (where required) but not under an
obligation to the Landlord or its predecessors in title to the
Property carried out by and at the cost of the Tenant, its subtenants
or their respective predecessors in title during the Term or during
any earlier period of occupation arising out of an agreement to grant
the Term.
(8) VALUER
In the case of determination by a valuer:
(a) the fees and expenses of the valuer including the cost of his
appointment shall be borne as he shall decide or in the absence of any
decision equally by the Landlord and the Tenant who shall otherwise
each bear their own costs;
(b) the valuer shall afford the Landlord and the Tenant an opportunity to
make representations to him; and
(c) if the valuer dies, delays or becomes unwilling or incapable of acting
or if for any other reason the president for the time being of the
Royal Institution of Chartered Surveyors or the person acting on his
behalf thinks fit he may discharge the valuer and appoint another in
his place.
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(9) MEMORANDUM
When the revised rent has been ascertained memoranda of it shall be signed
by or on behalf of the Landlord and the Tenant and annexed to this Lease
and the counterpart of it and the Landlord and the Tenant shall bear their
own costs in respect of the memoranda.
(10) INTEREST
If the revised rent payable with effect from any Review Date has not been
agreed by that Review Date rent shall continue to be payable at the rate
previously payable. Forthwith on the revised rent being ascertained the
Tenant shall pay to the Landlord any shortfall between the rent and the
revised rent payable up to and on the preceding quarter day together with
interest at the Interest Rate compounded quarterly on each part of the
shortfall from the date or respective dates on which each part would have
been due for payment had the revised rent been ascertained before the
relevant Review Date until the date of payment.
For the purpose of this clause the revised rent shall be deemed to have
been ascertained on the date when it has been agreed between the Landlord
and the Tenant or the date of the determination by the valuer.
(11) COSTS
If either the Landlord or the Tenant fails to pay the relevant part of the
fees and expenses of the valuer under sub-clause (8) within 15 Business
Days of the same being demanded by the valuer the other shall be entitled
to pay the same and the amount so paid shall be repaid on demand by the
party chargeable and recoverable from that party as a debt due.
(12) TIME NOT OF THE ESSENCE
Time shall not be of the essence for the purposes of this clause 4.
5. SERVICE CHARGE
(1) The Tenant shall pay to the Landlord the Provisional Service Charge without
any deduction by equal quarterly payments in advance on the Quarter Days.
The first payment (which is an apportioned sum) is to be made on the date
hereof in respect of the period commencing 17th December 1998 and ending
on the next following Quarter Day.
(2) As soon as possible after every Accounting Date the Landlord shall prepare
and supply to the Tenant an account:
(a) showing the Gross Expenses, the Income and the Net Expenses for the
Financial Year referred to in the account;
(b) containing a fair summary of the items referred to in it; and
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(c) certified by the Landlord or its agents (who may be the managing
agents for the Estate).
The account shall be conclusive evidence of all matters of fact referred to
it in it (save in the case of manifest error) and the Tenant shall be
afforded on request reasonable facilities for inspecting and taking copies
of the accounts and receipts and other documents supporting the account.
(3) In the case of the first Accounting Date after the date for commencement of
payment of the Provisional Service Charge specified in clause 5(1), if the
proportion of the Tenant's Share of the Net Expenses shown in the account
apportioned on a daily basis for the period from that date to the
Accounting Date:
(a) exceeds the amount already paid as Provisional Service Charge before
the first Accounting Date, the Tenant shall pay the excess to the
Landlord within 14 days of written demand; and
(b) is less than the amount already paid as Provisional Service Charge
before the first Accounting Date, the Landlord shall credit the excess
to the Tenant against the next quarterly payment of Provisional
Service Charge.
(4) In the case of every subsequent Accounting Date, if the Tenant's Share of
the Net Expenses shown in the account for the period beginning on the day
after the previous Accounting Date and ending on that Accounting Date:
(a) exceeds the amount paid as Provisional Service Charge during that
period, the Tenant shall pay the excess to the Landlord within 14 days
of written demand; and
(b) is less than the amount paid as Provisional Service Charge during that
period, the Landlord shall credit the excess to the Tenant against the
next quarterly payment of Provisional Service Charge or repay the
excess in respect of the last year of the Term.
(5) If the Landlord fails to include in any account for a Financial Year a sum
expended or liability incurred in that year the Landlord may include such
sum or the amount of such liability in an account for any subsequent
Financial Year.
(6) All sums payable under this clause shall be reserved as rent.
(7) In this clause:
"ACCOUNTING DATE" means 31st December or any other date that the Landlord
may nominate;
"FINANCIAL YEAR" means a year ending on an Accounting Date;
"GROSS EXPENSES" means all the expenses incurred by the Landlord in
connection with the Estate including, without limitation, the matters
referred to in Schedule 7;
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"GROSS INTERNAL AREA" has the meaning ascribed to that expression in the
Code of Measuring Practice published by the Royal Institution of Chartered
Surveyors and the Incorporated Society of Valuers and Auctioneers (4th
Edition);
"INCOME" means:
(a) any insurance money received under an insurance policy which the
Landlord was obliged to effect under this Lease where the Landlord has
incurred expenses in making good the insured loss itself; and
(b) any money received from any person (other than the service charge paid
by the tenants in the Estate) who was liable to contribute to the cost
of compliance with the Landlord's obligations under this Lease where
the Landlord has itself incurred the expense towards which that person
contributed;
"NET EXPENSES" means the amount by which Gross Expenses exceeds Income;
"PROVISIONAL SERVICE CHARGE" means:
(a) in respect of the period from the 17th December 1998 to the next
following Accounting Date, the annual sum of (Pounds)3,895.80; and
(b) in respect of each subsequent Financial Year, the sum fixed from time
to time by the Landlord or its agents acting reasonably (who may be
the managing agents for the Estate) as being a reasonable estimate of
the Tenant's Share of the Net Expenses for the relevant Financial
Year;
"TENANT'S SHARE" means the same proportion of the Net Expenses as the Gross
Internal Area of the Property from time to time bears to the Gross Internal
Area of the Lettable Areas at such time provided always that if the
Landlord shall consider that having regard to the nature and degree of use
by the Tenant or other tenants on the Estate of the facilities covered by
the Gross Expenses or any other factors which the Landlord may reasonably
consider relevant some other proportion ought properly to be payable by the
Tenant the Landlord may substitute such other percentage as it shall
consider reasonable either with regard to all or any items making up the
Net Expenses provided that the proportion of the Net Expenses payable by
the Tenant shall not be increased by reason solely or in part of any
Lettable Areas being vacant or unlet.
6. TENANT'S COVENANTS
(1) INTRODUCTION
The Tenant covenants with the Landlord to comply with its obligations set
out in this clause and in clauses 5, 8 and 9.
(2) RENT
The Tenant shall:
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(a) pay the yearly rent to the Landlord at the times and in the manner
referred to in clause 4 without any deduction; and
(b) not exercise or seek to exercise any right or claim to withhold rent
or any right or claim to legal or equitable set-off.
(3) OUTGOINGS
The Tenant shall:
(a) pay all present and future Outgoings assessed, charged or imposed on,
or payable in respect of the Property or the Car Spaces or assessed,
charged or imposed on, or payable by the owner or occupier of the
Property or the Car Spaces;
(b) pay the proportion properly attributable to the Property or the Car
Spaces of all Outgoings assessed, charged or imposed on or payable in
respect of the Property and other properties or the Car Spaces and
other car spaces or assessed, charged or imposed on or payable by the
owner or occupier of the Property and other properties or the Car
Spaces and other car spaces;
(c) pay all charges for the supply to and consumption at the Property of
water, gas and electricity and all charges for telecommunications
(including equipment rents) and observe and perform all regulations of
the supply authorities;
(d) where such charges as are referred to in paragraph (c) are made in
relation to the Property and other properties or upon the owner or
occupier of the Property and other properties, pay the suppliers and
indemnify the Landlord against the proportion of those charges
properly attributable to the Property or its owner or occupier; and
(e) if the Landlord loses rating relief because it has been allowed to the
Tenant or any other person deriving title under the Tenant during the
Term, make good that loss to the Landlord.
Provided that the Tenant shall not be obliged to pay such sums referred to
above to the extent that the same have been recovered by the Landlord under
Clause 5.
In this sub-clause "OUTGOINGS" means rates, taxes, duties, charges,
assessments, impositions and outgoings whether parliamentary, parochial,
local or of any other description and whether of the nature of capital or
revenue and even though of a wholly novel character and the proportion
referred to in paragraphs (b) and (d) shall be determined by the Landlord
acting reasonably and shall be conclusive save as to questions of law and
save in cases of manifest error.
(4) REPAIR
The Tenant shall:
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(a) put and keep the Property in good repair and condition, but shall not
be obliged to repair damage caused by an Insured Risk save where:
(i) the damage is not insured because of an exclusion, limitation or
excess imposed by the insurers; or
(ii) and to the extent that the insurance monies are irrecoverable in
whole or in part because of the act, default or omission of the
Tenant, any person deriving title under the Tenant or anyone at
the Property with the express or implied authority of any of
them;
(b) replace all the Landlord's fixtures and fittings in the Property which
become beyond repair during the Term with those of no lesser quality;
(c) keep all windows and other glass in the Property (both inside and
outside) clean, cleaning them at least once a month and more
frequently where necessary;
(d) keep any open area within the Property adequately surfaced (where
appropriate) in good condition, properly cultivated (where landscaped)
and free from weeds;
(e) enter into and maintain throughout the Term fully comprehensive
maintenance contracts in respect of all plant, equipment and machinery
forming part of the Property with a reputable company or companies and
produce the contracts to the Landlord on demand with evidence that any
payments due under them are paid up to date;
(f) ensure that the electrical circuits within the Property comply with
the then current regulations of the Institute of Electrical Engineers
or other amended standards or recommended current codes of practice
(save that this shall not obligate the Tenant to upgrade the existing
circuits within the Property save where it is unlawful not to do so);
and
(g) notify the Landlord of all defects in the Property which are relevant
defects for the purpose of section 4 of the Defective Premises Xxx
0000.
(5) REDECORATION
The Tenant shall redecorate the exterior of the Property in every third
year and in the last year of the Term and the interior of the Property in
every fifth year and in the last year of the Term in colours and patterns
which, in the case of external decorations, shall be first approved by the
Landlord at all times during the Term and, in the case of internal
decorations, shall be first approved by the Landlord in the last year of
the Term. The Tenant shall also have all parts of the Property requiring
treatment for their preservation and protection treated in accordance with
the best approved manner for preserving and protecting them. All works
under this sub-clause shall be carried out in a good and workmanlike manner
and with suitable, good quality materials.
In this sub-clause the "last year of the Term" means the period of 12
months ending at the End of the Term and all approvals shall not be
unreasonably withheld or delayed by the Landlord.
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(6) ENTRY BY THE LANDLORD
The Tenant shall:
(a) permit the Landlord to enter the Property to examine its condition and
take inventories;
(b) permit the Landlord to enter the Property to exercise any of the
rights reserved to the Landlord by this Lease and for any other
reasonable purpose connected with the management of the Estate subject
to the Landlord making good to the Tenant all damage to the Property
but not being obliged to compensate the Tenant for any loss suffered
by the Tenant or for any nuisance, annoyance, inconvenience, noise or
vibration;
(c) permit the Landlord and any person acting as valuer under clause 4 to
enter the Property and inspect and measure the Property for all
purposes connected with insurance of the Property, any action under
the Landlord and Xxxxxx Xxx 0000 Part II, or the implementation of
clause 4; and
(d) furnish all information relevant for those purposes as the Landlord or
anyone having a right of entry under this sub-clause may reasonably
request.
Except in case of emergency the Landlord shall give the Tenant reasonable
prior written notice before exercising the right of entry and shall comply
with the Tenant's reasonable security and confidentiality requirements.
After notice or in case of emergency the Landlord may break into the
Property. Such rights shall be exercised in a reasonable manner and in
such a way so far as reasonably practicable as not to prevent the Tenant's
beneficial user and enjoyment of the Property and to use reasonable
endeavours not to damage or interfere with any equipment or machinery or
data transmission and storage facilities in the Property and shall make
good any damage caused.
(7) REMEDY BREACHES
The Tenant shall remedy all breaches of covenant notified by the Landlord
to the Tenant which the Tenant is liable to remedy under this Lease as soon
as possible and in any event within three months or sooner if appropriate
after service of the notice. If the Tenant fails to do so the Landlord may
enter the Property and remedy the breach and such entry shall be subject to
the same conditions as referred to in clause 6(6). All costs and expenses
incurred by the Landlord shall be paid by the Tenant within 14 days of
written demand.
(8) ALTERATIONS
Subject to the rights granted to the Tenant in Schedule 2 to this Lease the
Tenant shall:
(a) not make any alteration or addition to the Property (other than the
erection, alteration or removal of internal, non structural,
demountable partitioning) save as permitted by paragraph (b);
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(b) not make any non-structural alteration to the Property (other than as
mentioned in paragraph (a)) without the prior consent of the Landlord
which shall not be unreasonably withheld or delayed; and
(c) before the End of the Term if required to do so by the Landlord but
not otherwise, remove any alteration or addition (including any made
before the beginning of the Term) and make good all damage caused by
the removal.
In this sub-clause a non-structural alteration is one which does not affect
the roof, foundations or exterior of the Property or any load-bearing part
of it.
(9) SIGNS
The Tenant shall:
(a) not display on the Property any signs visible from outside the
Property except those which in the Landlord's opinion are reasonably
necessary in connection with the business carried on at the Property
and which are in a form approved by the Landlord and are affixed in
positions approved by the Landlord (such approvals not to be
unreasonably withheld or delayed);
(b) at the End of the Term remove all signs (including any erected before
the beginning of the Term) and make good all damage caused by their
removal; and
(c) not affix to the Property any external radio, television or other
aerial or satellite dish or any pole, mast, flag or wire save with the
prior written consent of the Landlord such consent not to be
unreasonably withheld or delayed and in making such decision the
Landlord shall have due regard to the Tenant's use of the Property.
In this sub-clause "signs" includes signs, hoardings, posters, placards,
advertisements, letters, bills and inscriptions.
(10) USE
The Property shall not be used for any purpose other than a use within
Class B1, Class B2 or Class B8 of the schedule to the Town and Country
Planning (Use Classes) Order 1987 as that Order is in force at the date of
this Lease.
(11) USE OBLIGATIONS
The Tenant shall:
(a) use any open area within the Property only for the purpose for which
it is designed and not keep any caravan or temporary building on it;
(b) not leave the Property unoccupied for more than a month without
notifying the Landlord and providing the security arrangements
reasonably required by the Landlord and its insurers;
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(c) not do anything on the Property which may become a nuisance or damage
to the Landlord or any nearby owner or occupier;
(d) not allow to pass into the Conduits serving the Property anything that
may obstruct them or cause damage, danger or pollution or anything
poisonous or radioactive;
(e) not bring onto or keep in the Property anything dangerous,
inflammable, explosive, or noxious save for materials ordinarily and
properly used in connection with alternative power generation provided
that such materials are safely stored and are otherwise in accordance
with all statutory requirements and the reasonable requirements of
insurers;
(f) not use the Property for any illegal purpose or for any dangerous,
noxious, or noisy occupation;
(g) not use the Property for the holding of public meetings or auction
sales or as a residence or sleep at the Property or keep any animal on
it;
(h) not overload the Property or its Conduits;
(i) remove all refuse on a reasonably frequent basis but no less than once
a week and keep the Property clean, tidy and in good order;
(j) not obstruct any road or footpath on the Estate and not do anything as
a result of which reasonable use of the Common Parts by others may be
impeded; and
(k) not park vehicles on or load or unload goods onto or from vehicles
save in those parts of the Property or the Common Parts designated by
the Landlord for that purpose.
(12) STATUTORY REQUIREMENTS
The Tenant shall comply with every enactment and with the requirements and
recommendations of every authority relating to or affecting the Property or
its use or the employment of anyone at the Property or any equipment or
chattels in the Property and whether applicable to the owner, landlord,
tenant or occupier of the Property save that this obligation shall not
include responsibility for compliance with anything relating to remediation
of any contamination affecting the Property which was caused before the
date hereof.
In this sub-clause "authority" includes every government department, local
or other authority and court of competent jurisdiction.
(13) NOTICES
The Tenant shall:
(a) give the Landlord a copy of every notice or order or any proposal for
a notice or order issued to the Tenant, its sub-tenants or any
occupier of the Property or left at the
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Property relating to the Property or the Tenant's its sub-tenants or
any occupiers use thereof within five Business Days of its service;
(b) (if it is the Tenant's responsibility to so comply in accordance with
the terms of this Lease) take all steps necessary to comply with every
notice or order without delay; and
(c) at the request and cost of the Landlord make or join with the Landlord
in making such objections or representations in respect of the notice,
order or proposal as the Landlord shall reasonably require.
(14) FIRE AUTHORITY REQUIREMENTS
The Tenant shall comply with all requirements and recommendations of the
appropriate authority and the Landlord's insurers and all reasonable
requirements of the Landlord as to means of escape from the Property in
case of fire or other emergency and as to the provision and maintenance of
fire detection equipment, fire alarm equipment and fire fighting equipment.
(15) PLANNING ACTS
The Tenant shall:
(a) comply with the Planning Acts in relation to the Property, any
operations carried out at the Property and its use and not commit any
breach of planning control (as defined in the Planning Acts);
(b) obtain from the local planning authority planning permission for the
carrying out of any operation on the Property or the institution or
continuance of any use which may constitute development within the
meaning of the Planning Acts;
(c) not make any application for planning permission without the
Landlord's prior consent (which shall not be unreasonably withheld or
delayed) to the making of the application, indemnify the Landlord
against all charges payable in respect of the application and repay to
the Landlord all reasonable and proper professional fees and expenses
properly incurred by the Landlord in connection with the application;
(d) forthwith after the grant or refusal of any application give the
Landlord a copy of the permission or the refusal;
(e) not make any alteration or addition to or change of use of the
Property (being an alteration or addition or change of use which is
prohibited by or for which the consent of the Landlord must be
obtained under this Lease and for which a planning permission must be
obtained) before planning permission for it has been produced to the
Landlord and acknowledged by the Landlord as satisfactory to it but so
that the Landlord may refuse to express satisfaction with the planning
permission on the grounds that anything contained in it or omitted
from it in the reasonable opinion of the Landlord would be or be
likely to be materially prejudicial to the Landlord's interest in the
Property during the
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Term or after the End of the Term such acknowledgement from the
Landlord shall not be unreasonably delayed;
(f) pay any charge imposed under the Planning Acts in respect of the
carrying out of any operation or the institution or continuance of any
use;
(g) unless the Landlord directs otherwise, carry out before the End of the
Term all works required to be carried out as a condition of any
planning permission which may have been granted and implemented during
the Term whether or not the date by which the planning permission
requires those works to be carried out falls within the Term;
(h) pay to the Landlord within 14 days of written demand a fair and
reasonable proportion of any compensation received by the Tenant
because of a restriction on the use of the Property under the Planning
Acts, any dispute as to the proportion to be referred to arbitration;
(i) produce to the Landlord all drawings, documents and other evidence
reasonably required by the Landlord to satisfy itself that this sub-
clause has been complied with;
(j) not implement any planning permission without providing reasonable
security if reasonably required for compliance with the conditions
imposed by that permission;
(k) not serve any purchase notice under the Planning Acts requiring any
authority to purchase the Tenant's interest in the Property without
first offering to surrender this Lease at the price which might
reasonably be expected to be obtained from the authority under the
purchase notice, any dispute as to the amount of the price to be
referred to arbitration;
(l) not to make any objection or adverse representation in respect of any
planning application made by or with the consent of the Landlord:
(i) within 12 months before the date specified in clause 15 of this
Lease if the Tenant has served the notice referred to in that
clause; or
(ii) within 12 months before the End of the Term unless the Tenant has
exercised its rights to take a new lease under the provisions of
the Landlord and Xxxxxx Xxx 0000;
and in either case this clause shall not prevent the Tenant making
such objections if it is entitled to do so under a lease of another
Unit on the Estate.
(16) OBSTRUCTION
The Tenant shall not:
(a) stop up, darken or obstruct any window or opening belonging to the
Property save as part of the Tenant's usual security measures; or
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(b) give to any third party any acknowledgement that the Tenant enjoys the
access of light or air to any of the windows or openings in the
Property by the consent of a third party; or
(c) pay to any third party any sum of money or enter into any agreement
with any third party for the purpose of inducing or binding him to
abstain from obstructing the access of light or air to any windows or
openings.
(17) OBSTRUCTION PROCEEDINGS
If any of the owners or occupiers of nearby land or buildings do or
threaten to do anything which obstructs the access of light or air to any
of the windows or openings in the Property the Tenant shall:
(a) notify the same forthwith to the Landlord; and
(b) permit and afford all reasonable assistance to the Landlord to bring
proceedings in the name of the Tenant and at the joint cost of the
Landlord and Tenant against any of the owners or occupiers of the
nearby land or buildings in respect of the obstruction.
(18) ACQUISITION OF RIGHTS
The Tenant shall not allow any easement to be acquired over the Property.
If any such easement is acquired or attempted to be acquired, the Tenant
shall give immediate notice of it to the Landlord and at the request of the
Landlord but at the cost of the Tenant adopt the course reasonably required
by the Landlord for preventing the acquisition of the easement.
(19) PARTY MATTERS
The Tenant shall pay a fair proportion of all costs and expenses payable in
respect of repairing, lighting, cleansing and maintaining anything used in
common by the Property and any other property to the extent that those
costs and expenses are not recovered under clause 5. The proportion shall
be determined by the Landlord and shall be conclusive save as to questions
of law and save in the case of manifest error.
(20) NEW GUARANTOR
If a guarantor's event of default occurs, the Tenant shall give notice to
the Landlord of the event within ten Business Days of its occurrence. If
the Landlord serves notice on the Tenant under this sub-clause within
thirty Business Days of service of the Tenant's notice, the Tenant shall
procure that guarantors reasonably acceptable to the Landlord shall
covenant by deed with the Landlord in the form set out in Schedule 5.
In this sub-clause a guarantor's event of default is any of the following:
(a) in the case of a Guarantor who is an individual:
(i) the death of the individual;
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(ii) the individual being regarded as a patient under the Mental
Health Xxx 0000 section 94;
(iii) an application being made for an interim order in respect of
the individual or an interim order being made under the Act;
(iv) the making by the individual of a proposal for a voluntary
arrangement;
(v) a petition being presented for a bankruptcy order to be made
against the individual or a bankruptcy order being made;
(b) in the case of a Guarantor which is a company:
(i) a proposal being made to the company and to its creditors for a
voluntary arrangement;
(ii) a petition being presented for an administration order in
respect of the company or an administration order being made;
(iii) the company having an administrative or other receiver or a
manager appointed of the whole or any part of its property;
(iv) the company passing a resolution for winding up or a petition
being presented for the winding up of the company or a winding
up being made or the company being dissolved other than (in any
such case) a voluntary winding up of a solvent company for the
purposes of amalgamation or reconstruction;
(v) the company, having been registered as an unlimited company,
being re-registered as a limited company without the previous
consent of the Landlord;
(c) in the case of a Guarantor who is an individual or which is a company:
(i) the individual or the company entering into any kind of
composition, scheme of arrangement, compromise or arrangement
for the benefit of creditors or any class of creditors or
permitting or suffering any distress or execution to be levied
on his goods at the Property which remains unsatisfied for more
than 21 days;
(ii) there occurring in relation to the individual or the company in
any country or territory in which he carries on business or to
the jurisdiction of whose courts he or any of his property is
subject any event which corresponds in that country or
territory with any of those mentioned in paragraphs (a)(iii) to
(v) or (b) above or the individual or the company otherwise
becoming subject in any such country or territory to any law
relating to insolvency, bankruptcy or winding up.
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(21) COSTS
The Tenant shall pay the reasonable and proper costs and expenses incurred
by the Landlord:
(a) in or in contemplation of any proceedings relating to the Property
under the Law of Property Xxx 0000 sections 146 and 147, or the
Leasehold Property (Repairs) Xxx 0000, the preparation and service of
any notice under those sections or the taking of steps subsequent to
such notice notwithstanding that forfeiture is avoided otherwise than
by relief granted by the Court;
(b) in the preparation and service of any notice to repair or any
schedule of dilapidations at any time during the Term or after the
End of the Term;
(c) in connection with the recovery of arrears of Rent or other sums due
to the Landlord under this Lease including the levy or attempted levy
of any distress; and
(d) in respect of any application for consent required by this Lease
whether or not the consent is granted (including any inspection of
works authorised by the consent and of any re-instatement of those
works).
Where the Landlord could recover the cost of services or advice under the
first part of this sub-clause if they were undertaken by a third party but
those services or that advice are provided by the Landlord or by a company
which is a member of the same group as the Landlord (within the meaning of
section 42 of the Landlord and Tenant Act 1954), the Tenant shall pay to
the Landlord or to that company a reasonable sum (plus VAT if payable) for
such services or advice but not more than the amount payable by the Tenant
if those services or that advice had been provided by a third party
(22) INDEMNITY
The Tenant shall:
(a) pay and make good to the Landlord every loss and damage incurred or
sustained by the Landlord as a consequence of every breach or non-
observance of the Tenant's covenants contained in this Lease and
shall indemnify the Landlord against all actions, claims,
liabilities, costs and expenses arising by reason of the breach; and
(b) indemnify and keep the Landlord indemnified from liability in respect
of all loss, damage, actions, proceedings, claims, demands, costs,
damages and expenses in respect of any injury to or the death of any
person or damage to any property or in respect of the infringement,
disturbance or destruction of any right by reason of or arising in
any way directly or indirectly out of:
(i) the state of repair or condition of the Property;
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(ii) the act, omission or default of the Tenant, any person
deriving title under the Tenant or any person at the Property
with the express or implied authority of any of them;
(iii) the construction or existence of any additions or alterations
to the Property;
(iv) the use of the Property;
(v) anything now or in the future attached to or on the Property;
(vi) the use of vehicles on the Property;
(vii) the omission of the Tenant to give written notice to the
Landlord of any defects or items requiring repair of which
the Tenant is aware or ought reasonably to be aware; and
(viii) any breach by the Tenant or by any person deriving title
under the Tenant of any covenant by the Tenant or any
condition contained in this Lease.
Provided that the Tenant shall not be obliged to indemnify the
Landlord in respect of such matters to the extent that such damage
arises out of the Landlord's wilful misconduct or negligence.
(23) NOTICES FOR SALE AND RE-LETTING
The Tenant shall:
(a) permit (at a suitable location which does not materially interfere
with or obstruct the access of light to the Property) the Landlord
during the six months before the End of the Term to affix to the
Property a notice (of a suitable size and nature) for re-letting it;
(b) permit (at a suitable location which does not materially interfere
with or obstruct the access of light to the Property) the Landlord at
any time during the Term to affix to the Property a notice (of a
suitable size and nature) for dealing with the Landlord's interest in
the Property; and
(c) permit all persons with written authority from the Landlord or the
Landlord's agent to view the Property upon the Landlord giving at
least 24 hours prior written notice and subject to such person
complying with the Tenant's reasonable security and confidentiality
requirements.
(24) REGULATIONS
The Tenant shall observe all reasonable regulations made by the Landlord
for the proper management of the Estate.
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(25) CAR SPACES
The Tenant shall:
(a) not use the Car Spaces otherwise than for the purpose of the parking
of one private motor car in each Car Space and not to keep anything
else in the Parking Area including, without limitation, plant,
equipment, materials, containers of any description or any skip or
other receptacle for refuse or any caravan or temporary building;
(b) not without the express permission of the Landlord carry out any
repairs to any vehicle whilst it is in the Parking Area and if
permission is granted ensure that any repairs are carried out in such
manner as not to cause any nuisance, annoyance, inconvenience or
disturbance to the Landlord or any tenant or occupier of the Estate
or other user of the Parking Area;
(c) keep the Car Spaces and the surrounding area clean, tidy and free
from deposits of oil or grease;
(d) not cause any obstruction in the Parking Area;
(e) take all reasonable and proper precautions against fire occurring in
any vehicle using the Car Spaces;
(f) not do anything in the Parking Area which causes nuisance, annoyance,
inconvenience or disturbance to the Landlord or any tenant or
occupier of the Estate or other user of the Parking Area.
(26) FREEHOLD COVENANTS
The Tenant shall observe and perform the covenants contained in or
referred to in the documents specified in Schedule 4 so far as they relate
to the Property and are still subsisting and capable of taking effect and
shall indemnify and keep indemnified the Landlord from and against any
non-observance or non-performance of the same.
(27) YIELD UP
The Tenant shall:
(a) byield up the Property (except tenant's or trade fixtures including
those of the type listed on annexed schedule) to the Landlord at the
End of the Term with vacant possession and in accordance with the
Tenant's covenants contained in this Lease; and
(b) make good to the satisfaction of the Landlord all damage occasioned
by the removal of any tenant's or trade fixtures.
(28) RELEASE OF LANDLORD
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If the Landlord or any former landlord applies for release of a covenant
under section 8 of the Landlord and Tenant (Covenants) Xxx 0000:
(a) the Tenant shall not object unreasonably to the release of the
Landlord or the former landlord; and
(b) if, following such an application, the Tenant serves notice objecting
to the release, but the Court makes a declaration that it is
reasonable for the covenant to be released, the Tenant shall indemnify
the Landlord and any former landlord against all loss, damage, costs
and expenses incurred or sustained by any of them as a result of the
objection of the Tenant.
7. LANDLORD'S COVENANTS
(1) INTRODUCTION
The Landlord covenants with the Tenant to comply with its obligations set
out in this clause and in clauses 5 and 9.
(2) QUIET ENJOYMENT
For so long as the Tenant pays the Rent and performs and observes the
covenants by the Tenant and the conditions contained in this Lease the
Tenant may peaceably and quietly hold and enjoy the Property during the
Term without any lawful interruption by the Landlord or any person claiming
under or in trust for the Landlord.
(3) SERVICES
The Landlord shall use all reasonable endeavours to:
(a) maintain in good working order and repair all Conduits in, under or
upon the Estate which serve the Property (other than those which
exclusively serve the Property); and
(b) keep the surfaces of the Common Parts in good repair and cleaned at
regular intervals and reasonably well lit.
The Landlord will not be liable to the Tenant for any breach of these
obligations unless the Tenant has given the Landlord notice of the breach
and the Landlord is aware or should reasonably be aware of the breach and
has failed to remedy the breach within a reasonable time of service of the
notice.
8. ALIENATION
(1) RESTRICTIONS ON ALIENATION
The Tenant shall not:
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(a) save to the extent permitted by the following sub-clauses of this
clause, part with possession of the whole or any part of the Property
or part with or share occupation of the whole or any part of the
Property or permit occupation by a licensee of the whole or any part
of the Property or hold on any trust the whole or any part of the
Property; nor
(b) if it is an unlimited company, incorporate itself as a limited company
without the prior consent of the Landlord (such consent not to be
unreasonably withheld or delayed).
(2) ASSIGNMENT
The Tenant shall not:
(a) assign part of the Property; nor
(b) assign the whole of the Property without the prior consent of the
Landlord which, subject to sub-clauses (3) and (4), shall not be
unreasonably withheld or delayed.
(3) AGREEMENT AS TO CIRCUMSTANCES
The Landlord and the Tenant agree that the Landlord may withhold its
consent to an assignment if any one or more of the following circumstances
(which are specified for the purposes of section 19(1A) of the Landlord and
Tenant Act 1927) exist and it shall not be regarded as unreasonably
withholding its consent if it does so:
(a) any rent payable pursuant to clause 4(1) of this Lease agreed service
charge, insurance and VAT on such sums payable in accordance with this
Lease due from the Tenant under this Lease is unpaid;
(b) the Landlord reasonably determines that the proposed assignee is not a
person who is likely to be able both to comply with the tenant's
covenants in this Lease and to continue to be such a person following
the assignment;
(c) the proposed assignee or any proposed guarantor for it (other than any
guarantor under an authorised guarantee agreement) has the benefit of
state or diplomatic immunity or the Landlord determines that it is
likely to acquire that immunity;
(d) the proposed assignee is a company which is a member of the same group
(within the meaning of section 42 of the Landlord and Tenant Act 1954)
as the Tenant; and
(e) the proposed assignee or any proposed guarantor for it (other than any
guarantor under an authorised guarantee agreement) is a corporation
registered in or an individual resident in a jurisdiction in which a
judgement obtained in the courts of England and Wales will not
necessarily be enforced without any re-examination of the merits of
the case.
