DATED 11th October 2007 PETTIFER ESTATES LIMITED (1) and BIO-ANALYTICAL SYSTEMS LIMITED (2) and BIOANALYTICAL SYSTEMS INC (3)
EXHBIT
10.1
DATED 11th
October 0000
XXXXXXXX
XXXXXXX LIMITED (1)
and
BIO-ANALYTICAL
SYSTEMS LIMITED (2)
and
AGREEMENT
FOR LEASE
of
Office
B Building 500
Abbey
Park, Stoneleigh, Warwickshire
Lodders
Solicitors LLP
Stratford
upon Avon
THIS
AGREEMENT
is dated
11th
October
2007 and is made BETWEEN:
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(1)
|
PETTIFER
ESTATES LIMITED
(Company Number 03834274) whose registered office is at 00 Xxxxxxxxx
Xxxx
Xxxxxxxx-xx-Xxxxx Xxxxxxxxxxxx XX00 0XX (“the
Landlord”)
and
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|
(2)
|
BIO-ANALYTICAL
SYSTEMS LIMITED (Company
Number 03581072) whose registered office is at Building 00, Xxxxxxxxxx
Xxxx Xxxx, Xxxxxxxxxx, XX0 0XX (“the
Tenant”)
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|
(3)
|
BIOANALYTICAL
SYSTEMS INC
of
Purdue Research Park, 0000 Xxxx Xxxxxx Xxxx Xxxxxxxxx XX00000 XXX
(“the
Guarantor”)
|
NOW
IT IS HEREBY AGREED
as
follows:
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1
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Interpretation
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1.1
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In
this Agreement unless the context otherwise
requires:
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(a)
|
Words
importing any gender include every
gender
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(b)
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Words
importing the singular number only shall include the plural number
and
vice versa
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(c)
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Words
importing persons include firms companies and corporations and vice
versa
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(d)
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Any
reference to any statute (whether or not specifically named) shall
include
any statutory modification or re-enactment of it for the time being
in
force and any order instrument plan regulation permission and direction
made or issued under it or under any statute replaced by it or deriving
validity from it
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(e)
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References
to clauses schedules and annexures are references to the relevant
clause
in or schedule or annexure to this
Agreement
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(f)
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Where
any obligation is undertaken by two or more persons jointly those
persons
shall be jointly and severally liable in respect of that
obligation
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1
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(g)
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Any
obligation on the Landlord the Tenant or the Guarantor not to do
or omit
to do anything shall be deemed to include an obligation not to knowingly
allow that thing to be done or omitted to be done by any person under
its
control
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(h)
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The
headings to the clauses and schedules shall not affect the
interpretation
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1.2
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In
this Agreement (including the schedules) unless the context otherwise
requires the following expressions shall have the following meanings
(and
the definitions in Schedule 1 Part 1 paragraph 1 shall also
apply):
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“Appointments”
means
the appointments of the Professional Team to be entered into in the form of
the
appointments attached at schedule 5
subject
to such amendments as may be reasonably required by the members of the
Professional Team with the Tenant’s approval (not to be unreasonably withheld or
delayed)
“Architect”
means
Robothams Architecture of Xxx Xxx Xxxxxxx 00 Xxxxxx Xxxxxx Xxxxxxx XX00 0XX
or
such other reputable firm or person as may from time to time be appointed in
connection with the Landlord’s Works and approved by the Tenant (such approval
not to be unreasonably withheld or delayed)
“Building”
means
the building to be constructed as part of the Building Works and known as
Building 000, Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx (to include the Premises
(as
defined in the draft Lease) having a target Net Internal Area of 6,655 square
feet and with 24 car parking spaces)
“Building
Contract”
means
the contract or contracts to be entered into by the Landlord with the Building
Contractor for the Landlord’s Works which shall be in the form of the JCT
Standard Form of Building Contract with Contractors Design 1998 Edition (as
amended by JCT amendments 1: 1999, 2:2000 3:2001 4: 2002 and 5:2003 and with
such further amendments as the Landlord shall reasonably require and as shall
be
approved by the Tenant (such approval not to be unreasonably withheld or
delayed) and which shall provide for a defects liability period of 12
months
“Building
Contractor”
means
such reputable building contractor as the Landlord may from time to time appoint
in connection with the Landlord’s Works and notify to the Tenant in writing and
as approved by the Tenant such approval not to be unreasonably withheld or
delayed
2
“Building
Works”
means
the construction of the Building as part of the Development as described in
the
Plans and Specifications
“Completion
Date”
means
the latest of:
| (i) |
the
date 20 Working Days after the Practical Completion Date;
and
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| (ii) |
the
date 10 Working Days after delivery to the Tenant’s Solicitors of an
engrossed Lease
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“CDM
Regulations”
means
The Construction (Design and Management) Regulations 1994 and any related codes
of practice together with any requirements issued from time to time by the
Health and Safety Executive
“Consents”
means
all consents licences permissions and approvals whether of a public or private
nature which are relevant in the context of the Development.
“Development”
means
the construction of the Building
“Employer’s
Agent”
means
P.C.M
LIMITED
(company
number 03264983) whose registered office is at 00 Xxxxxxxxx Xxxx Xxxxxxxx on
Stour XX00 0XX or such other reputable firm or person as the Landlord may from
time to time appoint in connection with the Landlord’s Works and approved by the
Tenant (such approval not to be unreasonably withheld or delayed)
“Estimated
Practical Completion Date”
means
17th
March
2008 as extended (if at all) under clause 7
“Expert”
means
an independent chartered surveyor agreed upon between the parties or in the
absence of agreement appointed on the application of either party by the
President for the time being of the Royal Institution of Chartered Surveyors
or
his duly appointed deputy such person being an independent suitably qualified
professional person (including but not limited to a solicitor a surveyor or
planning counsel) having regard to the subject matter of the dispute with at
least ten years post qualification experience in commercial property xxxxxx
similar to the subject matter of the dispute.
“Gross
External Area”
means
the gross external area in square feet measured in accordance with the Code
of
Measuring Practice published by the Royal Institution of Chartered Surveyors
(Fifth Edition)
3
“Group
Company” means
a
group company of the Tenant as defined in Section 42 of the Landlord and Xxxxxx
Xxx 0000.
