EXHIBIT 10.80
================================================================================
DATED 4th May 1995
LEASE
of Xxxx 0
Xxxxx Xxxxx
Xxxxxxx Xxxx Xxxxxxx Xxxxxxxxx
Sun Alliance and London Assurance
Company Limited (1)
Xxxxxxx Robor plc (2)
TOWNSENDS
===================================Solicitors===================================
00 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx XX0 0XX
Telephone (01793) 410800 - Fax (01793) 616294
CONTENTS
Clause Clause Heading Page
------ -------------- ----
Number
------
1. INTERPRETATION 1
2. THE DEMISE 4
3. THE TENANT'S COVENANTS 7
3.1 Rent 7
3.2 Rent to be paid in full 7
3.3 VAT 7
3.4 Outgoings 8
3.5 Interest 8
3.6 Water, gas and electricity 9
3.7 Repair 9
3.8 Redecoration 9
3.9 Notice to repair 10
3.10 Alterations 10
3.11 Obstructions 11
3.12 Alienation 11
3.13 Access 14
3.14 Use 14
3.15 Nuisance 14
3.16 Compliance with statutes 15
3.17 Easements 16
3.18 Safe use of the Demised
Premises 16
3.19 Signs 17
3.20 Regulations 17
3.21 Notices received 17
3.22 Landlord's costs 17
3.23 Planning applications 18
3.24 Indemnity in respect of
Outgoings 18
3.25 Reletting or sale 18
3.26 Handing back of Demised Premises 19
3.27 Restrictions on pollution 19
4. THE LANDLORD'S COVENANTS 20
4.1 Quiet enjoyment 20
4.2 Services 20
4.3 The Substation Lease 20
5. INSURANCE 21
5.1 The Landlord's obligations 21
5.2 The Tenant's obligations 22
5.3 Suspension of Rent 23
5.4 Alternative arrangements for
repayment of insurance premium 24
6. FURTHER PROVISIONS 24
6.1 Forfeiture 24
6.2 Alterations to other property 25
6.3 Electromagnetic and light
based transmissions 25
6.4 Limitation of Landlord's
liability 25
6.5 Planning restrictions 26
6.6 Service of notices 26
6.7 VAT 26
6.8 Option to determine 27
FIRST
SCHEDULE The Demised Premises 27
Part 1 Items excluded from the
Demised Premises 27
Part 2 Items included in the
Demised Premises 27
SECOND
SCHEDULE The Service Charge 28
Part 1 Payment of the Service Charge 28
Part 2 The Services 30
A The whole of Kembrey Park 30
B The Birch Phase 31
Part 3 Calculation of the Tenant's
proportion 32
THIRD
SCHEDULE Car Parking Arrangements 33
FOURTH
SCHEDULE Rent Review 33
T H I S L E A S E is made the 4th day of May One thousand nine hundred and
ninety-five BETWEEN
SUN ALLIANCE AND LONDON ASSURANCE COMPANY LIMITED whose Registered Office is at
0 Xxxxxxxxxxx Xxxx Xxxxxx XX0X 0XX ("the Landlord") (1) and
XXXXXXX ROBOR plc whose registered office is at Xxxxxxx Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxx Xxxxxx XX00 0XX ("the Tenant") (2)
THIS DEED WITNESSES THAT:-
1. INTERPRETATION IN this lease:
1.1 EXCEPT where this lease expressly says otherwise a reference to an Act of
Parliament (or a section of an Act of Parliament) refers to that Act (or
section) as it applies at the date of this lease and any later amendment
or reenactment of it and to any instruments rules regulations or orders
made under such Act or section____
1.2 A RIGHT given to the Landlord to enter the Demised Premises extends to
anyone the Landlord authorises to enter, and includes the right to bring
workmen and appliances onto the Demised Premises for the stated
purpose_____
1.3 AUTHORITY given to a person to enter the Demised Premises after giving
notice extends, if the circumstances justify it, to entry after giving
less notice than specified or without giving any notice____
1.4 WHERE the Tenant agrees not to do or not to omit anything that also means
that the Tenant will not allow anyone else to do or omit that thing____
1.5 THE expression "the Landlord" includes where the context admits the person
who for the time being owns the interest in the Demised Premises which
gives the right to possession of it when this lease ends____
1.6 THE expression "the Tenant" includes where the context admits the person
who for the time being is entitled to the Demised Premises as Tenant under
this lease____
1.7 IF under this lease there is more than one tenant or landlord any
reference to "the Tenant" or "the Landlord" will be deemed to refer to
each tenant or landlord and any obligation on the part of the Tenant or
the Landlord (as the case may be) can be enforced against all of the
tenants or all of the landlords (as the case may be) jointly and against
each individually and any notice to be served on the Tenant or the
Landlord will be validly served if served on any one or more of (as the
case may be) the tenants or the landlords____
1
1.8 WORDS importing the singular are to be considered where appropriate as
including the plural and vice versa
1.9 WORDS importing the masculine are to be considered where appropriate as
including the feminine and neuter and vice versa_____
1.10 UNLESS the context requires the expressions to be interpreted differently,
references in this lease to a "clause" "sub-clause" "schedule" or
"paragraph" are references to the appropriately numbered clause,
sub-clause, schedule or paragraph of this lease____
1.11 THE contents section and headings set out in this lease are included for
ease of reference only, and should not be taken to affect the meaning of
the provisions to which they refer_____
1.12 THE Schedules are incorporated in this lease and the Landlord and the
Tenant agree to be bound by their provisions____
1.13 UNLESS the context requires the expressions to be interpreted differently,
the following terms have the following meanings in this lease:-
"the Additional Rents" means the sums reserved as such by sub-clause 2.4
"the Birch Phase" means that part of Kembrey Park from time to time
designated by the Landlord as such
"the Buildings" means the buildings from time to time built on and
forming the Birch Phase
"the Demised Premises" means the warehouse and industrial premises with
ancillary office accommodation which form part of
the Buildings and are known as Xxxxx 0 xxx 0 Xxxxx
Xxxxx Xxxxxxx Xxxx Swindon, and which are shown for
identification only edged red on the Plan and
exclude the items described in Part 1 of the First
Schedule but include the items described in Part 2
of the First Schedule
"the Early Termination means 30th April 2005
Date"
"Impositions" means rates, taxes, assessments, duties,
impositions, and outgoings whether parliamentary,
parochial, local or of any other description and
whether
2
[GRAPHIC]
or not of a capital or non-recurring nature
"Kembrey Park" means the Landlord's property known as Kembrey
Park or any property or items maintained in
conjunction with Kembrey Park as that development
may from time to time be modified extended added to
or reduced in size
"the Plan" means the plan attached to this Lease
"the Planning Acts" means (subject to sub-clause 1.1) the Town and
Country Planning Xxx 0000, the Planning (Listed
Buildings and Conservation Areas) Xxx 0000, the
Planning (Hazardous Substances) Xxx 0000, the
Planning (Consequential Provisions) Xxx 0000 and the
Planning and Compensation Xxx 0000
"the Rent" means the following yearly rents:
(A) Until the first Review Date:
FORTY FOUR THOUSAND FIVE HUNDRED AND TWENTY
FIVE POUNDS, ((pound)44,525) per annum
(B) during each successive Review Period: a yearly
rent equal to the rent previously payable under
this lease immediately prior to the relevant
Review Date (any suspension or reduction of
rent under sub-clause 5.3 being assumed for
these purposes not to have effect) or such
revised rent as may be determined in accordance
with the provisions of the Fourth Schedule
whichever is the higher
"the Rent Commencement means 1st November 1995
Date"
"Review Date" means the 1st day of May in the year 2000 (which is
the first Review Date) and in every fifth year
thereafter
"Review Period" means the period starting on any Review Date up to
and including the day before the next Review Date or
starting with the last Review Date up to the end of
the Term
"Service Charge" means the Interim Service Charge
3
Instalments and the Negative Balance as defined in
Part 1 of the Second Schedule
"Service Media" means ducts, sewers, drains, watercourses, gutters,
downspouts, gaspipes and meters, electric wires and
meters, optical fibres, pipes and all other
conducting media
"the Sub-Station Lease" means a lease of the electricity substation site
shown coloured green on the Plan dated 12 April 1995
and made between the Landlord (1) and Southern
Electric plc (2) for a term of 50 years from 12
April 1995 at a peppercorn rent
"the Term" means the term of Fifteen years commencing on the
Term Commencement Date together with any lawful
period of holding over or extension under statute or
common law
"the Term Commencement means 1st May 1995
Date"
"VAT" means Value Added Tax and any similar tax from time
to time replacing or supplementing it____