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(4) AGREEMENT AS TO CONDITIONS
The Landlord and the Tenant agree that the Landlord may grant consent to an
assignment subject to any one or more of the following conditions (which
are specified for the purposes of section 19(1A) of the Landlord and Tenant
Act 1927) and it shall not be regarded as giving consent subject to
unreasonable conditions if it does so:
(a) that before the assignment the Tenant enters into and unconditionally
delivers to the Landlord an authorised guarantee agreement, such
agreement to be a deed and to contain the provisions in Schedule 6 or
at the Landlord's absolute discretion) such other provisions as the
Landlord shall reasonably prescribe and (in either case) such
ancillary provisions as the Landlord shall reasonably prescribe;
(b) that before the assignment any person (other than a former Tenant) who
at the time of the application for the consent is guaranteeing the
obligations and liabilities under this Lease of the Tenant covenants
by deed with the Landlord that the Tenant shall perform its
obligations under the authorised guarantee agreement required under
paragraph (a), the deed to contain provisions equivalent to those
contained in paragraphs 1 to 4 and 9 of Schedule 5 and an obligation
on the part of the covenantor (in the event of default on the part of
the Tenant) to perform any obligation entered into by the Tenant in
the authorised guarantee agreement to take up a new lease, and
otherwise to be in such form as the Landlord reasonably requires;
(c) that before the assignment, if the Landlord determines it to be
necessary, one or more guarantors acceptable to the Landlord, acting
reasonably, covenant by deed with the Landlord in the form set out in
Schedule 5 (with "ASSIGNEE" substituted for "TENANT" in paragraphs 1
to 9 inclusive and with such other provisions as the Landlord
reasonably requires) in respect of the period during which the
assignee is bound by the tenant's covenants and the conditions in this
Lease;
(d) that all rent payable pursuant to clause 4(1) of this Lease agreed
service charge, insurance and VAT on such sums payable in accordance
with this Lease due from the Tenant under this Lease as at the date of
the assignment has been paid;
(e) that the assignment is completed and registered with the Landlord in
accordance with sub-clause (14) within three months of the date of the
consent and that if it is not, the consent shall be void but any of
the guarantees referred to in paragraphs (a) to (c) shall nevertheless
remain in full force and effect.
(f) that before the assignment of this Lease to an assignee who is not
also taking an assignment of the adjacent Unit numbered 7 the Tenant
has constructed to the Landlord's reasonable specification and
satisfaction an internal dividing wall between the Property and the
adjacent Unit numbered 7
(5) FURTHER AGREEMENT
The Landlord and the Tenant agree that:
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(a) the Landlord may withhold consent to an assignment in circumstances
which are not referred to in sub-clause (3) if it is reasonable to do
so and may grant consent subject to conditions which are not specified
in sub-clause (4) if the conditions are reasonable; and
(b) any power on the part of the Landlord to determine any matter for the
purposes of sub-clauses (3) or (4) shall be exercised reasonably.
(6) UNDERLETTING
The Tenant shall not:
(a) underlet part only of the Property;
(b) underlet the whole of the Property:
(i) without complying with the provisions of sub-clauses (7) to (11);
and
(ii) without the prior consent of the Landlord, which shall not be
unreasonably withheld or delayed.
(7) UNDERLETTING CONDITIONS
Not to underlet the whole of the Property without producing to the
Landlord:
(a) an order of the Court under section 38(4) of the Landlord and Xxxxxx
Xxx 0000 authorising the inclusion in the intended underlease of an
agreement excluding sections 24 to 28 of that Act; and
(b) a written undertaking by the Tenant not to release the intended
undertenant from or otherwise waive or modify the agreement authorised
by the order
and without including the agreement in the intended underlease.
(8) COVENANTS ON UNDERLETTING
The Tenant shall procure that any intended undertenant covenants by deed
with the Landlord:
(a) to pay the rent to be reserved by and the other sums to be payable
under the underlease and to perform and observe, the tenant's
covenants and the conditions to be contained in the underlease
throughout the period during which the undertenant is bound by the
tenant's covenants and conditions in the underlease;
(b) without prejudice to paragraph (a), not to assign the underlet
property without:
(i) first obtaining a deed of covenant from the intended assignee in
favour of the Landlord in the same form (with the necessary
changes) as the deed referred to
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in this sub-clause, including (without limitation) the covenants
in this paragraph (b); and
(ii) if the Landlord reasonably requires, first obtaining a deed from
one or more guarantors acceptable to the Landlord, acting
reasonably, in favour of the Landlord guaranteeing the due and
punctual payment and performance of all the obligations and
liabilities of the intended assignee under the deed referred to
in sub-paragraph (i), the deed to contain provisions equivalent
to those contained in paragraphs 1 to 4 and 9 of Schedule 5 and
otherwise to be in such form as the Landlord reasonably requires.
(9) GUARANTEE ON UNDERLETTING
If the Landlord reasonably requires, the Tenant shall procure that, before
the underlease is granted, one or more guarantors acceptable to the
Landlord, acting reasonably, guarantee (by way of deed) to the Landlord, in
respect of the period during which the undertenant is bound by the tenant's
covenants and the conditions in the underlease, the due and punctual
payment and performance of all the obligations and liabilities of the
intended undertenant, the guarantee to contain provisions equivalent to
those contained in paragraphs 1 to 4 and 9 of Schedule 5 and otherwise to
be in such form as the Landlord reasonably requires.
(10) FORM OF UNDERLEASE
The Tenant shall procure that every underlease shall:
(a) contain the same tenant's covenants and other terms and conditions as
are contained in this Lease subject only to:
(i) such amendments as may be provided for in paragraphs (b) to (d);
and
(ii) such amendments as may reasonably be required by the Tenant,
having regard only to the duration of the proposed underlease,
and as may be approved by the Landlord, such approval not to be
unreasonably withheld;
(b) not permit any assignment, underlease or other dealing or disposal of
the Property which is prohibited by the terms of this Lease and
prohibit any further underletting of the whole or any part of the
Property;
(c) provide that where the underlease requires the undertenant to obtain
the landlord's consent, the undertenant shall be required to obtain
also the consent of the Landlord (such consent not to be unreasonably
withheld or delayed);
(d) contain provisions that require a review of the rent payable under the
underlease to open market rent in accordance with the provisions and
at the dates for review of the rent payable under this Lease, but this
paragraph shall not prohibit an underlease of the Property upon terms
that require review of the rent payable under the underlease at dates
additional to the dates for review of the rent payable under this
Lease;
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(11) UNDERLEASE REQUIREMENTS
The Tenant shall:
(a) not grant any underlease at a fine or premium;
(b) not grant any underlease at a rent which at the time of the grant of
the underlease is less than the open market rent of the Property;
(c) not vary the terms of any underlease or release the undertenant from
any covenant or condition in the underlease without the prior consent
of the Landlord such consent not to be unreasonably withheld or
delayed and shall notify the Landlord of any surrender of any
underlease;
(d) not waive any breach of any of the covenants on the part of the
undertenant and the conditions contained in any underlease but take
all such reasonable steps as are lawfully available to the Tenant
(including re-entry) to enforce such covenants and conditions;
(e) procure that the rent reserved by any underlease is reviewed in
accordance with the provisions of the underlease but not agree any
revised rent with the undertenant without the prior consent of the
Landlord (such consent not to be unreasonably withheld), and if on
any rent review under any underlease the revised rent is to be
determined by an independent third party, procure that any reasonable
representations which the Landlord may wish to make concerning the
revised rent are put forward to the third party at the same time as
the representations of the Tenant and as though they were
representations made by the Tenant; and
(f) procure that on any assignment of any underlease the outgoing
undertenant enters into an authorised guarantee agreement and, where
appropriate, guarantors enter into a contractual guarantee in each
case with the landlord under the underlease in accordance with the
provisions of the underlease.
In paragraphs (c) to (f) of this sub-clause an underlease includes any
lease where, by virtue of the grant of this Lease, the Tenant under this
Lease becomes the holder of the immediate reversion to that lease.
(12) ASSOCIATED COMPANIES
The Tenant may share the occupation of any part of the Property with a
company which is a member of the same group as the Tenant (within the
meaning of section 42 of the Landlord and Tenant Act 1954) for so long as
both companies remain members of that group and provided that:
(a) no relationship of landlord and tenant is created between the two
companies and no security of tenure is conferred upon the occupier;
and
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(b) within 15 Business Days of the commencement of the sharing the Tenant
gives to the Landlord notice of the company sharing occupation and
the address of its registered office.
(13) CHARGING
The Tenant shall not
(a) charge part of the Property; or
(b) charge the whole of the Property by way of fixed security without the
prior consent of the Landlord, which shall not be unreasonably
withheld.
(14) REGISTRATION OF DEALINGS
Within 15 Business Days of every assignment, transfer, underlease or
charge of the Property or the creation or transfer of any interest derived
out of the Term or any devolution of the interest of the Tenant or any
person deriving title under the Tenant, the Tenant shall produce a
certified copy of the assignment, transfer, underlease or charge or (in
the case of a devolution) the document evidencing or under which the
devolution arises and pay the Landlord a registration fee of a reasonable
amount, being not less than (Pounds)25, in respect of each assignment,
transfer, underlease, charge or devolution.
9. INSURANCE
(1) LANDLORD'S INSURANCE OBLIGATIONS
Unless the insurance is vitiated by any act, default or omission of the
Tenant, any person deriving title under the Tenant or any person at the
Property with the express or implied authority of any of them the Landlord
shall keep the Property (other than plate glass and tenant's or trade
fixtures) insured with insurers or underwriters selected by the Landlord
in accordance with the provisions of this clause to the extent to which
the Property is insurable and subject to all exclusions, limitations and
excesses imposed by the insurers.
(2) SUM AND RISKS INSURED
The Property shall be insured in a sum not less than its full
reinstatement cost (as determined from time to time by the Landlord)
against loss or damage by the Insured Risks.
(3) FEES
The insurance shall extend to:
(a) architects' and other professional fees in relation to the
reinstatement of the Property for a minimum sum of 15% of the amount
insured in respect of the Property;
(b) the costs of demolition and removal of debris; and
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(c) loss of rent for such period as the Landlord may decide in an amount
which takes into account the Landlord's estimate of potential
increases in rent.
(4) PRODUCTION OF POLICY
Whenever reasonably required to do so by the Tenant and at the Tenant's
cost, but not more often than twice a year, the Landlord shall produce to
the Tenant at the Landlord's office a copy of the insurance policy or other
evidence of it and evidence of payment of the last premium.
(5) REINSTATEMENT
Subject to sub-clause (13) if the Property is destroyed or damaged by any
of the Insured Risks, then unless the insurance is vitiated by any act,
default or omission of the Tenant, any person deriving title under the
Tenant or any person at the Property with the express or implied authority
of any of them, the Landlord shall use reasonable endeavours to:
(a) obtain all consents and permissions necessary for reinstatement as
soon as reasonably possible;
(b) subject to obtaining those consents and permissions, lay out as soon
as practicable all insurance monies received by the Landlord (other
than for fees and loss of rent) in reinstating the Property; and
(c) subject to the Tenant complying with its obligations in sub-clauses
(6)(a)(iii), (7) and(9) make good out of the Landlord's own monies any
deficiency (other than one arising from an exclusion, limitation or
excess imposed by the insurers).
(6) TENANT'S INSURANCE OBLIGATIONS
(a) The Tenant shall pay to the Landlord on demand:
(i) every premium payable by the Landlord (including any part of it
which the Landlord is entitled to retain by way of commission)
for insuring the Property in accordance with its obligations in
sub-clause (1) and for effecting insurance in respect of
liability to third parties including members of the public and
such other insurances as the Landlord reasonably considers
desirable;
(ii) where the policy includes the Property and other properties, the
proportion properly attributable to the Property of every premium
payable by the Landlord (including any part of it which the
Landlord is entitled to retain by way of commission) for insuring
the Property and the other properties in accordance with its
obligations in sub-clause (1) and for effecting (in relation to
the Property and the other properties) the other insurances
referred to in sub-paragraph (i), the proportion to be determined
by the Landlord whose determination shall be conclusive save as
to questions of law and save in case of manifest error;
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(iii) the amount of any excess deducted or deductible by the insurers
on any claim made by the Landlord; and
(iv) all costs and expenses reasonably incurred by the Landlord in
obtaining a valuation of the Property for insurance purposes
(provided this is limited to one such valuation every two
years).
All sums payable by the Tenant under paragraph (a)(i) shall be
reserved as rent.
(b) The Tenant shall insure all plate glass in the Property against all
risks with an insurance company approved by the Landlord in the joint
names of the Landlord and the Tenant and, on demand, produce a copy of
the insurance policy and evidence of payment of the last premium to
the Landlord.
(7) VITIATION
The Tenant shall not use the Property or carry on any business at the
Property or do or omit to do at the Property anything which may make void
or voidable any policy for the insurance of the Property or any nearby
property of the Landlord.
(8) INCREASED PREMIUM
The Tenant shall:
(a) not without the prior consent of the Landlord use the Property or
carry on any business at the Property or do or omit to do at the
Property anything which may increase the premium payable for the
insurance; and
(b) if consent is given, repay on demand to the Landlord any resulting
increased insurance premium payable by the Landlord.
(9) IRRECOVERABLE REINSTATEMENT COST
If the Property is destroyed or damaged by any of the Insured Risks and the
insurance money under any insurance effected by the Landlord is wholly or
partly irrecoverable because of any act, default or omission of the Tenant,
any person deriving title under the Tenant or any person at the Property
with the express or implied authority of any of them the Tenant shall pay
to the Landlord within 14 days of written demand the whole or the
appropriate proportion of the cost of reinstating the Property. Any
dispute as to the amount of such proportion shall be referred to
arbitration.
(10) NOTICE OF DAMAGE
If the Property is destroyed or damaged by any of the Insured Risks the
Tenant shall give notice to the Landlord as soon as the destruction or
damage comes to the notice of the Tenant.
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(11) DOUBLE INSURANCE
The Tenant shall not effect any insurance relating to the Property against
any of the Insured Risks. If the Tenant is entitled to the benefit of any
insurance in respect of the Property, the Tenant shall pay to the Landlord
all monies received by virtue of the insurance to enable the Landlord to
apply them in making good the loss or damage in respect of which they have
been received.
(12) CESSER OF RENT
If the Property or any part of it (or the means of access to or egress from
it) is destroyed or damaged by any of the Insured Risks so as to be unfit
for occupation or use the rent or a fair proportion of it according to the
nature and extent of the damage sustained shall be suspended until the
Property (or the means of access to or egress from it) has been reinstated
and made fit for occupation and use or until the end of three years from
the date of the destruction or damage, whichever first occurs. Any dispute
as to the amount of the proportion shall be referred to arbitration. This
sub-clause does not apply if and to the extent that the insurance monies in
respect of loss of rent are wholly or partially irrecoverable solely or
partly because of the act, default or omission of the Tenant or any person
deriving title under the Tenant or any person at the Property with the
express or implied authority of any of them.
(13) PREVENTION OF REINSTATEMENT
The Landlord shall not be obliged to reinstate the Property in accordance
with sub-clause (5) while prevented by a supervening event. If the
Landlord is unable to commence reinstatement within twenty four months from
the date of destruction or damage because of a supervening event and the
Property or a substantial part of it is unfit for occupation or use either
party may determine the Term by serving notice on the other party at any
time within six months of the end of the twenty four month period. On
service of the notice the Term will cease but without prejudice to any
rights that any party may have against another for breach of any of their
respective covenants or the conditions contained in this Lease and all
insurance monies shall belong to the Landlord.
In this sub-clause a supervening event means any of the following:
(a) inability of the Landlord to obtain the consents and permissions
referred to in sub-clause (5) despite using all reasonable endeavours
to do so;
(b) grant of any of the consents or permissions subject to a lawful
condition with which it would be unreasonable to expect the Landlord
to comply or the Landlord being requested as a precondition to
obtaining any of the consents or permissions to enter into an
agreement with the planning authority or any other authority
containing conditions with which it would be unreasonable to expect
the Landlord to comply;
(c) some defect in the site upon which reinstatement is to take place so
that it could not be undertaken or could be undertaken only at a cost
unacceptable to the Landlord (acting reasonably);
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(d) inability of the Landlord to obtain access to the site to reinstate;
(e) prevention of reinstatement by any cause beyond the control of the
Landlord.
10. RE-ENTRY
(1) If an Event of Default occurs then notwithstanding the waiver of any
previous right of re-entry the Landlord may re-enter the Property or any
part of it when the Term shall cease but without prejudice to any rights or
remedies which may then have accrued to any party against another in
respect of any antecedent breach (including the breach in respect of which
re-entry is made) of any of the covenants or obligations contained in this
Lease.
(2) In this clause an Event of Default is any one of the following:
(a) the Rent or any part of it is in arrear and unpaid for seven Business
Days after becoming payable (whether formally demanded or not); or
(b) a breach by the Tenant of any of the covenants by the Tenant in this
Lease; or
(c) the Tenant (being a company) is deemed unable to pay its debts under
section 123 of the Insolvency Xxx 0000 or the Tenant or any Guarantor
(being a company) passes a resolution for winding-up or the directors
of any of them present a petition for winding-up or an order for the
winding-up of the Tenant or any Guarantor is made (other than (in any
such case) a voluntary winding-up of a solvent company for the
purposes of amalgamation or reconstruction) or the Tenant or any
Guarantor is dissolved; or
(d) the Tenant (being a company) has an administrative or other receiver
or a manager appointed of the whole or any part of its property or a
petition is presented for an administration order or an administration
order is made in respect of the Tenant or any Guarantor; or
(e) the Tenant (being a company) being registered as an unlimited company
is re-registered as a limited company without the previous consent of
the Landlord; or
(f) the Tenant (being an individual) presents a petition for a bankruptcy
order to be made against him or a bankruptcy order is made against the
Tenant or any Guarantor; or
(g) in relation to the Tenant (whether an individual or a company) a
proposal is made or the Tenant (whether a company or an individual)
enters into any kind of composition, scheme of arrangement, compromise
or arrangement for the benefit of creditors or any class of creditors
or permits or suffers any distress or execution to be levied on his
goods; or
(h) there occurs in relation to the Tenant in any country or territory in
which any of them carries on business or to the jurisdiction of whose
courts any of them or any of the property of any of them is subject to
any event which corresponds in that country or
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territory with any of those mentioned in paragraphs (c) to (g) above
or the Tenant otherwise becomes subject in any such country or
territory to any law relating to insolvency, bankruptcy or winding up.
11. GUARANTEE
The Guarantor covenants with the Landlord in the terms set out in Schedule
5 in respect of the period during which Exodus Internet Limited is bound by
the Tenant's covenants and conditions in this Lease and any additional
period during which Exodus Internet Limited is liable under an authorised
guarantee agreement.
12. VALUE ADDED TAX
(1) If any VAT is chargeable on any supply made to the Tenant under the terms
of this Lease, the Tenant shall pay by way of additional consideration the
amount of that VAT and the Landlord shall provide a valid VAT invoice in
relation to such VAT to the Tenant.
(2) Without limiting sub-clause (1) above, each sum reserved or payable by the
Tenant under the terms of this Lease is exclusive of VAT (if any) and is
accordingly to be construed as a reference to that sum plus any VAT in
respect of it, and where any sum is reserved as rent, the VAT is also
reserved as rent.
(3) If VAT is chargeable on any supply made by the Landlord to the Tenant for
which a sum is not reserved or payable under the terms of this Lease, the
Tenant shall pay that VAT to the Landlord against issue of a VAT invoice
five Business Days before the Landlord has to pay the VAT to Customs.
(4) Where under the terms of this Lease the Tenant is obliged:
(a) to make any payment to the Landlord or any other person (including,
without limitation, by way of service charge, indemnity or
reimbursement) by reference to any amount incurred or which will or
may be incurred by the Landlord or any other person; or
(b) otherwise to pay all or part of the consideration for any supply made
to the Landlord or any other person,
then without prejudice to sub-clauses (1) to (3) above, the Tenant shall
not be obliged to pay any amount in respect of VAT to the extent that it is
recoverable by the Landlord or any other person as appropriate.
(5) For the purposes of sub-clause (3) above, VAT is recoverable by a person,
if that person (or any company treated as a member of the same VAT Group as
that person) is entitled to credit for it as input tax under sections 25
and 26 VATA 1994. For the avoidance of doubt, VAT is not recoverable by a
person only because he could elect to waive exemption, but has not done so.
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(6) Where for the purposes of this Lease it is necessary to calculate or
estimate the cost or value of anything, including any building, structure,
work, item, act or service, the cost or value shall be calculated or
estimated so as to include any VAT which will or may be incurred in
addition.
(7) This clause shall not affect the generality of clause 6(3) (Outgoings).
(8) Where the Tenant pays to the Landlord VAT in respect of any supply by the
Landlord to the Tenant, the Landlord shall issue the Tenant with a proper
VAT invoice in respect of that VAT.
(9) If the Landlord wishes to make an election to waive the exemption in
respect of the Property under paragraph 2 of Schedule 10, VATA 1994, the
Landlord shall notify the Tenant, no less than 20 Business Days before the
election is to take effect, of the election and the date on which it is
intended to take effect.
(10) If for any reason the election referred to in sub-clause (9) above is
validly revoked within three months after coming into effect, the Landlord
shall repay to the Tenant any VAT paid by the Tenant, five Business Days
after receipt by the Landlord from Customs of acknowledgement of the
revocation.
13. TRUSTEE LIABILITY PROVISION
(1) Lloyds Bank Plc has entered into this Lease in its capacity as trustee of
Xxxxxxxx Exempt Property Unit Trust ("SEPUT") and therefore notwithstanding
any other provision contained in this Lease neither Lloyds Bank Plc nor any
successor trustee of SEPUT shall be obliged to meet any liability or claim
hereunder save to the extent that the same can be met by it out of the
Trust Assets.
(2) For the purposes of this clause "TRUST ASSETS" means the assets for the
time being held upon the trusts of SEPUT.
14. GENERAL
(1) INTEREST AND POWERS OF RECOVERY
If any Rent or other sum payable under this Lease is not paid on the day
falling 7 days after the date on which it is due it shall bear interest
from the date on which it is due until the date of payment at the Default
Interest Rate compounded quarterly. Every amount payable under this Lease
shall be reserved as rent and shall be recoverable as rent in arrear.
(2) DISPUTES
In relation to disputes:
(a) any statement in this Lease that any dispute shall be referred to
arbitration means that the dispute shall be determined by a single
arbitrator agreed by the Landlord and the Tenant and failing agreement
by a single arbitrator appointed by the president or his deputy for
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the time being of the Royal Institution of Chartered Surveyors in
accordance with the Arbitration Acts 1950 to 1979 and 1996; and
(b) any dispute between the Tenant and any tenant or occupier of any other
property owned or leased by the Landlord about any right in connection
with the use of the Property and the other property or about any
boundary structure separating the Property from the other property
shall be determined by the Landlord acting reasonably.
(3) COMPENSATION
Subject to the provisions of section 38(2) of the Landlord and Xxxxxx Xxx
0000 neither the Tenant nor any person deriving title under the Tenant
shall be entitled on quitting the Property to any compensation under
section 37 of that Act.
(4) JOINT AND SEVERAL LIABILITY
Where the Tenant or any Guarantor is more than one person:
(a) those persons shall be jointly and severally responsible in respect of
every obligation undertaken by them under this Lease; and
(b) the Landlord may release or compromise the liability of any of those
persons under this Lease or grant any time or other indulgence without
affecting the liability of any other of them.
(5) WHOLE AGREEMENT
This Lease contains the whole agreement between the parties relating to the
transaction contemplated by this Lease and supersedes all previous
agreements between the parties relating to the transaction.
(6) REPRESENTATIONS
The Tenant acknowledges that in agreeing to enter into this Lease, the
Tenant has not relied on any representation, warranty, collateral contract
or other assurance. The Tenant waives all rights and remedies which, but
for this sub-clause, might otherwise be available to it in respect of any
such representation, warranty, collateral contract or other assurance, but
nothing in this sub-clause shall limit or exclude any liability for fraud.
(7) RIGHTS OF ENTRY
All rights of entry exercisable by the Landlord extend to include (without
limitation) its employees, agents, surveyors, contractors and licensees
with or without plant, equipment, appliances and materials.
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(8) INTERPRETATION OF COVENANTS
Any covenant by the Tenant not to do or omit anything shall be construed as
though the covenant was in addition a covenant not to permit or suffer to
be done or omitted that thing.
(9) TENANT'S POSSESSIONS
If after the Tenant has vacated the Property at the End of the Term any of
the Tenant's possessions remain on the Property and the Tenant fails to
remove them within fifteen Business Days after being requested to do so by
the Landlord then:
(a) the Landlord may dispose of the possessions as agent for the Tenant;
(b) (if disposal is by sale) subject to paragraph (c) the Landlord shall
hold the proceeds of sale after deducting the costs and expenses of
removal, storage and sale incurred by it to the order of the Tenant;
(c) if the Tenant fails to claim the proceeds of sale within sixty
Business Days of the date of the sale, the Landlord may keep them;
(d) the Tenant indemnifies the Landlord against:
(i) any liability incurred by the Landlord to any third party whose
possessions have been sold by the Landlord in the mistaken
belief (which shall be presumed) that the possessions belonged
to the Tenant;
(ii) any damage caused to the Property by the possessions; and
(iii) all loss, damage, actions, proceedings, claims, demands, costs,
damages and expenses properly incurred or suffered by or
brought or awarded against the Landlord as a result of the
presence of the possessions on the Property after the Tenant
has left it at the End of Term.
(10) OTHER LAND
Nothing contained in or implied by this Lease shall:
(a) impose or be deemed to impose any restriction on the use of any land
or buildings not comprised in this Lease; or
(b) give the Tenant:
(i) the benefit of or the right to enforce or to have enforced or to
prevent the release or modification of any covenant, lease,
condition or stipulation entered into by any purchaser or tenant
from the Landlord in respect of any property not comprised in
this Lease; or
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(ii) the right to prevent or restrict in any way the development of
any land not comprised in this Lease.
(11) SEVERANCE
To the extent that any provision of this Lease is rendered void by section
25 of the Landlord and Tenant (Covenants) Xxx 0000, that provision shall be
severed from the remainder of this Lease which shall remain in full force
and effect. In this sub-clause "provision" includes a clause, a sub-clause
or a schedule or any part of any of them.
(12) PERPETUITY PERIOD
The perpetuity period applicable to this Lease is 80 years beginning on the
date of this Lease and whenever in this Lease either the Landlord or the
Tenant is granted a future interest it must vest within that period and if
it has not it will be void for remoteness.
(13) NOTICES IN WRITING
Every notice, consent, approval or direction given under this Lease shall
be in writing.
(14) COUNTERPARTS
This lease may be executed in any number of counterparts, all of which,
taken together, shall constitute one and the same lease and any party may
enter into this lease by executing a counterpart.
15. BREAK CLAUSE
The Tenant may terminate this Lease on 29th September 2013 (the
"Termination Date") by giving to the Landlord not less than one year and
one day's prior written notice subject, to the Tenant:
(1) paying any arrears of rent payable pursuant to clause 4(1) and VAT
thereon on or before the Termination Date;
(2) giving up vacant possession of the Property by the Termination Date
In such case the Term shall cease on the Termination Date and no party
shall have any further rights or obligations under this Lease, but this
shall not affect any rights or remedies which may have accrued at the
Termination Date to any party against the other in respect of any prior
breach of any of the covenants and conditions contained in the lease.
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16. NOTICES
(1) Any notice or other document served under this Lease may be served in any
way in which a notice required or authorised to be served under section 196
of the Law of Property Xxx 0000 may be served.
(2) During such period that the reversion to this Lease is vested in the
trustee of Xxxxxxxx Exempt Property Unit Trust no notice shall be deemed to
be validly served on the Landlord unless a copy of such notice is also
served on Xxxxxxxx Property Investment Management Limited at 00 Xxxxxxx
Xxxxxx, Xxxxxx XX0X 0XX or such other address as the Landlord shall notify
to the Tenant.
17. GOVERNING LAW AND JURISDICTION
(1) This Lease is governed by and shall be construed in accordance with English
law.
(2) The Tenant and the Guarantor submit to the jurisdiction of the English
courts for all purposes relating to this Lease and appoint Dibb Xxxxxx
Xxxxx (ref RSS) 000 Xxxxxx Xxxx Xxxxxx XX0X 0XX (or such other person in
the UK as the Guarantor and the Tenant may from time to time nominate by
written notice to the Landlord) as agent of each of them for service of
process and so that each appointment shall be irrevocable until such time
as the Guarantor and the Tenant have given written notice to the Landlord
of an alternative person in the UK to accept service of process on their
behalf
I N W I T N E S S of which this Lease has been executed as a deed and has been
delivered on the date which first appears on page 1.
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SCHEDULE 1
THE PROPERTY
Land on the north side of Xxxxxxxxxx Xxxx, Xxxx Xxxxx Xxxxxx XX00 which for the
purpose of identification only is shown edged red on the Plan with the building
on it having a Gross Internal Area (as defined in the Code) of 12,986 square
feet and known as Xxxx 0, Xxxxx 0 Xxxxxx Xxxx, Xxxxxxxxxx Road, Park Royal,
London, NW10. In this Schedule the Code means the fourth edition of the Code of
Measuring Practice published by the Royal Institution of Chartered Surveyors and
the Incorporated Society of Valuers and Auctioneers.
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SCHEDULE 2
RIGHTS GRANTED TO THE TENANT
1. The right to use the Common Parts for all reasonable and appropriate
purposes connected with the use and enjoyment of the Property pursuant to
this Lease (subject to temporary interruption for repair and maintenance).
2. The right to park 17 motor cars in the Car Spaces.
3. The right to use the Conduits in the Estate which serve the Property
(subject to temporary interruption for repair, alteration or replacement).
4. The right of support and protection from the other parts of the Estate as
now enjoyed by the Property.
5. Subject to obtaining the prior written consent of the Landlord (such
consent not to be unreasonably withheld or delayed but which consent may be
made subject to reasonable requirements and conditions of the Landlord) the
right to lay within the Common Parts but along routes reasonably specified
by the Landlord additional Conduits to serve the Property.
6. Subject to the giving of reasonable prior notice to the Landlord and to
compliance with all reasonable requirements of the Landlord the right to
enter the Common Parts in order to maintain, repair, replace or alter any
Conduits now or hereafter exclusively serving the Property the Tenant
causing to others as little inconvenience and disturbance as practicable
and making good without delay all damage thereby occasioned.
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SCHEDULE 3
RIGHTS RESERVED TO THE LANDLORD
1. The right to use the Conduits in the Property which serve other parts of
the Estate, the right to install new Conduits for the benefit of the
remainder of the Estate and the right to repair, maintain and renew
existing and new Conduits.
2. The right to enter the Property to exercise any of the rights referred to
in this Schedule or for the purposes set out in clause 6(6) PROVIDED THAT
such right shall only be exercised (except in case of emergency) by giving
reasonable prior notice to the Tenant and by complying with the Tenant's
reasonable security and confidentiality requirements.
3. All rights of light or air or other easements or rights over or belonging
to any other land or buildings (including other parts of the Estate).
4. The right to build, re-build or carry out any works on any other land or
buildings (including other parts of the Estate) even if it interferes with
the passage of light or air to the Property or causes nuisance, damage,
annoyance or inconvenience to the Tenant or occupier of the Property by
noise, dust, vibration or otherwise provided that it does not materially
affect the ability of the Tenant or the occupier to use the Property for
any purpose permitted by this Lease.
5. The support and protection from the Property enjoyed by other parts of the
Estate.
6. The right to build, alter and install and afterwards to maintain buildings,
structures and fixtures on, into or projecting over or under or taking
support from the Property (but those buildings, structures and fixtures
shall not become part of the Property).
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SCHEDULE 4
MATTERS AFFECTING THE FREEHOLD
All matters registered or pending registration as at the date hereof in the
Property and Charges Registers of Title Number AGL54738 maintained by HM Land
Registry (with the exception of Financial charges, if any) and the Deed dated
7th August 1998 made between the Landlord and Railtrack insofar as such matters
affect the Property still subsist and are capable of enforcement.
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SCHEDULE 5
GUARANTEE PROVISIONS
1. The Guarantor guarantees to the Landlord the due and punctual payment and
performance by the Tenant of all the tenant's obligations and liabilities
under this Lease and shall indemnify the Landlord against all losses,
damages, costs and expenses arising or incurred by the Landlord as a result
of the non-payment or non-performance of those obligations or liabilities.
2. The obligations of the Guarantor under this Lease:
(a) constitute a direct, primary and unconditional liability to pay on
demand to the Landlord any sum which the Tenant is liable to pay under
this Lease and to perform on demand by the Landlord any obligation of
the Tenant under this Lease without the need for any recourse on the
part of the Landlord against the Tenant;
(b) will not be affected by:
(i) any time or indulgence granted to the Tenant by the Landlord;
(ii) any legal limitation, disability or other circumstances
relating to the Tenant or any irregularity, unenforceability or
invalidity of any obligations of the Tenant under this Lease;
(iii) any licence or consent granted to the Tenant or any variation
in the terms of this Lease save as provided in section 18 of
the Landlord and Tenant (Covenants) Xxx 0000;
(iv) the release of one or more of the parties defined as the
Guarantor (if more than one); or
(v) any other act, omission, matter, event or thing whereby (but
for this provision) the Guarantor would be exonerated in whole
or in part from the guarantee other than a release by deed
given by the Landlord.
3. So long as this guarantee remains in force the Guarantor shall not:
(a) in the event of any bankruptcy, liquidation, rehabilitation,
moratorium or other insolvency proceedings relating to the Tenant,
claim or prove as creditor in competition with the Landlord; or
(b) be entitled to claim or participate in any security held by the
Landlord in respect of the obligations of the Tenant under this Lease;
or
(c) exercise any right of set-off against the Tenant.