“Landlord’s
Fit-Out Works”
means
the works of fitting out performed on behalf of the Tenant by the Landlord
as
designed by the Tenant and specified in Schedule
7
“Landlord’s
Works”
means
the Building Works (subject to clause
9)
any
Tenant’s Variations and the Landlord’s Fit-Out Works
“Lease”
means
the Lease of the Premises to be granted by the Landlord and accepted by the
Tenant which shall be in the form of the draft attached at schedule 2
subject
to any alterations made pursuant to this Agreement
“Licence
for Alterations”
means
the licence for alterations to be entered into between the parties in relation
to the Tenants Works and which shall be in the form of the draft attached at
schedule 3
“Longstop
Date”
means
16th
March
2009 (as referred to in clause
5.4)
“Management
Company” means
Abbey (Deer) Park Management Limited (company number 5394746)
“Minor
Defects”
means
any non-structural defects in the Landlord’s Works or unfinished works which do
not materially interfere with the Tenant’s beneficial use and occupation of the
Premises and which (in either case) would normally appear on a contractor’s
snagging list
“Necessary
Consents”
means
the Planning Permission all relevant planning permissions and all other building
regulation approvals consents licences permissions and approvals whether of
a
public or a private nature which shall be necessary for the carrying out and
completion of the Landlord’s Works or the Tenant’s Works as the case may
be
“Net
Internal Area”
means
the net internal area in square feet measured in accordance with the Code of
Measuring Practice published by the Royal Institution of Chartered Surveyors
(Fifth Edition)
“Outstanding
Works”
means
any landscaping planting and seeding works comprised in the Landlord’s Works
which it would not be appropriate or prudent to carry out until the next
planting season following the Practical Completion Date
4
“Planning
Agreement” means
the
planning agreement dated 24 September 2002 referred to at clause 2.1.47 of
the
draft lease
“Planning
Permission” means
reserved matters consent reference W04/1229
“Plans
and Specifications”
means
the plans and specifications annexed to this Agreement at schedule
6
“Practical
Completion Date”
means
the date certified by the Employer’s Agent as such in the Statement of Practical
Completion relating to the Landlord’s Works
“Premises”
has
the
meaning attributed to it by the Lease
“Professional
Team”
means
the Architect and the Structural Engineer
“Property”
means
land and buildings known as North and South Deer Parks Stoneleigh Warwickshire
registered at the Land Registry with title number WK351452
“Rent
Commencement Date”
means
the date 6 months after the Practical Completion Date
“Stipulated
Rate” means
the
rate per annum of three percent above the base rate from time to time of
Barclays Bank plc (or where such base rate is not quoted such other rate as
would in the reasonable opinion of the Landlord be the nearest equivalent
thereto if such base rate were quoted
“Statement
of Practical Completion”
means
the Statement of Practical Completion issued by the Employer’s Agent in
accordance with clause
9 and
relating to the Landlord’s Works
“Structural
Engineer”
means
Xxx
Xxxxxx Xxxxx Limited
(company
number 02158827) whose registered office is at Waterlinks House Xxxxxxx Street
Aston Birmingham B& 4AA or such other reputable firm of structural engineers
as may from time to time be appointed in relation to the Landlord’s Works and
approved by the Tenant (such approval not to be unreasonably withheld or
delayed)
5
“Tenant’s
Delays”
means
such period of time as may be reasonable in respect of any delay in the carrying
out of the Landlord’s Works arising from or incidental to any Tenant’s
Variations requested by the Tenant pursuant to clause
7
whether or not such Tenant’s Variations are actually carried out or any defects
in the design of the Landlord’s Fit-Out Works which result in them not being
capable of being readily incorporated into the Landlord’s Works in a timely
manner or any failure by the Tenant to promptly provide further information
design input or approvals in relation to the Landlord’s Fit-Out Works where
requested pursuant to clause
12
"Tenant's
Representative"
means
Xxxxx Xxxxx of Bioanalytical Limited and Xxxx Xxxxxx of CB Xxxxxxx Xxxxx,
Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxxx, Xxxxxxxxxx, X0 0XX or such other person as
the
Tenant may from time to time appoint to act as its representative in relation
to
this Agreement
“Tenant’s
Variations”
means
such works as the Landlord may be obliged to carry out in addition to or omit
from the Landlord’s Works at the cost of the Tenant under clause 7
“Tenant’s
Works”
means
that part of the Tenant’s fitting out works at the Premises so described in the
specification annexed at schedule
8
“VAT”
means
value added tax chargeable pursuant to the Value Added Tax Xxx 0000 or any
tax
of a similar nature that may be substituted for it or levied in addition to
it
“Warranties”
means
the warranties by the Building Contractor and the Professional Team to be
entered into in favour of the Tenant pursuant to clause
4 in
the
form of the warranties attached at schedule 4
subject
to such amendments as may be reasonably requested by members of the Professional
Team and approved by the Tenant (such approval not to be unreasonably withheld
or delayed)
“Working
Day”
means
any day except Saturday Sunday and bank or other public holidays in
England
6
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2
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The
Tenant’s Representative
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2.1
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The
Tenant may appoint the Tenant's Representative to carry out such
of the
functions of the Tenant under this Agreement as the Tenant in its
absolute
discretion may determine and which are to be notified by the Tenant
to the
Landlord from time to time
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2.2
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The
Landlord shall be entitled to treat all communications, directions,
representations of the Tenant's Representative as communications
directions and representations of the Tenant, and the Landlord shall
direct all communications to the Tenant through the Tenant's
Representative other than under clause
18
or
where specifically directed otherwise in writing by the
Tenant
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3
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Landlord’s
Building Obligation
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3.1
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The
Landlord shall as soon as reasonably practicable after the date hereof
and
at its own expense diligently carry out or procure the carrying out
of the
Landlord’s Works and shall complete them in a good and workmanlike manner
in accordance with good building practice and using all reasonable
skill,
care and attention and using only new suitable good quality materials
and
in accordance with:
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(a)
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all
Necessary Consents;
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(b)
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all
statutes from time to time in force which affect the Landlord’s
Works;
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(c)
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the
terms of this Agreement;
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(d)
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all
relevant British Standards and Codes of Practice from time to time
in
force unless otherwise agreed or unless otherwise provided in the
Plans
and Specifications;
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(e)
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the
Plans and Specifications.
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3.2
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In
relation to the Landlord’s Works the Landlord
shall:
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(a)
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at
its own cost obtain as soon as requisite all Necessary Consents and
shall
give all notices required to be given by statute or
otherwise
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(b)
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not
use or specify and shall procure that there are not used or specified
any
products or materials not conforming to all relevant British Standards
and
Codes of Practice now in force or which at the time of use are widely
known to builders or consultants of the relevant discipline within
Britain
to be deleterious to health and safety or to the durability of buildings
and/or other structures in the particular circumstances in which
they are
used (in any such case unless otherwise agreed or unless otherwise
provided in the Plans and Specifications) and in the event the Landlord
becomes aware that any non-conforming products or materials or goods
have
been or are being used or specified for use or are proposed to be
used in
the Landlord's Works the Landlord shall immediately notify the Tenant
and
shall take such steps as are necessary to prevent further use or
specification of such products or
materials
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7
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3.3
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The
Landlord shall enter into the Building Contract and (insofar as
it shall
not have done so before then) each of the Appointments as soon
as
reasonably practicable after the date hereof and shall use all
reasonable
endeavours to procure that during the carrying out of the Landlord's
Works
that the Contractor and the Professional Team are continuously
appointed
and given prompt and adequate instructions in accordance with the
terms of
the Building Contract or Appointments (as the case may
be)
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3.4
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The
Landlord shall at its expense provide or procure the provision
to the
Tenant of certified copies of the Building Contract and each Appointment
promptly following such being entered into and in any event on
or before
the Completion Date
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3.5
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The
Landlord will take all reasonable steps to ensure the due performance
and
observance of the duties and obligations on the part of the Building
Contractor under the Building
Contract
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3.6
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Insofar
as failure to do so would materially affect the rights of the Tenant
under
the Warranties, the Landlord will comply with its obligations to
the
Building Contractor and the Professional Team respectively under
the
Building Contract and the
Appointments
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3.7
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The
Landlord shall not make any alteration in the terms of the Building
Contract or the Appointments or agree to any release of the Contractor
or
any member of the Professional Team which would in either case
adversely
affect rights of the Tenant under the Warranties Provided that
this clause
3.7 shall not prevent the Landlord from determining the employment
of the
Building Contractor or the appointment of any member of the Professional
Team where the Landlord is otherwise entitled to do
so
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3.8
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No