1.14 Unless the context requires the expressions to be interpreted differently,
the terms relating to the Service Charge defined in the Second Schedule
and any other terms defined elsewhere in this lease, have the meanings set
out in their respective definitions when they are used in this lease____
2. THE DEMISE
IN consideration of the rents and covenants on the part of the Tenant and the
conditions reserved and contained in this lease THE LANDLORD DEMISES to the
Tenant the Demised Premises
2.1 TOGETHER WITH the following rights in common with the Landlord and its
other tenants and occupiers at Kembrey Park and all others authorised by
the Landlord____
2.1.1 the right to park 19 cars in accordance with the conditions
contained in the Third Schedule____
2.1.2 the right for the Tenant and those authorised by it to pass at all
times and for all purposes connected with the use from time to time
authorised of the Demised Premises___
2.1.2.1 with or without vehicles over such of the existing estate
roads as the Landlord (acting reasonably) may from
4
time to time specify and
2.1.2.2 on foot only over such of the existing estate footpaths as
the Landlord (acting reasonably) may from time to time
specify____
or (in each case) such substituted roads and footpaths giving
adequate access to the Demised Premises as the Landlord may from
time to time reasonably direct____
2.1.3 the free and uninterrupted passage and running of gas water soil and
electricity and other things to and from the Demised Premises
through such Service Media as are intended to serve the Demised
Premises and which are now or may subsequently during the Term be
placed in under or about other parts of Kembrey Park and adjoining
or neighbouring property belonging to the Landlord or in respect of
which it is entitled to grant this right PROVIDED that:
2.1.3.1 the Landlord may at its discretion reroute any such Service
Media (but not so as permanently to curtail the supply or
passage of any service to the Demised Premises) and
2.1.3.2 neither this sub-clause nor any other provision of this
lease shall be interpreted as granting to the Tenant a right
to pass or receive electromagnetic or laser or intensified
light transmissions or signals across any property outside
the Demised Premises____
2.1.4 the right as often as necessary on reasonable written notice to
enter the units adjoining the Demised Premises and adjoining
property belonging to the Landlord for the purpose of inspecting
cleaning emptying repairing and renewing any of the Service Media
mentioned in sub-clause 2.1.3 or for the purpose of carrying out any
of the Tenant's obligations under this lease the Tenant remedying
any damage caused by such entry and exercising the right so as to
cause as little inconvenience to the Landlord and adjoining or
neighbouring tenants or occupiers as reasonably possible____
2.1.5 the right of support for the Demised Premises from the property
adjoining the Demised Premises____
2.1.6 the right to use any refuse collection or similar service provided
by the Landlord for the benefit of the Birch Phase
2.2 EXCEPT AND RESERVED to the Landlord and the tenants and other occupiers of
the Landlord's adjoining or neighbouring property and others entitled to
such rights____
2.2.1 the free and uninterrupted passage and running of
5
gas water soil and electricity and other things to and from other
parts of Kembrey Park and any adjoining or neighbouring property
through the Service Media which are now or may subsequently during
the Term be placed in under or about the Demised Premises_____
2.2.2 the right for the Landlord and the tenants and occupiers of any
adjoining or neighbouring property as often as necessary on
reasonable notice to enter the Demised Premises for the purpose of
2.2.2.1 inspecting cleaning emptying repairing renewing installing
or adding to any of the Service Media mentioned in
sub-clause 2.2.1;
2.2.2.2 executing any works necessary in order to comply with the
requirements of any local or other Authority;
2.2.2.3 inspecting painting cleaning or repairing or altering or
carrying out other works on Kembrey Park or any part or
parts of Kembrey Park or any adjoining or neighbouring
property and/or any building thereon (or in the case of a
tenant of an adjoining unit for the purpose of performing
any of his obligations under his lease of that Unit) the
Landlord tenant or person so entering remedying any damage
caused by such entry and exercising this right so as to
cause as little inconvenience to the Tenant as is reasonably
practicable, or
2.2.2.4 exercising or carrying out its rights and obligations under
this lease____
2.2.3 the right to carry out the works for which the rights of entry set
out in sub-clause 2.2.2 are granted____
2.2.4 the right of support from the Demised Premises for the property
adjoining the Demised Premises____
2.2.5 all or any rights of light or other easements or quasi-easements (if
any) enjoyed by the Demised Premises over any other land or premises
or enjoyed by any other land or premises over the Demised
Premises____
2.2.6 the right to rebuild and make any additions or alterations in
adjoining or neighbouring property or buildings whether belonging to
the Landlord or not____
2.2.7 the right if any of the risks insured against by the Landlord occur
for the Landlord to enter onto the Demised Premises for the purpose
of inspecting and reinstating them and to remove from the Demised
Premises any property belonging to or under the control of the
Tenant so as to
6
facilitate the carrying out of the reinstatement PROVIDED THAT such
property shall be made available for collection by the Tenant at any
reasonable time by prior arrangement and shall be returned by the
Landlord once reinstatement is completed (or earlier if the Landlord
so requires) ____
2.3 AND SUBJECT to all rights and easements (if any) belonging to or enjoyed
by any adjoining or neighbouring property____
2.4 TO HOLD the Demised Premises (except and reserved and subject as mentioned
above) to the Tenant for the Term the Tenant YIELDING AND PAYING therefor
to the Landlord during the Term the Rent such Rent to be paid by four
quarterly payments in advance on the usual Quarter Days for payment of
rent in every year the first payment of one quarter's rent or a
proportionate part to be made on the Rent Commencement Date in respect of
the period from the Rent Commencement Date up to and including the day
prior to the next following Quarter Day AND ALSO YIELDING AND PAYING from
and including the Term Commencement Date by way of additional rents to the
Landlord:
2.4.1 the Service Charge____
2.4.2 the sums from time to time payable in accordance with the Tenant's
covenants in sub-clause 3.3
2.4.3 the sums from time to time payable in accordance with the Tenant's
covenants in sub-clause 3.4
2.4.4 the sums from time to time payable in accordance with the tenant's
covenants in sub-clause 5.2
2.4.5 all other sums which may from time to time be due from the Tenant to
the Landlord under this lease_____
3. THE TENANT'S COVENANTS
THE TENANT hereby COVENANTS with the Landlord as follows:
3.1 Rent
The Tenant will pay to the Landlord the Rent and Additional Rents on the
days and times and in the manner set out in this lease for payment of
those sums____
3.2 Rent to be paid in full
The Tenant will not reduce any payment of Rent or Additional Rent or
Service Charge by making any deduction from such payments or by setting
any sum off against it____
3.3 VAT
3.3.1 the Tenant will pay to the Landlord on demand any VAT (however it
arises) which may be chargeable
3.3.1.1 in respect of any payment (including the Rent) or
3.3.1.2 otherwise on any supply of goods or services by the Landlord
to the Tenant
under the terms of or in relation to this lease
7
subject to receiving from the Landlord a proper VAT invoice in
respect thereof addressed to the Tenant
3.3.2 in every case where the Tenant has agreed to reimburse the Landlord
in respect of any payment by the Landlord under the terms of or in
connection with this lease the Tenant will also reimburse any VAT
paid by the Landlord on such payment. The obligation in this
sub-clause 3.3.2 applies only to the extent that the Landlord is not
able to recover such VAT as an input credit in its VAT
computations____
3.4 Outgoings
The Tenant will bear pay and discharge
3.4.1 all existing and future Impositions assessed charged or imposed on
the Demised Premises or on the owner or occupier in respect of the
Demised Premises and
3.4.2 save to the extent that such items form part of the Service Charge a
fair proportion (to be determined by the Landlord) of all existing