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4. If the Landlord brings proceedings against the Tenant, the Guarantor shall
be bound by any findings of fact, interim or final award or interlocutory
or final judgment made by an arbitrator or the court in those proceedings
in so far as the same relate to the subject matter of this Lease PROVIDED
THAT the Landlord shall have served a copy of the writ summons petition or
similar process which initiated such proceedings on the Guarantor before
the expiry of 7 days after such proceedings were initiated
5. If:
(a) the Tenant (being a company) enters into liquidation and the
liquidator disclaims this Lease; or
(b) the Tenant (being a company) is dissolved and the Crown disclaims this
Lease; or
(c) the Tenant (being an individual) becomes bankrupt and the trustee in
bankruptcy disclaims this Lease; or
(d) this Lease is forfeited,
then within six months after the disclaimer or forfeiture the Landlord may
require the Guarantor by notice to accept a lease of the Property for a
term equivalent to the residue which would have remained of the Term if
there had been no disclaimer or forfeiture at the same rents and subject to
the same covenants and conditions (including those as to the review of
rent) as are reserved by and contained in this Lease (with the exception of
this Schedule).
6. The new lease and the rights and liabilities under it shall take effect as
from the date of the disclaimer or forfeiture and the Guarantor shall be
liable for all payments due under the new lease as from the date of
disclaimer or forfeiture as if the new lease had been granted on the date
of disclaimer or forfeiture.
7. The Guarantor or his personal representatives shall pay the Landlord's
costs of and accept the new lease and shall execute and deliver to the
Landlord a counterpart of it.
8. If the Landlord does not require the Guarantor to take a Lease of the
Property, the Guarantor shall pay to the Landlord on demand a sum equal to
the rent that would have been payable under this Lease but for the
disclaimer or forfeiture in respect of the period from the date of the
disclaimer or forfeiture until the date which is six months after the date
of the disclaimer or forfeiture or the date on which the Property has been
re-let by the Landlord, whichever first occurs.
9. If any VAT is payable by the Tenant to the Landlord under the terms of the
Lease, the Guarantor's obligation shall extend to that VAT. If the
Guarantor makes any payment in respect of VAT, the Landlord's obligation to
issue a VAT invoice to the Tenant under the Lease in respect of that VAT
shall not be affected, and the Landlord shall not be under any obligation
to issue a VAT invoice to the Guarantor in respect of that VAT.
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SCHEDULE 6
AUTHORISED GUARANTEE PROVISIONS
1. The Guarantor guarantees to the Landlord the performance by the Assignee
throughout the Guarantee Period of each of the covenants falling to be
complied with by the tenant under this Lease and shall indemnify the
Landlord against all losses, damages, costs and expenses arising or
incurred by the Landlord as a result of such non-performance.
2. The obligations of the Guarantor under this guarantee will not be affected
by:
(a) any time or indulgence granted to the Assignee by the Landlord;
(b) any legal limitation, disability or other circumstances relating to
the Assignee or any irregularity, unenforceability or invalidity of
any obligations of the Assignee under this Lease;
(c) any licence or consent granted to the Assignee or any variation in the
terms of this Lease save as provided in section 18 of the Act;
(d) the release of one or more of the parties defined as the Guarantor (if
more than one); or
(e) any other act, omission, matter, event or thing whereby (but for this
provision) the Guarantor would be exonerated in whole or in part from
the guarantee other than a release under seal given by the Landlord.
3. The Guarantor is liable to the Landlord under this guarantee as sole or
principal debtor and the obligations of the Guarantor under this guarantee
constitute a direct, primary and unconditional liability to pay on demand
to the Landlord any sum which the Assignee is liable to pay under this
Lease and to perform on demand by the Landlord any obligation of the
Assignee under this Lease without the need for any recourse on the part of
the Landlord against the Assignee. If the Landlord brings proceedings
against the Assignee, the Guarantor shall be bound by any findings of fact,
interim or final award or interlocutory or final judgment made by an
arbitrator or the court in those proceedings.
4. If during the Guarantee Period the Assignee (being a company) enters into
liquidation and the liquidator disclaims this Lease, or the Assignee (being
a company) is dissolved and the Crown disclaims this Lease, or the Assignee
(being an individual) becomes bankrupt and the trustee in bankruptcy
disclaims this Lease, then within six months after the disclaimer the
Landlord may require the Guarantor by notice to enter into a new lease of
the Property for a term equivalent to the residue which would have remained
of the term granted by this Lease if there had been no disclaimer at the
same rents and subject to the same covenants and conditions (including as
to the review of rent) as are reserved by and contained in this Lease.
-46-
5. The new lease and the rights and liabilities under it shall take effect as
from the date of the disclaimer and the Guarantor shall be liable for all
payments due under the new lease as from the date of disclaimer as if the
new lease had been granted on the date of disclaimer.
6. The Guarantor shall pay the Landlord's costs of and accept the new lease
and shall execute and deliver to the Landlord a counterpart of it.
7. If the Landlord does not require the Guarantor to take a new lease of the
Property the Guarantor shall pay to the Landlord on demand a sum equal to
the rents that would have been payable under this Lease but for the
disclaimer in respect of the period from the date of the disclaimer until
the date which is six months after the date of the disclaimer or the date
on which the Property has been re-let by the Landlord, whichever first
occurs.
8. During the Guarantee Period the Guarantor shall not;
(a) in the event of any bankruptcy, liquidation, rehabilitation,
moratorium or other insolvency proceedings relating to the Assignee
claim or prove as creditor in competition with the Landlord; or
(b) be entitled to claim or participate in any security held by the
Landlord in respect of the Assignee's obligations to the Landlord
under this Lease; or
(c) exercise any right of set off against the Assignee.
9. To the extent that any provision of this guarantee does not conform with
section 16 of the Act, that provision shall be severed from the remainder
of this guarantee and this guarantee shall have effect as if it excluded
that provision.
10. If any VAT is payable by the Tenant to the Landlord under the terms of the
Lease, the Guarantor's obligation shall extend to that VAT. If the
Guarantor makes any payment in respect of VAT, the Landlord's obligation to
issue a VAT invoice to the Assignee under the Lease in respect of that VAT
shall not be affected, and the Landlord shall not be under any obligation
to issue a VAT invoice to the Guarantor in respect of that VAT.
11. In this Schedule:
"ACT" means the Landlord and Tenant (Covenants) Xxx 0000;
"ASSIGNEE" means [INSERT NAME OF ASSIGNEE IN RESPECT OF WHOM THE TENANT IS
ENTERING INTO THE AUTHORISED GUARANTEE AGREEMENT];
"GUARANTEE PERIOD" means the period during which the Assignee is bound by
the covenants by the Tenant in this Lease; and
"GUARANTOR" means the outgoing Tenant.
-47-
SCHEDULE 7
SERVICE CHARGE COSTS
1. The cost of inspecting, repairing, maintaining, cleaning, decorating and
lighting the whole of the Retained Areas (including any party walls
separating Lettable Areas) including any retaining walls situate on the
Estate and the boundary walls and fences of the Estate and all Conduits
serving the Estate (excluding those serving solely any of the Lettable
Areas).
2. The cost of providing the services referred to in clause 7(3).
3. The cost of the maintenance (including planting) of all open and landscaped
areas within the Retained Area.
4. The cost of the erection and maintenance of directional or other signs or
notice boards relating to the Estate or it occupiers.
5. The cost of the establishment and enforcement of regulations for the
benefit or better ordering of the Estate or any part of the Estate.
6. The cost of providing caretaking and security services to the Estate.
7. The cost of marking out the roads, footpaths, service areas, loading bays
and all other relevant parts of the Retained Areas.
8. The cost of refuse disposal.
9. The cost of all fuel for the functions referred to in the other paragraphs
of this Schedule.
10. All Outgoings (as defined in clause 6(3)) assessed, charged or imposed on
the Estate as a whole and the Retained Areas.
11. Any amount which the Landlord may be called upon to pay as a contribution
towards the expense of making, repairing, maintaining, cleaning or lighting
anything used by the Estate and any nearby property.
12. The cost of complying with, making representations against or contesting
the incidence of any enactment relating or alleged to relate to the Estate.
13. All professional fees reasonably and properly incurred by the Landlord in
connection with the administration and the general management of the Estate
including (without limitation):
(a) the Landlord's agent's fees in connection with management of the
Estate (excluding rent collection); and
(b) fees payable in connection with the service charge account.
-48-
14. The reasonable fees of the Landlord or any company associated with the
Landlord where the Landlord or that company, rather than a third party,
undertakes any obligations under this Lease or other function referred to
in this Schedule.
15. The interest and fees on borrowing any money to finance any of the
functions referred to in this Schedule.
16. Any other sum properly incurred by the Landlord in connection with the
management of the Estate.
-49-
SIGNED as a deed by )
Xxxxxxx Xxxxx Xxxxxx Trust Manager )
as attorney for LLOYDS BANK PLC )
in the presence of: )
Witness' /s/ X.X. Xxxxxxxxx
Signature: ..................................
Name : ....X.X. Xxxxxxxxx....................
Address : Lloyds Bank
Securities Service
Xxx'x Xxxx Xxxxx
0, Xxx'x Xxxx
Xxxxxx XX0 0XX
-50-
LLOYDS BANK SECURITIES SERVICES
-------------------------------
POWER OF ATTORNEY FOR EXECUTION OF DOCUMENTS
--------------------------------------------
By this power of attorney given on the eigth day of July 1998 Lloyds Bank Plc
whose registered office is at 00 Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX ("the bank")
hereby appoints:
Xxxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxxx
Xxx Xxxxxx Bransgrove
Xxxx Xxxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxx Xxxx Xxxxxx
Xxxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxxxx Xxxxxxx Xxxxx
Xxxxxxxxxxx Xxxx Xxxxxxxx
Xxxxx Xxxxx
Xxxxxxx Xxxxxxx Xxxxxxxx
Xxxxxx Xxxx Kings
Xxxxx Xxxx Kitcat
Xxxx Xxxxxx Xxxx
Xxxxxx Xxxx Xxxxx
Xxxxxx Xxxxxxx XxXxxx
Xxxxxxxxxx Xxx Xxxxxx
Xxxx Xxxxxxxxxxx Xxxxxxxxxx
Xxxxx Xxxxxxx Xxxxxx
Xxxxxx Xxxxxxxxx Xxxxxx
Xxxxxx Xxxxx Xxxxx
Xxxxxxx Xxxxxx Xxxxxx
Xxxxxxx Xxxxxx Xxxxxx
Xxxx Xxxxxx Xxxxxx
Xxxxxxx Xxxxxx Xxxxx
Xxxxx Xxxxx Xxxxxx
Xxxxx Xxxxxx Xxxxxxx Xxxxx
Xxxxxx Xxxxxx Xxxxxxx
Xxxxxx Xxxxxx
Xxxxxx Xxxxxxx Xxxx
Xxxx Xxxxxxx Xxxxxxxx
Xxxx Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx Xxxxxxxxxx
Xxxxxxx Xxxxx Xxxxxx
Xxxxx Xxxxxxx Welpa
all of Lloyds Bank Securities Services, jointly and severally, to be attorneys
of the bank in its capacity as trustee, personal representative, nominee,
mortgagee or chargee, only for the purpose of carrying into effect matters
determined upon by the bank in any of these capacities, to sign, seal, execute
and deliver any deed or document considered necessary or desirable:
(1) to convey, transfer, assign, lease, let, underlet, surrender, sell or grant
options, rights of preemption or any other rights over any real or personal
property;
(3) to postpone, defer, subordinate or otherwise regulate the priority or
ranking of any mortgage, charge, debenture or other security;
(4) to vary, alter, amend, modify, revise, replace or substitute any deed or
document to which the bank is a party;
(5) to transfer any stocks, shares or other securities held by or registered in
the name or under the control of the bank and to authorise any person to
exercise any rights attached in any such stocks, shares or other
securities;
(6) to give such indemnities as may be necessary in favour of any person or
body of persons including without limitation indemnities in respect of
lost, destroyed or mislaid certificates, allotment letters or other
documents relating to stocks, shares or other securities;
(7) to grant easements or any other rights over or impose covenants or any
other restrictions on or consent to the letting, underletting, assignment,
surrender or alteration of any freehold or leasehold property;
(8) to assent to the vesting in any person of any real or personal property;
(9) to declare, constitute, regulate, record, vary, alter, amend or modify any
trust, settlement or family arrangement and to appoint or retire any
trustee, including the bank, of any trust, settlement or family
arrangement;
(10) to purchase, lease, acquire or otherwise take into the name of the bank or
under its control any real or personal property whatsoever or wheresoever
or any options, rights of preemption or any other rights over real or
personal property; and
(11) to manage, develop, refurbish, repair, reinstate or otherwise carry out any
works upon any real property whatsoever or wheresoever.
and generally for all or any of the purposes aforesaid to act as attorneys of
the bank. The common seal of the bank was affixed to this deed the date and
year first above written. Given under the common seal of Lloyds Bank Plc as a
deed.
Authorised signatory
Authorised counter signatory
Schedule referred to in Clause 6(27)
1. Permanent and temporary generator systems including enclosures and fuel
tanks with the associated electronic and manual switch gear.
2. Mechanical Systems ie. Air Conditioning, and condenser systems, air
handlers and electrical dampers.
3. Raised Flooring, Racking, Cage materials, cabinets and patch panels,
Mezzanine flooring.
4. UPS Battery Systems including electrical switch gear.
5. Any customer satellite dishes installed on roof or parking lot areas.
6. FM200 fire suppression canisters, piping and nozzles.
7. VESDA or smoke sensor stations in ceiling or floor area.
8. Inside or outside security cameras, access card reader stations, VCR,
multiplexer, monitors and computers.
9. Parition and conference room furniture systems and freestanding,
cabinets, storage units.
10. Telephone and voice mail system with desk stations and receptionist,
computers, servers, printers, phone sets.
11. Fibre Muxes or other Telco equipment installed in MPOE rooms.
12. Emergency distribution board and telephone backboard with connectors.
13. Maintenance bypass electronic and manual switch gear.
14. Transformers and Power Distributions Units installed on premises.
15. Kitchen appliances like microwaves, refrigerators and vending machines.
16. Console monitors, screen projection and screens in command centre.
17. Bulletproof/resistant glass.
18. Satellite dishes or other communications equipment installed on roof or
in parking lot.
DATED 24th December 1998
LLOYDS BANK PLC
(as trustee of Xxxxxxxx Exempt Property Unit Trust)
- and -
EXODUS INTERNET LIMITED
- and -
EXODUS COMMUNICATIONS INC
---------------------------------
L E A S E
of property known as
Xxxx 0 Xxxxx 0 Xxxxxx Xxxx,
Xxxxxxxxxx Road, Park Royal, London NW10
---------------------------------
XXXXX & OVERY
London
PY0397912.06
H.M. LAND REGISTRY
Land Registration Acts 1925-1988
County & District: London Boroughs & Ealing and Xxxxx
Title Number: AGL54738
Property: Xxxx 0 Xxxxx 0 Xxxxxx Xxxx, Xxxxxxxxxx Road, Park
Royal, London NW10
THIS LEASE is made on 24th December, 1998
BETWEEN:
(1) LLOYDS BANK PLC (registered number 2065) (as trustee of Xxxxxxxx Exempt
Property Unit Trust) whose registered office is at 00 Xxxxxxx Xxxxxx,
Xxxxxx XX0X 0XX (the "LANDLORD");
(2) EXODUS INTERNET LIMITED (registered number 3591136) whose registered office
is at Fountain Precinct Xxxx Xxxxx Xxxxxxxxx Xxxxx Xxxxxxxxx X0 0XX (the
"TENANT"); and
(3) EXODUS COMMUNICATIONS INC of 0000 Xxx Xxxxxx Xxxxxxxxxx, Xxxxx Xxxxx
XX00000, XXX (the "GUARANTOR").
This Lease is a new tenancy for the purposes of section 1 of the Landlord and
Tenant (Covenants) Xxx 0000.
THIS DEED WITNESSES as follows:
1. DEFINITIONS
In this Lease:
"AUTHORISED GUARANTEE AGREEMENT" means an authorised guarantee agreement as
defined in section 16 of the Landlord and Tenant (Covenants) Xxx 0000;
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which banks
are generally open in London for normal business;
"CAR SPACES" means the 17 parking spaces within the areas shown edged green
on the Plan from time to time designated by the Landlord for the Tenant's
use;
"CLEARING BANK" means a bank which is a member of CHAPS Clearing Company
Limited;
"COMMON PARTS" means the roads, footpaths, service areas, car parks,
loading bays, landscaped and open areas, entrances and other areas from
time to time during the Term provided by the Landlord for common use by the
tenants of the Estate (but shall not include
-1-
any such items as may exclusively serve and be demised to a tenant of any
Unit) but for the avoidance of doubt the common parts shall always include
the road coloured xxxxx on the Plan and the Car Spaces and shall afford the
Tenant access to and from the Property and the Car Spaces;
"CONDUITS" includes those for sewage, water, gas, electricity,
telecommunications and data processing;
"DEFAULT INTEREST RATE" means four per centum per annum above the Interest
Rate;
"END OF THE TERM" includes the expiry of the Term by effluxion of time or
the determination of the Term by forfeiture, surrender, merger, notice or
in any other way;
"ESTATE" means Phases 1 and 0 Xxxxxx Xxxx Xxxxxxxxxx Xxxx Xxxx Xxxxx Xxxxxx
XX00 the present extent of which is shown edged green on the Estate Plan
but such expression shall mean such greater or lesser area which shall
include the Property and which shall from time to time be managed by the
Landlord as a single estate (including all buildings and other structures
on and all parts of such estate);
"ESTATE PLAN" means the plan numbered A3159/0/38 annexed to this Lease;
"GUARANTOR" includes the person named in this Lease as guarantor, if any,
and any other person who is for the time being a guarantor in respect of
the Tenant's obligations under this Lease and his personal representatives
and successors;
"INSURED RISKS" means fire, lightning, explosion, earthquake, aircraft and
other aerial devices and articles dropped from them, escape of oil, impact
by vehicles or animals, riot, civil commotion, strikes and labour
disturbances, storm, flood, bursting and overflowing of water tanks,
apparatus or pipes and other risks against which the Landlord reasonably
decides from time to time to insure and any other risks that the Tenant
shall reasonably require to be included and which the insurers shall accept
subject to such exclusions, limitations and excesses as are imposed by its
insurers and to the extent to which the risks mentioned in this definition
are insurable with the Landlord's insurers but shall include loss or damage
by acts of terrorism if and only to the extent that the Landlord has
insured against acts of terrorism;
"INTEREST RATE" means the base rate for the time being of Lloyds Bank Plc
or of another Clearing Bank designated from time to time by the Landlord or
if there is no such base rate the rate from time to time prescribed under
section 32 of the Land Compensation Xxx 0000;
"LANDLORD" includes the person for the time being entitled to the reversion
immediately expectant on the End of the Term;
"LEASE" means this lease, all deeds varying this lease and all licences and
consents granted under this lease or under any deed of variation;
"LETTABLE AREAS" means all buildings on the Estate designed to be let for
commercial use;
"PARKING AREA" means the car parking areas forming part of the Estate
including the Car Spaces;
"PLAN" means the plan annexed to this Lease numbered A3159:0:01;
-2-
"PLANNING ACTS" means the Town and Country Planning Xxx 0000, the Planning
(Listed Building and Conservation Areas) Xxx 0000, the Planning (Hazardous
Substances) Xxx 0000, the Planning (Consequential Provisions) Xxx 0000 and
the Planning and Compensation Xxx 0000;
"PROPERTY" means the property described in Schedule 1 and every part of it
and all additions and alterations to it and includes (without limitation):
(a) every part of all buildings and other structures now or during the
Term on the property including walls, roofs, foundations, load-bearing
parts, doors, windows and Conduits exclusively serving the Property;
(b) landlord's fixtures and fittings including floor coverings;
(c) electrical and mechanical installations, plant, equipment and
machinery including (without limitation) lifts, heating plant, air
conditioning plant and ventilation plant and radiators;
(d) one half (severed vertically) of any wall separating the Property from
any adjoining Unit;
(e) service areas, loading bays and landscaped and open areas; and
(f) boundary walls and fences (if any);
"QUARTER DAYS" means 25th March, 24th June, 29th September and 25th
December in every year;
"RENT" includes all sums reserved as rent by this Lease and any interim
rent determined under the Landlord and Xxxxxx Xxx 0000;
"RETAINED AREAS" means the whole of the Estate other than the Units;
"REVIEW DATE" means 24th September in the year 2003 and in every fifth
year after that year for so long as the Term continues;
"REVIEW PERIOD" means the period starting with any Review Date up to the
next Review Date or starting with the last Review Date up to the End of the
Term;
"TENANT" includes the Tenant's successors in title;
"TERM" means the term granted by this Lease and any statutory or other
continuation or extension of it or any holding over;
"TERM COMMENCEMENT DATE" means the date of commencement of the Term
specified in clause 3(1);
"UNITS" means the units of accommodation on the Estate that are let or
otherwise exclusively occupied or designed or intended for letting or
exclusive occupation and "Unit" shall mean any one of them;
-3-
"VAT" means value added tax and any imposition or levy of a like nature;
and
"VATA 1994" means the Value Added Tax Xxx 0000.
2. INTERPRETATION
(1) Where there are two or more persons included in the expressions "the
Landlord", "the Tenant" or "the Guarantor" each reference to the Landlord,
the Tenant or the Guarantor includes a separate reference to each of those
persons.
(2) Any reference, express or implied, to an enactment includes references to:
(a) that enactment as amended, extended or applied by or under any other
enactment (before or after this Lease);
(b) any enactment which that enactment re-enacts (with or without
modification);
(c) any subordinate legislation made (before or after this Lease) under
that enactment, as amended, extended or applied as described in
paragraph (a) above or under any enactment referred to in paragraph
(b) above; and
(d) any consents, licences and permissions given (before or after this
lease) under that enactment, as amended, extended or applied as
described in paragraph (a) above or under any enactment referred to in
paragraph (b) above or under that subordinate legislation and any
conditions contained in those consents, licences and permissions.
(3) Any reference, express or implied, to enactments generally includes
subordinate legislation and any legislation of the European Union that is
directly applicable in the United Kingdom and includes existing enactments
and those that come into effect during the Term.
(4) Sub-clauses (1) to (3) above apply unless the contrary intention appears.
(5) The headings in this Lease do not affect its interpretation.
3. LEASE
(1) The Landlord lets the Property to the Tenant together with the rights set
out in Schedule 2 but except and reserving to the Landlord the rights set
out in Schedule 3 for the term of twenty five years commencing on and
including 29th September 1998 subject to all rights and covenants affecting
the Property including (without prejudice to the generality of the
foregoing) the matters contained or referred to in Schedule 4 at a yearly
rent ascertained in accordance with clause 4.
(2) The rights granted to the Tenant are granted in common with the Landlord,
any person authorised by the Landlord and everyone else having the like or
similar rights.
(3) This Lease does not include any rights other than those set out in Schedule
2.
-4-
(4) The rights excepted and reserved to the Landlord are also excepted and
reserved to those authorised by the Landlord and everyone else entitled to
them.
4. RENT AND RENT REVIEW
(1) RENT
The yearly rent shall be:-
(a) until 16th May 1999 the rent of one peppercorn (if demanded);
(b) from and including 17th May 1999, until the first Review Date the
rent of one hundred thousand eight hundred and fifty pounds seventy
five xxxxx ((Pounds)100850.75); and
(c) during each successive Review Period a rent equal to the rent
previously payable under this Lease (or the rent which would be
payable but for any abatement or suspension of rent under this Lease)
or the revised rent ascertained in accordance with this clause,
whichever is the greater.
(2) RENT PAYMENT DATES
The yearly rent is payable without any deduction by equal quarterly
payments in advance on the Quarter Days. The first payment (which is an
apportioned sum) is to be made on 17th May 1999 in respect of the period
commencing on 17th May 1999 and ending on 23rd June 1999.
(3) RENT REVIEW - METHOD
The revised rent for any Review Period may be agreed in writing at any time
between the Landlord and the Tenant or (in the absence of agreement)
determined not earlier than the relevant Review Date by an independent
valuer (acting as an expert and not as an arbitrator) of recognised
standing and having experience in letting and valuing property of a like
kind and character to the Property.
(4) NOMINATION
The independent valuer may be nominated in the absence of agreement by or
on behalf of the president for the time being of the Royal Institution of
Chartered Surveyors on the application of either the Landlord or the Tenant
made not earlier than three months before the relevant Review Date.
(5) RENT REVIEW - AMOUNT
In the case of valuation the revised rent to be determined by the valuer
shall be such as he shall decide is the yearly rent at which the Property
might reasonably be expected to be let at the relevant Review Date
(a) after the expiry of a rent free period or a concessionary rent period
given for fitting-out purposes only of such length and the giving of
such other inducements
-5-
(including, without limitation, any rental concession, capital payment
or contribution to fitting out-costs) given for fitting out purposes
only as in either case would be negotiated in the open market between
a willing landlord and a willing tenant so that the yearly rent is
that payable after the expiry of any such rent free period or
concessionary rent period and after the giving of such inducement; and
(b) on the assumptions set out in sub-clause (6) but disregarding the
matters set out in sub-clause (7).
(6) ASSUMPTIONS
The assumptions are that at the relevant Review Date:
(a) the Property:
(i) is available to let on the open market by a willing landlord to
a willing tenant by one lease without a premium from either
party and with vacant possession for a term of 10 years or a
term equal to the residue then unexpired of the Term (whichever
be the longer) but in either event commencing on the relevant
Review Date with the rent payable from then;
(ii) is to be let as a whole on a lease which is to contain the same
terms as this Lease (other than the amount of the rent referred
to in sub-clause (1)(a) and (b) and any rent free or reduced
rent period allowed to the Tenant but including the provisions
for review of that rent at the same intervals as those in this
Lease) the first Review Date in that lease being the fifth
anniversary of the relevant Review Date;
(iii) is fit and available for immediate occupation and use with
connections to all mains services independently of any other
Unit and with the inclusion of an internal dividing wall between
the Property and the adjacent Unit numbered 6 built to the same
specification as the internal dividing wall between Units 5 and
6 and is ready to be fitted out for the incoming tenant's use as
authorised by this Lease; and
(iv) may be used for any of the purposes permitted by this Lease
including any purpose which falls within the same use class
(under the Town & Country Planning (Use Classes) Order for the
time being in force) as the purpose permitted by this Lease;
(b) all the covenants in this Lease by the Landlord and the Tenant have
been performed and observed; and
(c) no work has been carried out to the Property which has diminished the
rental value and in case the Property has been destroyed or damaged it
has been fully restored.
-6-
(7) DISREGARDS
The matters to be disregarded are:
(a) any effect on rent of the fact that the Tenant, its subtenants or
their respective predecessors in title have been in occupation of the
Property;
(b) any goodwill attached to the Property by reason of the carrying on at
it of the business of the Tenant, its subtenants or their predecessors
in title in their respective businesses; and
(c) any increase in rental value of the Property attributable to the
existence at the relevant Review Date of any improvement carried out
with consent of the Landlord (where required) but not under an
obligation to the Landlord or its predecessors in title to the
Property carried out by and at the cost of the Tenant, its subtenants
or their respective predecessors in title during the Term or during
any earlier period of occupation arising out of an agreement to grant
the Term.
(8) VALUER
In the case of determination by a valuer:
(a) the fees and expenses of the valuer including the cost of his
appointment shall be borne as he shall decide or in the absence of any
decision equally by the Landlord and the Tenant who shall otherwise
each bear their own costs;
(b) the valuer shall afford the Landlord and the Tenant an opportunity to
make representations to him; and
(c) if the valuer dies, delays or becomes unwilling or incapable of acting
or if for any other reason the president for the time being of the
Royal Institution of Chartered Surveyors or the person acting on his
behalf thinks fit he may discharge the valuer and appoint another in
his place.
(9) MEMORANDUM
When the revised rent has been ascertained memoranda of it shall be signed
by or on behalf of the Landlord and the Tenant and annexed to this Lease
and the counterpart of it and the Landlord and the Tenant shall bear their
own costs in respect of the memoranda.
(10) INTEREST
If the revised rent payable with effect from any Review Date has not been
agreed by that Review Date rent shall continue to be payable at the rate
previously payable. Forthwith on the revised rent being ascertained the
Tenant shall pay to the Landlord any shortfall between the rent and the
revised rent payable up to and on the preceding quarter day together with
interest at the Interest Rate compounded quarterly on each part of the
shortfall from the date or respective dates on which each part would have
been due for payment had the revised rent been ascertained before the
relevant Review Date until the date of payment.
-7-
For the purpose of this clause the revised rent shall be deemed to have
been ascertained on the date when it has been agreed between the Landlord
and the Tenant or the date of the determination by the valuer.
(11) COSTS
If either the Landlord or the Tenant fails to pay the relevant part of the
fees and expenses of the valuer under sub-clause (8) within 15 Business
Days of the same being demanded by the valuer the other shall be entitled
to pay the same and the amount so paid shall be repaid on demand by the
party chargeable and recoverable from that party as a debt due.
(12) TIME NOT OF THE ESSENCE
Time shall not be of the essence for the purposes of this clause 4.
5. SERVICE CHARGE
(1) The Tenant shall pay to the Landlord the Provisional Service Charge without
any deduction by equal quarterly payments in advance on the Quarter Days.
The first payment (which is an apportioned sum) is to be made on the date
hereof in respect of the period commencing on 17th December 1998 and
ending on the next following Quarter Day.
(2) As soon as possible after every Accounting Date the Landlord shall prepare
and supply to the Tenant an account:
(a) showing the Gross Expenses, the Income and the Net Expenses for the
Financial Year referred to in the account;
(b) containing a fair summary of the items referred to in it; and
(c) certified by the Landlord or its agents (who may be the managing
agents for the Estate).
The account shall be conclusive evidence of all matters of fact referred to
it in it (save in the case of manifest error) and the Tenant shall be
afforded on request reasonable facilities for inspecting and taking copies
of the accounts and receipts and other documents supporting the account.
(3) In the case of the first Accounting Date after the date for commencement of
payment of the Provisional Service Charge specified in clause 5(1), if the
proportion of the Tenant's Share of the Net Expenses shown in the account
apportioned on a daily basis for the period from that date to the
Accounting Date:
(a) exceeds the amount already paid as Provisional Service Charge before
the first Accounting Date, the Tenant shall pay the excess to the
Landlord within 14 days of written demand; and
(b) is less than the amount already paid as Provisional Service Charge
before the first Accounting Date, the Landlord shall credit the excess
to the Tenant against the next quarterly payment of Provisional
Service Charge.
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(4) In the case of every subsequent Accounting Date, if the Tenant's Share of
the Net Expenses shown in the account for the period beginning on the day
after the previous Accounting Date and ending on that Accounting Date:
(a) exceeds the amount paid as Provisional Service Charge during that
period, the Tenant shall pay the excess to the Landlord within 14 days
of written demand; and
(b) is less than the amount paid as Provisional Service Charge during that
period, the Landlord shall credit the excess to the Tenant against the
next quarterly payment of Provisional Service Charge or repay the
excess in respect of the last year of the Term.
(5) If the Landlord fails to include in any account for a Financial Year a sum
expended or liability incurred in that year the Landlord may include such
sum or the amount of such liability in an account for any subsequent
Financial Year.
(6) All sums payable under this clause shall be reserved as rent.
(7) In this clause:
"ACCOUNTING DATE" means 31st December or any other date that the Landlord
may nominate;
"FINANCIAL YEAR" means a year ending on an Accounting Date;
"GROSS EXPENSES" means all the expenses incurred by the Landlord in
connection with the Estate including, without limitation, the matters
referred to in Schedule 7;
"GROSS INTERNAL AREA" has the meaning ascribed to that expression in the
Code of Measuring Practice published by the Royal Institution of Chartered
Surveyors and the Incorporated Society of Valuers and Auctioneers (4th
Edition);
"INCOME" means:
(a) any insurance money received under an insurance policy which the
Landlord was obliged to effect under this Lease where the Landlord has
incurred expenses in making good the insured loss itself; and
(b) any money received from any person (other than the service charge paid
by the tenants in the Estate) who was liable to contribute to the cost
of compliance with the Landlord's obligations under this Lease where
the Landlord has itself incurred the expense towards which that person
contributed;
"NET EXPENSES" means the amount by which Gross Expenses exceeds Income;
"PROVISIONAL SERVICE CHARGE" means:
(a) in respect of the period from the 17th December 1998 to the next
following Accounting Date, the annual sum of (Pounds)3,903.90; and
-9-
(b) in respect of each subsequent Financial Year, the sum fixed from time
to time by the Landlord or its agents acting reasonably (who may be
the managing agents for the Estate) as being a reasonable estimate of
the Tenant's Share of the Net Expenses for the relevant Financial
Year;
"TENANT'S SHARE" means the same proportion of the Net Expenses as the Gross
Internal Area of the Property from time to time bears to the Gross Internal
Area of the Lettable Areas at such time provided always that if the
Landlord shall consider that having regard to the nature and degree of use
by the Tenant or other tenants on the Estate of the facilities covered by
the Gross Expenses or any other factors which the Landlord may reasonably
consider relevant some other proportion ought properly to be payable by the
Tenant the Landlord may substitute such other percentage as it shall
consider reasonable either with regard to all or any items making up the
Net Expenses provided that the proportion of the Net Expenses payable by
the Tenant shall not be increased by reason solely or in part of any
Lettable Areas being vacant or unlet.