approval or inspection or testing by or on behalf of the Tenant
shall in
any way relieve the Landlord or the Building Contractor or the
members of
the Professional Team (or any one or more of them) from their respective
obligations in respect of the design supervision and execution
of the
construction of the Landlord’s Works
|
8
| 3.9 | Provided that the Tenant shall have first paid to the Landlord an agreed sum being a maximum of £278,452.00 the Landlord will procure that the Landlord’s Fit-Out Works are carried out and completed as part of the Landlord’s Works in accordance with the relevant provisions of this Agreement |
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4
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Warranties
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4.1
|
The
Landlord shall on or before the Completion Date procure that the
duly
executed Warranties are delivered unconditionally to the Tenant from
the
Building Contractor and each member of the Professional Team together
with
up to date professional indemnity insurance details in respect of
each
such warrantor
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4.2
|
Notwithstanding
anything else contained in this Agreement the Tenant may (but shall
not be
obliged to) delay completion of the Lease until the Warranties have
been
provided to it (but for the avoidance of doubt this clause
4.2 shall
not entitle the Tenant to delay completion of the Lease on the grounds
that any evidence of professional indemnity cover for such warrantors
is
outstanding)
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4.3
|
If
any replacement Building Contractor or member of the Professional
Team is
appointed in connection with the Landlord's Works after the delivery
of
the Warranties to the Tenant pursuant to clause 4.1, the Landlord
shall
procure that in relation to such replacement that there is delivered
to
the Tenant as soon as reasonably practicable after such replacement
appointment:
|
|
(a)
|
a
certified copy of the Building Contract or its Appointment (as
appropriate); and
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(b)
|
a
duly executed Warranty
|
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4.4
|
To
the extent that the Landlord secures a parent company guarantee of
the
Building Contractor’s obligations under the Building Contract the Landlord
shall (in addition to procuring a Warranty from the Building Contractor
in
favour of the Tenant) procure that such parent company enters into
a
guarantee of the Warranty in favour of the Tenant such guarantee
to be in
the form contained at schedule
4
|
9
|
5
|
Programme
|
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5.1
|
The
Landlord will use all reasonable endeavours to procure that the
Practical
Completion Date occurs on or before the Estimated Practical Completion
Date PROVIDED THAT the Estimated Practical Completion Date shall
be
extended by such period or periods (if any) as may be properly
certified
by the Employer’s Agent to be due to any Tenant’s Delays or to any act or
omission of the Tenant or those for whom the Tenant is responsible
(including without prejudice to the generality of the foregoing
its
professional consultants and contractors) in any such case whether
arising
before or after the Estimated Practical Completion Date and such
extensions shall run consecutively or concurrently as may be fair
and
reasonable in the circumstances
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5.2
|
The
Landlord shall keep the Tenant informed of any variations to the
Estimated
Practical Completion Date
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5.3
|
If
the Practical Completion Date has not occurred for whatever reason
by the
Longstop Date then the Tenant may at any time thereafter (but not
after
the Practical Completion Date has occurred) by notice in writing
to the
Landlord terminate this Agreement and any such termination shall
be
without prejudice to any rights which any party to this Agreement
may have
against any other party in respect of any prior breaches of this
Agreement
or in respect of any sums payable hereunder down to the date of
termination and the Tenant shall forthwith cancel any entry it
may have
made at the Land Registry to protect this Agreement and (save where
the
Practical Completion Date has not occurred due to any Tenant’s Delays or
to any act or omission of the Tenant or those for when the Tenant
is
responsible (including without prejudice to the generality of the
foregoing its professional consultants and contractors)) the Landlord
shall promptly reimburse to the Tenant the cost of any Tenant’s Variations
which have been paid for by the Tenant pursuant to provisions of
clause 7
and the cost of any Tenant’s Works which have been carried out and paid
for by the Tenant pursuant to the terms of this Agreement together
with
the monies paid in accordance with clause
3.9
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5.4
|
If
the Practical Completion Date has not occurred by the Longstop
Date for
any reason other than default on the part of the Landlord then
the
Landlord may at any time thereafter (but not after the Practical
Completion Date has occurred) by notice in writing to the Tenant
terminate
this Agreement and any such termination shall be without prejudice
to any
rights which any party to this Agreement may have against any other
party
in respect of any prior breaches of this Agreement or in respect
of any
sums payable hereunder down to the date of termination and the
Tenant
shall forthwith cancel any entry it may have made at the Land Registry
to
protect this Agreement and (save where the Practical Completion
Date has
not occurred due to any Tenant’s Delays or to any act or omission of the
Tenant or those for when the Tenant is responsible (including without
prejudice to the generality of the foregoing its professional consultants
and contractors)) the Landlord shall promptly reimburse to the
Tenant the
cost of any Tenant’s Variations which have been paid for by the Tenant
pursuant to provisions of clause 7 and the cost of any Tenant’s Works
which have been carried out and paid for by the Tenant pursuant
to the
terms of this Agreement together with the monies paid in accordance
with
clause 3.9
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10
| 6 |
Landlord’s
Variations
|
| 6.1 |
The
Landlord shall not make any variation or omissions to the Building
Works
without the prior written consent of the Tenant
|
| 6.2 |
The
Landlord may vary or make omissions from the Landlord’s Works not
comprising the Building Works Provided that where such variation
or
addition will have a material adverse effect upon the Premises (including
the Net Internal Area) or the Tenant's use and enjoyment of them
the
Landlord shall first obtain the written consent of the Tenant (which
shall
not be unreasonably withheld or delayed where reasonable and proper
provisions are made to meet the Tenant’s
concerns)
|
| 6.3 |
Notwithstanding
clauses
6.1 and 6.2
the Landlord may without any consent from the Tenant make variations
or
omissions to the Landlord’s Works
where:
|
|
(a)
|
the
variations or additions are required in order to comply with any
statutes;
and/or
|
|
(b)
|
the
variations involve the substitution of materials where any materials
specified in the Plans and Specification cannot be obtained or if
their
delivery at the appropriate time or at reasonable cost cannot be
guaranteed and such alternative materials are of equivalent or superior
standard and appearance; and/or
|
|
(c)
|
the
variations are insubstantial or immaterial and of a routine nature
Provided that such variations or additions referred to in this
clause
6.3(c)
will not result in any of the
following:
|
| (i) |
there
will be no effect on the intended Net Internal Area of the
Premises
|
| (ii) |
there
will still be 24 car parking spaces provided for the
Premises
|
11
| (iii) |
there
will be no material effect on the external appearance of the
Building
|
| (iv) |
there
will be no breach of statutory
requirements
|
|
6.4
|
In
any case where the Tenant’s consent is required to any proposed variation
or addition to the Landlord’s
Works:
|
|
(a)
|
the
Landlord shall serve written notice on the Tenant detailing the proposed
variation and requesting the Tenant’s consent to such
variation
|
|
(b)
|
the
Tenant shall serve a counternotice within 7 Working Days of receipt
of
such notice consenting to such variation or detailing the Tenant’s reasons
for not consenting to such variation and
|
|
(c)
|
in
the event that the Tenant fails to serve such counternotice within
7
Working Days (in relation to which time shall be of the essence)
the
Tenant shall be deemed to approve such
variation
|
|
6.5
|
The
Landlord shall procure that a copy of every instruction variation
order
certificate and other instrument relating to the Building Works and
issued
by the Employer's Agent pursuant to the Building Contract is promptly
supplied to the Tenant
|
| 7 |
Tenant’s
Variations
|
| 7.1 |
If
the Tenant wishes to request any variations or omissions to be made
to the
Building Works in so far as they relate to the Premises or the Landlord’s
Fit-Out Works the Tenant shall deliver to the Landlord for approval
a
written application specifying the proposed variation or omission
and the
following provisions of this clause
7
shall apply
|
| 7.2 |
The
Landlord shall not unreasonably withhold consent to any written
application made by the Tenant pursuant to clause 7.1 for a variation
or
omission to the Building Works in so far as they relate to the Premises
or
the Landlord’s Fit-Out Works
|
| 7.3 |
If
the proposed variations or omissions are approved by the Landlord
the
Landlord shall as soon as practicable thereafter procure the preparation
and the delivery to the Tenant of such amended drawings and other
documents as may be necessary to enable the Tenant to decide whether
to
proceed with such variation or omission and a reasonably detailed
elemental breakdown and binding quote from the Building Contractor
of the
costs thereof (which will also include details (separately itemised)
of
the reasonable fees payable to members of the Professional Team in
connection with such omissions or variations) but making due allowance
(and in respect of which an elemental breakdown shall be provided)
for all
costs saved by the Landlord in the cost of the Building Works by
reason of
such omissions or variations, together with details of whether it
is
likely that incorporating such omissions or variations into the Landlord’s
Works shall reasonably delay the Estimated Practical Completion
Date
|
12
| 7.4 |
If
the Tenant wishes such variation or omission to be made it shall
within
ten Working Days of receipt of such drawings documents and estimate
notify
the Landlord in writing of its acceptance and promptly thereafter
the
Landlord shall procure that such variations or omissions are incorporated
into the Building Works and carried out in the manner required by
this
Agreement
|
| 7.5 |
Whether
or not such Tenant’s Variations are made the Tenant shall within ten
Working Days of written demand pay to the Landlord the amount of
all
reasonable and proper costs fees and expenses incurred (other than
by the
Landlord) in connection with the preparation of such drawings documents
and estimate
|
| 7.6 |
The
cost of the Tenant's Variations shall be certified monthly by the
Employer's Agent as the Tenant's Variations proceed and the Tenant
shall
pay the amount stated in such certificate within 10 Working Days
of such
certificate being delivered to the Tenant Provided always that the
amount
payable hereunder shall not exceed the cost of the Tenant’s Variations in
question as specified in the quote delivered by the Building Contracts
or
pursuant to clause 7.3.