and future Impositions assessed charged or imposed on the Demised
Premises together with other property or on the owner or occupier of
the Demised Premises together with the owner or occupier of other
property in respect of the Demised Premises and that other property
except for Impositions payable by the Landlord (other than VAT) occasioned
by receipt of the rents under this lease or by any dealing with its
reversionary interest____
3.5 Interest
The Tenant will pay interest for each day late at an annual rate
equivalent to 4% over Lloyds Bank plc Base Rate or its equivalent for the
time being upon the Rent or other monies from time to time falling due by
the Tenant to the Landlord under this lease or arising out of or connected
with or referable to this lease (but not on interest payable under this
sub-clause) where such sums have been outstanding for more than seven days
after they have fallen due and whether (in the case of the Rent and the
Interim Service Charge Instalments and the VAT on the Rent and on the
Interim Service Charge Instalments) they have been formally demanded or
not such interest to be payable in respect of the period from the date on
which the Rent or other monies fall due to the date of payment and to be
payable at the rate mentioned above after as well as before any judgment
relating to the Rent or such other monies and to apply at that rate to any
costs fees or similar expenses properly incurred by the Landlord in
obtaining or enforcing any such judgment BUT so that the provisions of
this sub-clause 3.5 shall not restrict or cancel any other right which the
Landlord may have under this lease____
8
3.6 Water, gas and electricity
The Tenant will pay for all water electricity or gas consumed on the
Demised Premises and will pay all standing or other related charges and
will observe and perform all regulations made by the relevant authorities
in respect of such services and will indemnify and keep indemnified the
Landlord at all times in respect of the non-payment non-observance or
non-performance of the water electricity or gas charges or all or any of
those regulations in respect of the Demised Premises during the Term____ -
3.7 Repair
The Tenant will
3.7.1 not do or permit to be done during the Term any damage or waste to
the Demised Premises or any of the fixtures and fittings in the
Demised Premises____
3.7.2 maintain and keep the Demised Premises in good and substantial
repair and condition____
3.7.3 make good all damage to the Demised Premises (but excluding damage
by fire and other insured risks except when the insurance monies are
rendered wholly or partly irrecoverable wholly or partly because of
the act neglect or default of the Tenant any subtenant or other
authorised occupier of all or part of the Demised Premises or its or
their respective servants agents or invitees) ____
3.7.4 not damage the fireproof paint coating used in the Buildings and the
Tenant will, in the event of such paint coating being damaged,
immediately replace the damaged area with a suitable coating in
accordance with the manufacturer's instructions and the directions
of the Landlord____
3.7.5 notify the Landlord of any requirement of which the Tenant has
become aware for the Landlord to carry out works as provided for in
sub-clause 4.2____
3.8 Redecoration
Without restricting or cancelling any other obligation of the Tenant under
this lease, the Tenant will
3.8.1 during every third year of the Term and during the last two months
(however the Term may come to an end) of the Term in a good and
workmanlike manner to the satisfaction in all respects of the
Landlord redecorate the whole of the interior of the Demised
Premises which has previously been or would usually be decorated
with appropriate treatment using only good quality materials____
3.8.2 during the last two months (however the Term may come to an end) of
the Term recarpet that part of the Demised Premises which was
carpeted at the beginning of the Term, with a carpet of no lesser
quality than the original, of a design and colour to be approved by
the Landlord____
9
3.9 Notice to repair
The Tenant will
3.9.1 allow the Landlord at all reasonable times having given at least 48
hours written notice to the Tenant to enter the Demised Premises for
the purpose of examining the state and condition and use made of the
Demised Premises and of the fixtures and fittings in the Demised
Premises and of taking inventories of such fixtures and fittings and
drawing plans of the Demised Premises and giving and leaving upon
the Demised Premises for the Tenant notice in writing of any wants
of repair defects and misuse which have been discovered and for
which the Tenant may be liable under the covenants contained in this
lease and
3.9.2 if the Tenant fails to comply with such a notice as is mentioned in
sub-clause 3.9.1 within such time as may be reasonable in the
circumstances or in particular (and without restricting the rest of
this sub-clause 3.9.2) fails at any time to perform any of the
covenants set out in this lease relating to repair redecoration or
the carrying out of any works which ought to be carried out on the
Demised Premises by the Tenant permit the Landlord (but without
restricting or cancelling the right of re-entry contained later in
this lease) to enter upon the Demised Premises and repair redecorate
or carry out such works at the expense of the Tenant and the Tenant
will pay to the Landlord upon receiving a written demand the cost of
any such repair decorations or other works carried out by the
Landlord as mentioned above BUT so that such sums will bear interest
as mentioned in sub-clause 3.5 with such interest running from the
date on which the Landlord incurs the relevant expense____
3.10 Alterations
The Tenant will
3.10.1 not make any addition or alteration whatsoever to the Demised
Premises or any part of the Buildings not included in the Demised
Premises or to the Landlord's fixtures and fittings or arrangement
of the gas, heating, lighting, sanitary or other installations of
the Demised Premises or in any way cut, alter, injure or disfigure
any of the doors, ceilings, windows or walls of the Demised
Premises____
EXCEPT THAT the Tenant may
A. with the prior written approval of the Landlord (such
approval not to be unreasonably withheld or delayed)
carry out internal works which do not and are not likely to
affect the structure of the Buildings and
10
B. without the need to obtain any consent from the Landlord and
so long as it first notifies the Landlord of such proposed
installation, removal or relocation instal remove or relocate
internal demountable partitioning____
3.10.2 not put up any aerial, mast, transmitter or any other item of
equipment on the outside of the Demised Premises____
3.10.3 on receiving a written request from the Landlord immediately pull
down and remove any erection, alteration or addition erected or
made in breach of sub-clause 3.10.1 or 3.10.2 and make good any
damage caused thereby BUT so that this sub-clause 3.10.3 shall not
in any way restrict or cancel any other remedy which the Landlord
may have____
3.10.4 not apply any substances (except for cleaning fluids approved by
the Landlord) or coating to the inside or outside of the windows of
the Demised Premises____
3.10.5 not without the Landlord's written consent (such consent not to be
unreasonably withheld or delayed) place any blind shutter or
curtain behind the windows____
3.11 Obstructions
The Tenant will not obstruct or interfere with the free use by the
Landlord and anyone else having the right to use them of the estate roads
and footpaths and other areas of Kembrey Park which are used in common and
the Tenant will not obstruct any part of the Demised Premises or exit
which the local Fire Officer requires to be used as a means of escape in
the event of fire or other emergency____
3.12 Alienation
3.12.1 The Tenant will not part with or share possession or occupation of,
or grant to anyone else any right over or interest in, the whole
(as opposed to part) of the Demised Premises except by an
assignment or underletting where the conditions of sub-clause
3.12.3 have been fulfilled____
3.12.2 The Tenant will not in any circumstances assign or underlet or part
with or share possession or occupation of, or grant to anyone else
any right over or interest in, any part or parts (as opposed to the
whole) of the Demised Premises____
3.12.3 The Tenant will not assign or underlet the whole of the Demised
Premises unless:
3.12.3.1 the Tenant first obtains the Landlord's written approval
(such consent not to be unreasonably withheld or delayed)
to the proposed assignment or underletting and the