6. TENANT'S COVENANTS
(1) INTRODUCTION
The Tenant covenants with the Landlord to comply with its obligations set
out in this clause and in clauses 5, 8 and 9.
(2) RENT
The Tenant shall:
(a) pay the yearly rent to the Landlord at the times and in the manner
referred to in clause 4 without any deduction; and
(b) not exercise or seek to exercise any right or claim to withhold rent
or any right or claim to legal or equitable set-off.
(3) OUTGOINGS
The Tenant shall:
(a) pay all present and future Outgoings assessed, charged or imposed on,
or payable in respect of the Property or the Car Spaces or assessed,
charged or imposed on, or payable by the owner or occupier of the
Property or the Car Spaces;
(b) pay the proportion properly attributable to the Property or the Car
Spaces of all Outgoings assessed, charged or imposed on or payable in
respect of the Property and other properties or the Car Spaces and
other car spaces or assessed, charged or imposed on or payable by the
owner or occupier of the Property and other properties or the Car
Spaces and other car spaces;
(c) pay all charges for the supply to and consumption at the Property of
water, gas and electricity and all charges for telecommunications
(including equipment rents) and observe and perform all regulations of
the supply authorities;
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(d) where such charges as are referred to in paragraph (c) are made in
relation to the Property and other properties or upon the owner or
occupier of the Property and other properties, pay the suppliers and
indemnify the Landlord against the proportion of those charges
properly attributable to the Property or its owner or occupier; and
(e) if the Landlord loses rating relief because it has been allowed to the
Tenant or any other person deriving title under the Tenant during the
Term, make good that loss to the Landlord.
Provided that the Tenant shall not be obliged to pay such sums referred to
above to the extent that the same have been recovered by the Landlord under
Clause 5.
In this sub-clause "OUTGOINGS" means rates, taxes, duties, charges,
assessments, impositions and outgoings whether parliamentary, parochial,
local or of any other description and whether of the nature of capital or
revenue and even though of a wholly novel character and the proportion
referred to in paragraphs (b) and (d) shall be determined by the Landlord
acting reasonably and shall be conclusive save as to questions of law and
save in cases of manifest error.
(4) REPAIR
The Tenant shall:
(a) put and keep the Property in good repair and condition, but shall not
be obliged to repair damage caused by an Insured Risk save where:
(i) the damage is not insured because of an exclusion, limitation or
excess imposed by the insurers; or
(ii) and to the extent that the insurance monies are irrecoverable in
whole or in part because of the act, default or omission of the
Tenant, any person deriving title under the Tenant or anyone at
the Property with the express or implied authority of any of
them;
(b) replace all the Landlord's fixtures and fittings in the Property which
become beyond repair during the Term with those of no lesser quality;
(c) keep all windows and other glass in the Property (both inside and
outside) clean, cleaning them at least once a month and more
frequently where necessary;
(d) keep any open area within the Property adequately surfaced (where
appropriate) in good condition, properly cultivated (where landscaped)
and free from weeds;
(e) enter into and maintain throughout the Term fully comprehensive
maintenance contracts in respect of all plant, equipment and machinery
forming part of the Property with a reputable company or companies and
produce the contracts to the Landlord on demand with evidence that any
payments due under them are paid up to date;
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(f) ensure that the electrical circuits within the Property comply with
the then current regulations of the Institute of Electrical Engineers
or other amended standards or recommended current codes of practice
(save that this shall not obligate the Tenant to upgrade the existing
circuits within the Property save where it is unlawful not to do so);
and
(g) notify the Landlord of all defects in the Property which are relevant
defects for the purpose of section 4 of the Defective Premises Xxx
0000.
(5) REDECORATION
The Tenant shall redecorate the exterior of the Property in every third
year and in the last year of the Term and the interior of the Property in
every fifth year and in the last year of the Term in colours and patterns
which, in the case of external decorations, shall be first approved by the
Landlord at all times during the Term and, in the case of internal
decorations, shall be first approved by the Landlord in the last year of
the Term. The Tenant shall also have all parts of the Property requiring
treatment for their preservation and protection treated in accordance with
the best approved manner for preserving and protecting them. All works
under this sub-clause shall be carried out in a good and workmanlike manner
and with suitable, good quality materials.
In this sub-clause the "last year of the Term" means the period of 12
months ending at the End of the Term and all approvals shall not be
unreasonably withheld or delayed by the Landlord.
(6) ENTRY BY THE LANDLORD
The Tenant shall:
(a) permit the Landlord to enter the Property to examine its condition and
take inventories;
(b) permit the Landlord to enter the Property to exercise any of the
rights reserved to the Landlord by this Lease and for any other
reasonable purpose connected with the management of the Estate subject
to the Landlord making good to the Tenant all damage to the Property
but not being obliged to compensate the Tenant for any loss suffered
by the Tenant or for any nuisance, annoyance, inconvenience, noise or
vibration;
(c) permit the Landlord and any person acting as valuer under clause 4 to
enter the Property and inspect and measure the Property for all
purposes connected with insurance of the Property, any action under
the Landlord and Xxxxxx Xxx 0000 Part II, or the implementation of
clause 4; and
(d) furnish all information relevant for those purposes as the Landlord or
anyone having a right of entry under this sub-clause may reasonably
request.
Except in case of emergency the Landlord shall give the Tenant reasonable
prior written notice before exercising the right of entry and shall comply
with the Tenant's reasonable security and confidentiality requirements.
After notice or in case of emergency the Landlord may break into the
Property. Such rights shall be exercised in a reasonable manner and in
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such a way so far as reasonably practicable as not to prevent the Tenant's
beneficial user and enjoyment of the Property and to use reasonable
endeavours not to damage or interfere with any equipment or machinery or
data transmission and storage facilities in the Property and shall make
good any damage caused.
(7) REMEDY BREACHES
The Tenant shall remedy all breaches of covenant notified by the Landlord
to the Tenant which the Tenant is liable to remedy under this Lease as soon
as possible and in any event within three months or sooner if appropriate
after service of the notice. If the Tenant fails to do so the Landlord may
enter the Property and remedy the breach and such entry shall be subject to
the same conditions as referred to in clause 6(6). All costs and expenses
incurred by the Landlord shall be paid by the Tenant within 14 days of
written demand.
(8) ALTERATIONS
Subject to the rights granted to the Tenant in Schedule 2 to this Lease the
Tenant shall:
(a) not make any alteration or addition to the Property (other than the
erection, alteration or removal of internal, non structural,
demountable partitioning) save as permitted by paragraph (b);
(b) not make any non-structural alteration to the Property (other than as
mentioned in paragraph (a)) without the prior consent of the Landlord
which shall not be unreasonably withheld or delayed; and
(c) before the End of the Term if required to do so by the Landlord but
not otherwise, remove any alteration or addition (including any made
before the beginning of the Term) and make good all damage caused by
the removal.
In this sub-clause a non-structural alteration is one which does not affect
the roof, foundations or exterior of the Property or any load-bearing part
of it.
(9) SIGNS
The Tenant shall:
(a) not display on the Property any signs visible from outside the
Property except those which in the Landlord's opinion are reasonably
necessary in connection with the business carried on at the Property
and which are in a form approved by the Landlord and are affixed in
positions approved by the Landlord (such approvals not to be
unreasonably withheld or delayed);
(b) at the End of the Term remove all signs (including any erected before
the beginning of the Term) and make good all damage caused by their
removal; and
(c) not affix to the Property any external radio, television or other
aerial or satellite dish or any pole, mast, flag or wire save with the
prior written consent of the Landlord such consent not to be
unreasonably withheld or delayed and in making such decision the
Landlord shall have due regard to the Tenant's use of the Property.
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In this sub-clause "signs" includes signs, hoardings, posters, placards,
advertisements, letters, bills and inscriptions.
(10) USE
The Property shall not be used for any purpose other than a use within
Class B1, Class B2 or Class B8 of the schedule to the Town and Country
Planning (Use Classes) Order 1987 as that Order is in force at the date of
this Lease.
(11) USE OBLIGATIONS
The Tenant shall:
(a) use any open area within the Property only for the purpose for which
it is designed and not keep any caravan or temporary building on it;
(b) not leave the Property unoccupied for more than a month without
notifying the Landlord and providing the security arrangements
reasonably required by the Landlord and its insurers;
(c) not do anything on the Property which may become a nuisance or damage
to the Landlord or any nearby owner or occupier;
(d) not allow to pass into the Conduits serving the Property anything that
may obstruct them or cause damage, danger or pollution or anything
poisonous or radioactive;
(e) not bring onto or keep in the Property anything dangerous,
inflammable, explosive, or noxious save for materials ordinarily and
properly used in connection with alternative power generation provided
that such materials are safely stored and are otherwise in accordance
with all statutory requirements and the reasonable requirements of
insurers;
(f) not use the Property for any illegal purpose or for any dangerous,
noxious, or noisy occupation;
(g) not use the Property for the holding of public meetings or auction
sales or as a residence or sleep at the Property or keep any animal on
it;
(h) not overload the Property or its Conduits;
(i) remove all refuse on a reasonably frequent basis but no less than once
a week and keep the Property clean, tidy and in good order;
(j) not obstruct any road or footpath on the Estate and not do anything as
a result of which reasonable use of the Common Parts by others may be
impeded; and
(k) not park vehicles on or load or unload goods onto or from vehicles
save in those parts of the Property or the Common Parts designated by
the Landlord for that purpose.
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(12) STATUTORY REQUIREMENTS
The Tenant shall comply with every enactment and with the requirements and
recommendations of every authority relating to or affecting the Property or
its use or the employment of anyone at the Property or any equipment or
chattels in the Property and whether applicable to the owner, landlord,
tenant or occupier of the Property save that this obligation shall not
include responsibility for compliance with anything relating to remediation
of any contamination affecting the Property which was caused before the
date hereof.
In this sub-clause "authority" includes every government department, local
or other authority and court of competent jurisdiction.
(13) NOTICES
The Tenant shall:
(a) give the Landlord a copy of every notice or order or any proposal for
a notice or order issued to the Tenant, its sub-tenants or any
occupier of the Property or left at the Property relating to the
Property or the Tenant's its sub-tenants or any occupiers use thereof
within five Business Days of its service;
(b) (if it is the Tenant's responsibility to so comply in accordance with
the terms of this Lease) take all steps necessary to comply with every
notice or order without delay; and
(c) at the request and cost of the Landlord make or join with the Landlord
in making such objections or representations in respect of the notice,
order or proposal as the Landlord shall reasonably require.
(14) FIRE AUTHORITY REQUIREMENTS
The Tenant shall comply with all requirements and recommendations of the
appropriate authority and the Landlord's insurers and all reasonable
requirements of the Landlord as to means of escape from the Property in
case of fire or other emergency and as to the provision and maintenance of
fire detection equipment, fire alarm equipment and fire fighting equipment.
(15) PLANNING ACTS
The Tenant shall:
(a) comply with the Planning Acts in relation to the Property, any
operations carried out at the Property and its use and not commit any
breach of planning control (as defined in the Planning Acts);
(b) obtain from the local planning authority planning permission for the
carrying out of any operation on the Property or the institution or
continuance of any use which may constitute development within the
meaning of the Planning Acts;
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(c) not make any application for planning permission without the
Landlord's prior consent (which shall not be unreasonably withheld or
delayed) to the making of the application, indemnify the Landlord
against all charges payable in respect of the application and repay to
the Landlord all reasonable and proper professional fees and expenses
properly incurred by the Landlord in connection with the application;
(d) forthwith after the grant or refusal of any application give the
Landlord a copy of the permission or the refusal;
(e) not make any alteration or addition to or change of use of the
Property (being an alteration or addition or change of use which is
prohibited by or for which the consent of the Landlord must be
obtained under this Lease and for which a planning permission must be
obtained) before planning permission for it has been produced to the
Landlord and acknowledged by the Landlord as satisfactory to it but so
that the Landlord may refuse to express satisfaction with the planning
permission on the grounds that anything contained in it or omitted
from it in the reasonable opinion of the Landlord would be or be
likely to be materially prejudicial to the Landlord's interest in the
Property during the Term or after the End of the Term such
acknowledgement from the Landlord shall not be unreasonably delayed;
(f) pay any charge imposed under the Planning Acts in respect of the
carrying out of any operation or the institution or continuance of any
use;
(g) unless the Landlord directs otherwise, carry out before the End of the
Term all works required to be carried out as a condition of any
planning permission which may have been granted and implemented during
the Term whether or not the date by which the planning permission
requires those works to be carried out falls within the Term;
(h) pay to the Landlord within 14 days of written demand a fair and
reasonable proportion of any compensation received by the Tenant
because of a restriction on the use of the Property under the Planning
Acts, any dispute as to the proportion to be referred to arbitration;
(i) produce to the Landlord all drawings, documents and other evidence
reasonably required by the Landlord to satisfy itself that this sub-
clause has been complied with;
(j) not implement any planning permission without providing reasonable
security if reasonably required for compliance with the conditions
imposed by that permission;
(k) not serve any purchase notice under the Planning Acts requiring any
authority to purchase the Tenant's interest in the Property without
first offering to surrender this Lease at the price which might
reasonably be expected to be obtained from the authority under the
purchase notice, any dispute as to the amount of the price to be
referred to arbitration;
(l) not to make any objection or adverse representation in respect of any
planning application made by or with the consent of the Landlord:
(i) within 12 months before the date specified in clause 15 of this
Lease if the Tenant has served the notice referred to in that
clause; or
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(ii) within 12 months before the End of the Term unless the Tenant
has exercised its rights to take a new lease under the
provisions of the Landlord and Xxxxxx Xxx 0000;
and in either case this clause shall not prevent the Tenant making
such objections if it is entitled to do so under a lease of another
Unit on the Estate.
(16) OBSTRUCTION
The Tenant shall not:
(a) stop up, darken or obstruct any window or opening belonging to the
Property save as part of the Tenant's usual security measures; or
(b) give to any third party any acknowledgement that the Tenant enjoys the
access of light or air to any of the windows or openings in the
Property by the consent of a third party; or
(c) pay to any third party any sum of money or enter into any agreement
with any third party for the purpose of inducing or binding him to
abstain from obstructing the access of light or air to any windows or
openings.
(17) OBSTRUCTION PROCEEDINGS
If any of the owners or occupiers of nearby land or buildings do or
threaten to do anything which obstructs the access of light or air to any
of the windows or openings in the Property the Tenant shall:
(a) notify the same forthwith to the Landlord; and
(b) permit and afford all reasonable assistance to the Landlord to bring
proceedings in the name of the Tenant and at the joint cost of the
Landlord and Tenant against any of the owners or occupiers of the
nearby land or buildings in respect of the obstruction.
(18) ACQUISITION OF RIGHTS
The Tenant shall not allow any easement to be acquired over the Property.
If any such easement is acquired or attempted to be acquired, the Tenant
shall give immediate notice of it to the Landlord and at the request of the
Landlord but at the cost of the Tenant adopt the course reasonably required
by the Landlord for preventing the acquisition of the easement.
(19) PARTY MATTERS
The Tenant shall pay a fair proportion of all costs and expenses payable in
respect of repairing, lighting, cleansing and maintaining anything used in
common by the Property and any other property to the extent that those
costs and expenses are not recovered under clause 5. The proportion shall
be determined by the Landlord and shall be conclusive save as to questions
of law and save in the case of manifest error.
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(20) NEW GUARANTOR
If a guarantor's event of default occurs, the Tenant shall give notice to
the Landlord of the event within ten Business Days of its occurrence. If
the Landlord serves notice on the Tenant under this sub-clause within
thirty Business Days of service of the Tenant's notice, the Tenant shall
procure that guarantors reasonably acceptable to the Landlord shall
covenant by deed with the Landlord in the form set out in Schedule 5.
In this sub-clause a guarantor's event of default is any of the following:
(a) in the case of a Guarantor who is an individual:
(i) the death of the individual;
(ii) the individual being regarded as a patient under the Mental
Health Xxx 0000 section 94;
(iii) an application being made for an interim order in respect of
the individual or an interim order being made under the Act;
(iv) the making by the individual of a proposal for a voluntary
arrangement;
(v) a petition being presented for a bankruptcy order to be made
against the individual or a bankruptcy order being made;
(b) in the case of a Guarantor which is a company:
(i) a proposal being made to the company and to its creditors for a
voluntary arrangement;
(ii) a petition being presented for an administration order in
respect of the company or an administration order being made;
(iii) the company having an administrative or other receiver or a
manager appointed of the whole or any part of its property;
(iv) the company passing a resolution for winding up or a petition
being presented for the winding up of the company or a winding
up being made or the company being dissolved other than (in any
such case) a voluntary winding up of a solvent company for the
purposes of amalgamation or reconstruction;
(v) the company, having been registered as an unlimited company,
being re-registered as a limited company without the previous
consent of the Landlord;
(c) in the case of a Guarantor who is an individual or which is a company:
(i) the individual or the company entering into any kind of
composition, scheme of arrangement, compromise or arrangement
for the benefit of creditors or any class of creditors or
permitting or suffering any distress or execution to
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be levied on his goods at the Property which remains
unsatisfied for more than 21 days;
(ii) there occurring in relation to the individual or the company in
any country or territory in which he carries on business or to
the jurisdiction of whose courts he or any of his property is
subject any event which corresponds in that country or
territory with any of those mentioned in paragraphs (a)(iii) to
(v) or (b) above or the individual or the company otherwise
becoming subject in any such country or territory to any law
relating to insolvency, bankruptcy or winding up.
(21) COSTS
The Tenant shall pay the reasonable and proper costs and expenses incurred
by the Landlord:
(a) in or in contemplation of any proceedings relating to the Property
under the Law of Property Xxx 0000 sections 146 and 147, or the
Leasehold Property (Repairs) Xxx 0000, the preparation and service of
any notice under those sections or the taking of steps subsequent to
such notice notwithstanding that forfeiture is avoided otherwise than
by relief granted by the Court;
(b) in the preparation and service of any notice to repair or any schedule
of dilapidations at any time during the Term or after the End of the
Term;
(c) in connection with the recovery of arrears of Rent or other sums due
to the Landlord under this Lease including the levy or attempted levy
of any distress; and
(d) in respect of any application for consent required by this Lease
whether or not the consent is granted (including any inspection of
works authorised by the consent and of any re-instatement of those
works).
Where the Landlord could recover the cost of services or advice under the
first part of this sub-clause if they were undertaken by a third party but
those services or that advice are provided by the Landlord or by a company
which is a member of the same group as the Landlord (within the meaning of
section 42 of the Landlord and Tenant Act 1954), the Tenant shall pay to
the Landlord or to that company a reasonable sum (plus VAT if payable) for
such services or advice but not more than the amount payable by the Tenant
if those services or that advice had been provided by a third party
(22) INDEMNITY
The Tenant shall:
(a) pay and make good to the Landlord every loss and damage incurred or
sustained by the Landlord as a consequence of every breach or non-
observance of the Tenant's covenants contained in this Lease and shall
indemnify the Landlord against all actions, claims, liabilities, costs
and expenses arising by reason of the breach; and
(b) indemnify and keep the Landlord indemnified from liability in respect
of all loss, damage, actions, proceedings, claims, demands, costs,
damages and expenses in respect of any injury to or the death of any
person or damage to any property or in
-19-
respect of the infringement, disturbance or destruction of any right
by reason of or arising in any way directly or indirectly out of:
(i) the state of repair or condition of the Property;
(ii) the act, omission or default of the Tenant, any person deriving
title under the Tenant or any person at the Property with the
express or implied authority of any of them;
(iii) the construction or existence of any additions or alterations
to the Property;
(iv) the use of the Property;
(v) anything now or in the future attached to or on the Property;
(vi) the use of vehicles on the Property;
(vii) the omission of the Tenant to give written notice to the
Landlord of any defects or items requiring repair of which the
Tenant is aware or ought reasonably to be aware; and
(viii) any breach by the Tenant or by any person deriving title under
the Tenant of any covenant by the Tenant or any condition
contained in this Lease.
Provided that the Tenant shall not be obliged to indemnify the
Landlord in respect of such matters to the extent that such damage
arises out of the Landlord's wilful misconduct or negligence.
(23) NOTICES FOR SALE AND RE-LETTING
The Tenant shall:
(a) permit (at a suitable location which does not materially interfere
with or obstruct the access of light to the Property) the Landlord
during the six months before the End of the Term to affix to the
Property a notice (of a suitable size and nature) for re-letting it;
(b) permit (at a suitable location which does not materially interfere
with or obstruct the access of light to the Property) the Landlord at
any time during the Term to affix to the Property a notice (of a
suitable size and nature) for dealing with the Landlord's interest in
the Property; and
(c) permit all persons with written authority from the Landlord or the
Landlord's agent to view the Property upon the Landlord giving at
least 24 hours prior written notice and subject to such person
complying with the Tenant's reasonable security and confidentiality
requirements.
(24) REGULATIONS
The Tenant shall observe all reasonable regulations made by the Landlord
for the proper management of the Estate.
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(25) CAR SPACES
The Tenant shall:
(a) not use the Car Spaces otherwise than for the purpose of the parking
of one private motor car in each Car Space and not to keep anything
else in the Parking Area including, without limitation, plant,
equipment, materials, containers of any description or any skip or
other receptacle for refuse or any caravan or temporary building;
(b) not without the express permission of the Landlord carry out any
repairs to any vehicle whilst it is in the Parking Area and if
permission is granted ensure that any repairs are carried out in such
manner as not to cause any nuisance, annoyance, inconvenience or
disturbance to the Landlord or any tenant or occupier of the Estate or
other user of the Parking Area;
(c) keep the Car Spaces and the surrounding area clean, tidy and free from
deposits of oil or grease;
(d) not cause any obstruction in the Parking Area;
(e) take all reasonable and proper precautions against fire occurring in
any vehicle using the Car Spaces;
(f) not do anything in the Parking Area which causes nuisance, annoyance,
inconvenience or disturbance to the Landlord or any tenant or occupier
of the Estate or other user of the Parking Area.
(26) FREEHOLD COVENANTS
The Tenant shall observe and perform the covenants contained in or referred
to in the documents specified in Schedule 4 so far as they relate to the
Property and are still subsisting and capable of taking effect and shall
indemnify and keep indemnified the Landlord from and against any non-
observance or non-performance of the same.
(27) YIELD UP
The Tenant shall:
(a) yield up the Property (except tenant's or trade fixtures including
those of the type listed on annexed schedule) to the Landlord at the
End of the Term with vacant possession and in accordance with the
Tenant's covenants contained in this Lease; and
(b) make good to the satisfaction of the Landlord all damage occasioned by
the removal of any tenant's or trade fixtures.
(28) RELEASE OF LANDLORD
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If the Landlord or any former landlord applies for release of a covenant
under section 8 of the Landlord and Tenant (Covenants) Xxx 0000:
(a) the Tenant shall not object unreasonably to the release of the
Landlord or the former landlord; and
(b) if, following such an application, the Tenant serves notice objecting
to the release, but the Court makes a declaration that it is
reasonable for the covenant to be released, the Tenant shall indemnify
the Landlord and any former landlord against all loss, damage, costs
and expenses incurred or sustained by any of them as a result of the
objection of the Tenant.
7. LANDLORD'S COVENANTS
(1) INTRODUCTION
The Landlord covenants with the Tenant to comply with its obligations set
out in this clause and in clauses 5 and 9.
(2) QUIET ENJOYMENT
For so long as the Tenant pays the Rent and performs and observes the
covenants by the Tenant and the conditions contained in this Lease the
Tenant may peaceably and quietly hold and enjoy the Property during the
Term without any lawful interruption by the Landlord or any person claiming
under or in trust for the Landlord.
(3) SERVICES
The Landlord shall use all reasonable endeavours to:
(a) maintain in good working order and repair all Conduits in, under or
upon the Estate which serve the Property (other than those which
exclusively serve the Property); and
(b) keep the surfaces of the Common Parts in good repair and cleaned at
regular intervals and reasonably well lit.
The Landlord will not be liable to the Tenant for any breach of these
obligations unless the Tenant has given the Landlord notice of the breach
and the Landlord is aware or should reasonably be aware of the breach and
has failed to remedy the breach within a reasonable time of service of the
notice.
8. ALIENATION
(1) RESTRICTIONS ON ALIENATION
The Tenant shall not:
(a) save to the extent permitted by the following sub-clauses of this
clause, part with possession of the whole or any part of the Property
or part with or share occupation
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of the whole or any part of the Property or permit occupation by a
licensee of the whole or any part of the Property or hold on any trust
the whole or any part of the Property; nor
(b) if it is an unlimited company, incorporate itself as a limited company
without the prior consent of the Landlord (such consent not to be
unreasonably withheld or delayed).
(2) ASSIGNMENT
The Tenant shall not:
(a) assign part of the Property; nor
(b) assign the whole of the Property without the prior consent of the
Landlord which, subject to sub-clauses (3) and (4), shall not be
unreasonably withheld or delayed.
(3) AGREEMENT AS TO CIRCUMSTANCES
The Landlord and the Tenant agree that the Landlord may withhold its
consent to an assignment if any one or more of the following circumstances
(which are specified for the purposes of section 19(1A) of the Landlord and
Tenant Act 1927) exist and it shall not be regarded as unreasonably
withholding its consent if it does so:
(a) any rent payable pursuant to clause 4(1) of this Lease agreed service
charge, insurance and VAT on such sums payable in accordance with this
Lease due from the Tenant under this Lease is unpaid;
(b) the Landlord reasonably determines that the proposed assignee is not a
person who is likely to be able both to comply with the tenant's
covenants in this Lease and to continue to be such a person following
the assignment;
(c) the proposed assignee or any proposed guarantor for it (other than any
guarantor under an authorised guarantee agreement) has the benefit of
state or diplomatic immunity or the Landlord determines that it is
likely to acquire that immunity;
(d) the proposed assignee is a company which is a member of the same group
(within the meaning of section 42 of the Landlord and Tenant Act 1954)
as the Tenant; and
(e) the proposed assignee or any proposed guarantor for it (other than any
guarantor under an authorised guarantee agreement) is a corporation
registered in or an individual resident in a jurisdiction in which a
judgement obtained in the courts of England and Wales will not
necessarily be enforced without any re-examination of the merits of
the case.
(4) AGREEMENT AS TO CONDITIONS
The Landlord and the Tenant agree that the Landlord may grant consent to an
assignment subject to any one or more of the following conditions (which
are specified for the purposes of section 19(1A) of the Landlord and Tenant
Act 1927) and it shall not be regarded as giving consent subject to
unreasonable conditions if it does so:
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(a) that before the assignment the Tenant enters into and unconditionally
delivers to the Landlord an authorised guarantee agreement, such
agreement to be a deed and to contain the provisions in Schedule 6 or
at the Landlord's absolute discretion) such other provisions as the
Landlord shall reasonably prescribe and (in either case) such
ancillary provisions as the Landlord shall reasonably prescribe;
(b) that before the assignment any person (other than a former Tenant) who
at the time of the application for the consent is guaranteeing the
obligations and liabilities under this Lease of the Tenant covenants
by deed with the Landlord that the Tenant shall perform its
obligations under the authorised guarantee agreement required under
paragraph (a), the deed to contain provisions equivalent to those
contained in paragraphs 1 to 4 and 9 of Schedule 5 and an obligation
on the part of the covenantor (in the event of default on the part of
the Tenant) to perform any obligation entered into by the Tenant in
the authorised guarantee agreement to take up a new lease, and
otherwise to be in such form as the Landlord reasonably requires;
(c) that before the assignment, if the Landlord determines it to be
necessary, one or more guarantors acceptable to the Landlord, acting
reasonably, covenant by deed with the Landlord in the form set out in
Schedule 5 (with "ASSIGNEE" substituted for "TENANT" in paragraphs 1
to 9 inclusive and with such other provisions as the Landlord
reasonably requires) in respect of the period during which the
assignee is bound by the tenant's covenants and the conditions in this
Lease;
(d) that all rent payable pursuant to clause 4(1) of this Lease agreed
service charge, insurance and VAT on such sums payable in accordance
with this Lease due from the Tenant under this Lease as at the date of
the assignment has been paid;
(e) that the assignment is completed and registered with the Landlord in
accordance with sub-clause (14) within three months of the date of the
consent and that if it is not, the consent shall be void but any of
the guarantees referred to in paragraphs (a) to (c) shall nevertheless
remain in full force and effect.
(f) that before the assignment of this Lease to an assignee who is not
also taking an assignment of the adjacent Unit numbered 6 the Tenant
has constructed to the Landlord's reasonable specification and
satisfaction an internal dividing wall between the Property and the
adjacent Unit numbered 6.
(5) FURTHER AGREEMENT
The Landlord and the Tenant agree that:
(a) the Landlord may withhold consent to an assignment in circumstances
which are not referred to in sub-clause (3) if it is reasonable to do
so and may grant consent subject to conditions which are not specified
in sub-clause (4) if the conditions are reasonable; and
(b) any power on the part of the Landlord to determine any matter for the
purposes of sub-clauses (3) or (4) shall be exercised reasonably.
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(6) UNDERLETTING
The Tenant shall not:
(a) underlet part only of the Property;
(b) underlet the whole of the Property:
(i) without complying with the provisions of sub-clauses (7) to
(11); and
(ii) without the prior consent of the Landlord, which shall not be
unreasonably withheld or delayed.
(7) UNDERLETTING CONDITIONS
Not to underlet the whole of the Property without producing to the
Landlord:
(a) an order of the Court under section 38(4) of the Landlord and Xxxxxx
Xxx 0000 authorising the inclusion in the intended underlease of an
agreement excluding sections 24 to 28 of that Act; and
(b) a written undertaking by the Tenant not to release the intended
undertenant from or otherwise waive or modify the agreement authorised
by the order
and without including the agreement in the intended underlease.
(8) COVENANTS ON UNDERLETTING
The Tenant shall procure that any intended undertenant covenants by deed
with the Landlord:
(a) to pay the rent to be reserved by and the other sums to be payable
under the underlease and to perform and observe, the tenant's
covenants and the conditions to be contained in the underlease
throughout the period during which the undertenant is bound by the
tenant's covenants and conditions in the underlease;
(b) without prejudice to paragraph (a), not to assign the underlet
property without:
(i) first obtaining a deed of covenant from the intended assignee
in favour of the Landlord in the same form (with the necessary
changes) as the deed referred to in this sub-clause, including
(without limitation) the covenants in this paragraph (b); and
(ii) if the Landlord reasonably requires, first obtaining a deed
from one or more guarantors acceptable to the Landlord, acting
reasonably, in favour of the Landlord guaranteeing the due and
punctual payment and performance of all the obligations and
liabilities of the intended assignee under the deed referred to
in sub-paragraph (i), the deed to contain provisions equivalent
to those contained in paragraphs 1 to 4 and 9 of Schedule 5 and
otherwise to be in such form as the Landlord reasonably
requires.
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(9) GUARANTEE ON UNDERLETTING
If the Landlord reasonably requires, the Tenant shall procure that, before
the underlease is granted, one or more guarantors acceptable to the
Landlord, acting reasonably, guarantee (by way of deed) to the Landlord, in
respect of the period during which the undertenant is bound by the tenant's
covenants and the conditions in the underlease, the due and punctual
payment and performance of all the obligations and liabilities of the
intended undertenant, the guarantee to contain provisions equivalent to
those contained in paragraphs 1 to 4 and 9 of Schedule 5 and otherwise to
be in such form as the Landlord reasonably requires.
(10) FORM OF UNDERLEASE
The Tenant shall procure that every underlease shall:
(a) contain the same tenant's covenants and other terms and conditions as
are contained in this Lease subject only to:
(i) such amendments as may be provided for in paragraphs (b) to
(d); and
(ii) such amendments as may reasonably be required by the Tenant,
having regard only to the duration of the proposed underlease,
and as may be approved by the Landlord, such approval not to be
unreasonably withheld;
(b) not permit any assignment, underlease or other dealing or disposal of
the Property which is prohibited by the terms of this Lease and
prohibit any further underletting of the whole or any part of the
Property;
(c) provide that where the underlease requires the undertenant to obtain
the landlord's consent, the undertenant shall be required to obtain
also the consent of the Landlord (such consent not to be unreasonably
withheld or delayed);
(d) contain provisions that require a review of the rent payable under the
underlease to open market rent in accordance with the provisions and
at the dates for review of the rent payable under this Lease, but this
paragraph shall not prohibit an underlease of the Property upon terms
that require review of the rent payable under the underlease at dates
additional to the dates for review of the rent payable under this
Lease;
(11) UNDERLEASE REQUIREMENTS
The Tenant shall:
(a) not grant any underlease at a fine or premium;
(b) not grant any underlease at a rent which at the time of the grant of
the underlease is less than the open market rent of the Property;
(c) not vary the terms of any underlease or release the undertenant from
any covenant or condition in the underlease without the prior consent
of the Landlord such consent not to be unreasonably withheld or
delayed and shall notify the Landlord of any surrender of any
underlease;
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(d) not waive any breach of any of the covenants on the part of the
undertenant and the conditions contained in any underlease but take
all such reasonable steps as are lawfully available to the Tenant
(including re-entry) to enforce such covenants and conditions;
(e) procure that the rent reserved by any underlease is reviewed in
accordance with the provisions of the underlease but not agree any
revised rent with the undertenant without the prior consent of the
Landlord (such consent not to be unreasonably withheld), and if on any
rent review under any underlease the revised rent is to be determined
by an independent third party, procure that any reasonable
representations which the Landlord may wish to make concerning the
revised rent are put forward to the third party at the same time as
the representations of the Tenant and as though they were
representations made by the Tenant; and
(f) procure that on any assignment of any underlease the outgoing
undertenant enters into an authorised guarantee agreement and, where
appropriate, guarantors enter into a contractual guarantee in each
case with the landlord under the underlease in accordance with the
provisions of the underlease.