|
| 7.7 |
As
soon as reasonably practicable after the Practical Completion Date
the
Landlord shall procure that the Employer's Agent produces a final
account
itemising the costs notified and agreed (including any allowance)
pursuant
to this clause
7
relating to all Tenant's Variations and shall forward the same to
the
Tenant and within 10 Working Days of receipt of such final account
the
Tenant shall (subject to the proviso to clause
7.6)
pay any balance owing to the Landlord and in the event that such
final
account shall show a balance due to the Tenant the Landlord shall
repay
such excess to the Tenant within 10 Working Days of production of
the
final account
|
| 8 |
Site
Visits by and Supply of Information to the
Tenant
|
13
|
8.1
|
The
Landlord shall arrange (at intervals agreed with the Tenant but not
less
frequently than monthly) project and site meetings (and of which
the
Tenant shall be given notice and be entitled to attend) to discuss
the
progress of the Landlord's Works at which appropriate representatives
of
the Landlord, the Building Contractor and the Professional Team shall
be
present and copies of the minutes of such meetings shall be provided
to
the Tenant promptly after such meetings and the Tenant shall be entitled
to make representations at such meetings and the minutes of such
meetings
shall record any representations made by the
Tenant
|
|
8.2
|
The
Landlord shall give reasonable prior notice to the Tenant (being
not less
than 3 Working Days) of all other site meetings at which the Tenant
shall
be entitled to attend and will in any event promptly provide the
Tenant
with copies of any minutes of site
meetings
|
|
8.3
|
The
Landlord shall take proper account of (but shall not be bound by)
any
representations made by or on behalf of the Tenant in connection
with the
Landlord’s Works and the progress thereof considered during such meetings
Provided that nothing in this clause shall interfere in any way with
the
rights and obligations of the Landlord under the Building Contract
|
|
8.4
|
The
Landlord shall until the Practical Completion Date permit the Tenant
and
other persons authorised by it at their own risk and subject to the
Tenant
making good any damage caused by such parties (which the Tenant covenants
to do) at such intervals as may from time to time be reasonable subject
to
first reporting to the Building Contractor and to complying with
the
proper requirements of the Building Contractor as to numbers safety
or
otherwise to enter onto the Premises (accompanied by a representative
of
the Landlord if the Landlord shall so require) to view the progress
and
state of the Landlord’s Works and the materials used or intended for use
in them and to prepare drawings for the Tenant’s Works (but so that the
persons so entering shall not interfere with the progress of the
Landlord’s Works and shall address any comments to the Landlord or the
Employer’s Agent and not to the Building Contractor or any member of the
Professional Team)
|
|
8.5
|
As
a result of any such inspections the Tenant shall be entitled (but
not
obliged) to make representations regarding the Landlord’s Works or any
part of them but any such representations shall be addressed to the
Landlord or the Employer’s Agent and not to the Building Contractor or any
member of the Professional Team
|
|
8.6
|
The
Landlord shall (and the Landlord shall procure that the Employer’s Agent
shall) give due consideration to (but shall not be bound by) any
such
representations made pursuant to clause 8.5 and take such steps (if
any)
as a consequence which are appropriate and if required by the Tenant
the
Landlord shall provide a reasonable explanation as to what action
(if any)
is being taken in relation to such representations, or why action
(if
applicable) is not being taken
|
14
|
8.7
|
No
inspection or representation made by the Tenant shall absolve the
Landlord
from any of its obligations in this Agreement or be deemed to be
a waiver
of the same by the Tenant
|
|
8.8
|
In
the event that the Tenant has reasonable grounds to suspect that
any of
the Building Works or any material to be used therein are materially
defective or unsuitable for use or are not in accordance with the
terms of
this Agreement the Tenant may require
that:
|
|
(a)
|
the
relevant part of the Building Works is opened up and the materials
are
submitted for testing or the Building Works (to the extent not carried
out
in accordance with this Agreement) be
replaced
|
|
(b)
|
if
in the relevant part of the Building Works the materials prove to
be
defective or unsuitable they are
replaced
|
|
(c)
|
(to
the extent relevant) the Landlord demonstrates to the reasonable
satisfaction of the Tenant that the defective or unsuitable material
has
not been used elsewhere in the Building Works or that in all other
respects the Building works have been carried out in accordance with
this
Agreement.
|
and
the
proper cost of the process of opening up the works shall be the responsibility
of the Landlord Save where the opening up shows no breach by the Landlord of
its
obligations pursuant to the terms of this Agreement in which case such costs
shall be borne by the Tenant
|
8.9
|
The
Landlord shall provide to the Tenant from time to time hard copies
of any
detailed plans specifications or other design information relating
to the
Landlord’s Works and held by the Landlord or the Professional
Team
|
|
8.10
|
Within
the period of two months after the Practical Completion Date the
Landlord
shall provide the Tenant with two complete sets of detailed “as built”
drawings in respect of the Landlord’s Works on the Premises in DWG format
on CD Rom together with one complete copy of the manual showing the
installation and method of commissioning and operation of any plant
and
machinery installed therein as part of the Landlord's Works and as
soon as
reasonably practicable once available a copy of any required records
prepared in compliance with building
regulations
|
15
| 9 |
Issue
of Statement of Practical
Completion
|
| 9.1 |
The
Tenant shall not be entitled to take occupation of the Premises prior
to
the Practical Completion Date
|
|
9.3
|
In
relation to the issue of the Statement of Practical Completion the
Landlord shall procure that:
|
|
(a)
|
the
Employer’s Agent gives to the Tenant at least ten Working Days written
notice of its proposal to issue any such statement and of the date(s)
on
which it is proposed to carry out the inspection of the Landlord’s Works
for that purpose
|
|
(b)
|
the
Employer’s Agent permits the Tenant and (unless prior notice has been
given) not more than five persons authorised by it to accompany the
Employer’s Agent in that inspection of the Landlord’s
Works
|
|
(c)
|
the
Employer’s Agent permits the Tenant and those authorised by it to discuss
fully with it the proposal to issue the Statement of Practical Completion
(as appropriate) and in particular the date to be specified in it
and the
contents of any list of Minor Defects or Outstanding Works which
the
Employer’s Agent proposes to incorporate in the Statement of Practical
Completion.
|
|
(d)
|
the
Employer’s Agent takes proper account of (but shall not be bound by) any
representations made by the Tenant or those authorised by the Tenant
as to
why in the opinion of that party the Statement of Practical Completion
(as
appropriate) should not be issued but for the avoidance of doubt
the
decision of the Employer’s Agent in this regard shall be a matter for his
professional judgement and shall be final and binding as to the date
on
which the Practical Completion Date was
achieved
|
|
9.4
|
Where
the Employer’s Agent shall have given at least ten Working Days notice
under clause 9.2(a)
and the Practical Completion Date (as appropriate) is subsequently
postponed the Employer’s Agent shall not be obliged to give a further ten
Working Days notice but shall nevertheless keep the Tenant informed
of its
proposals and shall give to the Tenant as much notice as is possible
and
in any event not less than five Working Days written notice of the
date on
which a further inspection of the Landlord’s Works is
proposed
|
16
|
9.5
|
The
Employer’s Agent shall be entitled to issue the Statement of Practical
Completion notwithstanding the existence of any Minor Defects and/or
any
Outstanding Works except where such Minor Defects and/or Outstanding
Works
are required to be completed (or rectified) as a condition of the
Planning
Permission or any Consents so as to enable the lawful use and occupation
of the Premises
|
|
9.6
|
Without
prejudice to the foregoing the Landlord shall on the issue of the
Statement of Practical Completion leave the Premises cleared of all
construction plant rubbish and temporary structures (including scaffolding
unless agreed with the Tenant that any scaffolding can temporarily
remain)
used in connection with the Landlord’s
Works
|
| 9.7 |
Following
the issue of the Statement of Practical Completion the Landlord shall
procure that a copy of it together with any schedule of Minor Defects
or
Outstanding Works is delivered to the Tenant within three Working
Days
|
| 9.8 |
The
issue of the Statement of Practical Completion shall be conclusive
evidence binding on the parties that the Landlord’s Works have been
completed in accordance with the terms of this Agreement for the
purposes
of calculating the Completion Date but subject in any event to the
provisions for the resolution of any dispute and any postponement
of the
Rent Commencement Date pursuant to clauses
9.9 and
9.10
|
| 9.9 |
Without
prejudice to the generality of clause
9.8
if
the Tenant’s Surveyor is of the reasonable opinion that the Statement of
Practical Completion should not have been issued or has not been
properly
qualified on its issue the Tenant shall notify the Employer’s Agent in
writing within five Working Days of the issue of the Statement of
Practical Completion as the case may be giving details of the Tenant’s
objections and the Landlord and the Tenant will endeavour to resolve
what
if any action should be taken but if they cannot or do not do so
the
objections not so resolved shall be submitted to an Expert acting
in
accordance with the provisions of clause
23
|
|
9.10
|
The
Landlord shall take whatever action may be required in consequence
of the
resolution of the objections of the Tenant or as specified by the
decision
of the Expert referred to in clause
9.9
Provided that:
|
|
(a)
|
if
the Tenant’s objections are upheld whether by agreement or by an Expert,
the Rent Commencement Date shall be postponed until 6 months after
such
date as the Practical Completion Date should have properly
occurred
|
17
|
(b)
|
if
the Landlord and the Tenant cannot or do not so agree, the matters
in
issue shall be submitted to an Expert as aforesaid who shall be asked
to
decide when the Practical Completion Date should properly have
occurred
|
| 9.11 |
Notwithstanding
the issue of the Statement of Practical Completion the Landlord shall
remain liable to the Tenant to procure the making good of any Minor
Defects
|
| 9.12 |
The
Landlord shall procure the carrying out of the Outstanding Works
at its
cost at the earliest practicable opportunity but not later than the
planting season next following the issue of the Statement of Practical
Completion provided always that in the meantime the Landlord shall
ensure
that the landscaped grassed areas within the Premises are maintained
(at
its cost) in a suitable manner
|
| 9.13 |
In
the event of the Statement of Practical Completion being issued subject
to
any Minor Defects the Landlord shall ensure that such Minor Defects
are
duly executed and put right promptly in accordance with a programme
agreed
with the Tenant and the Landlord will use reasonable endeavours to
ensure
they are put right as soon as reasonably practicable following the
issue
of the Statement of Practical
Completion
|
| 9.14 |
In
the course of remedying any Minor Defects the Landlord shall where
practicable procure that as little disturbance and interference as
reasonably practicable shall be caused to the Tenant in carrying
out such
work and to the extent that such works are to be carried out inside
its
Building following consultation with the Tenant the Landlord shall
make
good in a reasonable manner all damage caused to the Premises and
the
Tenant’s fixtures and fittings by the carrying out of such
work.