identity of the proposed assignee or undertenant;
3.12.3.2 the proposed assignee or undertenant is a respectable and
responsible person;
11
3.12.3.3 before the assignment or underletting is completed the
Tenant and the assignee or undertenant first execute a
counterpart licence in such form as the Landlord
reasonably requires permitting the assignment or
underletting and such licence is to include a direct
covenant by the assignee or undertenant with the Landlord
to observe and perform the covenants by the Tenant and the
conditions and provisions contained in this lease but so
that in the case of an undertenant the direct covenant
with the Landlord shall be limited to the duration of such
undertenant's lease and shall not include the covenant to
pay the rents reserved by this lease;
3.12.3.4 if the Landlord shall reasonably require there shall first
be obtained from one or more respectable and responsible
individuals or companies a direct joint and several
covenant in such form as the Landlord may reasonably
require with the Landlord (in the case of an assignment)
to pay the yearly rents and additional rents reserved by
this lease and (in the case of an assignment or
underletting) to make good any damage sustained by the
Landlord by reason of the proposed assignee's or
undertenant's failure to observe and perform any of the
other covenants by the Tenant or conditions or provisions
contained in this lease, and
3.12.3.5 in the case of an underletting (a) the underlease is in
terms similar (insofar as is consistent with the term of
the underlease) to this lease except that the undertenant
shall not be permitted to underlet or part with or share
possession or occupation of the whole or any part of the
premises underlet to it save by way of assignment of the
whole of the underlet premises and subject to first
obtaining the prior written consent of both the Tenant and
the Landlord for such an assignment (such consent not to
be unreasonbly withheld or delayed); (b) the Tenant and
the undertenant agree in the underlease that the
provisions of sections 24 to 28 inclusive of the Landlord
and Xxxxxx Xxx 0000 are not to apply in relation
12
to the tenancy to be created by the underlease and before
entering into that agreement the Tenant and the
undertenant obtain an order from a competent court
authorising them to do so;
(c) the rent under the underlease is not less than the
full market rent for the Demised Premises and the Tenant
may not charge any form of premium for granting the
underlease
(d) the underlease shall be capable of determination by
the Tenant (with no residual right on the part of the
undertenant in relation to the whole or any part of the
Demised Premises) if this lease is determined in
accordance with sub-clause 6.8
(e) the Tenant covenants with the Landlord that the Tenant
will not vary the underlease without first obtaining the
Landlord's written approval such consent not to be
unreasonably withheld or delayed____
3.12.4 If the Tenant determines this lease in accordance with sub-clause
6.8 the Tenant will ensure that every underlease of the Demised
Premises has also validly been determined by the Early Termination
Date and that no new underlease is created in its place____
3.12.5 For the purposes of this sub-clause 3.12 the word "underletting"
includes the creation of any derivative term and "underlease" and
"undertenant" have corresponding meanings and the word "assignment"
includes any assignment of the Term or any derivative term or any
estate or interest in the Demised Premises and "assign" has a
corresponding meaning_____
3.12.6 The Tenant will within twenty-eight days of every assignment
underlease or other transfer of the Demised Premises or any part of
the Demised Premises or other devolution of the interest of the
Tenant in the Demised Premises or of any derivative interest give
notice of that to the Landlord and at the same time will produce a
copy certified by a solicitor of the relevant assignment underlease
or other transfer or document effecting or evidencing such
devolution for registration with the Landlord and pay to it a
reasonable fee being not less than twenty-five pounds and VAT on
such fee for every such registration_____
3.12.7 Nothing contained in this sub clause 3.12 shall prevent the Tenant
from sharing occupation of the whole or any part or parts of the
Demised Premises with any one company ("the Group
13
Company") which is for the time being a subsidiary of the Tenant or
the holding company of the Tenant or which is another subsidiary of
the holding company of the Tenant (in each case within the meaning
of Section 736 of the Companies Act 1985) subject to the following
conditions:-
3.12.7.1 no relationship of landlord and tenant shall be created or
be deemed to exist between the Tenant and the Group
Company____
3.12.7.2 the Group Company shall not be given exclusive occupation
of the whole or any part of the Demised Premises____
3.12.7.3 the right of any company to occupy the Demised Premises or
any part thereof shall determine upon such company ceasing
to be a Group Company or not later than the determination
(for any reason whatsoever) of the Term____
3.12.7.4 no transfer or creation of a legal estate shall take place
in connection with such sharing of occupation___
3.12.7.5 the Tenant shall give to the Landlord written notice of
the name and principal office of the Group Company prior
to its occupation____
3.12.7.6 the Tenant shall indemnify the Landlord against any
damages, claims, costs and expenses arising directly or
indirectly from such occupation by the Group Company____
3.13 Access
The Tenant will permit the Landlord and the other persons mentioned in
sub-clause 2.2.2 to exercise the rights excepted and reserved by that
sub-clause____
3.14 Use
The Tenant will not use or occupy the Demised Premises or any part of the
Demised Premises otherwise than for the uses specified in paragraphs B1
and B8 of the Schedule to the Town and Country Planning (Use Classes)
Order 1987 as that order applies at the date of this lease____
3.15 Nuisance
The Tenant will
3.15.1 not do anything which is, or omit to do anything and thereby cause,
a nuisance to the Landlord or any of the tenants of the Landlord or
the occupiers of any adjoining or neighbouring property or which is
or may be detrimental to the Demised Premises or the amenities of
the neighbourhood____
3.15.2 (without restricting sub-clause 3.15.1 or any other provision of
this lease) not
14
3.15.2.1 use the Demised Premises for any immoral or disreputable
purpose;
3.15.2.2 hold any auction on the Demised Premises;
3.15.2.3 use all or any part of the Demised Premises for the
repair, maintenance, breaking or storage of motor
vehicles;
3.15.2.4 use all or any part of the Demised Premises for the
display of items for sale, or
3.15.2.5 allow or cause any noise at or near the Demised Premises
which annoys any neighbouring owner or occupier or exceeds
any noise level limits from time to time in force (whether
in relation to health and safety, as a condition of any
planning permission, or otherwise) ____
3.15.3 from time to time pay all costs charges and expenses which may
properly be incurred by the Landlord in abating any nuisance upon
the Demised Premises caused by any act or omission of the Tenant or
in executing all such works as may be necessary for abating any
such nuisance in obedience to any notice requiring the nuisance to
be stopped____
3.16 Compliance with statutes
The Tenant will
3.16.1 at all times during the Term conform in all respects with the
provisions of any instruments and regulations under any general or
local Act of Parliament and any instrument, rule, regulation or
order made under any such Act and with the Bye-Laws and regulations
of any local or other authority or supply company (whether already
or hereafter to be enacted or made) which may be applicable to the
Demised Premises or any part thereof and in particular will not do
or omit any act matter or thing in on or respecting the Demised
Premises which may be required to be omitted or done (as the case
may be) by the Planning Acts, the Factories Acts 1961, the Offices
Shops and Railway Premises Xxx 0000, the Fire Precautions Xxx 0000,
the Health and Safety at Work Xxx 0000 or the Environmental
Protection Act 1990____
3.16.2 at all times hereafter indemnify and keep indemnified the Landlord
against all proceedings costs expenses claims and demands in
respect of any contravention by the Tenant or other occupier of the
Demised Premises of any of the provisions of the said Acts,
Bye-Laws, instruments, rules, regulations and orders or in respect
of the Demised Premises____
15
3.17 Easements