In paragraphs (c) to (f) of this sub-clause an underlease includes any
lease where, by virtue of the grant of this Lease, the Tenant under this
Lease becomes the holder of the immediate reversion to that lease.
(12) ASSOCIATED COMPANIES
The Tenant may share the occupation of any part of the Property with a
company which is a member of the same group as the Tenant (within the
meaning of section 42 of the Landlord and Tenant Act 1954) for so long as
both companies remain members of that group and provided that:
(a) no relationship of landlord and tenant is created between the two
companies and no security of tenure is conferred upon the occupier;
and
(b) within 15 Business Days of the commencement of the sharing the Tenant
gives to the Landlord notice of the company sharing occupation and the
address of its registered office.
(13) CHARGING
The Tenant shall not
(a) charge part of the Property; or
(b) charge the whole of the Property by way of fixed security without the
prior consent of the Landlord, which shall not be unreasonably
withheld.
(14) REGISTRATION OF DEALINGS
Within 15 Business Days of every assignment, transfer, underlease or charge
of the Property or the creation or transfer of any interest derived out of
the Term or any devolution of the interest of the Tenant or any person
deriving title under the Tenant, the Tenant shall produce
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a certified copy of the assignment, transfer, underlease or charge or (in
the case of a devolution) the document evidencing or under which the
devolution arises and pay the Landlord a registration fee of a reasonable
amount, being not less than (Pounds)25, in respect of each assignment,
transfer, underlease, charge or devolution.
9. INSURANCE
(1) LANDLORD'S INSURANCE OBLIGATIONS
Unless the insurance is vitiated by any act, default or omission of the
Tenant, any person deriving title under the Tenant or any person at the
Property with the express or implied authority of any of them the Landlord
shall keep the Property (other than plate glass and tenant's or trade
fixtures) insured with insurers or underwriters selected by the Landlord in
accordance with the provisions of this clause to the extent to which the
Property is insurable and subject to all exclusions, limitations and
excesses imposed by the insurers.
(2) SUM AND RISKS INSURED
The Property shall be insured in a sum not less than its full reinstatement
cost (as determined from time to time by the Landlord) against loss or
damage by the Insured Risks.
(3) FEES
The insurance shall extend to:
(a) architects' and other professional fees in relation to the
reinstatement of the Property for a minimum sum of 15% of the amount
insured in respect of the Property;
(b) the costs of demolition and removal of debris; and
(c) loss of rent for such period as the Landlord may decide in an amount
which takes into account the Landlord's estimate of potential
increases in rent.
(4) PRODUCTION OF POLICY
Whenever reasonably required to do so by the Tenant and at the Tenant's
cost, but not more often than twice a year, the Landlord shall produce to
the Tenant at the Landlord's office a copy of the insurance policy or other
evidence of it and evidence of payment of the last premium.
(5) REINSTATEMENT
Subject to sub-clause (13) if the Property is destroyed or damaged by any
of the Insured Risks, then unless the insurance is vitiated by any act,
default or omission of the Tenant, any person deriving title under the
Tenant or any person at the Property with the express or implied authority
of any of them, the Landlord shall use reasonable endeavours to:
(a) obtain all consents and permissions necessary for reinstatement as
soon as reasonably possible;
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(b) subject to obtaining those consents and permissions, lay out as soon
as practicable all insurance monies received by the Landlord (other
than for fees and loss of rent) in reinstating the Property; and
(c) subject to the Tenant complying with its obligations in sub-clauses
(6)(a)(iii), (7) and (9) make good out of the Landlord's own monies
any deficiency (other than one arising from an exclusion, limitation
or excess imposed by the insurers).
(6) TENANT'S INSURANCE OBLIGATIONS
(a) The Tenant shall pay to the Landlord on demand:
(i) every premium payable by the Landlord (including any part of it
which the Landlord is entitled to retain by way of commission)
for insuring the Property in accordance with its obligations in
sub-clause (1) and for effecting insurance in respect of
liability to third parties including members of the public and
such other insurances as the Landlord reasonably considers
desirable;
(ii) where the policy includes the Property and other properties, the
proportion properly attributable to the Property of every
premium payable by the Landlord (including any part of it which
the Landlord is entitled to retain by way of commission) for
insuring the Property and the other properties in accordance
with its obligations in sub-clause (1) and for effecting (in
relation to the Property and the other properties) the other
insurances referred to in sub-paragraph (i), the proportion to
be determined by the Landlord whose determination shall be
conclusive save as to questions of law and save in case of
manifest error;
(iii) the amount of any excess deducted or deductible by the insurers
on any claim made by the Landlord; and
(iv) all costs and expenses reasonably incurred by the Landlord in
obtaining a valuation of the Property for insurance purposes
(provided this is limited to one such valuation every two
years).
All sums payable by the Tenant under paragraph (a)(i) shall be
reserved as rent.
(b) The Tenant shall insure all plate glass in the Property against all
risks with an insurance company approved by the Landlord in the joint
names of the Landlord and the Tenant and, on demand, produce a copy of
the insurance policy and evidence of payment of the last premium to
the Landlord.
(7) VITIATION
The Tenant shall not use the Property or carry on any business at the
Property or do or omit to do at the Property anything which may make void
or voidable any policy for the insurance of the Property or any nearby
property of the Landlord.
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(8) INCREASED PREMIUM
The Tenant shall:
(a) not without the prior consent of the Landlord use the Property or
carry on any business at the Property or do or omit to do at the
Property anything which may increase the premium payable for the
insurance; and
(b) if consent is given, repay on demand to the Landlord any resulting
increased insurance premium payable by the Landlord.
(9) IRRECOVERABLE REINSTATEMENT COST
If the Property is destroyed or damaged by any of the Insured Risks and the
insurance money under any insurance effected by the Landlord is wholly or
partly irrecoverable because of any act, default or omission of the Tenant,
any person deriving title under the Tenant or any person at the Property
with the express or implied authority of any of them the Tenant shall pay
to the Landlord within 14 days of written demand the whole or the
appropriate proportion of the cost of reinstating the Property. Any
dispute as to the amount of such proportion shall be referred to
arbitration.
(10) NOTICE OF DAMAGE
If the Property is destroyed or damaged by any of the Insured Risks the
Tenant shall give notice to the Landlord as soon as the destruction or
damage comes to the notice of the Tenant.
(11) DOUBLE INSURANCE
The Tenant shall not effect any insurance relating to the Property against
any of the Insured Risks. If the Tenant is entitled to the benefit of any
insurance in respect of the Property, the Tenant shall pay to the Landlord
all monies received by virtue of the insurance to enable the Landlord to
apply them in making good the loss or damage in respect of which they have
been received.
(12) CESSER OF RENT
If the Property or any part of it (or the means of access to or egress from
it) is destroyed or damaged by any of the Insured Risks so as to be unfit
for occupation or use the rent or a fair proportion of it according to the
nature and extent of the damage sustained shall be suspended until the
Property (or the means of access to or egress from it) has been reinstated
and made fit for occupation and use or until the end of three years from
the date of the destruction or damage, whichever first occurs. Any dispute
as to the amount of the proportion shall be referred to arbitration. This
sub-clause does not apply if and to the extent that the insurance monies in
respect of loss of rent are wholly or partially irrecoverable solely or
partly because of the act, default or omission of the Tenant or any person
deriving title under the Tenant or any person at the Property with the
express or implied authority of any of them.
(13) PREVENTION OF REINSTATEMENT
The Landlord shall not be obliged to reinstate the Property in accordance
with sub-clause (5) while prevented by a supervening event. If the
Landlord is unable to commence
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reinstatement within twenty four months from the date of destruction or
damage because of a supervening event and the Property or a substantial
part of it is unfit for occupation or use either party may determine the
Term by serving notice on the other party at any time within six months of
the end of the twenty four month period. On service of the notice the Term
will cease but without prejudice to any rights that any party may have
against another for breach of any of their respective covenants or the
conditions contained in this Lease and all insurance monies shall belong to
the Landlord.
In this sub-clause a supervening event means any of the following:
(a) inability of the Landlord to obtain the consents and permissions
referred to in sub-clause (5) despite using all reasonable endeavours
to do so;
(b) grant of any of the consents or permissions subject to a lawful
condition with which it would be unreasonable to expect the Landlord
to comply or the Landlord being requested as a precondition to
obtaining any of the consents or permissions to enter into an
agreement with the planning authority or any other authority
containing conditions with which it would be unreasonable to expect
the Landlord to comply;
(c) some defect in the site upon which reinstatement is to take place so
that it could not be undertaken or could be undertaken only at a cost
unacceptable to the Landlord (acting reasonably);
(d) inability of the Landlord to obtain access to the site to reinstate;
(e) prevention of reinstatement by any cause beyond the control of the
Landlord.
10. RE-ENTRY
(1) If an Event of Default occurs then notwithstanding the waiver of any
previous right of re-entry the Landlord may re-enter the Property or any
part of it when the Term shall cease but without prejudice to any rights or
remedies which may then have accrued to any party against another in
respect of any antecedent breach (including the breach in respect of which
re-entry is made) of any of the covenants or obligations contained in this
Lease.
(2) In this clause an Event of Default is any one of the following:
(a) the Rent or any part of it is in arrear and unpaid for seven Business
Days after becoming payable (whether formally demanded or not); or
(b) a breach by the Tenant of any of the covenants by the Tenant in this
Lease; or
(c) the Tenant (being a company) is deemed unable to pay its debts under
section 123 of the Insolvency Xxx 0000 or the Tenant or any Guarantor
(being a company) passes a resolution for winding-up or the directors
of any of them present a petition for winding-up or an order for the
winding-up of the Tenant or any Guarantor is made (other than (in any
such case) a voluntary winding-up of a solvent company for the
purposes of amalgamation or reconstruction) or the Tenant or any
Guarantor is dissolved; or
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(d) the Tenant (being a company) has an administrative or other receiver
or a manager appointed of the whole or any part of its property or a
petition is presented for an administration order or an administration
order is made in respect of the Tenant or any Guarantor; or
(e) the Tenant (being a company) being registered as an unlimited company
is re-registered as a limited company without the previous consent of
the Landlord; or
(f) the Tenant (being an individual) presents a petition for a bankruptcy
order to be made against him or a bankruptcy order is made against the
Tenant or any Guarantor; or
(g) in relation to the Tenant (whether an individual or a company) a
proposal is made or the Tenant (whether a company or an individual)
enters into any kind of composition, scheme of arrangement, compromise
or arrangement for the benefit of creditors or any class of creditors
or permits or suffers any distress or execution to be levied on his
goods; or
(h) there occurs in relation to the Tenant in any country or territory in
which any of them carries on business or to the jurisdiction of whose
courts any of them or any of the property of any of them is subject to
any event which corresponds in that country or territory with any of
those mentioned in paragraphs (c) to (g) above or the Tenant otherwise
becomes subject in any such country or territory to any law relating
to insolvency, bankruptcy or winding up.
11. GUARANTEE
The Guarantor covenants with the Landlord in the terms set out in Schedule
5 in respect of the period during which Exodus Internet Limited is bound by
the Tenant's covenants and conditions in this Lease and any additional
period during which Exodus Internet Limited is liable under an authorised
guarantee agreement.
12. VALUE ADDED TAX
(1) If any VAT is chargeable on any supply made to the Tenant under the terms
of this Lease, the Tenant shall pay by way of additional consideration the
amount of that VAT and the Landlord shall provide a valid VAT invoice in
relation to such VAT to the Tenant.
(2) Without limiting sub-clause (1) above, each sum reserved or payable by the
Tenant under the terms of this Lease is exclusive of VAT (if any) and is
accordingly to be construed as a reference to that sum plus any VAT in
respect of it, and where any sum is reserved as rent, the VAT is also
reserved as rent.
(3) If VAT is chargeable on any supply made by the Landlord to the Tenant for
which a sum is not reserved or payable under the terms of this Lease, the
Tenant shall pay that VAT to the Landlord against issue of a VAT invoice
five Business Days before the Landlord has to pay the VAT to Customs.
(4) Where under the terms of this Lease the Tenant is obliged:
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(a) to make any payment to the Landlord or any other person (including,
without limitation, by way of service charge, indemnity or
reimbursement) by reference to any amount incurred or which will or
may be incurred by the Landlord or any other person; or
(b) otherwise to pay all or part of the consideration for any supply made
to the Landlord or any other person,
then without prejudice to sub-clauses (1) to (3) above, the Tenant shall
not be obliged to pay any amount in respect of VAT to the extent that it is
recoverable by the Landlord or any other person as appropriate.
(5) For the purposes of sub-clause (3) above, VAT is recoverable by a person,
if that person (or any company treated as a member of the same VAT Group as
that person) is entitled to credit for it as input tax under sections 25
and 26 VATA 1994. For the avoidance of doubt, VAT is not recoverable by a
person only because he could elect to waive exemption, but has not done so.
(6) Where for the purposes of this Lease it is necessary to calculate or
estimate the cost or value of anything, including any building, structure,
work, item, act or service, the cost or value shall be calculated or
estimated so as to include any VAT which will or may be incurred in
addition.
(7) This clause shall not affect the generality of clause 6(3) (Outgoings).
(8) Where the Tenant pays to the Landlord VAT in respect of any supply by the
Landlord to the Tenant, the Landlord shall issue the Tenant with a proper
VAT invoice in respect of that VAT.
(9) If the Landlord wishes to make an election to waive the exemption in
respect of the Property under paragraph 2 of Schedule 10, VATA 1994, the
Landlord shall notify the Tenant, no less than 20 Business Days before the
election is to take effect, of the election and the date on which it is
intended to take effect.
(10) If for any reason the election referred to in sub-clause (9) above is
validly revoked within three months after coming into effect, the Landlord
shall repay to the Tenant any VAT paid by the Tenant, five Business Days
after receipt by the Landlord from Customs of acknowledgement of the
revocation.
13. TRUSTEE LIABILITY PROVISION
(1) Lloyds Bank Plc has entered into this Lease in its capacity as trustee of
Xxxxxxxx Exempt Property Unit Trust ("SEPUT") and therefore notwithstanding
any other provision contained in this Lease neither Lloyds Bank Plc nor any
successor trustee of SEPUT shall be obliged to meet any liability or claim
hereunder save to the extent that the same can be met by it out of the
Trust Assets.
(2) For the purposes of this clause "TRUST ASSETS" means the assets for the
time being held upon the trusts of SEPUT.
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14. GENERAL
(1) INTEREST AND POWERS OF RECOVERY
If any Rent or other sum payable under this Lease is not paid on the day
falling 7 days after the date on which it is due it shall bear interest
from the date on which it is due until the date of payment at the Default
Interest Rate compounded quarterly. Every amount payable under this Lease
shall be reserved as rent and shall be recoverable as rent in arrear.
(2) DISPUTES
In relation to disputes:
(a) any statement in this Lease that any dispute shall be referred to
arbitration means that the dispute shall be determined by a single
arbitrator agreed by the Landlord and the Tenant and failing agreement
by a single arbitrator appointed by the president or his deputy for
the time being of the Royal Institution of Chartered Surveyors in
accordance with the Arbitration Acts 1950 to 1979 and 1996; and
(b) any dispute between the Tenant and any tenant or occupier of any other
property owned or leased by the Landlord about any right in connection
with the use of the Property and the other property or about any
boundary structure separating the Property from the other property
shall be determined by the Landlord acting reasonably.
(3) COMPENSATION
Subject to the provisions of section 38(2) of the Landlord and Xxxxxx Xxx
0000 neither the Tenant nor any person deriving title under the Tenant
shall be entitled on quitting the Property to any compensation under
section 37 of that Act.
(4) JOINT AND SEVERAL LIABILITY
Where the Tenant or any Guarantor is more than one person:
(a) those persons shall be jointly and severally responsible in respect of
every obligation undertaken by them under this Lease; and
(b) the Landlord may release or compromise the liability of any of those
persons under this Lease or grant any time or other indulgence without
affecting the liability of any other of them.
(5) WHOLE AGREEMENT
This Lease contains the whole agreement between the parties relating to the
transaction contemplated by this Lease and supersedes all previous
agreements between the parties relating to the transaction.
-34-
(6) REPRESENTATIONS
The Tenant acknowledges that in agreeing to enter into this Lease, the
Tenant has not relied on any representation, warranty, collateral contract
or other assurance. The Tenant waives all rights and remedies which, but
for this sub-clause, might otherwise be available to it in respect of any
such representation, warranty, collateral contract or other assurance, but
nothing in this sub-clause shall limit or exclude any liability for fraud.
(7) RIGHTS OF ENTRY
All rights of entry exercisable by the Landlord extend to include (without
limitation) its employees, agents, surveyors, contractors and licensees
with or without plant, equipment, appliances and materials.
(8) INTERPRETATION OF COVENANTS
Any covenant by the Tenant not to do or omit anything shall be construed as
though the covenant was in addition a covenant not to permit or suffer to
be done or omitted that thing.
(9) TENANT'S POSSESSIONS
If after the Tenant has vacated the Property at the End of the Term any of
the Tenant's possessions remain on the Property and the Tenant fails to
remove them within fifteen Business Days after being requested to do so by
the Landlord then:
(a) the Landlord may dispose of the possessions as agent for the Tenant;
(b) (if disposal is by sale) subject to paragraph (c) the Landlord shall
hold the proceeds of sale after deducting the costs and expenses of
removal, storage and sale incurred by it to the order of the Tenant;
(c) if the Tenant fails to claim the proceeds of sale within sixty
Business Days of the date of the sale, the Landlord may keep them;
(d) the Tenant indemnifies the Landlord against:
(i) any liability incurred by the Landlord to any third party whose
possessions have been sold by the Landlord in the mistaken
belief (which shall be presumed) that the possessions belonged
to the Tenant;
(ii) any damage caused to the Property by the possessions; and
(iii) all loss, damage, actions, proceedings, claims, demands, costs,
damages and expenses properly incurred or suffered by or brought
or awarded against the Landlord as a result of the presence of
the possessions on the Property after the Tenant has left it at
the End of Term.
-35-
(10) OTHER LAND
Nothing contained in or implied by this Lease shall:
(a) impose or be deemed to impose any restriction on the use of any land
or buildings not comprised in this Lease; or
(b) give the Tenant:
(i) the benefit of or the right to enforce or to have enforced or to
prevent the release or modification of any covenant, lease,
condition or stipulation entered into by any purchaser or tenant
from the Landlord in respect of any property not comprised in
this Lease; or
(ii) the right to prevent or restrict in any way the development of
any land not comprised in this Lease.
(11) SEVERANCE
To the extent that any provision of this Lease is rendered void by section
25 of the Landlord and Tenant (Covenants) Xxx 0000, that provision shall be
severed from the remainder of this Lease which shall remain in full force
and effect. In this sub-clause "provision" includes a clause, a sub-clause
or a schedule or any part of any of them.
(12) PERPETUITY PERIOD
The perpetuity period applicable to this Lease is 80 years beginning on the
date of this Lease and whenever in this Lease either the Landlord or the
Tenant is granted a future interest it must vest within that period and if
it has not it will be void for remoteness.
(13) NOTICES IN WRITING
Every notice, consent, approval or direction given under this Lease shall
be in writing.
(14) COUNTERPARTS
This lease may be executed in any number of counterparts, all of which,
taken together, shall constitute one and the same lease and any party may
enter into this lease by executing a counterpart.
15. BREAK CLAUSE
The Tenant may terminate this Lease on 29th September 2013 (the
"Termination Date") by giving to the Landlord not less than one year and
one day's prior written notice subject, to the Tenant:
(1) paying any arrears of rent payable pursuant to clause 4(1) and VAT
thereon on or before the Termination Date;
(2) giving up vacant possession of the Property by the Termination Date
-36-
In such case the Term shall cease on the Termination Date and no party
shall have any further rights or obligations under this Lease, but this
shall not affect any rights or remedies which may have accrued at the
Termination Date to any party against the other in respect of any prior
breach of any of the covenants and conditions contained in the lease.
16. NOTICES
(1) Any notice or other document served under this Lease may be served in any
way in which a notice required or authorised to be served under section 196
of the Law of Property Xxx 0000 may be served.
(2) During such period that the reversion to this Lease is vested in the
trustee of Xxxxxxxx Exempt Property Unit Trust no notice shall be deemed to
be validly served on the Landlord unless a copy of such notice is also
served on Xxxxxxxx Property Investment Management Limited at 00 Xxxxxxx
Xxxxxx, Xxxxxx XX0X 0XX or such other address as the Landlord shall notify
to the Tenant.
17. GOVERNING LAW AND JURISDICTION
(1) This Lease is governed by and shall be construed in accordance with English
law.
(2) The Tenant and the Guarantor submit to the jurisdiction of the English
courts for all purposes relating to this Lease and appoint Dibb Xxxxxx
Xxxxx (ref RSS) 000 Xxxxxx Xxxx Xxxxxx XX0X 0XX (or such other person in
the UK as the Guarantor and the Tenant may from time to time nominate by
written notice to the Landlord) as agent of each of them for service of
process and so that each appointment shall be irrevocable until such time
as the Guarantor and the Tenant have given written notice to the Landlord
of an alternative person in the UK to accept service of process on their
behalf.
I N W I T N E S S of which this Lease has been executed as a deed and has been
delivered on the date which first appears on page 1.
-37-
SCHEDULE 1
THE PROPERTY
Land on the north side of Xxxxxxxxxx Xxxx, Xxxx Xxxxx Xxxxxx XX00 which for the
purpose of identification only is shown edged red on the Plan with the building
on it having a Gross Internal Area (as defined in the Code) of 13,013 square
feet and known as Xxxx 0, Xxxxx 0 Xxxxxx Xxxx, Xxxxxxxxxx Road, Park Royal,
London, NW10. In this Schedule the Code means the fourth edition of the Code of
Measuring Practice published by the Royal Institution of Chartered Surveyors and
the Incorporated Society of Valuers and Auctioneers.
-38-
SCHEDULE 2
RIGHTS GRANTED TO THE TENANT
1. The right to use the Common Parts for all reasonable and appropriate
purposes connected with the use and enjoyment of the Property pursuant to
this Lease (subject to temporary interruption for repair and maintenance).
2. The right to park 17 motor cars in the Car Spaces.
3. The right to use the Conduits in the Estate which serve the Property
(subject to temporary interruption for repair, alteration or replacement).
4. The right of support and protection from the other parts of the Estate as
now enjoyed by the Property.
5. Subject to obtaining the prior written consent of the Landlord (such
consent not to be unreasonably withheld or delayed but which consent may be
made subject to reasonable requirements and conditions of the Landlord) the
right to lay within the Common Parts but along routes reasonably specified
by the Landlord additional Conduits to serve the Property.
6. Subject to the giving of reasonable prior notice to the Landlord and to
compliance with all reasonable requirements of the Landlord the right to
enter the Common Parts in order to maintain, repair, replace or alter any
Conduits now or hereafter exclusively serving the Property the Tenant
causing to others as little inconvenience and disturbance as practicable
and making good without delay all damage thereby occasioned.
-39-
SCHEDULE 3
RIGHTS RESERVED TO THE LANDLORD
1. The right to use the Conduits in the Property which serve other parts of
the Estate, the right to install new Conduits for the benefit of the
remainder of the Estate and the right to repair, maintain and renew
existing and new Conduits.
2. The right to enter the Property to exercise any of the rights referred to
in this Schedule or for the purposes set out in clause 6(6) PROVIDED THAT
such right shall only be exercised (except in case of emergency) by giving
reasonable prior notice to the Tenant and by complying with the Tenant's
reasonable security and confidentiality requirements.
3. All rights of light or air or other easements or rights over or belonging
to any other land or buildings (including other parts of the Estate).
4. The right to build, re-build or carry out any works on any other land or
buildings (including other parts of the Estate) even if it interferes with
the passage of light or air to the Property or causes nuisance, damage,
annoyance or inconvenience to the Tenant or occupier of the Property by
noise, dust, vibration or otherwise provided that it does not materially
affect the ability of the Tenant or the occupier to use the Property for
any purpose permitted by this Lease.
5. The support and protection from the Property enjoyed by other parts of the
Estate.
6. The right to build, alter and install and afterwards to maintain buildings,
structures and fixtures on, into or projecting over or under or taking
support from the Property (but those buildings, structures and fixtures
shall not become part of the Property).
-40-
SCHEDULE 4
MATTERS AFFECTING THE FREEHOLD
All matters registered or pending registration as at the date hereof in the
Property and Charges Registers of Title Number AGL54738 maintained by HM Land
Registry (with the exception of Financial charges, if any) and the Deed dated
7th August 1998 made between the Landlord and Railtrack insofar as such matters
affect the Property still subsist and are capable of enforcement
-41-
SCHEDULE 5
GUARANTEE PROVISIONS
1. The Guarantor guarantees to the Landlord the due and punctual payment and
performance by the Tenant of all the tenant's obligations and liabilities
under this Lease and shall indemnify the Landlord against all losses,
damages, costs and expenses arising or incurred by the Landlord as a result
of the non-payment or non-performance of those obligations or liabilities.
2. The obligations of the Guarantor under this Lease:
(a) constitute a direct, primary and unconditional liability to pay on
demand to the Landlord any sum which the Tenant is liable to pay under
this Lease and to perform on demand by the Landlord any obligation of
the Tenant under this Lease without the need for any recourse on the
part of the Landlord against the Tenant;
(b) will not be affected by:
(i) any time or indulgence granted to the Tenant by the Landlord;
(ii) any legal limitation, disability or other circumstances
relating to the Tenant or any irregularity, unenforceability or
invalidity of any obligations of the Tenant under this Lease;
(iii) any licence or consent granted to the Tenant or any variation
in the terms of this Lease save as provided in section 18 of
the Landlord and Tenant (Covenants) Xxx 0000;
(iv) the release of one or more of the parties defined as the
Guarantor (if more than one); or
(v) any other act, omission, matter, event or thing whereby (but
for this provision) the Guarantor would be exonerated in whole
or in part from the guarantee other than a release by deed
given by the Landlord.
3. So long as this guarantee remains in force the Guarantor shall not:
(a) in the event of any bankruptcy, liquidation, rehabilitation,
moratorium or other insolvency proceedings relating to the Tenant,
claim or prove as creditor in competition with the Landlord; or
(b) be entitled to claim or participate in any security held by the
Landlord in respect of the obligations of the Tenant under this Lease;
or
(c) exercise any right of set-off against the Tenant.
4. If the Landlord brings proceedings against the Tenant, the Guarantor shall
be bound by any findings of fact, interim or final award or interlocutory
or final judgment made by an arbitrator or the court in those proceedings
in so far as the same relate to the subject matter of this Lease PROVIDED
THAT the Landlord shall have served a copy of the writ summons
-42-
petition or similar process which initiated such proceedings on the
Guarantor before the expiry of 7 days after such proceedings were initiated
5. If:
(a) the Tenant (being a company) enters into liquidation and the
liquidator disclaims this Lease; or
(b) the Tenant (being a company) is dissolved and the Crown disclaims this
Lease; or
(c) the Tenant (being an individual) becomes bankrupt and the trustee in
bankruptcy disclaims this Lease; or
(d) this Lease is forfeited,
then within six months after the disclaimer or forfeiture the Landlord may
require the Guarantor by notice to accept a lease of the Property for a
term equivalent to the residue which would have remained of the Term if
there had been no disclaimer or forfeiture at the same rents and subject to
the same covenants and conditions (including those as to the review of
rent) as are reserved by and contained in this Lease (with the exception of
this Schedule).
6. The new lease and the rights and liabilities under it shall take effect as
from the date of the disclaimer or forfeiture and the Guarantor shall be
liable for all payments due under the new lease as from the date of
disclaimer or forfeiture as if the new lease had been granted on the date
of disclaimer or forfeiture.
7. The Guarantor or his personal representatives shall pay the Landlord's
costs of and accept the new lease and shall execute and deliver to the
Landlord a counterpart of it.
8. If the Landlord does not require the Guarantor to take a Lease of the
Property, the Guarantor shall pay to the Landlord on demand a sum equal to
the rent that would have been payable under this Lease but for the
disclaimer or forfeiture in respect of the period from the date of the
disclaimer or forfeiture until the date which is six months after the date
of the disclaimer or forfeiture or the date on which the Property has been
re-let by the Landlord, whichever first occurs.
9. If any VAT is payable by the Tenant to the Landlord under the terms of the
Lease, the Guarantor's obligation shall extend to that VAT. If the
Guarantor makes any payment in respect of VAT, the Landlord's obligation to
issue a VAT invoice to the Tenant under the Lease in respect of that VAT
shall not be affected, and the Landlord shall not be under any obligation
to issue a VAT invoice to the Guarantor in respect of that VAT.
-43-
SCHEDULE 6
AUTHORISED GUARANTEE PROVISIONS
1. The Guarantor guarantees to the Landlord the performance by the Assignee
throughout the Guarantee Period of each of the covenants falling to be
complied with by the tenant under this Lease and shall indemnify the
Landlord against all losses, damages, costs and expenses arising or
incurred by the Landlord as a result of such non-performance.
2. The obligations of the Guarantor under this guarantee will not be affected
by:
(a) any time or indulgence granted to the Assignee by the Landlord;
(b) any legal limitation, disability or other circumstances relating to
the Assignee or any irregularity, unenforceability or invalidity of
any obligations of the Assignee under this Lease;
(c) any licence or consent granted to the Assignee or any variation in the
terms of this Lease save as provided in section 18 of the Act;
(d) the release of one or more of the parties defined as the Guarantor (if
more than one); or
(e) any other act, omission, matter, event or thing whereby (but for this
provision) the Guarantor would be exonerated in whole or in part from
the guarantee other than a release under seal given by the Landlord.
3. The Guarantor is liable to the Landlord under this guarantee as sole or
principal debtor and the obligations of the Guarantor under this guarantee
constitute a direct, primary and unconditional liability to pay on demand
to the Landlord any sum which the Assignee is liable to pay under this
Lease and to perform on demand by the Landlord any obligation of the
Assignee under this Lease without the need for any recourse on the part of
the Landlord against the Assignee. If the Landlord brings proceedings
against the Assignee, the Guarantor shall be bound by any findings of fact,
interim or final award or interlocutory or final judgment made by an
arbitrator or the court in those proceedings.
4. If during the Guarantee Period the Assignee (being a company) enters into
liquidation and the liquidator disclaims this Lease, or the Assignee (being
a company) is dissolved and the Crown disclaims this Lease, or the Assignee
(being an individual) becomes bankrupt and the trustee in bankruptcy
disclaims this Lease, then within six months after the disclaimer the
Landlord may require the Guarantor by notice to enter into a new lease of
the Property for a term equivalent to the residue which would have remained
of the term granted by this Lease if there had been no disclaimer at the
same rents and subject to the same covenants and conditions (including as
to the review of rent) as are reserved by and contained in this Lease.
5. The new lease and the rights and liabilities under it shall take effect as
from the date of the disclaimer and the Guarantor shall be liable for all
payments due under the new lease as from the date of disclaimer as if the
new lease had been granted on the date of disclaimer.
-44-
6. The Guarantor shall pay the Landlord's costs of and accept the new lease
and shall execute and deliver to the Landlord a counterpart of it.
7. If the Landlord does not require the Guarantor to take a new lease of the
Property the Guarantor shall pay to the Landlord on demand a sum equal to
the rents that would have been payable under this Lease but for the
disclaimer in respect of the period from the date of the disclaimer until
the date which is six months after the date of the disclaimer or the date
on which the Property has been re-let by the Landlord, whichever first
occurs.
8. During the Guarantee Period the Guarantor shall not;
(a) in the event of any bankruptcy, liquidation, rehabilitation,
moratorium or other insolvency proceedings relating to the Assignee
claim or prove as creditor in competition with the Landlord; or
(b) be entitled to claim or participate in any security held by the
Landlord in respect of the Assignee's obligations to the Landlord
under this Lease; or
(c) exercise any right of set off against the Assignee.
9. To the extent that any provision of this guarantee does not conform with
section 16 of the Act, that provision shall be severed from the remainder
of this guarantee and this guarantee shall have effect as if it excluded
that provision.
10 If any VAT is payable by the Tenant to the Landlord under the terms of the
Lease, the Guarantor's obligation shall extend to that VAT. If the
Guarantor makes any payment in respect of VAT, the Landlord's obligation to
issue a VAT invoice to the Assignee under the Lease in respect of that VAT
shall not be affected, and the Landlord shall not be under any obligation
to issue a VAT invoice to the Guarantor in respect of that VAT.