|
| 10 |
Defects
|
| 10.1 |
Notwithstanding
the issue of the Statement of Practical Completion and without prejudice
to the remaining provisions of this clause
10,
the Landlord shall remain liable to the Tenant to make good any defects,
shrinkages and other faults due to materials or workmanship not being
in
accordance with the Building Contract or frost occurring before Practical
Completion (including any necessary re-plastering and/or redecoration)
and
in either case accepted by the Employer’s Agent as such and in either case
occurring before the Practical Completion Date and any such defects
as are
subsequently in existence and of which the Tenant shall have given
written
notice to the Landlord prior to the expiration of the defects liability
period under the Building Contract
|
|
10.2
|
The
Landlord shall procure that the Employer’s Agent prepares a schedule (in
conjunction with the Tenant) listing any defects shrinkages or other
faults appearing in the Landlord’s Works or any part thereof (which the
Landlord shall procure shall incorporate (to the extent not by then
remedied or rectified) any defects shrinkages and other faults properly
notified by the Tenant to the Landlord pursuant to clause 10.1 to
the
extent the Employer’s Agent reasonably considers it appropriate to include
the same) and supplies a copy thereof to the Tenant not later than
fifteen
Working Days before the expiry of the defects liability period under
the
Building Contract
|
18
|
10.3
|
Within
five Working Days of receiving the schedule of defects referred to
in
clause 10.1 the Tenant shall notify the Employer’s Agent of any additional
items which the Tenant considers should be included in the schedule
of
defects and the Landlord shall procure that the Employer’s Agent
incorporates such additional items into the schedule of defects where
in
the Employer’s Agent's professional judgement it is appropriate for him to
do so
|
|
10.4
|
The
Landlord shall procure that the Employer’s Agent gives the Tenant not less
than five Working Days prior written notice of the proposed date
and time
on which the Employer’s Agent intends to make its final inspection of the
Landlord’s Works prior to the issue of the schedule and certificate of
making good defects in respect of the relevant works and the Tenant
and
the Tenant’s nominated representative shall be entitled to be present at
such inspection and to make representations to the Employer’s Agent and
the Landlord shall procure that the Employer’s Agent shall consider and
have due and proper regard to (but shall not be bound by) such
representations
|
|
10.5
|
The
Landlord shall procure that the Employer’s Agent in any event serves the
schedule of defects on the Building Contractor within the time limit
specified in the Building Contract
|
|
10.6
|
The
Landlord shall (subject to the Tenant allowing the Building Contractor
sufficient access for the purpose) procure the making good promptly
and in
accordance with a programme agreed with the Tenant at no cost to
the
Tenant of any defects set out in the schedule of defects referred
to in
clause 10.1 and any additional defects which are notified by the
Tenant
and accepted by the Employer’s Agent in accordance with clause 10.2 and
such works shall be carried out in a good and workmanlike manner
using
good quality materials effectively to remedy such defects and in
accordance with all relevant statutory requirements and British Standards
and Codes of Practice and to the satisfaction of the Employer’s
Agent
|
|
10.7
|
The
Tenant shall give reasonable access to the Landlord and the Building
Contractor upon prior reasonable notice (save in the case of an emergency
where no such notice shall be required) for the purpose of making
good
such defects and the Landlord shall procure that the person or persons
making good all such defects shall procure that as little disturbance
or
interference as reasonably practicable shall be caused to the Tenant
and
shall act in a reasonable manner and make good as soon as practicable
to
the reasonable satisfaction of the Tenant all damage occasioned to
the
Premises as a result of their actions
|
19
|
10.9
|
This
clause
10
shall be a complete statement of the Landlord’s obligations in respect of
defects in the Landlord’s Works and the Tenant shall have no other rights
against the Landlord in respect of such
matters
|
| 11 |
Tenant’s
Occupation as Licensee
|
|
11.1
|
During
the period commencing on the Practical Completion Date until the
grant of
the Lease the Tenant shall have licence at all times and under the
control
of the Building Contractor during normal working hours to enter into
and
upon and to remain in the Premises but as licensee only on the terms
of
this clause 11
for
the purpose of carrying out the Tenant’s Works and thereafter following
Practical Completion to use the Premises for the purpose permitted
by the
Lease
|
|
11.2
|
Such
licensed occupation shall be subject to the same rights exceptions
and
reservations covenants conditions and other provisions as those contained
in the Lease so far as applicable and practicable having regard to
the
progress of the Landlord’s Works (including in particular but without
limitation the provisions relating to alterations and planning permissions
insofar as they relate to the Tenant’s Works) but subject in each case to
clause 13
|
|
11.3
|
During
such period of licensed occupation by the Tenant the Landlord shall
retain
exclusive possession of the
Premises
|
| 11.4 |
Until
the grant of the Lease and completion of the Licence for
Alterations:
|
|
(a)
|
the
parties shall be liable to observe and perform the same obligations
as are
imposed by the covenants on their respective parts and the conditions
to
be contained in the Lease and the Licence for Alterations as they
become
applicable to the Premises and insofar as they are not inconsistent
with
the provisions of this Agreement and the Landlord shall procure that
the
Management Company shall perform the obligations on its part contained
in
the Lease; and
|
20
|
(b)
|
the
Landlord shall have and be entitled to all remedies by distress action
or
otherwise for recovering any monies or for breach of obligation on
the
part of the Tenant as if the Lease and the Licence for Alterations
had
then been granted
|
|
11.5
|
The
Landlord and those authorised by it shall be entitled to have access
to
the Premises during the operation of this clause and following completion
of the Lease the Tenant shall allow the Landlord and those authorised
by
it to have such access upon prior reasonable notice (save in the
case of
an emergency where no such notice shall be required) in either case
for
the purpose of complying with any outstanding provisions of this
Agreement
and the Tenant shall not interfere with or impede the carrying out
of such
acts of compliance provided they are carried out in a reasonable
manner
and at reasonable time. Provided that in so entering the Premises
the
Landlord and those authorised by it cause as little disruption and
inconvenience to the Tenant and the Tenant’s business as reasonably
possible and will promptly make good to the Tenant's reasonable
satisfaction all damage caused to the Premises by such entry
|
| 12 |
Tenant’s
Works
|
| 12.1 |
If
the Tenant carries out the Tenant’s Works the Tenant
shall:
|
|
(a)
|
before
commencing the Tenant’s Works submit to the Landlord in duplicate detailed
drawings specifications and other details of them for the approval
of the
Landlord where such approval would be required under the terms of
the
Lease if the Lease had already been granted (and which approval shall
not
be unreasonably withheld or delayed where so provided in the
Lease)
|
|
(b)
|
before
commencing the Tenant’s Works obtain all Necessary Consents for them and
promptly supply copies of such to the
Landlord
|
|
(c)
|
promptly
after the Practical Completion Date commence and thereafter promptly
carry
out and complete the Tenant’s Works in accordance with the drawings and
specifications and other details approved by the Landlord and otherwise
in
accordance with clause
3.1 and 3.2(b)
(mutatis mutandis)
|
|
(d)
|
until
completion of the Lease comply with such reasonable regulations as
the
Landlord may from time to time make as to means of access and times
of
access (whether for persons or vehicles) hours of working parking
of
vehicles safety storage and delivery of materials security and
protection
|
21
|
(e)
|
carry
out and complete the Tenant’s Works in accordance with terms of the
Licence for Alterations as if the Licence for Alterations had already
been
completed
|
|
12.2
|
Any
approval of the Tenant’s Works by the Landlord shall be given at its own
cost in the form of the annexed Licence for Alterations which shall
be
entered into upon the grant of the Lease (or upon approval of the
Tenant’s
Works if later)
|
|
12.3
|
In
relation to the Landlord’s Fit-Out Works the Tenant shall procure that the
Tenant’s Representative shall respond promptly to any reasonable request
from the Employer’s Agent or the Contractor for further information or
design input and to requests for approval relevant to or necessary
for the
efficient and timely incorporation of the Landlord’s Fit-Out Works into