The Tenant will
3.17.1 not stop up darken or obscure any window glass door or light nor
give permission for any new window light opening doorway path
passage drain or other encroachment to be made nor permit any
easement to be acquired over or against the Demised Premises and
3.17.2 if any encroachment or easement shall be made or threatened to be
made or if any window or opening shall be made or opened or
threatened to be made or opened in any neighbouring building
(whether erected before or after the date this lease) or relating
to any neighbouring land which if not obstructed may by lapse of
time confer on the owner of any neighbouring property a right of
such access of light forthwith give written notice to that effect
to the Landlord and permit the Landlord and its agents to enter on
the Demised Premises and inspect the Demised Premises and will at
the joint cost of the Landlord and the Tenant do all things which
the Landlord may consider proper for preventing the making of such
encroachment or the acquisition of such right or easement____
3.18 Safe use of the Demised Premises
The Tenant will ensure that
3.18.1 nothing of an explosive or highly inflammable nature shall be
brought into or stored in the Demised Premises or Kembrey Park
unless
3.18.1.1 such substances are kept in a proper container
intended for that purpose
3.18.1.2 the other provisions of this lease (including but in no
way limited to sub-clauses 3.15, 3.16 and 3.20) are
complied with and
3.18.1.3 the Landlord has first given its written consent (such
consent not to be unreasonably withheld or delayed)____
3.18.2 no engine machinery safe or other heavy article which in the
reasonable opinion of the Landlord is likely to affect the
stability of the structure of the Buildings or any adjoining or
neighbouring property or building shall be brought into or stored
in the Demised Premises____
3.18.3 no petrol driven vehicle shall be taken or driven into the Demised
Premises except:
3.18.3.1 for loading and unloading
3.18.3.2 whilst there are representatives of the Tenant at the
Demised Premises____
3.18.4 no goods or signs are stored or placed in the adjacent roads,
paths, loading areas or car parking areas____
3.18.5 the Demised Premises are equipped with good and
16
sufficient fire fighting equipment of a type to comply with the
requirements of the local Fire Officer and will ensure that such
equipment is maintained in good working order____
3.18.6 no process is carried out or equipment kept or used on the Demised
Premises which may damage the Demised Premises, the Buildings, or
any other property or may interfere with processes carried out or
equipment used elsewhere in Kembrey Park or on any other property,
or which may interfere with the transmission of electromagnetic
waves or intensified light beams across Kembrey Park____
3.19 Signs
The Tenant will not exhibit either on the external walls or in or on the
windows or on the doors of the Demised Premises or so as to be visible
from outside the Demised Premises any notice sign or announcement____
3.20 Regulations
The Tenant will perform and observe or cause to be performed and observed
by anyone whom the Landlord reasonably regards as being under the Tenant's
control such rules and regulations as the Landlord may from time to time
make for the management of Kembrey Park and the orderly and proper use of
the roads footpaths and common areas of Kembrey Park____
3.21 Notices received
The Tenant will
3.21.1 notify the Landlord within seven days (or sooner if necessary) of
receiving them of all notices orders and proposals (including
rating proposals) served under any Statute order regulation
instrument or bye-law on the Tenant or the Demised Premises____
3.21.2 if required by the Landlord produce such notices orders and
proposals to the Landlord or its agents____
3.21.3 not agree or consent to any such proposals without the Landlord's
prior written approval____
3.21.4 if required by the Landlord at the joint expense of the Landlord
and the Tenant join with the Landlord in objecting to or appealing
against any such notices orders and proposals____
3.22 Landlord's costs
The Tenant will pay to the Landlord all costs charges and expenses
(including legal costs and fees payable to a Surveyor) which may properly
be incurred by the Landlord
3.22.1 in or in contemplation of any proceedings under Sections 146 and
147 of the Law of Property Xxx 0000 notwithstanding that forfeiture
is avoided otherwise than by relief granted by the Court____
3.22.2 in so far as such costs, charges and expenses are reasonable in
considering and (if appropriate)
17
granting any request by the Tenant for the Landlord's permission
where required by this lease____
3.22.3 in or relating to the preparation, service and negotiation of any
schedule of dilapidations which have occurred during the Term
(whether the preparation, service and negotiation takes place
before or after the end of the Term) ____
3.22.4 in enforcing against the Tenant the provisions of this lease____
3.23 Planning applications
The Tenant will not apply for any planning permission or enter into any
agreement under the Planning Acts relating (in either case) to the Demised
Premises or to their use or alteration without the Landlord's written
consent____
3.24 Indemnity in respect of Outgoings
The Tenant will
3.24.1 indemnify the Landlord against any Imposition which either during
the Term or at any time after the determination of the Term becomes
payable by the Landlord in respect of the Demised Premises or any
other property whatsoever by reason of any act or omission of the
Tenant including any application for or obtaining of planning
permission in respect of the Demised Premises or any adjoining
property any alteration repair or reinstatement and any development
or disposal (by way of assignment sub-letting or otherwise
howsoever) of the Demised Premises or any part of the Demised
Premises____
3.24.2 be bound by the provisions of this sub-clause 3.24:
3.24.2.1 whether or not the act or omission of the Tenant was
authorised by this lease or by the Landlord and whether or
not the act or omission is in breach of any of the
covenants on the part of the Tenant contained in this
lease, and
3.24.2.2 whether or not the Term has already come to an end____
AND the parties agree that no one part of this sub-clause 3.24
shall be considered as restricting or cancelling any other part of
the sub-clause____
3.25 Reletting or sale
The Tenant will permit the Landlord or its agents at any time within the
six months before the Term is due or expected to come to an end in the
case of a reletting or at any time in the case of a disposal of a
reversionary interest in the Demised Premises to enter on the Demised
Premises and to affix on any suitable part or parts of the Demised
Premises a notice board or notice boards for reletting or otherwise
disposing of the Demised Premises
18
and will allow the Landlord to show the Demised Premises to anyone who
wishes to view them and has the permission of the Landlord to do so BUT so
that this shall be done in such a way as shall not unreasonably interfere
with the Tenant's course of business____
3.26 Handing back of the Demised Premises
The Tenant will at the time at which the Term expires or otherwise ends
3.26.1 peaceably and quietly leave surrender and yield up to the Landlord
the Demised Premises together with the Landlord's fixtures and
fittings which at any time shall be erected on or used on or
fastened to the Demised Premises, and all improvements and
additions to the Demised Premises and those fixtures and fittings,
repaired redecorated and treated in accordance with the Tenant's
obligations under this lease____
3.26.2 unless requested in writing by the Landlord not to do so remove all
tenants fixtures and fittings (including all tenant's partitioning
and cabling) installed by the Tenant or any previous tenant or
other occupier during the Term or by the Tenant during the term
granted by any previous lease of the Demised Premises and to make
good to the Landlord's satisfaction any damage caused to the
Demised Premises by such removal or by the original
installation____
3.27 Restrictions on pollution
Without restricting or cancelling any of its other obligations under this
lease, the Tenant will
3.27.1 not permit the discharge release or escape of any fuel gas toxic
substance or pollutant from the Demised Premises other than in
accordance with all statutory requirements____
3.27.2 not create any environmental hazard or detriment by the storage
escape or release of any gas substance or liquid in such quantity
(whether that quantity by itself or cumulatively with other