11. In this Schedule:
"ACT" means the Landlord and Tenant (Covenants) Xxx 0000;
"ASSIGNEE" means [INSERT NAME OF ASSIGNEE IN RESPECT OF WHOM THE TENANT IS
ENTERING INTO THE AUTHORISED GUARANTEE AGREEMENT];
"GUARANTEE PERIOD" means the period during which the Assignee is bound by
the covenants by the Tenant in this Lease; and
"GUARANTOR" means the outgoing Tenant.
-45-
SCHEDULE 7
SERVICE CHARGE COSTS
1. The cost of inspecting, repairing, maintaining, cleaning, decorating and
lighting the whole of the Retained Areas (including any party walls
separating Lettable Areas) including any retaining walls situate on the
Estate and the boundary walls and fences of the Estate and all Conduits
serving the Estate (excluding those serving solely any of the Lettable
Areas).
2. The cost of providing the services referred to in clause 7(3).
3. The cost of the maintenance (including planting) of all open and landscaped
areas within the Retained Area.
4. The cost of the erection and maintenance of directional or other signs or
notice boards relating to the Estate or it occupiers.
5. The cost of the establishment and enforcement of regulations for the
benefit or better ordering of the Estate or any part of the Estate.
6. The cost of providing caretaking and security services to the Estate.
7. The cost of marking out the roads, footpaths, service areas, loading bays
and all other relevant parts of the Retained Areas.
8. The cost of refuse disposal.
9. The cost of all fuel for the functions referred to in the other paragraphs
of this Schedule.
10. All Outgoings (as defined in clause 6(3)) assessed, charged or imposed on
the Estate as a whole and the Retained Areas.
11. Any amount which the Landlord may be called upon to pay as a contribution
towards the expense of making, repairing, maintaining, cleaning or lighting
anything used by the Estate and any nearby property.
12. The cost of complying with, making representations against or contesting
the incidence of any enactment relating or alleged to relate to the Estate.
13. All professional fees reasonably and properly incurred by the Landlord in
connection with the administration and the general management of the Estate
including (without limitation):
(a) the Landlord's agent's fees in connection with management of the
Estate (excluding rent collection); and
(b) fees payable in connection with the service charge account.
14. The reasonable fees of the Landlord or any company associated with the
Landlord where the Landlord or that company, rather than a third party,
undertakes any obligations under this Lease or other function referred to
in this Schedule.
-46-
15. The interest and fees on borrowing any money to finance any of the
functions referred to in this Schedule.
16. Any other sum properly incurred by the Landlord in connection with the
management of the Estate.
-47-
SIGNED as a deed by )
Xxxxxxx Xxxxx Xxxxxx Trust Manager)
as attorney for LLOYDS BANK PLC )
in the presence of: )
Witness's /s/ X.X. Xxxxxxxxx
Signature: ..........................
Name : X.X. Xxxxxxxxx.................
Address : Lloyds Bank
Securities Service
Xxx'x Xxxx Xxxxx
0, Xxx'x Xxxx
Xxxxxx XX0 0XX
-48-
LLOYDS BANK SECURITIES SERVICES
-------------------------------
POWER OF ATTORNEY FOR EXECUTION OF DOCUMENTS
--------------------------------------------
By this power of attorney given on the eigth day of July 1998 Lloyds Bank Plc
whose registered office is at 00 Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX ("the bank")
hereby appoints:
Xxxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxxx
Xxx Xxxxxx Bransgrove
Xxxx Xxxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxx Xxxx Xxxxxx
Xxxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxxxx Xxxxxxx Xxxxx
Xxxxxxxxxxx Xxxx Xxxxxxxx
Xxxxx Xxxxx
Xxxxxxx Xxxxxxx Xxxxxxxx
Xxxxxx Xxxx Kings
Xxxxx Xxxx Kitcat
Xxxx Xxxxxx Xxxx
Xxxxxx Xxxx Xxxxx
Xxxxxx Xxxxxxx XxXxxx
Xxxxxxxxxx Xxx Xxxxxx
Xxxx Xxxxxxxxxxx Xxxxxxxxxx
Xxxxx Xxxxxxx Xxxxxx
Xxxxxx Xxxxxxxxx Xxxxxx
Xxxxxx Xxxxx Xxxxx
Xxxxxxx Xxxxxx Xxxxxx
Xxxxxxx Xxxxxx Xxxxxx
Xxxx Xxxxxx Xxxxxx
Xxxxxxx Xxxxxx Xxxxx
Xxxxx Xxxxx Xxxxxx
Xxxxx Xxxxxx Xxxxxxx Xxxxx
Xxxxxx Xxxxxx Xxxxxxx
Xxxxxx Xxxxxx
Xxxxxx Xxxxxxx Xxxx
Xxxx Xxxxxxx Xxxxxxxx
Xxxx Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx Xxxxxxxxxx
Xxxxxxx Xxxxx Xxxxxx
Xxxxx Xxxxxxx Welpa
all of Lloyds Bank Securities Services, jointly and severally, to be attorneys
of the bank in its capacity as trustee, personal representative, nominee,
mortgagee or chargee, only for the purpose of carrying into effect matters
determined upon by the bank in any of these capacities, to sign, seal, execute
and deliver any deed or document considered necessary or desirable:
(1) to convey, transfer, assign, lease, let, underlet, surrender, sell or grant
options, rights of preemption or any other rights over any real or personal
property;
(3) to postpone, defer, subordinate or otherwise regulate the priority or
ranking of any mortgage, charge, debenture or other security;
(4) to vary, alter, amend, modify, revise, replace or substitute any deed or
document to which the bank is a party;
(5) to transfer any stocks, shares or other securities held by or registered in
the name or under the control of the bank and to authorise any person to
exercise any rights attached in any such stocks, shares or other
securities;
(6) to give such indemnities as may be necessary in favour of any person or
body of persons including without limitation indemnities in respect of
lost, destroyed or mislaid certificates, allotment letters or other
documents relating to stocks, shares or other securities;
(7) to grant easements or any other rights over or impose covenants or any
other restrictions on or consent to the letting, underletting, assignment,
surrender or alteration of any freehold or leasehold property;
(8) to assent to the vesting in any person of any real or personal property;
(9) to declare, constitute, regulate, record, vary, alter, amend or modify any
trust, settlement or family arrangement and to appoint or retire any
trustee, including the bank, of any trust, settlement or family
arrangement;
(10) to purchase, lease, acquire or otherwise take into the name of the bank or
under its control any real or personal property whatsoever or wheresoever
or any options, rights of preemption or any other rights over real or
personal property; and
(11) to manage, develop, refurbish, repair, reinstate or otherwise carry out any
works upon any real property whatsoever or wheresoever.
and generally for all or any of the purposes aforesaid to act as attorneys of
the bank. The common seal of the bank was affixed to this deed the date and
year first above written. Given under the common seal of Lloyds Bank Plc as a
deed.
Authorised signatory
Authorised counter signatory
Schedule referred to in Clause 6(27)
1. Permanent and temporary generator systems including enclosures and fuel
tanks with the associated electronic and manual switch gear.
2. Mechanical Systems ie. Air Conditioning, and condenser systems, air
handlers and electrical dampers.
3. Raised Flooring, Racking, Cage materials, cabinets and patch panels,
Mezzanine flooring.
4. UPS Battery Systems including electrical switch gear.
5. Any customer satellite dishes installed on roof or parking lot areas.
6. FM200 fire suppression canisters, piping and nozzles.
7. VESDA or smoke sensor stations in ceiling or floor area.
8. Inside or outside security cameras, access card reader stations, VCR,
multiplexer, monitors and computers.
9. Parition and conference room furniture systems and freestanding,
cabinets, storage units.
10. Telephone and voice mail system with desk stations and receptionist,
computers, servers, printers, phone sets.
11. Fibre Muxes or other Telco equipment installed in MPOE rooms.
12. Emergency distribution board and telephone backboard with connectors.
13. Maintenance bypass electronic and manual switch gear.
14. Transformers and Power Distributions Units installed on premises.
15. Kitchen appliances like microwaves, refrigerators and vending machines.
16. Console monitors, screen projection and screens in command centre.
17. Bulletproof/resistant glass.
18. Satellite dishes or other communications equipment installed on roof or
in parking lot.
DATED 24th December 1998
-----------------------------
LLOYDS BANK PLC (AS TRUSTEE FOR XXXXXXXX EXEMPT PROPERTY UNIT TRUST) (1)
- and -
EXODUS INTERNET LIMITED (2)
---------------------------------
RENT SECURITY DEPOSIT DEED
RELATING TO UNIT 5 PHASE 1 MATRIX PARK
XXXXXXXXXX XXXX XXXX XXXXX XXXXXX XX00
---------------------------------
WILDE SAPTE
0 Xxxxx Xxxxx
Xxxxxx XX0X 0XX
Tel. 0000 000 0000
Fax. 0000 000 0000
Ref: TLF/SJG/143834
PY0407348.02
TABLE OF CONTENTS
CLAUSE HEADING PAGE NO.
1. Definitions and Interpretation............................ 1
2. The Deposit............................................... 2
3. The Deposit Account....................................... 3
4. Withdrawals from and Maintenance of the Deposit Account... 3
5. Transfer of the Landlord's Interest....................... 4
6. Release of Deposit........................................ 4
7. Interest.................................................. 5
8. Miscellaneous............................................. 5
THIS DEED is made the 24th day of December 1998
BETWEEN
(1) LLOYDS BANK PLC (as Trustee for XXXXXXXX EXEMPT PROPERTY UNIT TRUST)
of 00 Xxxxxxx Xxxxxx Xxxxxx XX0X 0XX ("THE LANDLORD")
(2) EXODUS INTERNET LIMITED whose registered office is at Fountain
Precinct Xxxx Xxxxx Xxxxxxxxx Xxxxx Xxxxxxxxx X0 0XX (Company Number
3591136) ("THE TENANT")
WHEREAS
(A) This Deed is supplemental to the Lease
(B) The Landlord is entitled to the reversion immediately expectant upon
the determination of the term of the Lease and the Tenant is entitled
to the residue of the term of the Lease
WITNESSES as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Deed unless the context otherwise requires or except as
otherwise expressly provided
the "BANK" means Lloyds Bank PLC or such other London Clearing Bank or
registered building society of the Landlord's choice at which the
Deposit Account is maintained from time to time
the "DEPOSIT" means the moneys referred to in Clause 2 below together
with any interest credited to the Deposit Account and any moneys
received from the Tenant and added to the Deposit Account
the "DEPOSIT ACCOUNT" means such interest bearing deposit account
opened at the Bank in the Landlord's name and into which the Deposit
is paid by the Landlord
the "LANDLORD" (where the context so admits) shall include its
successors in title and personal representatives
the "LEASE" means the lease dated today made between the Landlord and
Tenant of the Property for a term of 25 years from [29th September]
1998 and includes all documents made supplemental or pursuant thereto
"NET ASSET VALUE" means tangible net asset value excluding goodwill
and intellectual property determined in accordance with UK Accounting
Principles.
"NET PROFITS" means net trading profit (excluding extraordinary and
exceptional items) or net investment income (after deduction of
management expenses) in each case after tax and determined in
accordance with UK Accounting Principles
the "PROPERTY" means Xxxx 0 Xxxxx 0 Xxxxxx Xxxx Xxxxxxxxxx Xxxx Park
Royal London NW10 being the property demised by the Lease
"RENTAL LIABILITY" means a sum equal to the rent from time to time
payable under the Lease or (if higher) the Landlord's reasonable
estimate of the anticipated rent payable under the Lease following any
rent review outstanding during the Years of Account
"UK ACCOUNTING PRINCIPLES" means UK accounting principles generally
accepted from time to time and consistently applied
"YEARS OF ACCOUNT" means three consecutive years of account
1.2 INTERPRETATION
In this Deed (unless otherwise provided)
1.2.1 clause headings are inserted for ease of reference only and
shall not affect construction
1.2.2 reference to clauses and sub-clauses are to the clauses and
sub-clauses of and to this Deed and
1.2.3 words denoting one gender include all genders, words
denoting individuals or persons include corporations and
trusts and vice versa, words denoting the singular include
the plural and vice versa, and words denoting the whole
include a reference to any part thereof
2. THE DEPOSIT
2.1 The Landlord hereby acknowledges receipt of a bank draft issued by a
bank which is a member of CHAPS Limited or of the receipt of monies by
telegraphic transfer to its solicitors account in the sum of
(Pounds)121,148 (ONE HUNDRED AND TWENTY ONE THOUSAND ONE HUNDRED AND
FORTY EIGHT POUNDS) plus Value Added Tax such payment being made as
security for the due performance and observance of the covenants
agreements and conditions on the part of the Tenant under the Lease
and all losses costs and expenses which the Landlord may incur by
reason of or consequent upon any breach of those covenants agreements
and conditions and (without prejudice to the generality of the
foregoing) as more particularly provided in Clause 4 below and the
Landlord shall be entitled to set off the Deposit against any sums
owed to it under the Lease
2.2 Following the ascertainment of a revised rent expressed as an annual
amount (the "Revised Rent") in accordance with clause 4 of the Lease
the Tenant shall pay to the Landlord by way of a bank draft issued by
a bank which is a member of CHAPS Limited within seven days of such
ascertainment an additional sum calculated in accordance with the
following
formula (the "Additional Sum") plus VAT on the Additional Sum:
(Pounds)X = (Pounds)A - B
Where:
X = the additional sum to be paid to the Landlord in
accordance with this Clause
A = the amount of the Revised Rent
B = the yearly rent payable under clause 4 of the Lease
immediately prior to the ascertainment of the Revised
Rent or the yearly rent which would be payable
immediately prior to such ascertainment but for any
abatement or suspension of rent under the Lease
2.3 Within five Working Days of receipt of the Additional Sum by the
Landlord the Landlord shall pay the Additional Sum into the Deposit
Account and the Additional Sum shall thereafter form part of the
Deposit against which the Landlord shall be entitled to set off any
sums owed to it under the Lease in accordance with this Deed
3. THE DEPOSIT ACCOUNT
3.1 The Landlord shall forthwith place the Deposit in the Deposit Account
until withdrawal or repayment of the Deposit in accordance with the
terms of Clause 6 below
3.2 The Landlord shall also credit to the Deposit Account any sums
subsequently paid to it by the Tenant under Clause 4.2
4. WITHDRAWALS FROM AND MAINTENANCE OF THE DEPOSIT ACCOUNT
4.1 The Landlord and Tenant hereby agree that without prejudice to any
other right or remedy which the Landlord may have under this Deed or
the Lease the Landlord shall be entitled on 5 days prior written
notice to the Tenant to withdraw from the Deposit from time to time
the sums specified below which shall thereupon become the absolute
property of the Landlord
4.1.1 any liquidated and ascertained sum (including interest)
(whether rent or otherwise and whether or not any formal
demand has been made) which is due to the Landlord from the
Tenant in respect of the Lease and which is unpaid for a
period of fourteen days after the due date
4.1.2 any liquidated and ascertained loss, expense, cost, claim,
liability or damage suffered or incurred by the Landlord as
the result of any breach of any covenant agreement or
condition on the part of the Tenant under the Lease
4.2 The Landlord shall notify the Tenant in writing within fourteen days
after any withdrawal of any sum from the Deposit and the reason for
such withdrawal and (if the Lease is still subsisting) the Tenant
hereby covenants forthwith to pay the Landlord for payment into
the Deposit Account a bank draft issued by a bank which is a member of
CHAPS Limited for such further sum as shall restore the Deposit to its
balance prior to such withdrawal
4.3 It is further agreed that if the Lease shall be forfeited or
disclaimed by any liquidator or trustee in bankruptcy of the Tenant or
otherwise determined otherwise than by agreement (which agreement
shall include the valid exercise of an option to determine the Lease)
the Deposit shall continue to be available to the Landlord in the
manner set out above until it shall be exhausted or until there shall
be no further liability of the Tenant to the Landlord whereupon any
remaining balance of the Deposit shall be released to the Tenant as
soon as reasonably practicable
4.4 The Landlord should as soon as reasonably practicable pay into the
Deposit Account the full amount of any sum (together with Interest (as
defined in the Lease)) shown to have been incorrectly withdrawn by the
Landlord or if earlier following the date on which the Landlord first
becomes aware of an error having been made
5. TRANSFER OF THE LANDLORD'S INTEREST
If the Landlord transfers the reversion immediately expectant upon the
determination of the Lease before the Deposit has become repayable to
the Tenant pursuant to Clause 6 either
5.1 5.1.1 the Tenant shall if required by (and at the cost of) the
Landlord such costs if incurred by the Tenant to be
reasonable, enter into a rent deposit deed with the
transferee of such reversion in identical terms to this Deed
(but with the name of the transferee being substituted for
the name of the Landlord) and
5.1.2 the Landlord shall procure that any transferee enters into a
rent deposit deed with the Tenant in identical terms to this
Deed (but with the transferee's name substituted for the
name of the Landlord) and on completion of such deed
transfer the balance of the Deposit to such account as shall
have been opened by the transferee (after the deduction of
any sum withdrawn pursuant to Clause 4 above) and upon
serving notice of such transfer on the Tenant shall
forthwith be released automatically from any further
liability under the terms of this Deed
or
5.2 The Landlord may instead release the balance of the Deposit to the
Tenant (after the deduction of any sum withdrawn pursuant to Clause 4
above)
6. RELEASE OF DEPOSIT
6.1 The Deposit or such part thereof as shall be remaining shall be
released by the Landlord and repaid to the Tenant on the earlier of:
6.1.1 one calendar month after the expiration or sooner
determination (by agreement) of the term granted by the
Lease or its determination in consequence of the exercise by
the Tenant of any option to determine conferred on it by the
Lease
and in either case vacant possession of the premises demised
by the Lease being given to the Landlord; or
6.1.2 the Tenant demonstrating that it has made Net Profits for
each of the immediately preceding Years of Account at least
equal to three times the Rental Liability and that in each
of those Years of Account it has a Net Asset Value of not
less than five times the Rental Liability
and provided always the Tenant has paid to the Landlord all sums set
out as in Clause 4 above (failing which the Landlord may deduct such
sums as are properly due from the Deposit) the Landlord shall then
release the balance to the Tenant within 5 working days of receipt of a
written request from the Tenant for such release
6.2 The Tenant may demonstrate that it satisfies the requirements of
Clause 6.1.2 by means of audited accounts or by means of such other
evidence as shall be reasonably acceptable to the Landlord
7. INTEREST
7.1 The Landlord shall use all reasonable endeavours to select a Deposit
Account which yields the best rate of interest reasonably obtainable
from the Bank having regard to the provisions of this Deed
7.2 The interest accruing on the Deposit shall belong to the Tenant but in
the first instance shall be used in or towards payment of any sums
payable by the Tenant pursuant to clauses 2.3 and 4.2 of this Deed and
subject thereto such interest (less tax properly deducted) shall be
paid to the Tenant on an annual basis
7.3 All tax payable in respect of interest accruing on the Deposit
shall be paid by the Tenant from its own money
8. MISCELLANEOUS
It is hereby agreed and declared that:
8.1 The existence of the Deposit shall not prejudice the
Landlord's ability to proceed against the Tenant for any
breach of any covenant agreement or condition on the part of
the Tenant under the Lease or entitle the Tenant to withhold
any moneys or fail to perform any covenant agreement or
condition under the Lease and the Deposit shall not be
regarded as an advance payment of rent
8.2 The proviso for re-entry contained in the Lease shall be
exercisable as well upon any breach of any covenant or
obligation on the part of the Tenant contained in this Deed
as on the happening of any of the events mentioned in the
Lease
8.3 The rights of the Landlord under this Deed do not limit its
rights under the Lease
8.4 The provisions as to notices contained in the Lease shall apply
to notices served pursuant to this Deed
8.5 The Landlord may at any time terminate this Deed by paying the
Deposit to the Tenant and on doing so will automatically be
released from all liabilities and obligations under this Deed
except in relation to rights of the Tenant that have arisen
before the termination
8.6 Any termination under clause 8.5 and any payment of the Deposit
shall not affect the Landlord's rights under the Lease
8.7 The Tenant shall not assign to any person whatsoever the benefit
of any of the Tenant's rights under this Deed, nor assign,
transfer or otherwise dispose of all or any part of its rights,
title or interest in or to the Deposit, nor create any further
encumbrance or other security interest over the whole or any
part of the Deposit
8.8 If any provision of this Deed is or becomes void or
unenforceable in whole or in part that provision to that extent
is to be deemed not to form part of this Deed but the validity
and enforceability of the remainder of that provision or of the
Deed are not to be affected
8.9 This Agreement shall be governed by and construed in accordance
with English law and the parties irrevocably agree that the
courts of England are to have exclusive jurisdiction to settle
any disputes which may arise out of or in connection with this
Agreement
AS WITNESS this Deed (which shall be delivered when dated) has been executed by
the parties or their duly authorised representatives on the date first stated
above
SIGNED and DELIVERED as a DEED )
by [Xxxxxxx Xxxxx Xxxxxx] Trust )
Manager as attorney for LLOYDS )
BANK PLC in the presence of: )
/s/ X.X. Xxxxxxxxx
X.X. Xxxxxxxxx
Lloyd's Bank
Securities Services
Xxx'x Xxxx Xxxxx
0, Xxx'x Xxxx
Xxxxxx XX0 0XX
EXECUTED and DELIVERED as a DEED by )
EXODUS INTERNET LIMITED acting by two )
Directors or a Director and its )
Company Secretary )
Director
Director/Company Secretary
LLOYDS BANK SECURITIES SERVICES
-------------------------------
POWER OF ATTORNEY FOR EXECUTION OF DOCUMENTS
--------------------------------------------
By this power of attorney given on the eigth day of July 1998 Lloyds Bank Plc
whose registered office is at 00 Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX ("the bank")
hereby appoints:
Xxxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxxx
Xxx Xxxxxx Bransgrove
Xxxx Xxxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxx Xxxx Xxxxxx
Xxxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxxxx Xxxxxxx Xxxxx
Xxxxxxxxxxx Xxxx Xxxxxxxx
Xxxxx Xxxxx
Xxxxxxx Xxxxxxx Xxxxxxxx
Xxxxxx Xxxx Kings
Xxxxx Xxxx Kitcat
Xxxx Xxxxxx Xxxx
Xxxxxx Xxxx Xxxxx
Xxxxxx Xxxxxxx XxXxxx
Xxxxxxxxxx Xxx Xxxxxx
Xxxx Xxxxxxxxxxx Xxxxxxxxxx
Xxxxx Xxxxxxx Xxxxxx
Xxxxxx Xxxxxxxxx Xxxxxx
Xxxxxx Xxxxx Xxxxx
Xxxxxxx Xxxxxx Xxxxxx
Xxxxxxx Xxxxxx Xxxxxx
Xxxx Xxxxxx Xxxxxx
Xxxxxxx Xxxxxx Xxxxx
Xxxxx Xxxxx Xxxxxx
Xxxxx Xxxxxx Xxxxxxx Xxxxx
Xxxxxx Xxxxxx Xxxxxxx
Xxxxxx Xxxxxx
Xxxxxx Xxxxxxx Xxxx
Xxxx Xxxxxxx Xxxxxxxx
Xxxx Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx Xxxxxxxxxx
Xxxxxxx Xxxxx Xxxxxx
Xxxxx Xxxxxxx Welpa
all of Lloyds Bank Securities Services, jointly and severally, to be attorneys
of the bank in its capacity as trustee, personal representative, nominee,
mortgagee or chargee, only for the purpose of carrying into effect matters
determined upon by the bank in any of these capacities, to sign, seal, execute
and deliver any deed or document considered necessary or desirable:
(1) to convey, transfer, assign, lease, let, underlet, surrender, sell or grant
options, rights of preemption or any other rights over any real or personal
property;
(3) to postpone, defer, subordinate or otherwise regulate the priority or
ranking of any mortgage, charge, debenture or other security;
(4) to vary, alter, amend, modify, revise, replace or substitute any deed or
document to which the bank is a party;
(5) to transfer any stocks, shares or other securities held by or registered in
the name or under the control of the bank and to authorise any person to
exercise any rights attached in any such stocks, shares or other
securities;
(6) to give such indemnities as may be necessary in favour of any person or
body of persons including without limitation indemnities in respect of
lost, destroyed or mislaid certificates, allotment letters or other
documents relating to stocks, shares or other securities;
(7) to grant easements or any other rights over or impose covenants or any
other restrictions on or consent to the letting, underletting, assignment,
surrender or alteration of any freehold or leasehold property;
(8) to assent to the vesting in any person of any real or personal property;
(9) to declare, constitute, regulate, record, vary, alter, amend or modify any
trust, settlement or family arrangement and to appoint or retire any
trustee, including the bank, of any trust, settlement or family
arrangement;
(10) to purchase, lease, acquire or otherwise take into the name of the bank or
under its control any real or personal property whatsoever or wheresoever
or any options, rights of preemption or any other rights over real or
personal property; and
(11) to manage, develop, refurbish, repair, reinstate or otherwise carry out any
works upon any real property whatsoever or wheresoever.
and generally for all or any of the purposes aforesaid to act as attorneys of
the bank. The common seal of the bank was affixed to this deed the date and
year first above written. Given under the common seal of Lloyds Bank Plc as a
deed.
Authorised signatory
Authorised counter signatory
DATED 24th December 1998
---------------------------------
LLOYDS BANK PLC (AS TRUSTEE FOR XXXXXXXX EXEMPT PROPERTY UNIT TRUST) (1)
- and -
EXODUS INTERNET LIMITED (2)
---------------------------------------------
RENT SECURITY DEPOSIT DEED
RELATING TO UNIT 6 PHASE 1 MATRIX PARK
XXXXXXXXXX XXXX XXXX XXXXX XXXXXX XX00
--------------------------------------------
WILDE SAPTE
0 Xxxxx Xxxxx
Xxxxxx XX0X 0XX
Tel. 0000 000 0000
Fax. 0000 000 0000
Ref: TLF/SJG/143834
PY0407348.02
TABLE OF CONTENTS
CLAUSE HEADING PAGE NO.
1. Definitions and Interpretation............................ 1
2. The Deposit............................................... 2
3. The Deposit Account....................................... 3
4. Withdrawals from and Maintenance of the Deposit Account... 3
5. Transfer of the Landlord's Interest....................... 4
6. Release of Deposit........................................ 4
7. Interest.................................................. 5
8. Miscellaneous............................................. 5
THIS DEED is made the 24th day of December 1998
BETWEEN
(1) LLOYDS BANK PLC (as Trustee for XXXXXXXX EXEMPT PROPERTY UNIT TRUST) of
00 Xxxxxxx Xxxxxx Xxxxxx XX0X 0XX ("THE LANDLORD")
(2) EXODUS INTERNET LIMITED whose registered office is at Fountain Precinct
Xxxx Xxxxx Xxxxxxxxx Xxxxx Xxxxxxxxx X0 0XX (Company Number 3591136)
("THE TENANT")
WHEREAS
(A) This Deed is supplemental to the Lease
(B) The Landlord is entitled to the reversion immediately expectant upon the
determination of the term of the Lease and the Tenant is entitled to the
residue of the term of the Lease
WITNESSES as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Deed unless the context otherwise requires or except as otherwise
expressly provided
the "BANK" means Lloyds Bank PLC or such other London Clearing Bank or
registered building society of the Landlord's choice at which the Deposit
Account is maintained from time to time
the "DEPOSIT" means the moneys referred to in Clause 2 below together
with any interest credited to the Deposit Account and any moneys received
from the Tenant and added to the Deposit Account
the "DEPOSIT ACCOUNT" means such interest bearing deposit account opened
at the Bank in the Landlord's name and into which the Deposit is paid by
the Landlord
the "LANDLORD" (where the context so admits) shall include its successors
in title and personal representatives
the "LEASE" means the lease dated today made between the Landlord and
Tenant of the Property for a term of 25 years from [29th September] 1998
and includes all documents made supplemental or pursuant thereto
"NET ASSET VALUE" means tangible net asset value excluding goodwill and
intellectual property determined in accordance with UK Accounting
Principles.