the construction of the Building and in the case of any such request
for
approval shall respond thereto within 3 Working Days (in respect
of which
time shall be of the essence) so that in default of such response
such
approval shall be deemed to have been
given
|
|
13
|
Insurance
|
|
13.1
|
The
Landlord shall until the Practical Completion Date procure that the
Landlord’s Works are kept insured in their full reinstatement value and
otherwise in accordance with the Building
Contract
|
|
13.2
|
The
Landlord shall until the Practical Completion Date maintain or cause
to be
maintained public liability insurance in an appropriate sum in respect
of
the Landlord’s Works
|
|
13.3
|
The
Tenant shall maintain or cause to be maintained insurance and public
liability insurance in respect of the Tenant’s Works in each case in an
amount and with insurers approved by the Landlord (such approval
not to be
unreasonably withheld or delayed)
|
|
13.4
|
From
the Practical Completion Date onwards the Landlord shall cause the
Premises to be insured in accordance with the provisions set out
in
relation to insurance in the Lease
|
|
13.5
|
If
any of the Landlord’s Works are destroyed or damaged at any time prior to
the Practical Completion Date by any of the risks insured against
pursuant
to this clause
13
the Landlord shall use all reasonable endeavours to procure that
as soon
as reasonably practicable and with all due diligence, the Building
Contractor will comply with its obligations under the Building Contract
as
to the restoration and reinstatement of work damaged or destroyed
and
proceed with all due diligence with the construction and completion
of the
Landlord’s Works in accordance with the terms of this
Agreement
|
22
| 14 |
CDM
Regulations
|
In
respect of any works comprising part of the Landlord’s Works and the Tenant’s
Works to which the CDM Regulations apply:
|
14.1
|
The
Landlord and the Tenant shall respectively ensure that any person
owing
duties under the CDM Regulations with respect to the Landlord’s Works and
Tenant’s Works shall comply with those
duties
|
|
14.2
|
The
Landlord shall procure and deliver to the Tenant as soon as practicable
after the Practical Completion Date and the Tenant shall procure
and
deliver to the Landlord as soon as practicable after completion of
the
Tenant’s Works (but in either case no later than two months after
completion of such works) a copy of the relevant health and safety
file
prepared maintained and completed as required by the CDM
Regulations
|
|
14.3
|
The
Landlord shall prior to the Practical Completion Date (i) agree with
the
Tenant the layout for the health and safety file (which shall be
in an
ordered and bound format with a reasonable index) and (ii) supply
to the
Tenant a draft of the health and safety file in respect of the Landlord’s
Works and the Landlord shall procure that two complete copies of
the
completed health and safety file is delivered to the Tenant no later
than
two months after the Practical Completion Date
|
|
14.4
|
The
recipient of the health and safety file shall not acquire any intellectual
property or other right to any thing or data disclosed pursuant to
this
obligation
|
| 15 |
Title
|
|
15.1
|
The
Landlord has already deduced to the Tenant its title to the Premises
consisting of the matters listed in schedule 1
and the Tenant shall be deemed to have full knowledge of all the
contents
thereof and shall raise no objection to or requisition in respect
of such
matters (save for any matters arising out of the transfer of the
Property
to the Landlord and the usual pre-completion searches at the Land
Registry)
|
| 15.2 |
The
Lease shall be granted subject
to:
|
23
|
(a)
|
all
local land charges registered before on or after the date of this
Agreement and all matters capable of registration as local land
charges
|
|
(b)
|
all
notices served and all orders demands proposals regulations or
requirements made by any local or other public authority or body
before on
or after the date of this Agreement
|
|
(c)
|
all
actual or proposed charges notices orders restrictions agreements
conditions or other matters arising under the Planning Acts including
for
the avoidance of doubt any planning agreement or obligation entered
into
pursuant to the Planning Acts
|
|
(d)
|
the
rents reserved by and the rights exceptions and reservations covenants
and
conditions to be contained in the
Lease
|
|
(e)
|
all
unregistered interests which override registered dispositions set
out in
schedule 3 to the Land Registration Act 2002 and any overriding interests
as defined in section 70(1) of the Land Registration Act 1925 which
retain
their overriding status in respect of registered dispositions under
schedule 12 of the Land Registration Xxx
0000
|
|
(f)
|
all
matters or encumbrances disclosed or which would have been disclosed
by
all searches which a reasonably prudent purchaser would make before
entering into this Agreement including all matters recorded in any
registers which are open to public inspection and including searches
of
the registers maintained by the Local Land Charges Registry the Land
Registry and Companies House
|
|
15.3
|
Subject
to the Landlord paying the cost thereof and to the Landlord providing
all
necessary paperwork in relation thereto prior to the actual completion
date of the Lease, the Tenant agrees that it will include (and will
procure that its solicitor will include) with the Tenant’s application to
the Land Registry for the registration of the Lease as a registered
disposition such application relating to the Lease pursuant to rule
136 of
the Land Registration Rules 2003 as the Landlord may reasonably
require
|
| 15.4 |
The
Tenant agrees that it will not protect this Agreement on the register
of
the Landlord’s title except by way of unilateral notice and not to produce
a copy or extract of this Agreement to the Land Registry and the
Landlord
agrees that it shall not apply to remove such notice from the Landlord’s
title during the subsistence of this
Agreement
|
24
|
15.5
|
On
completion of the Lease the Landlord shall deliver to the Tenant
a
certified copy or if required by the Land Registry the original of
a
letter of consent to the grant of the Lease from any chargee of the
Premises
|
|
16
|
Grant
of Lease
|
| 16.1 |
The
Landlord shall procure that its solicitors prepare the engrossments
of the
Lease and Licence for Alterations and counterparts thereof and deliver
the
counterparts to the Tenant or its solicitors at least 10 Working
Days
prior to the Completion Date
|
|
16.2
|
The
Landlord will grant or cause to be granted to the Tenant with full
title
guarantee and the Tenant and the Guarantor will accept the grant
of the
Lease on the Completion Date and the Landlord shall procure the entering
into of the Lease by the Management Company Provided always that
it shall
be a condition precedent to completion of the Lease that the Tenant
shall
have received all Warranties to which it is entitled under clause
5
|
|
16.3
|
Completion
of the Lease and Licence for Alterations shall take place at the
offices
of the Landlord’s solicitors
|
|
16.4
|
The
Tenant’s solicitors shall deliver to the Landlord’s solicitors a duly
executed counterpart of the Lease and Licence for Alterations and
(subject
to having received a second counterpart) shall deliver to the Management
Company a duly executed counterpart of the Lease on the Completion
Date
|
|
16.5
|
The
term of the Lease shall commence on the date of completion of the
Lease or
the date of occupation by the Tenant under clause 11 if
sooner
|
|
16.6
|
The
Tenant and the Landlord agree for the avoidance of doubt that the
Landlord
has agreed at the Tenant’s request to perform the Landlord’s Fit-Out Works
on the terms of this agreement. The Lease will contain terms by which
the
Landlord may require the Tenant to reinstate Premises to such a state
as
they would have been had the Landlord’s Fit-Out Works not been performed
to the Landlord’s reasonable satisfaction or may carry out such
reinstatement itself and charge the reasonable cost of so doing to
the
Tenant which cost the Tenant shall pay on
demand
|
| 17 |
Rent,
Service Charge and
Measurement
|
25
|
17.1
|
The
liability to pay the yearly Rent (as defined in and as first reserved
by
the Lease) will commence on the Rent Commencement Date Provided that
if
the Practical Completion Date has been delayed by reason of any act
or
omission of the Tenant then the Rent Commencement Date shall be six
months
from such date as the Employer’s Agent certifies that the Practical
Completion Date would have occurred but for such
delay
|
|
17.2
|
The
Insurance Rent and the Building Service Charge and Estate Service
Charge
(each as defined in the Lease) shall commence to be payable on the
Practical Completion Date subject to the same proviso as stated in
clause
17.1
|
|
17.3
|
Not
less than 15 Working Days before the Practical Completion Date the
Landlord and the Tenant or their respective nominated representatives
shall inspect the Premises with a view to agreeing the Net Internal
Area
of the Premises and if they shall not have unconditionally agreed
the Net
Internal Area by the date 10 Working Days prior to the anticipated