deposits of the same or different gases substances or liquids) as
to subject persons or animals or vegetation to a material risk of
death injury or impairment of health and/or as to threaten the
pollution (whether on the surface or underground) of any water
supply____
3.27.3 upon the Determination of the Term to make good the Demised
Premises and the surrounding area so as to remove all toxic harmful
and polluting substances which have been deposited or released
during the Term (or during any previous period of occupation by
Xxxxxxx Robor plc) by the Tenant or other authorised occupier of
all or part of the Demised Premises or by anyone for whom the
Landlord reasonably regards the Tenant or
19
authorised occupier as being responsible. The obligation in this
sub-clause 3.27.3 includes (but is not limited to) an obligation to
remove all polluted and or toxic earth, topsoil, substances, gases
and liquids and to dispose of those items in a recommended and
statutorily approved and safe manner and (where appropriate) to
replace them with non-toxic materials so as to yield up the Demised
Premises in a non-polluted and toxic-free state of repair and
condition____
4. THE LANDLORD'S COVENANTS
THE LANDLORD hereby COVENANTS with the Tenant as follows:
4.1 Quiet enjoyment
So long as the Tenant pays the Rent and Additional Rents and performs and
observes the covenants on the Tenant's part contained in this lease, the
Tenant shall during the Term quietly enjoy the Demised Premises without
interruption by the Landlord or any person lawfully claiming under or in
trust for it_____
4.2 Services
The Landlord will use all reasonable endeavours to provide the services
set out in Part 2 of the Second Schedule in accordance with and subject to
such conditions and provisions relating to those services as are contained
in the Second Schedule and elsewhere in this lease, but shall be under no
liability to the Tenant for failure to provide those services due to
circumstances beyond the reasonable control of the Landlord____
4.3 The Substation Lease
Neither the Landlord nor its successors in title shall without the prior
written consent of the then Tenant accept a surrender or take any steps to
forfeit or otherwise determine the Substation Lease whilst this lease (or
any statutory continuation of it) remains in place provided that:
4.3.1 the Tenant shall not unreasonably withhold or delay the giving of
such consent;
4.3.2 such consent shall not be necessary where, before or at the same
time as the Substation Lease is determined, an alternative
substation lease is entered into for a substation capable of
providing an equivalent or greater supply to the Demised Premises,
and
4.3.3 if the Landlord wishes to determine the Substation Lease because of
some breach of covenant by the tenant of that lease the Tenant
indemnifies the Landlord against any loss or damage which the
Landlord suffers by reason of being precluded from determining the
Substation Lease____
20
5. INSURANCE
5.1 The Landlord's obligations
The Landlord covenants with the Tenant that the Landlord will:
5.1.1 subject to the usual excesses and conditions keep the Buildings and
the Landlord's fixtures and fittings in the Demised Premises insured
with an insurer of repute in their full reinstatement value
(including loss of Rent and Service Charge for three years (or such
longer period as the Landlord shall consider appropriate) and
architects and surveyors fees payable on rebuilding and any
resulting VAT) against loss or damage by fire and (subject to
insurance against such risks being readily available on the United
Kingdom insurance market) aircraft, explosion, earthquake, riot,
malicious damage, storm, flood, escape of water or oil, impact,
theft, sprinkler leakage, subsidence and accidental damage and such
other risks as the Landlord may require and will pay all premiums
necessary for that purpose
5.1.2 if the Buildings are damaged or destroyed by a risk against which
the Landlord is obliged under this lease to insure them and subject
to obtaining all necessary consents to cause all insurance monies
received (except those for loss of Rent and Service Charge) to be
applied in making good the damage for which the monies have been
received or (as the case may be) in rebuilding the Buildings (but
not so as to provide accommodation identical in layout if it would
not be reasonably practicable to do so) PROVIDED THAT the Landlord
shall not be obliged to lay out such monies if and to the extent
that:-
5.1.2.1 such making good or rebuilding is rendered impracticable by
causes beyond the Landlord's control in which case the whole
of such monies shall belong to the Landlord absolutely upon
service by the Landlord upon the Tenant of a notice stating
that this is the case and thereupon this lease shall
immediately determine (though without restricting or
cancelling the rights of the Landlord and the Tenant against
the other in respect of any previous breach of the
provisions of this lease), or
5.1.2.2 payment of any insurance monies shall be properly refused by
reason of any act or default of the Tenant (unless the
Tenant pays to the Landlord an amount equal to the amount
payment of which shall have been refused) or the Tenant has
failed to make the payments referred to in sub-clause 5.2.1
and
21
5.2.2____
5.1.3 at the reasonable request and at the expense of the Tenant provide
particulars of the policy and a schedule of the risks covered
together with adequate evidence that the policy is in force____
5.1.4 notify the Tenant from time to time of any material change in the
risks insured against under sub-clause 5.1.1____
5.2 The Tenant's obligations
The Tenant covenants with the Landlord that the Tenant will:
5.2.1 pay to the Landlord from time to time within seven days of receiving
a request for it a sum equivalent to the insurance premiums paid by
the Landlord in accordance with sub-clause 5.1.1 or (if the premiums
relate also to other property) a sum equivalent to a fair proportion
as determined by the Landlord's Surveyor of the amount of such
premiums____
5.2.2 pay to the Landlord from time to time within seven days of receiving
a request for it a sum equal to the sum or sums which the Landlord
shall from time to time pay by way of premium for effecting or
maintaining insurance indemnifying the Landlord against any
liability for damages and any claims costs and expenses arising from
any accidental injury to or disease suffered by any person or any
accidental damage to property caused by the state or condition of
the Buildings or any equipment within the Buildings or any part of
the Buildings and in particular but without restricting the meaning
of the rest of this sub-clause 5.2.2 any liability on the part of
the Landlord under the Defective Premises Act 1972 or (if the
premiums relate also to premises other than the Demised Premises) a
sum equivalent to a fair proportion as determined by the Landlord's
Surveyor of the amount of such premiums____
5.2.3 pay to the Landlord from time to time within seven days of receiving
a written request for it a sum equal to any excess or insured's
contribution in relation to a claim made or to be made by the
Landlord under any policy or policies of insurance mentioned in
sub-clause 5.1.1 or 5.2.2____
5.2.4 (without restricting or cancelling any other obligation on the
Tenant under this lease and so that sub-clauses 5.2.4.1 and
5.2.4.2 shall be construed independently)____
5.2.4.1 not do anything whereby any policy of insurance taken out by
the Landlord on including or in any way relating to the
Demised Premises or the Buildings or any neighbouring
property of the Landlord may become void or voidable or
22
(unless the payment of the increased premium is with the
prior agreement of the Landlord undertaken by the Tenant)
whereby the rate of premium may be increased____
5.2.4.2 in the event of any additional or increased premium becoming
payable in respect of the Demised Premises or all or any
part of the Buildings or any neighbouring property of the
Landlord by reason of the trade or business carried on in or
upon the Demised Premises or anything done or kept on the
Demised Premises being deemed a hazardous or special risk by
the Landlord's insurers pay within seven days of demand such
additional premium or increased premium in full to the
Landlord or to its insurers as the Landlord may direct____
5.3 Suspension of Rent
5.3.1 If the Buildings or any part of the Buildings shall be so destroyed
or damaged by fire or any other risk against which the Landlord is
by this lease obliged to insure as to render the Demised Premises
unfit for occupation and use or inaccessible then (unless