"NET PROFITS" means net trading profit (excluding extraordinary and
exceptional items) or net investment income (after deduction of management
expenses) in each case after tax and determined in accordance with UK
Accounting Principles
the "PROPERTY" means Xxxx 0 Xxxxx 0 Xxxxxx Xxxx Xxxxxxxxxx Xxxx Park Royal
London NW10 being the property demised by the Lease
"RENTAL LIABILITY" means a sum equal to the rent from time to time payable
under the Lease or (if higher) the Landlord's reasonable estimate of the
anticipated rent payable under the Lease following any rent review
outstanding during the Years of Account
"UK ACCOUNTING PRINCIPLES" means UK accounting principles generally
accepted from time to time and consistently applied
"YEARS OF ACCOUNT" means three consecutive years of account
1.2 INTERPRETATION
In this Deed (unless otherwise provided)
1.2.1 clause headings are inserted for ease of reference only and shall
not affect construction
1.2.2 reference to clauses and sub-clauses are to the clauses and sub-
clauses of and to this Deed and
1.2.3 words denoting one gender include all genders, words denoting
individuals or persons include corporations and trusts and vice
versa, words denoting the singular include the plural and vice
versa, and words denoting the whole include a reference to any part
thereof
2. THE DEPOSIT
2.1 The Landlord hereby acknowledges receipt of a bank draft issued by a bank
which is a member of CHAPS Limited or of the receipt of monies by
telegraphic transfer to its solicitors account in the sum of
(Pounds)100,641.50 (ONE HUNDRED THOUSAND SIX HUNDRED AND FORTY ONE POUNDS
FIFTY XXXXX) plus Value Added Tax such payment being made as security for
the due performance and observance of the covenants agreements and
conditions on the part of the Tenant under the Lease and all losses costs
and expenses which the Landlord may incur by reason of or consequent upon
any breach of those covenants agreements and conditions and (without
prejudice to the generality of the foregoing) as more particularly provided
in Clause 4 below and the Landlord shall be entitled to set off the Deposit
against any sums owed to it under the Lease
2.2 Following the ascertainment of a revised rent expressed as an annual amount
(the "Revised Rent") in accordance with clause 4 of the Lease the Tenant
shall pay to the Landlord by way of a bank draft issued by a bank which is
a member of CHAPS Limited within seven days of such ascertainment an
additional sum calculated in accordance with the following
formula (the "Additional Sum") plus VAT on the Additional Sum:
(Pounds)X = (Pounds)A - B
Where:
X = the additional sum to be paid to the Landlord in accordance
with this Clause
A = the amount of the Revised Rent
B = the yearly rent payable under clause 4 of the Lease
immediately prior to the ascertainment of the Revised Rent or
the yearly rent which would be payable immediately prior to
such ascertainment but for any abatement or suspension of
rent under the Lease
2.3 Within five Working Days of receipt of the Additional Sum by the Landlord
the Landlord shall pay the Additional Sum into the Deposit Account and the
Additional Sum shall thereafter form part of the Deposit against which the
Landlord shall be entitled to set off any sums owed to it under the Lease
in accordance with this Deed
3. THE DEPOSIT ACCOUNT
3.1 The Landlord shall forthwith place the Deposit in the Deposit Account until
withdrawal or repayment of the Deposit in accordance with the terms of
Clause 6 below
3.2 The Landlord shall also credit to the Deposit Account any sums subsequently
paid to it by the Tenant under Clause 4.2
4. WITHDRAWALS FROM AND MAINTENANCE OF THE DEPOSIT ACCOUNT
4.1 The Landlord and Tenant hereby agree that without prejudice to any other
right or remedy which the Landlord may have under this Deed or the Lease
the Landlord shall be entitled on 5 days prior written notice to the Tenant
to withdraw from the Deposit from time to time the sums specified below
which shall thereupon become the absolute property of the Landlord
4.1.1 any liquidated and ascertained sum (including interest)
(whether rent or otherwise and whether or not any formal
demand has been made) which is due to the Landlord from the
Tenant in respect of the Lease and which is unpaid for a
period of fourteen days after the due date
4.1.2 any liquidated and ascertained loss, expense, cost, claim,
liability or damage suffered or incurred by the Landlord as
the result of any breach of any covenant agreement or
condition on the part of the Tenant under the Lease
4.2 The Landlord shall notify the Tenant in writing within fourteen days after
any withdrawal of any sum from the Deposit and the reason for such
withdrawal and (if the Lease is still subsisting) the Tenant hereby
covenants forthwith to pay the Landlord for payment into
the Deposit Account a bank draft issued by a bank which is a member of
CHAPS Limited for such further sum as shall restore the Deposit to its
balance prior to such withdrawal
4.3 It is further agreed that if the Lease shall be forfeited or disclaimed by
any liquidator or trustee in bankruptcy of the Tenant or otherwise
determined otherwise than by agreement (which agreement shall include the
valid exercise of an option to determine the Lease) the Deposit shall
continue to be available to the Landlord in the manner set out above until
it shall be exhausted or until there shall be no further liability of the
Tenant to the Landlord whereupon any remaining balance of the Deposit shall
be released to the Tenant as soon as reasonably practicable
4.4 The Landlord should as soon as reasonably practicable pay into the Deposit
Account the full amount of any sum (together with Interest (as defined in
the Lease)) shown to have been incorrectly withdrawn by the Landlord or if
earlier following the date on which the Landlord first becomes aware of an
error having been made
5. TRANSFER OF THE LANDLORD'S INTEREST
If the Landlord transfers the reversion immediately expectant upon the
determination of the Lease before the Deposit has become repayable to the
Tenant pursuant to Clause 6 either
5.1 5.1.1 the Tenant shall if required by (and at the cost of) the
Landlord such costs if incurred by the Tenant to be
reasonable, enter into a rent deposit deed with the
transferee of such reversion in identical terms to this Deed
(but with the name of the transferee being substituted for
the name of the Landlord) and
5.1.2 the Landlord shall procure that any transferee enters into a
rent deposit deed with the Tenant in identical terms to this
Deed (but with the transferee's name substituted for the name
of the Landlord) and on completion of such deed transfer the
balance of the Deposit to such account as shall have been
opened by the transferee (after the deduction of any sum
withdrawn pursuant to Clause 4 above) and upon serving notice
of such transfer on the Tenant shall forthwith be released
automatically from any further liability under the terms of
this Deed
or
5.2 The Landlord may instead release the balance of the Deposit to the Tenant
(after the deduction of any sum withdrawn pursuant to Clause 4 above)
6. RELEASE OF DEPOSIT
6.1 The Deposit or such part thereof as shall be remaining shall be released by
the Landlord and repaid to the Tenant on the earlier of:
6.1.1 one calendar month after the expiration or sooner
determination (by agreement) of the term granted by the Lease
or its determination in consequence of the exercise by the
Tenant of any option to determine conferred on it by the
Lease
and in either case vacant possession of the premises demised by
the Lease being given to the Landlord; or
6.1.2 the Tenant demonstrating that it has made Net Profits for each of
the immediately preceding Years of Account at least equal to
three times the Rental Liability and that in each of those Years
of Account it has a Net Asset Value of not less than five times
the Rental Liability
and provided always the Tenant has paid to the Landlord all sums set out as
in Clause 4 above (failing which the Landlord may deduct such sums as are
properly due from the Deposit) the Landlord shall then release the balance
to the Tenant within 5 working days of receipt of a written request from
the Tenant for such release
6.2 The Tenant may demonstrate that it satisfies the requirements of Clause
6.1.2 by means of audited accounts or by means of such other evidence as
shall be reasonably acceptable to the Landlord
7. INTEREST
7.1 The Landlord shall use all reasonable endeavours to select a Deposit
Account which yields the best rate of interest reasonably obtainable from
the Bank having regard to the provisions of this Deed
7.2 The interest accruing on the Deposit shall belong to the Tenant but in the
first instance shall be used in or towards payment of any sums payable by
the Tenant pursuant to clauses 2.3 and 4.2 of this Deed and subject thereto
such interest (less tax properly deducted) shall be paid to the Tenant on
an annual basis
7.3 All tax payable in respect of interest accruing on the Deposit shall be
paid by the Tenant from its own money
8. MISCELLANEOUS
It is hereby agreed and declared that:
8.1 The existence of the Deposit shall not prejudice the Landlord's
ability to proceed against the Tenant for any breach of any
covenant agreement or condition on the part of the Tenant under
the Lease or entitle the Tenant to withhold any moneys or fail to
perform any covenant agreement or condition under the Lease and
the Deposit shall not be regarded as an advance payment of rent
8.2 The proviso for re-entry contained in the Lease shall be
exercisable as well upon any breach of any covenant or obligation
on the part of the Tenant contained in this Deed as on the
happening of any of the events mentioned in the Lease
8.3 The rights of the Landlord under this Deed do not limit its
rights under the Lease
8.4 The provisions as to notices contained in the Lease shall
apply to notices served pursuant to this Deed
8.5 The Landlord may at any time terminate this Deed by paying
the Deposit to the Tenant and on doing so will automatically
be released from all liabilities and obligations under this
Deed except in relation to rights of the Tenant that have
arisen before the termination
8.6 Any termination under clause 8.5 and any payment of the
Deposit shall not affect the Landlord's rights under the
Lease
8.7 The Tenant shall not assign to any person whatsoever the
benefit of any of the Tenant's rights under this Deed, nor
assign, transfer or otherwise dispose of all or any part of
its rights, title or interest in or to the Deposit, nor
create any further encumbrance or other security interest
over the whole or any part of the Deposit
8.8 If any provision of this Deed is or becomes void or
unenforceable in whole or in part that provision to that
extent is to be Deemed not to form part of this deed but the
validity and enforceability of the remainder of that
provision or of the Deed are not to be affected
8.9 This Agreement shall be governed by and construed in
accordance with English law and the parties irrevocably agree
that the courts of England are to have exclusive jurisdiction
to settle any disputes which may arise out of or in
connection with this Agreement
AS WITNESS this Deed (which shall be delivered when dated) has been executed by
the parties or their duly authorised representatives on the date first stated
above
SIGNED and DELIVERED as a DEED by )
[Xxxxxxx Xxxxx Xxxxxx] Trust Manager as )
attorney for LLOYDS BANK PLC in the )
presence of: )
/s/ X.X. Xxxxxxxxx
X.X. Xxxxxxxxx
Lloyd's Bank
Securities Services
Xxx'x Xxxx Xxxxx
0, Xxx'x Xxxx
Xxxxxx, XX0 0XX
EXECUTED and DELIVERED as a DEED by )
EXODUS INTERNET LIMITED acting by two )
Directors or a Director and its )
Company Secretary )
Director
Director/Company Secretary
LLOYDS BANK SECURITIES SERVICES
-------------------------------
POWER OF ATTORNEY FOR EXECUTION OF DOCUMENTS
--------------------------------------------
By this power of attorney given on the eigth day of July 1998 Lloyds Bank Plc
whose registered office is at 00 Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX ("the bank")
hereby appoints:
Xxxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxxx
Xxx Xxxxxx Bransgrove
Xxxx Xxxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxx Xxxx Xxxxxx
Xxxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxxxx Xxxxxxx Xxxxx
Xxxxxxxxxxx Xxxx Xxxxxxxx
Xxxxx Xxxxx
Xxxxxxx Xxxxxxx Xxxxxxxx
Xxxxxx Xxxx Kings
Xxxxx Xxxx Kitcat
Xxxx Xxxxxx Xxxx
Xxxxxx Xxxx Xxxxx
Xxxxxx Xxxxxxx XxXxxx
Xxxxxxxxxx Xxx Xxxxxx
Xxxx Xxxxxxxxxxx Xxxxxxxxxx
Xxxxx Xxxxxxx Xxxxxx
Xxxxxx Xxxxxxxxx Xxxxxx
Xxxxxx Xxxxx Xxxxx
Xxxxxxx Xxxxxx Xxxxxx
Xxxxxxx Xxxxxx Xxxxxx
Xxxx Xxxxxx Xxxxxx
Xxxxxxx Xxxxxx Xxxxx
Xxxxx Xxxxx Xxxxxx
Xxxxx Xxxxxx Xxxxxxx Xxxxx
Xxxxxx Xxxxxx Xxxxxxx
Xxxxxx Xxxxxx
Xxxxxx Xxxxxxx Xxxx
Xxxx Xxxxxxx Xxxxxxxx
Xxxx Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx Xxxxxxxxxx
Xxxxxxx Xxxxx Xxxxxx
Xxxxx Xxxxxxx Welpa
all of Lloyds Bank Securities Services, jointly and severally, to be attorneys
of the bank in its capacity as trustee, personal representative, nominee,
mortgagee or chargee, only for the purpose of carrying into effect matters
determined upon by the bank in any of these capacities, to sign, seal, execute
and deliver any deed or document considered necessary or desirable:
(1) to convey, transfer, assign, lease, let, underlet, surrender, sell or grant
options, rights of preemption or any other rights over any real or personal
property;
(3) to postpone, defer, subordinate or otherwise regulate the priority or
ranking of any mortgage, charge, debenture or other security;
(4) to vary, alter, amend, modify, revise, replace or substitute any deed or
document to which the bank is a party;
(5) to transfer any stocks, shares or other securities held by or registered in
the name or under the control of the bank and to authorise any person to
exercise any rights attached in any such stocks, shares or other
securities;
(6) to give such indemnities as may be necessary in favour of any person or
body of persons including without limitation indemnities in respect of
lost, destroyed or mislaid certificates, allotment letters or other
documents relating to stocks, shares or other securities;
(7) to grant easements or any other rights over or impose covenants or any
other restrictions on or consent to the letting, underletting, assignment,
surrender or alteration of any freehold or leasehold property;
(8) to assent to the vesting in any person of any real or personal property;
(9) to declare, constitute, regulate, record, vary, alter, amend or modify any
trust, settlement or family arrangement and to appoint or retire any
trustee, including the bank, of any trust, settlement or family
arrangement;
(10) to purchase, lease, acquire or otherwise take into the name of the bank or
under its control any real or personal property whatsoever or wheresoever
or any options, rights of preemption or any other rights over real or
personal property; and
(11) to manage, develop, refurbish, repair, reinstate or otherwise carry out any
works upon any real property whatsoever or wheresoever.
and generally for all or any of the purposes aforesaid to act as attorneys of
the bank. The common seal of the bank was affixed to this deed the date and
year first above written. Given under the common seal of Lloyds Bank Plc as a
deed.
Authorised signatory
Authorised counter signatory
DATED 24th December 1998
---------------------------------------
LLOYDS BANK PLC (AS TRUSTEE FOR XXXXXXXX EXEMPT PROPERTY UNIT TRUST) (1)
- and -
EXODUS INTERNET LIMITED (2)
_____________________________________
RENT SECURITY DEPOSIT DEED
RELATING TO UNIT 7 PHASE 1 MATRIX PARK
XXXXXXXXXX XXXX XXXX XXXXX XXXXXX XX00
_____________________________________
WILDE SAPTE
0 Xxxxx Xxxxx
Xxxxxx XX0X 0XX
Tel. 0000 000 0000
Fax. 0000 000 0000
REF: TLF/SJG/143834
PY0397901.04
TABLE OF CONTENTS
CLAUSE HEADING PAGE NO.
1. Definitions and Interpretation.......................... 1
2. The Deposit............................................. 2
3. The Deposit Account..................................... 3
4. Withdrawals from and Maintenance of the Deposit Account. 3
5. Transfer of the Landlord's Interest..................... 4
6. Release of Deposit...................................... 4
7. Interest................................................ 5
8. Miscellaneous........................................... 5
THIS DEED is made the 24th day of December 1998
BETWEEN
(1) LLOYDS BANK PLC (as Trustee for XXXXXXXX EXEMPT PROPERTY UNIT TRUST) of
00 Xxxxxxx Xxxxxx Xxxxxx XX0X 0XX ("THE LANDLORD")
(2) EXODUS INTERNET LIMITED whose registered office is at Fountain Precinct
Xxxx Xxxxx Xxxxxxxxx Xxxxx Xxxxxxxxx X0 0XX (Company Number 3591136)
("THE TENANT")
WHEREAS
(A) This Deed is supplemental to the Lease
(B) The Landlord is entitled to the reversion immediately expectant upon the
determination of the term of the Lease and the Tenant is entitled to the
residue of the term of the Lease
WITNESSES as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Deed unless the context otherwise requires or except as otherwise
expressly provided
the "BANK" means Lloyds Bank PLC or such other London Clearing Bank or
registered building society of the Landlord's choice at which the Deposit
Account is maintained from time to time
the "DEPOSIT" means the moneys referred to in Clause 2 below together
with any interest credited to the Deposit Account and any moneys received
from the Tenant and added to the Deposit Account
the "DEPOSIT ACCOUNT" means such interest bearing deposit account opened
at the Bank in the Landlord's name and into which the Deposit is paid by
the Landlord
the "LANDLORD" (where the context so admits) shall include its successors
in title and personal representatives
the "LEASE" means the lease dated today made between the Landlord and
Tenant of the Property for a term of 25 years from [29th September]
1998 and includes all documents made supplemental or pursuant thereto
"NET ASSET VALUE" means tangible net asset value excluding goodwill and
intellectual property determined in accordance with UK Accounting
Principles.
-1-
"NET PROFITS" means net trading profit (excluding extraordinary and
exceptional items) or net investment income (after deduction of
management expenses) in each case after tax and determined in accordance
with UK Accounting Principles
the "PROPERTY" means Xxxx 0 Xxxxx 0 Xxxxxx Xxxx Xxxxxxxxxx Xxxx Park
Royal London NW10 being the property demised by the Lease
"RENTAL LIABILITY" means a sum equal to the rent from time to time
payable under the Lease or (if higher) the Landlord's reasonable estimate
of the anticipated rent payable under the Lease following any rent review
outstanding during the Years of Account
"UK ACCOUNTING PRINCIPLES" means UK accounting principles generally
accepted from time to time and consistently applied
"YEARS OF ACCOUNT" means three consecutive years of account
1.2 INTERPRETATION
In this Deed (unless otherwise provided)
1.2.1 clause headings are inserted for ease of reference only and shall
not affect construction
1.2.2 reference to clauses and sub-clauses are to the clauses and sub-
clauses of and to this Deed and
1.2.3 words denoting one gender include all genders, words denoting
individuals or persons include corporations and trusts and vice
versa, words denoting the singular include the plural and vice
versa, and words denoting the whole include a reference to any
part thereof
2. THE DEPOSIT
2.1 The Landlord hereby acknowledges receipt of a bank draft issued by a bank
which is a member of CHAPS Limited or of the receipt of monies by
telegraphic transfer to its solicitors account in the sum of
(Pounds)100,850.75 (ONE HUNDRED THOUSAND EIGHT HUNDRED AND FIFTY POUNDS
SEVENTY FIVE XXXXX) plus Value Added Tax such payment being made as
security for the due performance and observance of the covenants
agreements and conditions on the part of the Tenant under the Lease and
all losses costs and expenses which the Landlord may incur by reason of
or consequent upon any breach of those covenants agreements and
conditions and (without prejudice to the generality of the foregoing) as
more particularly provided in Clause 4 below and the Landlord shall be
entitled to set off the Deposit against any sums owed to it under the
Lease
2.2 Following the ascertainment of a revised rent expressed as an annual
amount (the "Revised Rent") in accordance with clause 4 of the Lease the
Tenant shall pay to the Landlord by way
-2-
of a bank draft issued by a bank which is a member of CHAPS Limited
within seven days of such ascertainment an additional sum calculated in
accordance with the following
-3-
formula (the "Additional Sum") plus VAT on the Additional Sum:
(Pounds)X = (Pounds)A - B
Where:
X = the additional sum to be paid to the Landlord in accordance
with this Clause
A = the amount of the Revised Rent
B = the yearly rent payable under clause 4 of the Lease
immediately prior to the ascertainment of the Revised Rent
or the yearly rent which would be payable immediately prior
to such ascertainment but for any abatement or suspension
of rent under the Lease
2.3 Within five Working Days of receipt of the Additional Sum by the Landlord
the Landlord shall pay the Additional Sum into the Deposit Account and
the Additional Sum shall thereafter form part of the Deposit against
which the Landlord shall be entitled to set off any sums owed to it under
the Lease in accordance with this Deed
3. THE DEPOSIT ACCOUNT
3.1 The Landlord shall forthwith place the Deposit in the Deposit Account
until withdrawal or repayment of the Deposit in accordance with the terms
of Clause 6 below
3.2 The Landlord shall also credit to the Deposit Account any sums
subsequently paid to it by the Tenant under Clause 4.2
4. WITHDRAWALS FROM AND MAINTENANCE OF THE DEPOSIT ACCOUNT
4.1 The Landlord and Tenant hereby agree that without prejudice to any other
right or remedy which the Landlord may have under this Deed or the Lease
the Landlord shall be entitled on 5 days prior written notice to the
Tenant to withdraw from the Deposit from time to time the sums specified
below which shall thereupon become the absolute property of the Landlord
4.1.1 any liquidated and ascertained sum (including interest) (whether
rent or otherwise and whether or not any formal demand has been
made) which is due to the Landlord from the Tenant in respect of
the Lease and which is unpaid for a period of fourteen days after
the due date
4.1.2 any liquidated and ascertained loss, expense, cost, claim,
liability or damage suffered or incurred by the Landlord as the
result of any breach of any covenant agreement or condition on the
part of the Tenant under the Lease
-4-
4.2 The Landlord shall notify the Tenant in writing within fourteen days
after any withdrawal of any sum from the Deposit and the reason for such
withdrawal and (if the Lease is still subsisting) the Tenant hereby
covenants forthwith to pay the Landlord for payment into the Deposit
Account a bank draft issued by a bank which is a member of CHAPS Limited
for such further sum as shall restore the Deposit to its balance prior to
such withdrawal
4.3 It is further agreed that if the Lease shall be forfeited or disclaimed
by any liquidator or trustee in bankruptcy of the Tenant or otherwise
determined otherwise than by agreement (which agreement shall include the
valid exercise of an option to determine the Lease) the Deposit shall
continue to be available to the Landlord in the manner set out above
until it shall be exhausted or until there shall be no further liability
of the Tenant to the Landlord whereupon any remaining balance of the
Deposit shall be released to the Tenant as soon as reasonably practicable
4.4 The Landlord should as soon as reasonably practicable pay into the
Deposit Account the full amount of any sum (together with Interest (as
defined in the Lease)) shown to have been incorrectly withdrawn by the
Landlord or if earlier following the date on which the Landlord first
becomes aware of an error having been made
5. TRANSFER OF THE LANDLORD'S INTEREST
If the Landlord transfers the reversion immediately expectant upon the
determination of the Lease before the Deposit has become repayable to the
Tenant pursuant to Clause 6 either
5.1 5.1.1 the Tenant shall if required by (and at the cost of) the Landlord
such costs if incurred by the Tenant to be reasonable, enter into
a rent deposit deed with the transferee of such reversion in
identical terms to this Deed (but with the name of the transferee
being substituted for the name of the Landlord) and
5.1.2 the Landlord shall procure that any transferee enters into a rent
deposit deed with the Tenant in identical terms to this Deed (but
with the transferee's name substituted for the name of the
Landlord) and on completion of such deed transfer the balance of
the Deposit to such account as shall have been opened by the
transferee (after the deduction of any sum withdrawn pursuant to
Clause 4 above) and upon serving notice of such transfer on the
Tenant shall forthwith be released automatically from any further
liability under the terms of this Deed
or
5.2 The Landlord may instead release the balance of the Deposit to the Tenant
(after the deduction of any sum withdrawn pursuant to Clause 4 above)
-5-
6. RELEASE OF DEPOSIT
6.1 The Deposit or such part thereof as shall be remaining shall be released
by the Landlord and repaid to the Tenant on the earlier of:
6.1.1 one calendar month after the expiration or sooner determination
(by agreement) of the term granted by the Lease or its
determination in consequence of the exercise by the Tenant of any
option to determine conferred on it by the Lease and in either
case vacant possession of the premises demised by the Lease being
given to the Landlord; or
6.1.2 the Tenant demonstrating that it has made Net Profits for each of
the immediately preceding Years of Account at least equal to three
times the Rental Liability and that in each of those Years of
Account it has a Net Asset Value of not less than five times the
Rental Liability
and provided always the Tenant has paid to the Landlord all sums set out
as in Clause 4 above (failing which the Landlord may deduct such sums as
are properly due from the Deposit) the Landlord shall then release the
balance to the Tenant within 5 working days of receipt of a written
request from the Tenant for such release
6.2 The Tenant may demonstrate that it satisfies the requirements of Clause
6.1.2 by means of audited accounts or by means of such other evidence as
shall be reasonably acceptable to the Landlord
7. INTEREST
7.1 The Landlord shall use all reasonable endeavours to select a Deposit
Account which yields the best rate of interest reasonably obtainable from
the Bank having regard to the provisions of this Deed
7.2 The interest accruing on the Deposit shall belong to the Tenant but in
the first instance shall be used in or towards payment of any sums
payable by the Tenant pursuant to clauses 2.3 and 4.2 of this Deed and
subject thereto such interest (less tax properly deducted) shall be paid
to the Tenant on an annual basis
7.3 All tax payable in respect of interest accruing on the Deposit shall be
paid by the Tenant from its own money
8. MISCELLANEOUS
It is hereby agreed and declared that:
8.1 The existence of the Deposit shall not prejudice the Landlord's
ability to proceed against the Tenant for any breach of any
covenant agreement or condition on the
-6-
part of the Tenant under the Lease or entitle the Tenant to
withhold any moneys or fail to perform any covenant agreement or
condition under the Lease and the Deposit shall not be regarded as
an advance payment of rent
8.2 The proviso for re-entry contained in the Lease shall be
exercisable as well upon any breach of any covenant or obligation
on the part of the Tenant contained in this Deed as on the
happening of any of the events mentioned in the Lease
8.3 The rights of the Landlord under this Deed do not limit its rights
under the Lease
8.4 The provisions as to notices contained in the Lease shall apply to
notices served pursuant to this Deed
8.5 The Landlord may at any time terminate this Deed by paying the
Deposit to the Tenant and on doing so will automatically be
released from all liabilities and obligations under this Deed
except in relation to rights of the Tenant that have arisen before
the termination
8.6 Any termination under clause 8.5 and any payment of the Deposit
shall not affect the Landlord's rights under the Lease
8.7 The Tenant shall not assign to any person whatsoever the benefit
of any of the Tenant's rights under this Deed, nor assign,
transfer or otherwise dispose of all or any part of its rights,
title or interest in or to the Deposit, nor create any further
encumbrance or other security interest over the whole or any part
of the Deposit
8.8 If any provision of this Deed is or becomes void or unenforceable
in whole or in part that provision to that extent is to be deemed
not to form part of this Deed but the validity and enforceability
of the remainder of that provision or of the Deed are not to be
affected
8.9 This Agreement shall be governed by and construed in accordance
with English law and the parties irrevocably agree that the courts
of England are to have exclusive jurisdiction to settle any
disputes which may arise out of or in connection with this
Agreement
AS WITNESS this Deed (which shall be delivered when dated) has been executed by
the parties or their duly authorised representatives on the date first stated
above
-7-
SIGNED and DELIVERED as a DEED by )
Xxxxxxx Xxxxx Xxxxxx, Trust Manager as )
attorney for LLOYDS BANK PLC in the )
presence of: )
/s/ X.X. Xxxxxxxxx
X.X. Xxxxxxxxx
Lloyd's Bank
Securities Services
Xxx'x Xxxx Xxxxx
0, Xxx'x Xxxx
Xxxxxx XX0 0XX
EXECUTED and DELIVERED as a DEED by )
EXODUS INTERNET LIMITED acting by two )
Directors or a Director and its )
Company Secretary )
Director
Director/Company Secretary
-8-
LLOYDS BANK SECURITIES SERVICES
-------------------------------
POWER OF ATTORNEY FOR EXECUTION OF DOCUMENTS
--------------------------------------------
By this power of attorney given on the eigth day of July 1998 Lloyds Bank Plc
whose registered office is at 00 Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX ("the bank")
hereby appoints:
Xxxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxxx
Xxx Xxxxxx Bransgrove
Xxxx Xxxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxx Xxxx Xxxxxx
Xxxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxxxx Xxxxxxx Xxxxx
Xxxxxxxxxxx Xxxx Xxxxxxxx
Xxxxx Xxxxx
Xxxxxxx Xxxxxxx Xxxxxxxx
Xxxxxx Xxxx Kings
Xxxxx Xxxx Kitcat
Xxxx Xxxxxx Xxxx
Xxxxxx Xxxx Xxxxx
Xxxxxx Xxxxxxx XxXxxx
Xxxxxxxxxx Xxx Xxxxxx
Xxxx Xxxxxxxxxxx Xxxxxxxxxx
Xxxxx Xxxxxxx Xxxxxx
Xxxxxx Xxxxxxxxx Xxxxxx
Xxxxxx Xxxxx Xxxxx
Xxxxxxx Xxxxxx Xxxxxx
Xxxxxxx Xxxxxx Xxxxxx
Xxxx Xxxxxx Xxxxxx
Xxxxxxx Xxxxxx Xxxxx
Xxxxx Xxxxx Xxxxxx
Xxxxx Xxxxxx Xxxxxxx Xxxxx
Xxxxxx Xxxxxx Xxxxxxx
Xxxxxx Xxxxxx
Xxxxxx Xxxxxxx Xxxx
Xxxx Xxxxxxx Xxxxxxxx
Xxxx Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx Xxxxxxxxxx
Xxxxxxx Xxxxx Xxxxxx
Xxxxx Xxxxxxx Welpa
all of Lloyds Bank Securities Services, jointly and severally, to be attorneys
of the bank in its capacity as trustee, personal representative, nominee,
mortgagee or chargee, only for the purpose of carrying into effect matters
determined upon by the bank in any of these capacities, to sign, seal, execute
and deliver any deed or document considered necessary or desirable:
(1) to convey, transfer, assign, lease, let, underlet, surrender, sell or grant
options, rights of preemption or any other rights over any real or personal
property;
(3) to postpone, defer, subordinate or otherwise regulate the priority or
ranking of any mortgage, charge, debenture or other security;
(4) to vary, alter, amend, modify, revise, replace or substitute any deed or
document to which the bank is a party;
(5) to transfer any stocks, shares or other securities held by or registered in
the name or under the control of the bank and to authorise any person to
exercise any rights attached in any such stocks, shares or other
securities;
(6) to give such indemnities as may be necessary in favour of any person or
body of persons including without limitation indemnities in respect of
lost, destroyed or mislaid certificates, allotment letters or other
documents relating to stocks, shares or other securities;
(7) to grant easements or any other rights over or impose covenants or any
other restrictions on or consent to the letting, underletting, assignment,
surrender or alteration of any freehold or leasehold property;
(8) to assent to the vesting in any person of any real or personal property;
(9) to declare, constitute, regulate, record, vary, alter, amend or modify any
trust, settlement or family arrangement and to appoint or retire any
trustee, including the bank, of any trust, settlement or family
arrangement;
(10) to purchase, lease, acquire or otherwise take into the name of the bank or
under its control any real or personal property whatsoever or wheresoever
or any options, rights of preemption or any other rights over real or
personal property; and
(11) to manage, develop, refurbish, repair, reinstate or otherwise carry out any
works upon any real property whatsoever or wheresoever.
and generally for all or any of the purposes aforesaid to act as attorneys of
the bank. The common seal of the bank was affixed to this deed the date and
year first above written. Given under the common seal of Lloyds Bank Plc as a
deed.
Authorised signatory
Authorised counter signatory
THIS LICENCE is made as a deed on 24th December, 1998 BETWEEN
(1) LLOYDS BANK PLC (registered number 2065) whose registered office is at 00
Xxxxxxx Xxxxxx Xxxxxx XX0X 0XX (as trustee of Xxxxxxxx Exempt Property
Unit Trust) (the "Landlord");
(2) EXODUS INTERNET LIMITED (registered number 3591136) whose registered office
is at Fountain Precinct Xxxx Xxxxx Xxxxxxxxx Xxxxx Xxxxxxxxx X0 0XX (the
"Tenant"); and
(3) EXODUS COMMUNICATIONS INC of 0000 Xxx Xxxxxx Xxxxxxxxxx, Xxxxx Xxxxx XX
00000, XXX and whose address for service in England is Dibb Xxxxxx Xxxxx
(ref RSS) 000 Xxxxxx Xxxx Xxxxxx XX0X 0XX or such other address in the UK
as the Guarantor may from time to time notify in writing to the Landlord
(the "Guarantor")
WHEREAS:
(A) This licence is supplemental and collateral to the Leases whereby the
Property was let for the Term.
(B) The Landlord is entitled to the reversion immediately expectant on the
determination of the Term.
(C) The Property is vested in the Tenant for the remainder of the Term.
(D) The Landlord has agreed to permit alterations to the Property upon the
terms contained in this licence.
THIS DEED WITNESSES as follows:
1. DEFINITIONS AND INTERPRETATION
(1) In this licence:
"CDM Regulations" means the Construction (Design and Management)
Regulations 1994 or any remaking of them or any amendment to a regulation
in them;
"Consents" means all planning, bye-law, building regulation and other
permissions, licences and consents which are or may be necessary for the
Works to be carried out;
"End of the Term" includes the expiry of the Term by effluxion of time or
the determination of the Term by forfeiture, surrender, merger, notice or
in any other way;
"Landlord" includes the person for the time being entitled to the reversion
immediately expectant on the End of the Term;
"Leases" means each and all of the Xxxx 0 Lease, the Unit 6 Lease and the
Unit 7 Lease;
"Property" means each and all of Xxxx 0, Xxxx 0 and Unit 7;
"Tenant" includes the Tenant's successors in title and assigns;
"Term" means in respect of the Unit 5 Lease the term of years set out in
Part 1 of Schedule 1 in respect of the Unit 6 Lease the term of years set
out in Part 2 of Schedule 1 and in respect
of the Unit 7 Lease the term of years set out in Part 3 of Schedule 1 and
in each case includes any statutory or other extension of it or any holding
over;
"Unit 5" means the property briefly described in Part 1 of Schedule 2 being
the property demised by and more particularly described in the Unit 5
Lease.
"Unit 5 Lease" means the document short details of which are set out in
Part 1 of Schedule 1 and, where the context permits, includes any documents
supplemental or collateral to it.
"Unit 6" means the property briefly described in Part 2 of Schedule 2 being
the property demised by and more particularly described in the Unit 6
Lease.
"Unit 6 Lease" means the document short details of which are set out in
Part 2 of Schedule 1 and, where the context permits, includes any documents
supplemental or collateral to it.
"Unit 7" means the property briefly described in Part 3 of Schedule 1 being
the property demised by and more particularly described in the Unit 7
Lease.
"Unit 7 Lease" means the document short details of which are set out in
Part 3 of Schedule 2 and, where the context permits, includes any documents
supplemental or collateral to it.
"Works" means the alterations and works specified in Schedule 3.
(2) The headings in this licence do not affect its interpretation.
(3) References in this licence to clauses or schedules are, unless otherwise
defined, references to the clauses or schedules in this licence.
2. LICENCE
In consideration of the covenants on the part of the Tenant and the
Guarantor contained in this licence and at the request of the Guarantor,
the Landlord grants to the Tenant licence to carry out the Works at the
Property.
3. TENANT'S COVENANTS
(1) The Tenant covenants with the Landlord to comply with the obligations
set out in this clause throughout the period during which the Tenant
is bound by the tenant covenants of each of the Leases.
(2) Before starting any part or parts of the Works the Tenant shall at its
own expense (in relation to the relevant part or parts of the Works):
(a) obtain all Consents;
(b) produce to the Landlord and obtain the Landlord's written
acknowledgement (which the Landlord shall not unreasonably
withhold or delay) that the Consents obtained for the relevant
part or parts of the Works (if any) are satisfactory to the
Landlord; and
(c) give full particulars of the relevant part or parts of the Works
to the insurers of the Property, obtain their consent to the
same, produce the consent to the
Landlord immediately upon its receipt and pay any additional
premium which the insurers may require.
(3) The Tenant shall carry out and complete the Works:
(a) in a good and workmanlike manner using good quality materials fit
for the purpose for which they will be used;
(b) in compliance with every enactment, every instrument, rule,
order, regulation or by-law, including those of every local
authority and every supply authority or other competent authority
which has any jurisdiction with regard to the Works or with whose
systems the Works are to be connected;
(c) in accordance with good building practice;
(d) without infringing any rights, covenants or other encumbrances
binding on or affecting the whole or any part of the Property.
(e) to the reasonable satisfaction of the Landlord's surveyors; and
(f) in accordance with the terms of each of the Leases and all
Consents.
(4) The Tenant shall take all proper and sufficient precautions during the
progress of the Works so that the Tenant:
(a) causes as little inconvenience and disturbance as possible
(whether by noise, dust, vibration or otherwise) to the Landlord
or the occupiers of adjoining or neighbouring property; and
(b) shall not at any time damage or render unsafe the structure of
the whole or any part of the Property or any part of any
adjoining or neighbouring property or any plant or machinery in
such property but shall forthwith make good any damage occasioned
by the carrying out of the Works to any such property as is
mentioned in this paragraph.
(5) The Tenant shall use all reasonable endeavours to ensure that anyone
involved in the design of the Works understands and complies with the
requirements of Regulation 13 of the CDM Regulations.
(6) If the Works are notifiable (as defined in Regulation 2(4) of the CDM
Regulations) and five or more people will be involved in the Works at
any one time, the Tenant shall:
(a) act as the sole client in respect of the Works for the purposes
of the CDM Regulations and issue a declaration to that effect
pursuant to Regulation 4 of the CDM Regulations;
(b) appoint a competent planning supervisor and a competent principal
contractor pursuant to its obligations under the CDM Regulations;
(c) provide the Landlord with a full and complete copy of the health
and safety plan (as defined in the CDM Regulations) prior to the
commencement of the Works;
(d) provide the Landlord with a full and complete copy of the health
and safety file (as defined in the CDM Regulations) within 30
days of practical completion of the Works; and
(e) provide to the Landlord at the End of the Term of each of the
Unit 5 Lease and the Unit 6 Lease and the Unit 7 Lease the
original health and safety file relating to that unit and
incorporating any subsequent amendments made to update it.