Practical Completion Date the question shall be immediately referred
for
determination by an expert under clause 24.2
|
|
17.4
|
Subject
to the provisions of clause
17.5
below the Rent shall be £116,462.50 per annum exclusive and in no
circumstances shall the initial Rent first reserved by the Lease
exceed
this amount
|
|
17.5
|
If
the Net Internal Area of the Premises shall be less than 6,555 square
feet
(being 98.5% of the anticipated area of 6,655 square feet) then the
Rent
shall be such sum as shall be produced by multiplying the Net Internal
Area of the Building expressed in square feet by £17.50 per square
foot
|
|
17.6
|
If
the Net Internal Area of the Premises has not been established in
accordance with this clause 17
by
the Completion Date neither party shall be entitled on this ground
to
delay completion of the Lease and the figure referred to in clause 17.4
above
shall be inserted as the initial Rent
|
|
17.7
|
When
the Net Internal Area of the Premises is later established in accordance
with this clause 17:
|
|
(a)
|
if
there is a difference between the initial Rent (as so established)
and the
figure referred to in clause
17.4
above the Landlord shall forthwith reimburse to the Tenant any resulting
overpayment of rent which may have been made together with interest
thereon at 3% below the Stipulated Rate (as defined in this Lease)
from
the date of payment until the date of repayment; and
the
|
26
|
(b)
|
the
parties shall forthwith enter into a deed supplemental to the Lease
confirming that for all the purposes of the Lease the initial Rent
shall
be deemed to be the initial Rent (as so established) in substitution
for
the figure referred to in clause 17.5
above
shown in the Lease (each party bearing its own cost in respect of
such
supplemental deed)
|
| 17.8 |
When
the Gross External Area of the Building has been established in accordance
with this clause
17
it
shall be used to calculate the percentage figure to be inserted in
the
definition of ‘Estate Percentage’ set out in clause
2.1.17
of
the Lease to the effect that the said percentage figure shall be
the
proportion which the Gross External Area of the Building bears to
275,030.96 square feet (the latter figure being equivalent to the
permitted developable gross external area of 25,551 square metres
pursuant
to the Planning Agreement)
|
|
17.9
|
When
the Net Internal Area of the Building and of the Premises have been
agreed
or otherwise established in accordance with this Clause 17 they shall
be
used to calculate the “Building Percentage” set out in clause
2.1.9
of
the Lease
|
|
18
|
Termination
|
|
18.1
|
The
Landlord may terminate this Agreement by written notice to the Tenant
if
both:
|
|
(a)
|
the
Tenant fails materially to perform or observe any of its material
obligations in this Agreement or if any event occurs which had the
Lease
been granted would have entitled the Landlord to re-enter the Premises
and
|
|
(b)
|
either
such failure or event is incapable of remedy or it is capable of
remedy
and the Landlord has served on the Tenant written notice specifying
the
failure or event and requiring it to be remedied within a reasonable
time
(to be specified in the notice) and the Tenant has failed so to
do
|
27
|
18.2
|
If
this Agreement is terminated under clause 18.1
the Tenant shall forfeit all interest in the Premises and in any
fixtures
or works installed in them other than Tenant’s Works to the extent that
the Tenant shall have paid for them and shall give vacant possession
of
the Premises to the Landlord without the Landlord making to the Tenant
any
compensation or allowance
whatsoever
|
|
18.3
|
Such
termination shall be without prejudice to any rights which any party
to
this Agreement may have against any other party in respect of any
prior
breaches of this Agreement or any breach by the Tenant of
clause 18.4 or
in respect of any sums payable hereafter down to the date of termination
and the Tenant shall promptly cancel any entry it may have made at
the
Land Registry to protect this
Agreement
|
| 18.4 |
If
the Tenant has carried out any Tenant’s Works the Landlord may require the
Tenant forthwith to reinstate the Premises to the Landlord’s reasonable
satisfaction or may carry out such reinstatement itself and charge
the
reasonable cost of so doing to the Tenant which cost the Tenant shall
pay
on demand (and clause
27
shall apply)
|
| 18.5 |
If
the Landlord has carried out any Landlord’s Fit-Out Works the Landlord may
require the Tenant forthwith to reinstate the Premises to such a
state as
they would have been had the Landlord’s Fit-Out Works not been performed
to the Landlord’s reasonable satisfaction or may carry out such
reinstatement itself and charge the reasonable cost of so doing to
the
Tenant which cost the Tenant shall pay on demand (and clause
27 shall
apply)
|
|
19
|
Termination
by Tenant
|
|
19.1
|
If
an event of insolvency occurs in relation to the Landlord or if the
Landlord shall cease to exist for any reason, the Tenant may, in
addition
to any other rights and remedies he may have, terminate this agreement
by
giving not less than one month’s notice to the Landlord to that effect (a
“Termination Notice”).
|
|
19.2
|
The
expression “an event of insolvency” includes (in relation to a company or
other corporation which is the Landlord or one of the
Landlords):
|
|
19.2.1
|
inability
of the company to pay its debts;
|
| 19.2.2 |
entry
into liquidation either compulsory or voluntary (except for the purpose
of
amalgamation or
reconstruction);
|
28
|
19.2.3
|
the
passing of a resolution for a creditor’s winding
up;
|
|
19.2.4
|
the
making of a proposal to the company and its creditors for a composition
in
satisfaction of its debts or a scheme of arrangement of its
affairs;
|
|
19.2.5
|
the
application to the court for an administration order;
and
|
|
19.2.6
|
the
appointment of a receiver or an administrative receiver.
|
which
shall be interpreted in accordance and in conjunction with the relevant
provisions of the Insolvency Xxx 0000
|
19.3
|
On
the expiration of the Termination
Notice:
|
|
19.3.1
|
the
Tenant’s interest in and the rights in relation to the Property will
terminate and all fixtures in them may be retained by the Landlord
without
conferring any right on the Tenant to compensation or allowance;
but
|
|
19.3.2
|
each
party will retain all rights and remedies against the other for breach
of
obligation under this agreement before the
termination.
|
|
19.4
|
When
serving a Termination Notice, the Tenant shall provide a copy of
the
Termination Notice to any bank or financial institution or other
person
supplying funding for the Development which or who has taken a charge,
mortgage, assignment by way of security, deposit or agreement over
this
agreement and of which or of whom the Tenant has received prior written
notice (a “Funder”).
|
|
19.5
|
The
Funder shall have Ten Working Days from the date of receipt of a
Termination Notice to decide
whether:
|
|
19.5.1
|
to
make good any outstanding material breaches which are capable of
remedy
and to carry out or cause to be carried out the outstanding obligations
of
the Landlord under this agreement;
or
|
|
19.5.2
|
to
assign the benefit of this agreement to another person (with the
consent
of the Tenant which is not to be unreasonably withheld or delayed);
or
|
|
19.5.3
|
to
take no further action
|
29
and
if
applicable the Funder shall serve notice on the Tenant of its intention to
implement 19.5.1 or 19.5.2 above (a “Funder’s Notice”) within twenty Working
Days from the date of receipt of a Termination Notice.
|
19.6
|
If
the Funder serves a Funder’s Notice on the Tenant, the Funder shall within
twenty Working Days from the date of service of the Funder’s Notice
procure for the Tenant:
|
|
19.6.1
|
in
the case of a proposed assignment:
|
| 19.6.1.1 |
full
details of a proposed assignment;
|
|
19.6.1.2
|
a
duly perfected deed of covenant or supplemental agreement obliging
the
Funder or the assignee to comply with the obligations on the part
of the
Landlord contained in this agreement (with such extension to the
Estimated
Practical Completion Date as shall be reasonable in all the
circumstances)
|
| and this agreement shall then continue in full force and effect as varied by the deed of covenant or supplemental agreement and shall be construed as though the name of the Funder or the assignee is substituted for the Landlord; or |
|
19.6.2
|
in
the case of an election by the Funder to carry out or cause to be
carried
out the outstanding Landlord’s Works, a duly perfected deed of
covenant
|
provided
that if the Funder elects to carry out or cause to be carried out the
outstanding Landlord’s Works, it may at any time after such election further
elect to assign this agreement to a proposed assignee, in which case the Funder
shall comply with the provisions of clause 19.6
|
19.7
|
If
the Funder does not serve a Funder’s Notice or fails to comply with the
provisions of clause 19.6 within the time period stated, the this
agreement shall automatically cease and determine but each party
will
retain all rights and remedies against the other for breach of obligation
under this agreement before the
termination.