A. the insurance of the Buildings by the Landlord shall have been
vitiated or payment of the policy monies wholly or partly
refused wholly or partly by reason of any act neglect or
default of the Tenant any subtenant or other authorised
occupier of all or part of the Demised Premises or its or
their respective servants agents or invitees and
B. the Tenant has not paid to the Landlord an amount equal to the
amount payment of which shall have been refused)
5.3.1.1 the Rent or a fair and just proportion of it
(according to the nature and extent of the damage
sustained) shall be suspended from the date of such
destruction or damage until the Demised Premises shall
have been rebuilt or reinstated and rendered fit for
occupation and use and accessible (or until the
expiration of the period of three years from the date
on which such destruction or damage occurred if that
is earlier), and
5.3.1.2 if by the expiry of the period of three years less one
month from the date of such destruction or damage the
Demised Premises shall not have been rebuilt or
23
reinstated and rendered fit for occupation and use and
accessible the Tenant may serve on the Landlord one
month's notice in writing of its intention to
determine this lease____
5.3.2 the Tenant may not serve such a notice as is mentioned in sub-clause
5.3.1.2 after the Demised Premises have been rebuilt or reinstated
and rendered fit for occupation and use____
5.3.3 on the expiry of such notice as is mentioned in sub-clause 5.3.1.2
this lease shall determine (though without restricting or cancelling
the rights of the Landlord and the Tenant against the other in
respect of any previous breach of the provisions of this lease) ____
5.3.4 if the Landlord insures against loss of Rent for a period longer
than three years then the references to a three year period in
sub-clauses 5.3.1.1 and 5.3.1.2 shall be treated as references to
such longer period____
5.3.5 in the event of any dispute as to the amount or period of such
abatement as is mentioned in sub-clause 5.3.1.1 or as to whether the
Demised Premises have been rebuilt, reinstated or rendered fit for
occupation and use and accessible the dispute shall be referred to
arbitration in accordance with the provisions of the Arbitration
Acts 1950 and 1979 and if the parties cannot agree on the identity
of the arbitrator he shall be nominated on the application of either
party to the President of the Royal Institution of Chartered
Surveyors or his deputy____
5.4 Alternative Arrangements for repayment of insurance premium
The Landlord may, during such periods as it elects, recover all or part of
the sums mentioned in sub-clauses 5.2.1 and 5.2.2 by including the
relevant premiums in the amount of the Service Charge so that the
arrangements for payment by the Tenant shall be as for the rest of the
Service Charge____
6. FURTHER PROVISIONS
THE parties also agree:-
6.1 Forfeiture
Whenever:
6.1.1 the Rent or the Additional Rents or any part of them are in arrears
for 14 days or more after having become due (whether demanded
formally or not);
6.1.2 the Tenant has not complied with any obligation on its part
contained in this lease;
6.1.3 when the Tenant is one or more individuals: that individual is, or
one or more of those individuals is or are, adjudicated bankrupt or
24
has a receiving order made against him or an interim receiver is
appointed of the property of the Tenant or one or more of the
tenants;
6.1.4 when the Tenant is one or more companies; it or one of them goes
into compulsory or voluntary liquidation (unless that is solely for
the purpose of amalgation or reconstruction when solvent), an
administrative receiver or receiver of it (or one of them) is
appointed, or an administration order is made in respect of it (or
one of them), or
6.1.5 the Tenant (or if the Tenant is more than one person one or more of
the tenants) shall enter into any arrangement with its creditors or
shall suffer any distress or execution to be levied on his goods or
the Demised Premises or shall grant a xxxx of sale on any goods or
fittings at the Demised Premises____
then the Landlord may forfeit this lease by entering (itself or through
agents) any part of the Demised Premises in the name of the whole of the
Demised Premises____
BUT such forfeiture does not cancel, reduce or restrict any right of
action or remedy of the Landlord in respect of any breach prior to such
forfeiture by the Tenant of its obligations under this lease or the amount
of damages which the Landlord may claim____
6.2 Alterations to other property
The Landlord and others may carry out works and erections upon and to that
part of the Buildings not comprised in the Demised Premises and upon and
to adjoining or neighbouring property notwithstanding that the amenities
and access of light and air to the Demised Premises may be diminished or
otherwise affected____
6.3 Electromagnetic and light based transmissions
The Landlord and others authorised by it may transmit electromagnetic
waves and laser or intensified light beams across all of Kembrey Park
including (unless this disrupts any process being carried out or equipment
operated on the Demised Premises) the Demised Premises____
6.4 Limitation of Landlord's liability
6.4.1 Except as expressly provided by clause 4 hereof and/or in so far as
the matters and things mentioned in this sub-clause 6.4 are included
in the insurance referred to in sub-clauses 5.1.1 and 5.2.2 the
Landlord shall not be liable to the Tenant or to any other person
for any accidental loss or damage which may at any time during the
Term be occasioned or suffered by the Tenant or any other person or
to the Demised Premises or to any goods or property of the Tenant or
any other person by reason of any breakdown, bursting, stoppage,
leakage, breakage, defect or damage of or in any pipes, taps, mains,
cisterns, wires,
25
apparatus or machinery in or in connection with or used for the
purposes of the Demised Premises or any adjoining or neighbouring
property nor for the absence or lack of light in or to the Demised
Premises and the Landlord shall not be liable to any other person
not a party to this lease to perform any of the covenants herein
contained in this lease whether express or implied in so far as such
covenants impose obligations going beyond the common duty of care
imposed by the Common Law or the Occupiers Liability Xxx 0000
6.4.2 The Landlord shall not be responsible for or incur any liability in
respect of any communication from or to, or property of, the Tenant
which may be left with or entrusted to servants employed by the
Landlord___
6.5 Planning restrictions
Nothing contained in this lease
6.5.1 shall render the Landlord or the Tenant liable in respect of any of
the covenants conditions and provisions contained in this lease if
and so far only as the performance or observance of them or any one
or more of them shall after the date of this lease become a
contravention of or otherwise impossible or illegal under or by
virtue of the Planning Acts but subject as mentioned above in this
sub-clause 6.5.1 the Term and the rents payable to the Landlord
shall not determine solely because of any changes or modifications
or restrictions of user of the Demised Premises or obligations made
or imposed after the date of this lease under or by virtue of the
Planning Acts or any revocation or withdrawal or the alteration of
any conditions attached to or the imposition of further conditions
in respect of any permission for development already granted in
respect of the Demised Premises under the Planning Acts____
6.5.2 shall be deemed to constitute any warranty by the Landlord that the
Demised Premises or any part of the Demised Premises are presently
or will in the future be authorised under the Planning Acts for use
for any specific purpose____
6.6 Service of notices
Subject to sub-clause 1.7 Section 196 of the Law of Property Xxx 0000 as
amended shall apply to all notices served under this lease____
6.7 VAT
Unless the contrary is expressly stated sums and payments expressed or
referred to in this lease are exclusive of VAT which (if chargeable) shall
be paid in addition by the party paying such sums or making such
payment____
26
6.8 Option to determine
6.8.1 If the Tenant
6.8.1.1 wishes to determine the Term on the Early Termination Date;
6.8.1.2 gives to the Landlord prior written notice of not less than
twelve months and one day to that effect;
6.8.1.3 shall up to the Early Termination Date have paid the rents
hereby reserved and there shall not be subsisting either at
the time the notice is served or at the Early Termination
Date any material breach by the Tenant of the covenants and