(7) The Tenant shall indemnify the Landlord from liability in respect of
all loss, damage, actions, proceedings, claims, demands, costs,
damages and expenses:
(a) arising out of any breach of the provisions of this licence; or
(b) in respect of any injury to or the death of any person or damage
to any property; or
(c) in respect of the infringement, disturbance or destruction of any
right of a third party due to the carrying out or existence of
the Works
and shall insure (or procure such insurance) against any liability
arising under sub paragraph (b) to the reasonable satisfaction of the
Landlord.
(8) The Tenant shall notify the Landlord's surveyors of the date of
commencement and completion of the Works and shall permit the Landlord
and its surveyors to inspect the Works at all reasonable times
(provided that the Landlord and/or its surveyors comply with the
Tenant's reasonable security and confidentiality requirements).
(9) The Tenant shall pay any charge, levy or tax that may be imposed under
any Act of Parliament, bye-law or regulation as a result of the Works,
whether on the Landlord or on the Tenant, and shall indemnify the
Landlord from any liability in respect of such charge, levy or tax.
(10) Unless the Landlord shall otherwise direct the Tenant shall carry out
before the End of the Term of each of the Unit 5 Lease and the Unit 6
Lease and the Unit 7 Lease any works required to be carried out to
Xxxx 0, Xxxx 0 or Unit 7 as the case may be as a condition of any
Consent.
(11) Before the End of the Term of each of the Unit 5 Lease and the Unit 6
Lease and the Unit 7 Lease (unless and to the extent released by the
Landlord in writing from this obligation) the Tenant shall remove that
part of the Works relating to Xxxx 0, Xxxx 0 and/or Unit 7 as the case
may be and reinstate Xxxx 0, Xxxx 0 and/or Unit 7 as the case may be,
making good all damage to the whole or any part of the Property and to
the decoration of the whole or any part of the Property. The Tenant
shall carry out the works of removal and reinstatement at its own
expense, in a good and workmanlike manner and to the reasonable
satisfaction of the Landlord's surveyors.
(12) The Tenant shall pay on demand the reasonable and proper fees,
expenses and disbursements of the Landlord's surveyors and any other
professional advisers (together with any Value Added Tax on them)
incurred by the Landlord relating to any works of removal and re-
instatement it is required to undertake in accordance with this
Licence.
(13) The Tenant shall deal with the insurance of the Works in accordance
with the terms of the Agreement for Lease dated [24th December 1998].
4. GUARANTOR'S COVENANTS
(1) The Guarantor guarantees to the Landlord the due and punctual payment and
performance of all the liabilities and obligations of the Tenant under this
licence and shall indemnify the Landlord against all losses, damages, costs
and expenses arising or incurred by the Landlord as a result of the non-
payment or non-performance of those obligations or liabilities.
(2) The obligations of the Guarantor under this licence:
(a) constitute a direct, primary and unconditional liability to pay on
demand to the Landlord any sum which the Tenant is liable to pay under
this licence and to perform on demand by the Landlord any obligation
of the Tenant under this licence without the need for any recourse on
the part of the Landlord against the Tenant; and
(b) will not be affected by:-
(i) any time or indulgence granted to the Tenant by the Landlord;
(ii) any legal limitation, disability or other circumstances relating
to the Tenant or any irregularity, unenforceability or
invalidity of any obligations of the Tenant under this licence;
(iii) any licence or consent granted to the Tenant, any variation in
the terms of this licence or any variation in the terms of any
of the Leases;
(iv) the release of one or more of the parties defined as the
Guarantor (if more than one); or
(v) any other act, omission, matter or thing whereby (but for this
provision) the Guarantor would be exonerated in whole or in part
from this guarantee other than a release under seal given by the
Landlord.
(3) So long as this guarantee remains in force the Guarantor shall not:
(a) in the event of any bankruptcy, liquidation, rehabilitation,
moratorium or other insolvency proceedings relating to the Tenant,
claim or prove as creditor in competition with the Landlord; or
(b) be entitled to claim or participate in any security held by the
Landlord in respect of the obligations of the Tenant under this
licence; or
(c) exercise any right of set-off against the Tenant.
(4) If the Landlord brings proceedings against the Tenant, the Guarantor shall
be bound by any findings of fact, interim or final award of interlocutory
or final judgment made by an arbitrator or the court in those proceedings
insofar as the same relate to the subject matter of this Deed PROVIDED THAT
the Landlord shall have served a copy of the writ summons petition or
similar process which initiated such proceedings on the Guarantor before
the expiry of 7 days after such proceedings were initiated
5. DECLARATIONS
It is agreed and declared that:
(a) at the sole discretion of the Landlord the licence granted by the
Landlord under this licence shall lapse and become void if the Works
are not commenced within six months from the date of this licence;
(b) the carrying out of the Works is subject to all rights of the owners
and occupiers of adjoining or neighbouring properties;
(c) all the covenants on the part of the Tenant and conditions contained
in the Leases which are now applicable to the Property shall continue
to be applicable to the Property and shall extend to the Works;
(d) the proviso for re-entry on breach or non-observance in the Leases
shall be read and construed from the date of this licence as including
a reference to the covenants contained in this licence;
(e) the Tenant shall not be entitled to any compensation in respect of the
Works or the reinstatement of the Property whether at the End of the
Term or at any other time;
(f) this licence and any approval of the Works by or on behalf of the
Landlord is granted without any liability on the part of the Landlord
or its architects, surveyors or other agents, whether for the design
or carrying out of the Works or otherwise;
(g) any decrease or increase in the rental value of Unit 5 or Unit 6 or
Unit 7 as a result of the Works shall be disregarded on any rent
review under the respective Leases; and
(h) the Works shall be at the sole risk of the Tenant until such time as
the Landlord's surveyors certify that the Works have been completed to
their satisfaction and until that time the Landlord's covenant to
insure contained in the Leases shall not apply to the Works.
6. JOINT AND SEVERAL LIABILITY
Where the Tenant or the Guarantor is more than one person:
(a) those persons shall be jointly and severally responsible in respect of
every obligation undertaken by them under this licence; and
(b) the Landlord may release or compromise the liability of any of those
persons under this licence or grant any time or other indulgence
without affecting the liability of any other of them.
7. NOTICES
Any notice or other document served under this licence shall be in writing
and may be served in any way in which a notice required or authorised to be
served under Section 196 of the Law of Property Act 1925 (as amended or re-
enacted) may be served.
8. JURISDICTION
This Deed shall be governed by and construed in accordance with English law
and the parties irrevocably agree that the courts of England are to have
exclusive jurisdiction to settle any disputes which may arise out of or in
connection with this Deed.
IN WITNESS of which this licence has been executed as a deed and has been
delivered on the date first appearing on Page 1.
SCHEDULE 1
Details of the Leases and the Term
Part 1
------
Lease or underlease: Lease of Xxxx 0 Xxxxx 0 Xxxxxx Xxxx dated as set out
below, for the Term and made between the Parties set
out below
Date:
Parties: (1) Lloyds Bank Plc (as trustee of Xxxxxxxx Exempt
Property Unit Trust)
(2) Exodus Internet Limited
(3) Exodus Communications Inc
Term: 25 years from [29th December 1998]
Part 2
------
Lease or underlease: Lease of Xxxx 0 Xxxxx 0 Xxxxxx Xxxx dated as set out
below, for the Term and made between the Parties set
out below
Date:
Parties: (1) Lloyds Bank Plc (as trustee of Xxxxxxxx Exempt
Property Unit Trust)
(2) Exodus Internet Limited
(3) Exodus Communications Inc
Term: 25 years from [29th December 1998]
Part 3
------
Lease or underlease: Lease of Xxxx 0 Xxxxx 0 Xxxxxx Xxxx dated as set out
below, for the Term and made between the Parties set
out below
Date:
Parties: (1) Lloyds Bank Plc (as trustee of Xxxxxxxx Exempt
Property Unit Trust)
(2) Exodus Internet Limited
(3) Exodus Communications Inc
Term: 25 years from [29th December 1998]
SCHEDULE 2
Details of the Property
Part 1
Unit 5 Phase 1 Matrix Park, Xxxxxxxxxx Xxxx, Xxxx Xxxxx, Xxxxxx XX00
Part 2
Xxxx 0 Xxxxx 0 Xxxxxx Xxxx, Xxxxxxxxxx Road, Park Royal, London NW10
Part 3
Unit 7 Phase 1 Matrix Park, Xxxxxxxxxx Xxxx, Xxxx Xxxxx, Xxxxxx XX00
SCHEDULE 3
Details of the Works
[Tenant to provide]
SIGNED as a deed by )
Xxxxxxx Xxxxx Xxxxxx Trust Manager )
as attorney for LLOYDS BANK PLC )
in the presence of: )
Witness's /s/ X.X. Xxxxxxxxx
Signature : ..................
X.X. Xxxxxxxxx
Name : .......................
Address : Llyod's Bank
Securities Services
Xxx'x Xxxx Xxxxx
0, Xxx'x Xxxx
Xxxxxx, XX0 0XX
EXECUTED and DELIVERED as a Deed by )
EXODUS INTERNET LIMITED )
acting by two Directors or a Director and its )
Company Secretary )
Director /s/ Xxxxxxx Xxxxx
Director/Secretary /s/ Xxxx Xxxxxx
SIGNED and DELIVERED as a Deed by )
EXODUS COMMUNICATIONS INC )
acting by its Authorised Signatory Xxxxxxx )
Xxxxxx in accordance with the constitution )
of the Company and the country in which it is )
incorporated )
Authorised Signatory /s/
DATED 24TH DECEMBER, 1998
LLOYDS BANK, PLC
(as trustee of Xxxxxxxx Exempt Property Unit Trust)
and
EXODUS INTERNET LIMITED
and
EXODUS COMMUNICATIONS INC
_______________________________________________
DEED
relating to car spaces used in connection with
leasehold premises being Xxxxx 0, 0 & 0, Xxxxx 1,
Matrix Park, Xxxxxxxxxx Xxxx, Xxxx Xxxxx,
Xxxxxx, XX00
_______________________________________________
XXXXX & XXXXX
LONDON
PY0409042.02
THIS DEED is made on 24th December 1998 BETWEEN
(1) LLOYDS BANK PLC (registered number 2065) whose registered office is at 00
Xxxxxxx Xxxxxx Xxxxxx XX0X 0XX (as trustee of Xxxxxxxx Exempt Property
Unit Trust) (the "Landlord");
(2) EXODUS INTERNET LIMITED (registered number 3591136) whose registered office
is at Fountain Precinct Xxxx Xxxxx Xxxxxxxxx Xxxxx Xxxxxxxxx X0 0XX (the
"Tenant"); and
(3) EXODUS COMMUNICATIONS INC of 0000 Xxx Xxxxxx Xxxxxxxxxx, Xxxxx Xxxxx XX
00000, XXX and whose address for service in England is Dibb Xxxxxx Xxxxx
(ref RSS) 125 Xxxxxx XX0X 0XX or such other address in the UK as the
Guarantor may from time to time notify in writing to the Landlord (the
"Guarantor").
WHEREAS:
(A) The parties hereto have today entered into the Leases which, inter alia,
grant the Tenant the right to park motor vehicles in Parking Area 1 and
Parking Area 2.
(B) The parties hereto have agreed to enter into this deed for the purposes
hereinafter set out.
THIS DEED WITNESSES as follows:
1. DEFINITIONS AND INTERPRETATION
(1) In this deed:
"CDM Regulations" means the Construction (Design and Management)
Regulations 1994 or any remaking of them or any amendment to a regulation
in them;
"Consents" means all planning, bye-law, building regulation and other
permissions, licences and consents which are or may be necessary for the
Works to be carried out;
"End of the Term" includes the expiry of the Term by effluxion of time or
the determination of the Term by forfeiture, surrender, merger, notice or
in any other way;
"Entry System 1" means an electronic entry or other similar system of a
type to be first approved in writing by the Landlord (such approval not to
be unreasonably withheld or delayed) to be installed by the Tenant at the
Tenant's own cost in the approximate position marked "X" on the Plan but so
that the positioning of such system shall be such as to allow vehicles to
come to a halt between the entry barrier at point "X" and the Service Road
without the vehicle in any way obstructing the passage of other vehicles
over and along the Service Road;
"Entry System 2" means an electronic entry or other similar system of a
type to be first approved in writing by the Landlord (such approval not to
be unreasonably withheld or delayed) to be installed by the Tenant at the
Tenant's own cost in the approximate position marked "Y" on the Plan;
"Estate" has the same meaning as ascribed in the Leases;
"Landlord" includes the person for the time being entitled to the reversion
immediately expectant on the End of the Term of the Leases;
"Leases" means each and all of the Xxxx 0 Lease, the Unit 6 Lease and the
Unit 7 Lease;
"Parking Area 1" means the areas edged blue and edged green on the Plan;
"Parking Area 1 Rights" means the rights granted by clause 2(2);
"Parking Area 2" means the area edged green on the Plan;
"Parking Area 2 Rights" means the rights granted by clause 2(3);
"Parking Areas" means each and both of Parking Area 1 and Area 2;
"Plan" means the plan attached to this deed;
"Property" means each and all of Xxxx 0, Xxxx 0 and Xxxx 0;
"Service Road" means the road on the Estate which is shown in part coloured
xxxxx on the Plan;
"Tenant" includes (where the context admits or allows) the Tenant's
successors in title and assigns;
"Term" means in respect of the Unit 5 Lease the term of years mentioned in
Part 1 of the Schedule, in respect of the Unit 6 Lease the term of years
mentioned in Part 2 of the Schedule and in respect of the Unit 7 Lease the
term of years mentioned in Part 3 of the Schedule and in each case includes
any statutory or other extension of it or any holding over;
"Unit 5" means the premises briefly described in Part 1 of the Schedule
being the premises demised by and more particularly described in the Unit 5
Lease;
"Unit 5 Lease" means the document short details of which are set out in
Part 1 of the Schedule and, where the context permits, includes any
documents supplemental or collateral to it;
"Unit 6" means the premises briefly described in Part 2 of the Schedule
being the premises demised by and more particularly described in the Unit 6
Lease;
"Unit 6 Lease" means the document short details of which are set out in
Part 2 of the Schedule and, where the context permits, includes any
documents supplemental or collateral to it;
"Unit 7" means the premises briefly described in Part 3 of the Schedule
being the premises demised by and more particularly described in the Unit 7
Lease;
"Unit 7 Lease" means the document short details of which are set out in
Part 3 of the Schedule and, where the context permits, includes any
documents supplemental or collateral to it;
"Works" means the works described in clause 2.
(2) The headings in this deed do not affect its interpretation.
(3) References in this deed to clauses or schedules are, unless otherwise
defined, references to the clauses or schedules in this deed.
2. RIGHTS GRANTED TO THE TENANT
(1) In consideration of the covenants on the part of the Tenant and the
Guarantor contained in this deed and at the request of the Guarantor, the
Landlord grants to the Tenant the following rights.
(2) For so long as the respective terms created by the Xxxx 0 Lease, the Unit 6
Lease and the Unit 7 Lease shall all remain vested in the same tenant (be
it the Tenant or a successor in title) the Tenant shall have the following
rights:
subject to obtaining the Landlord's prior written approval of detailed
drawings and specifications as to size, design and positioning (such
approval not to be unreasonably withheld or delayed) the right to
install and thereafter maintain and remove:
(a) a closed circuit television monitoring system within Parking Area
1; and
(b) Entry System 1.
(3) If the term created by the Unit 5 Lease ceases to be vested in the same
tenant as both the Unit 6 Lease and the Unit 7 Lease then the rights
granted in clause 2(2) shall automatically and immediately terminate but so
long as the respective terms created by the Unit 6 Lease and the Unit 7
Lease shall together remain vested in the same tenant (be it the Tenant or
a successor in title) the Tenant shall have rights in identical terms as
those set out in clause 2(2) save that the reference to Parking Area 1
shall be deemed to be a reference to Parking Area 2 and the reference to
Entry System 1 shall be deemed to be a reference to Entry System 2.
3. EXPIRATION AND TERMINATION OF TENANT'S RIGHTS
The rights contained in clause 2 shall automatically and immediately
terminate on the earlier of the following events occurring:
(a) assignment of either the Unit 6 Lease only or the Unit 7 Lease
only or the Tenant ceasing for any reason to be tenant under
either the Unit 6 Lease or the Unit 7 Lease only;
(b) the End of the Term of the Leases or the Unit 6 Lease and the Unit
7 Lease;
(c) the End of the Term of either the Unit 6 Lease alone or the Unit 7
Lease alone;
(d) the Tenant is the tenant under the Unit 5 Lease only or the Unit 6
Lease only or the Unit 7 Lease only;
(e) the Landlord exercises its rights of re-entry in accordance with
clause 10 of the Leases in respect of the Leases or the Unit 6
Lease and the Unit 7 Lease or the Unit 7 Lease alone or the Unit 6
Lease alone (save where the Tenant successfully obtains relief
from forfeiture from a court of competent jurisdiction in relation
to any such re-entry);
(f) the Tenant serving written notice on the Landlord to the effect
that the Tenant with immediate effect surrenders such rights.
4. TENANT'S COVENANTS
(1) The Tenant covenants with the Landlord to comply with the obligations set
out in this clause.
(2) Before starting the Works the Tenant shall at its own expense:
(a) obtain all Consents;
(b) produce to the Landlord and obtain the Landlord's written
acknowledgement (which the Landlord shall not unreasonably withhold or
delay) that the Consents obtained for the Works (if any) are
satisfactory to the Landlord; and
(c) give full particulars of the Works to the insurers of the Property,
obtain their consent to the Works, produce the consent to the Landlord
immediately upon its receipt and pay any additional premium which the
insurers may require.
(3) The Tenant shall carry out and complete the Works:
(a) in a good and workmanlike manner using good quality materials fit for
the purpose for which they will be used;
(b) in compliance with every enactment, every instrument, rule, order,
regulation or by-law, including those of every local authority and
every supply authority or other competent authority which has any
jurisdiction with regard to the Works or with whose systems the Works
are to be connected;
(c) in accordance with good building practice;
(d) to the reasonable satisfaction of the Landlord's surveyors; and
(e) in accordance with the terms of all Consents.
(4) The Tenant shall take all proper and sufficient precautions during the
progress of the Works so that the Tenant:
(a) causes as little inconvenience and disturbance as possible (whether by
noise, dust, vibration or otherwise) to the Landlord or the occupiers
of adjoining or neighbouring property; and
(b) shall not at any time damage or render unsafe the structure of the
whole or any part of the Estate or any plant or machinery in such
property but shall forthwith make good any damage occasioned by the
carrying out of the Works to any such property as is mentioned in this
paragraph.
(5) The Tenant shall use all reasonable endeavours to ensure that anyone
involved in the design of the Works understands and complies with the
requirements of Regulation 13 of the CDM Regulations.
(6) If the Works are notifiable (as defined in Regulation 2(4) of the CDM
Regulations) and five or more people will be involved in the Works at any
one time, the Tenant shall:
(a) act as the sole client in respect of the Works for the purposes of the
CDM Regulations and issue a declaration to that effect pursuant to
Regulation 4 of the CDM Regulations;
(b) appoint a competent planning supervisor and a competent principal
contractor pursuant to its obligations under the CDM Regulations;
(c) provide the Landlord with a full and complete copy of the health and
safety plan (as defined in the CDM Regulations) prior to the
commencement of the Works;
(d) provide the Landlord with a full and complete copy of the health and
safety file (as defined in the CDM Regulations) within 30 days of
practical completion of the Works.
(7) The Tenant shall indemnify the Landlord from liability in respect of all
loss, damage, actions, proceedings, claims, demands, costs, damages and
expenses:
(a) arising out of any breach of the provisions of this deed; or
(b) in respect of any injury to or the death of any person or damage to
any property due to the carrying out or existence of the Works ; or
(c) in respect of the infringement, disturbance or destruction of any
right of a third party due to the carrying out or existence of the
Works
and shall insure against any liability arising under sub paragraph (b) to
the reasonable satisfaction of the Landlord.
(8) The Tenant shall notify the Landlord's surveyors of the date of
commencement and completion of the Works and shall permit the Landlord and
its surveyors to inspect the Works at all reasonable times.
(9) The Tenant shall pay any charge, levy or tax that may be imposed under any
Act of Parliament, bye-law or regulation as a result of the Works, whether
on the Landlord or on the Tenant, and shall indemnify the Landlord from any
liability in respect of such charge, levy or tax.
(10) Any equipment or apparatus from time to time comprised in the Works shall
be maintained by the Tenant at its own cost in good and substantial repair
and condition.
(11) Upon the expiration or termination of the Parking Area 1 Rights or the
Parking Area 2 Rights the Tenant shall forthwith:
(a) remove all equipment installed pursuant to clause 2 including Entry
System 1 where the Parking Area 1 Rights have terminated and Entry
System 2 where the Parking Area 2 Rights have terminated;
(b) cease to employ the security measures referred to in clause 2(2) where
the Parking Area 1 Rights have terminated and in clause 2(3) where the
Parking Area 2 Rights have terminated;
(c) reinstate Parking Area 1 where the Parking Area 1 Rights have
terminated and Parking Area 2 where the Parking Area 2 Rights have
terminated; and
(d) carry out any works required as a condition of any Consent
and in each case making good all damage to Parking Area 1 and Parking Area
2 respectively and to the Estate.
(12) The Tenant shall carry out the works of reinstatement required by sub-
clause (11) at its own expense and in a good and workmanlike manner and to
the reasonable satisfaction of the Landlord or their surveyors.
(13) The Tenant shall pay on demand the reasonable and proper fees, expenses and
disbursements of the Landlord and its surveyors and any other professional
advisers (together with any Value Added Tax on them) incurred by the
Landlord relating to the approvals required by this deed and any works of
removal and re-instatement the Tenant is required to undertake in
accordance with this deed.
5. LANDLORD'S COVENANTS
The Landlord hereby covenants with the Tenant as follows:
(a) for so long as the respective terms created by the Xxxx 0 Lease, the
Unit 6 Lease and the Unit 7 Lease shall all remain vested in the same
tenant (be it the Tenant or a successor in title) the Landlord will
not grant to any other person any rights in respect of the parking of
vehicles on or over Parking Area 1; and
(b) for so long as the respective terms created by the Unit 6 Lease and
the Unit 7 Lease shall together remain vested in the same tenant (be
it the Tenant or a successor in title) the Landlord will not grant to
any other person any rights in respect of the parking of vehicles on
or over Parking Area 2,
(c) during the subsistence of the rights granted by clause 2(2) or clause
2(3) the Landlord shall give to the Tenant at least 3 working days
prior notice (save in case of emergency) of the date on which the
Landlord (or its agent or contractors as the case may be) intends to
enter on to Parking Area 1 or Parking Area 2 (as appropriate) for any
purpose which may substantially interfere with or impair the Tenant's
ability to exercise the rights granted to it in this deed.
6. ALIENATION
(1) The Tenant may assign the benefit of this deed to an assignee of the Leases
or an assignee of both the Unit 6 Lease and the Unit 7 Lease subject to
obtaining the Landlord's prior written consent, such consent not to be
unreasonably withheld or delayed.
(2) Save as set out in sub-clause (1) the Tenant may not assign, underlet,
charge or otherwise deal with its rights under this deed.
(3) The Landlord and Tenant agree that the Landlord may as a condition of
granting consent in accordance with sub-clause (1) require such assignee to
covenant by deed with the Landlord to observe and perform the covenants and
conditions on the part of the Tenant contained in this deed.
7. TRANSFER OF THE LANDLORD'S INTEREST
If the Landlord transfers the reversion immediately expectant upon the
determination of the Leases the Landlord may procure that any transferee
enters into a deed with the Tenant to observe the covenants on the
Landlord's part contained in clause 5 and on delivery of such deed to the
Tenant the Landlord shall be automatically released from its obligations
under such clause (save in respect of any rights the Tenant may have
against the Landlord in respect of any prior breach of such covenant by the
Landlord).
8. GUARANTOR'S COVENANTS
(1) The Guarantor guarantees to the Landlord the performance of all the
liabilities and obligations of the Tenant under this deed and shall
indemnify the Landlord against all losses, damages, costs and expenses
arising or incurred by the Landlord as a result of the non-payment or non-
performance of those obligations or liabilities.
(2) The obligations of the Guarantor under this deed:
(a) constitute a direct, primary and unconditional liability to pay on
demand to the Landlord any sum which the Tenant is liable to pay under
this deed and to perform on demand by the Landlord any obligation of
the Tenant under this deed without the need for any recourse on the
part of the Landlord against the Tenant; and
(b) will not be affected by:-
(i) any time or indulgence granted to the Tenant by the Landlord;
(ii) any legal limitation, disability or other circumstances
relating to the Tenant or any irregularity, unenforceability or
invalidity of any obligations of the Tenant under this deed;
(iii) any licence or consent granted to the Tenant, any variation in
the terms of this deed or any variation in the terms of the
Leases or any one or more of them;
(iv) the release of one or more of the parties defined as the
Guarantor (if more than one); or
(v) any other act, omission, matter or thing whereby (but for this
provision) the Guarantor would be exonerated in whole or in
part from this guarantee other than a release under seal given
by the Landlord.
(3) So long as this guarantee remains in force the Guarantor shall not:
(a) in the event of any bankruptcy, liquidation, rehabilitation,
moratorium or other insolvency proceedings relating to the Tenant,
claim or prove as creditor in competition with the Landlord; or
(b) be entitled to claim or participate in any security held by the
Landlord in respect of the obligations of the Tenant under this deed;
or
(c) exercise any right of set-off against the Tenant.
(4) If the Landlord brings proceedings against the Tenant, the Guarantor shall
be bound by any findings of fact, interim or final award of interlocutory
or final judgment made by an arbitrator or the court in those proceedings
insofar as the same relate to the subject matter of this deed PROVIDED THAT
the Landlord shall have served a copy of the writ summons petition or
similar process which initiated such proceedings on the Guarantor before
the expiry of 7 days after such proceedings were initiated
9. DECLARATIONS
It is agreed and declared that:
(a) the Tenant shall not be entitled to any compensation in respect of the
Works or the reinstatement of Parking Area 1 and Parking Area 2
following the removal of the Works;
(b) this deed and any approval of the Works by or on behalf of the
Landlord is granted without any liability on the part of the Landlord
or its surveyors or other agents, whether for the design or carrying
out of the Works or otherwise;
(c) the Works shall be and shall remain at the sole risk of the Tenant;
(d) the Tenant is not granted and shall not acquire any rights over
Parking Area 1 or Parking Area 2 save as specifically set out in this
deed; and
(e) any decrease in the rental value of the Property as a result of this
deed shall be disregarded on any rent review under the Leases or any
one of them.
10. JOINT AND SEVERAL LIABILITY
Where the Tenant or the Guarantor is more than one person:
(a) those persons shall be jointly and severally responsible in respect of
every obligation undertaken by them under this deed; and
(b) the Landlord may release or compromise the liability of any of those
persons under this deed or grant any time or other indulgence without
affecting the liability of any other of them.
11. NOTICES
Any notice or other document served under this deed shall be in writing and
may be served in any way in which a notice required or authorised to be
served under Section 196 of the Law of Property Act 1925 (as amended or re-
enacted) may be served.
12. JURISDICTION
This deed shall be governed by and construed in accordance with English law
and the parties irrevocably agree that the courts of England are to have
exclusive jurisdiction to settle any disputes which may arise out of or in
connection with this deed.
IN WITNESS of which this deed has been executed as a deed and has been delivered
on the date first appearing on Page 1.
THE SCHEDULE
Part 1
------
Lease or underlease: Lease of Xxxx 0
Premises demised Xxxx 0 Xxxxx 0 Xxxxxx Xxxx, Xxxxxxxxxx Road, Park
Royal, London NW10
Date: 24th December, 1998
Parties: (1) Lloyds Bank Plc (as trustee of Xxxxxxxx Exempt
Property Unit Trust)
(2) Exodus Internet Limited
(3) Exodus Communications Inc
Term: 25 years from 29th September 1998
Part 2
------
Lease or underlease: Lease of Xxxx 0
Premises demised Xxxx 0 Xxxxx 0 Xxxxxx Xxxx, Xxxxxxxxxx Road, Park
Royal, London NW10
Date: 24th December, 1998
Parties: (1) Lloyds Bank Plc (as trustee of Xxxxxxxx Exempt
Property Unit Trust)
(2) Exodus Internet Limited
(3) Exodus Communications Inc
Term: 25 years from 29th September 1998
Part 3
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Lease or underlease: Lease of Xxxx 0
Premises demised Xxxx 0 Xxxxx 0 Xxxxxx Xxxx, Xxxxxxxxxx Road, Park
Royal, London NW10
Date: 24th December, 1998
Parties: (1) Lloyds Bank Plc (as trustee of Xxxxxxxx Exempt
Property Unit Trust)
(2) Exodus Internet Limited
(3) Exodus Communications Inc
Term: 25 years from 29th September 1998
SIGNED as a deed by )
Xxxxxxx Xxxxx Xxxxxx, Trust Manager )
as attorney for LLOYDS BANK PLC )
in the presence of: )
Witness's /s/ X.X. Xxxxxxxxx
Signature: ...............................
Name: .............X.X. Xxxxxxxxx.........
Address: Lloyds Bank
Securities Service
Xxx'x Xxxx Xxxxx
0, Xxx'x Xxxx
Xxxxxx XX0 0XX
LLOYDS BANK SECURITIES SERVICES
-------------------------------
POWER OF ATTORNEY FOR EXECUTION OF DOCUMENTS
--------------------------------------------
By this power of attorney given on the eigth day of July 1998 Lloyds Bank Plc
whose registered office is at 00 Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX ("the bank")
hereby appoints:
Xxxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxxx
Xxx Xxxxxx Bransgrove
Xxxx Xxxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxx Xxxx Xxxxxx
Xxxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxxxx Xxxxxxx Xxxxx
Xxxxxxxxxxx Xxxx Xxxxxxxx
Xxxxx Xxxxx
Xxxxxxx Xxxxxxx Xxxxxxxx
Xxxxxx Xxxx Kings
Xxxxx Xxxx Kitcat
Xxxx Xxxxxx Xxxx
Xxxxxx Xxxx Xxxxx
Xxxxxx Xxxxxxx XxXxxx
Xxxxxxxxxx Xxx Xxxxxx
Xxxx Xxxxxxxxxxx Xxxxxxxxxx
Xxxxx Xxxxxxx Xxxxxx
Xxxxxx Xxxxxxxxx Xxxxxx
Xxxxxx Xxxxx Xxxxx
Xxxxxxx Xxxxxx Xxxxxx
Xxxxxxx Xxxxxx Xxxxxx
Xxxx Xxxxxx Xxxxxx
Xxxxxxx Xxxxxx Xxxxx
Xxxxx Xxxxx Xxxxxx
Xxxxx Xxxxxx Xxxxxxx Xxxxx
Xxxxxx Xxxxxx Xxxxxxx
Xxxxxx Xxxxxx
Xxxxxx Xxxxxxx Xxxx
Xxxx Xxxxxxx Xxxxxxxx
Xxxx Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx Xxxxxxxxxx
Xxxxxxx Xxxxx Xxxxxx
Xxxxx Xxxxxxx Welpa
all of Lloyds Bank Securities Services, jointly and severally, to be attorneys
of the bank in its capacity as trustee, personal representative, nominee,
mortgagee or chargee, only for the purpose of carrying into effect matters
determined upon by the bank in any of these capacities, to sign, seal, execute
and deliver any deed or document considered necessary or desirable:
(1) to convey, transfer, assign, lease, let, underlet, surrender, sell or grant
options, rights of preemption or any other rights over any real or personal
property;
(3) to postpone, defer, subordinate or otherwise regulate the priority or
ranking of any mortgage, charge, debenture or other security;
(4) to vary, alter, amend, modify, revise, replace or substitute any deed or
document to which the bank is a party;
(5) to transfer any stocks, shares or other securities held by or registered in
the name or under the control of the bank and to authorise any person to
exercise any rights attached in any such stocks, shares or other
securities;
(6) to give such indemnities as may be necessary in favour of any person or
body of persons including without limitation indemnities in respect of
lost, destroyed or mislaid certificates, allotment letters or other
documents relating to stocks, shares or other securities;
(7) to grant easements or any other rights over or impose covenants or any
other restrictions on or consent to the letting, underletting, assignment,
surrender or alteration of any freehold or leasehold property;
(8) to assent to the vesting in any person of any real or personal property;
(9) to declare, constitute, regulate, record, vary, alter, amend or modify any
trust, settlement or family arrangement and to appoint or retire any
trustee, including the bank, of any trust, settlement or family
arrangement;
(10) to purchase, lease, acquire or otherwise take into the name of the bank or
under its control any real or personal property whatsoever or wheresoever
or any options, rights of preemption or any other rights over real or
personal property; and
(11) to manage, develop, refurbish, repair, reinstate or otherwise carry out any
works upon any real property whatsoever or wheresoever.
and generally for all or any of the purposes aforesaid to act as attorneys of
the bank. The common seal of the bank was affixed to this deed the date and
year first above written. Given under the common seal of Lloyds Bank Plc as a
deed.
Authorised signatory
Authorised counter signatory