|
|
19.8
|
For
the avoidance of doubt, the provisions of this clause 19 not apply
in the
event that the Tenant serves notice pursuant to clause
5.3
|
30
|
20
|
No
Demise
|
Until
the
actual grant of the Lease this Agreement shall not operate or be deemed to
operate as a demise of the Premises nor shall the Tenant have or be entitled
to
any estate right or interest in the Premises or any part of them or in any
materials in or upon them other than such equitable interest as is created
by
and such rights as are granted by this Agreement
|
21
|
Alienation
|
The
Tenant shall not assign mortgage charge or in any way deal or part with this
Agreement or any interest under it and shall itself be the first occupier of
the
Premises provided that if due to any delay or default on the part of the
Landlord the Lease is not granted within 3 months after the Completion Date
the
Tenant shall be entitled to assign all its interest in this Agreement on the
same terms as it could have assigned the Lease had it been granted and the
Landlord shall be obliged to grant or procure the grant of the Lease to the
assignee concerned
|
22
|
Landlord's
Obligations
|
The
covenants and obligations contained in this Agreement other than the obligations
to insure and to grant the Lease are personal to Pettifer Estates Limited only
and shall not bind any successor in title to Pettifer Estates
Limited
|
23
|
Declaration
of Non-Merger
|
The
Landlord’s and the Tenant’s and the Guarantor’s obligations under this Agreement
shall continue notwithstanding the grant of the Lease insofar as they remain
to
be performed and observed (subject as provided in clause
22)
| 24 |
Resolution
of Disputes
|
If
there
shall be any dispute between the parties arising out of or in connection with
this Agreement and where the relevant provisions of this Agreement require
that
the same be determined by an Expert then the following provisions shall
apply:
| 24.1 |
the
Expert shall act as an expert and not as an arbitrator and his decision
shall be final and binding upon the parties
hereto
|
| 24.2 |
the
Expert shall consider (inter alia) any written representations and
cross
representations and supporting evidence made on behalf of either
the
Landlord or the Tenant (if made reasonably promptly) but shall not
be
bound thereby
|
31
| 24.3 |
the
Landlord and the Tenant shall use all reasonable endeavours to procure
that the Expert shall give his decision as speedily as possible and
the
costs of appointing the Expert and his costs and disbursements in
connection with his duties under this Agreement shall be shared between
the parties in such proportions as the Expert shall determine or
in the
absence of such agreement equally between the
parties
|
| 25 |
Notices
|
Any
notice to be served on or communication to be sent to any party to this
Agreement shall be deemed to be properly served if it complies with the
provisions of section 196 of the Law of Property Xxx 0000 as amended by the
Recorded Delivery Service Xxx 0000 Provided always that any notice to be served
under the provisions of this Agreement which require the Tenant’s approval
within a certain number of Working Days failing which deemed approval provisions
apply, shall be sent by facsimile transmission to the Tenant’s Representative or
such other person within that organisation as the Tenant may from time to time
notify to the Landlord in writing) with a copy also sent by facsimile
transmission to the Tenant
| 26 |
Value
Added Tax
|
The
Landlord and the Tenant shall each pay to the other VAT at the appropriate
rate
on all payments due from one to the other under this Agreement subject to
provision of a valid VAT invoice
| 27 |
Late
Payment
|
Any
sum
due from one party to any other under which this Agreement which is not paid
when it is due (or within any period specifically allowed by this Agreement)
shall bear interest at the Stipulated Rate (as defined in the Lease) for the
period from the date when it fell due to the date of payment
| 28 |
No
Representation
|
This
Agreement incorporates the entire contract between the parties and the Tenant
acknowledges that it has not entered into this Agreement in reliance on any
statements or representations made to the Tenant by or on behalf of the Landlord
or its advisors or representatives save those written statements of the
Landlord’s solicitors made prior to the date of this Agreement in response to
written enquiries from the Tenant’s solicitors
32
| 29 |
Whole
Agreement
|
This
Agreement contains the whole agreement between the parties to this Agreement
relating to the matters herein provided for and supersedes any previous
agreements between the parties to this Agreement relating thereto
| 30 |
Guarantees
|
|
30.1
|
For
so long as the Landlord retains the freehold interest in the Common
Parts
(as defined in the Lease) the Landlord covenants with and guarantees
to
the Tenant that as from the date from which the Service Charge and
Insurance Rent become payable by the Tenant in accordance with
clause
17.2
the Management Company shall perform its obligations pursuant to
clause 7
of the Lease or the Landlord shall perform such obligations pursuant
to
the provisions of clause 8.13 of the
Lease
|
|
30.2
|
The
Landlord covenants with the Tenant that upon the occasion of the
assignment of the Lease by the Tenant at any time while the Landlord
retains the freehold interest in the Common Parts the Landlord shall
(at
the request of the Tenant) enter into a direct covenant with such
assignee
on the same terms as those set out in clause
30.2
above.
|
|
30.3
|
The
Landlord covenants not to dispose of its freehold interest in the
Common
Parts (as so defined) without procuring a direct covenant is entered
into
by the transferee on or before such disposition (if other than the
Management Company) of the Common Parts in favour of the Tenant in
the
same terms as clause
30.1, 30.2
and this clause
30.3
and on the entering into of such direct covenant the Landlord’s
obligations pursuant to the terms of clauses 30.1,
30.2
and this clause
30.3
shall immediately cease and
determine
|
|
30.4
|
In
consideration of the Landlord entering into this Agreement at the
request
of the Guarantor the Guarantor covenants with and guarantees to the
Landlord that the Tenant will at all times during the continuance
of this
Agreement duly observe and perform its obligations under this Agreement
to
the intent (mutatis mutandis) the covenants guarantees and conditions
contained in schedule
4 of
the Lease shall be deemed to be incorporated in this
clause
|
|
31
|
Proper
Law
|
This
Agreement shall be governed and construed in accordance with English law and
the
parties submit to the jurisdiction of the English Courts
|
32
|
Buildings
26, 27 and 00 Xxxxxxxxxx Xxxx
Xxxx
|
33
|
32.1
|
The
Tenant is the tenant of the Landlord’s premises known as Buildings 26, 27
and 00 Xxxxxxxxxx Xxxx Xxxx (the “Existing Premises”) by way of a lease
dated 22nd
June 2006 (the “Existing Lease”).
|
|
32.2
|
The
term of the Existing Lease expires on 31st
December 2007 and the Landlord agrees with the Tenant that the Landlord
shall grant and the Tenant shall accept the grant of a new lease (the “New
Lease”) in the form attached with a term commencing on 1st
January 2008 and which is in identical terms as the Existing Lease
save
that:
|
|
32.2.1
|
the
term of the New Lease shall expire when the Tenant has completed
fitting
out the Premises
|
|
32.2.2
|
rent
payable under the New Lease shall cease to be payable upon the Practical
Completion Date provided that the service charge under the New Lease
will
continue until termination
|
|
32.2.3
|
the
Tenant’s reinstatement obligation shall be limited to leaving the Existing
Premises clean and tidy and free from tenant’s fixtures fittings and
chattels and all rubbish.
|
|
32.2.4
|
The
parties agree that the provisions of sections 24 to 28 (inclusive)
of the
Landlord and Xxxxxx Xxx 0000 as amended by the Regulatory Reform
(Business
Tenancies) (England and Wales) Order 2003 (“the Reform Order”) shall be
excluded in relation to the New Lease. The parties confirm that the
Tenant
has been served with a notice dated 14th
September 2007 which applies to the New Lease in the form or substantially
the form set out in Schedule 1 to the Reform Order and the Tenant
has made
a declaration dated 4th
October 2007 (which the parties confirm precedes the date the Tenant
became contractually bound to accept the New Lease) in the form or
substantially in the form set out in Schedule 2 to the Reform
Order
|
|
33
|
Third
Parties
|
The
Contracts (Rights of Third Parties) Act 1999 shall not apply to this
Agreement
IN
WITNESS
whereof
this document has been executed as a deed and takes effect on the date stated
at
the beginning of it
34
Schedule
1
Landlord’s
Title
The
covenants exceptions easements and other matters contained or referred to in
Title Number WK351452 registered at the Land Registry as revealed by official
copy entries dated 23rd
May
2007
Schedule
2
Form
of Lease
Schedule
3
Form
of Licence for Alterations
Schedule
4
Form
of Warranties
Schedule
5
Forms
of Appointments
Schedule
6
Plans
and Specifications
Schedule
7
Landlord’s
Fit-Out Works
Schedule
8
Tenant’s
Works
35
|
EXECUTED
as
a DEED
by
|
)
|
|
|
PETTIFER
ESTATES
|
)
|
|
|
LIMITED acting
by:
|
)
|
|
|
[unreadable
signature]
|
Director
|
|
|
[unreadable
signature]
|
Director/Secretary
|
|
|
EXECUTED
as
a DEED
by
|
)
|
|
|
BIO-ANALYTICAL
SYSTEMS
|
)
|
|
|
LIMITED
|
)
|
|
|
acting
by:
|
)
|
|
|
/s/
Xxxxxx X. Xxxxx
|
Director
|
|
| Director/Secretary | ||
|
EXECUTED
as
a DEED
by
|
)
|
|
|
BIOANALYTICAL
SYSTEMS
|
)
|
|
|
INC
|
)
|
|
|
acting
by:
|
)
|
|
|
/s/
Xxxxxx X. Xxxxx
|
Director
|
|
|
Director/Secretary
|
36