obligations on the part of the Tenant contained in this
lease, and
6.8.1.4 gives vacant possession of the Demised Premises to the
Landlord
then at 11.59 pm on the Early Termination Date this lease and
everything contained in it shall cease and be void____
6.8.2 The determination of the Term in accordance with sub-clause 6.8.1
shall not cancel or restrict the rights and remedies of either party
against the other in respect of any antecedent claim or breach of
covenant_____
6.8.3 For the purposes of this sub-clause 6.8 time shall be of the
essence____
IN WITNESS whereof this deed has been executed by the parties and has been
delivered on the date written at the start of the document____
FIRST SCHEDULE
"The Demised Premises"
Part 1
Items excluded from the Demised Premises
1. The structural frame and columns, the cladding and the cladding frame, the
external windows, the external window frames, the external doors and
external door frames of the Buildings____
2. The concrete screeds, slabs, beams and decks being the floors of the
Buildings
3. The foundations supporting the Buildings____
4. The beams and roof deck and all other elements of the roof of the
Buildings____
5. Insulation materials within the walls or roof of the Buildings____
6. Any airspace above the roof of the Buildings or ground below the
Buildings____
Part 2
Items included in the Demised Premises
1. The plaster finishes other wall and floor coverings and paintwork inside
the Demised Premises____
27
2. The internal block walls in the Demised Premises
3. The ceiling tiles and lighting units inside the Demised Premises____
4. Any Service Media that exclusively serve the Demised Premises____
5. All additions and improvements to the Demised Premises____
6. All the Landlord's fixtures and fittings and any other fixtures (including
the carpets) which are in or attached to or which may in the future be in
or attached to the Demised Premises except for those which are installed
by the Tenant and can be removed without defacing the Demised Premises____
THE SECOND SCHEDULE
The Service Charge
Part 1
Payment of the Service Charge
1. "The Capped Service Charge Contribution" means
A. During the first year of the Term: (pound)6,730.80
B. During each of the second, third, fourth and fifth years of the Term
a sum calculated as follows:
The last published Index prior to the start of the
relevant year of the Term
(pound)6,730.80 x __________________________________________________
The last published Index prior to the start of the
Term____
"The Expenditure" means the amount which the Landlord spends in providing
the services set out in Part 2 of this Schedule____
"The Final Service Charge" means
A. during each of the first five years of the Term:
the lesser of:
(a) the Tenant's proportion of the Expenditure and
(b) the Capped Service Charge Contribution
B. during each year after the end of the fifth year of the Term: the
Tenant's proportion of the Expenditure
the Tenant's proportion in each case to be calculated as set out in Part 3
of this Schedule____
"Index" means the "all items" index figure of the Index of Retail Prices
published by the Department of Employment or any successor Ministry or
Department____
"The Interim Service Charge Instalment" means a payment to be made by the
Tenant on such dates as the Landlord may require (though not more
frequently than every month) on account of the Final Service Charge, the
amount of the Interim Service Charge Instalment being such sum as will, if
the Interim Service Charge Instalments are made on the stipulated days
result in the Tenant having paid to the Landlord at the end of the
relevant Service Charge Year such sum as the Landlord anticipates will be
the Final Service Charge____
"The Service Charge Year" means each successive period beginning on 1st
April and ending on 31st March in each year or such other period as the
Landlord may from time to
28
time notify in writing to the Tenant____
2. The Landlord must
2.A keep an account of the Expenditure____
2.B prepare and deliver to the Tenant within 9 calendar months after the
end of each Service Charge year a statement ("the Service Charge
Statement") for each Service Charge Year which
2.B.a states the Expenditure for the relevant Service Charge Year
with sufficient particulars to show the amount spent on each
major category of expenditure;
2.B.b states the amount of the Final Service Charge;
2.B.c states the total of the Interim Service Charge Instalment paid
by the Tenant, and
2.B.d states the amount by which the Final Service Charge exceeds
("Negative Balance") or falls short of ("Positive Balance"),
the total of the Interim Service Charge Instalments
2.B.e states the Tenant's proportion applied to each major category
of expenditure____
PROVIDED THAT any failure by the Landlord to produce such statement
within the 9 month period mentioned shall not cancel or restrict the
Tenant's obligation to pay the Service Charge, any Interim Service
Charge Instalment or any Negative Balance
3. The Tenant must pay the Interim Service Charge Instalment on the dates
stipulated by the Landlord____
4.A If a Service Charge Statement shows a Negative Balance then the Tenant
must pay that sum to the Landlord within fourteen days of receiving the
Service Charge Statement____
4.B If a Service Charge Statement shows a Positive Balance then the Landlord
must either credit the amount of such balance towards the sum which has
fallen or will fall due from the Tenant in respect of the Interim Service
Charge Instalments for the following Service Charge Year or (where a
Positive Balance is calculated after the end of the Term) within fourteen
days of producing the Service Charge Statement pay to the Tenant the
amount of the Positive Balance____
5. Every Service Charge Statement is conclusive as to the information set out
in it____
6A. If the basis for the calculation of the Index is changed and any method of
reconciliation between the new and old figures is officially published,
that method is to be used for the purpose of comparisons under this part
of this Schedule
6B. If
(a) the basis for the calculation of the Index is changed and no method
of reconciliation between the new and old figures is officially
published or
(b) the Index ceases to be published
29
then the Capped Service Charge Contribution shall be adjusted each year
(until and including the fifth year of the Term) by reference to such
other index of costs or prices as the Landlord may from time to time
reasonably specify____
7. The Tenant may, if it pays the Landlord's reasonable costs of such
exercise, on reasonable prior notice to the Landlord inspect such of the
books, records, invoices and accounts relating to the Service Charge and
the preparation of the Service Charge Statement as it may reasonably
request____
Part 2
The Services
A. The whole of Kembrey Park
1. Except for such parts of Kembrey Park for which any tenant is responsible and
for parts which are available for letting:
(a) Periodically inspecting, examining, maintaining, repairing, amending,
lighting, cleansing, painting, decorating, overhauling and where necessary
replacing any and every common part of Kembrey Park including the estate
buildings, courtyards, parking spaces, access roads, ramps, pavements,
ways, fences, sewers, drains, pipes, watercourses, cables, plant,
machinery, apparatus, fixtures and fittings and appurtenances there_____
(b) Tending and keeping tidy and planting with such flora as the Landlord
shall reasonably deem to be appropriate the areas of land within Kembrey
Park____
(c) The supply and maintenance of such fire fighting and alarm equipment on
Kembrey Park as may be provided by the Landlord or as may be required to
be supplied and maintained by the Landlord's insurers, by statute, or by
the Fire Authority for the district____
(d) The payment of all insurance premiums, rates, charges, assessments,
impositions and other outgoings payable by the Landlord in respect of all
common parts of Kembrey Park and the estate buildings there____
2. The control and eradication of any pests in or about Kembrey Park including
the Demised Premises____
3. The provision of such medical and security services as the Landlord may
reasonably deem necessary____
4. The employment of such staff as the Landlord may reasonably deem necessary
for the performance of the duties and services in and about Kembrey Park and all
incidental expenditure in relation to such employment (including but without
limiting the generality of such provision the payment of the statutory and such
other insurance, health, pension, welfare and other payments, contributions,
taxes and premiums) and the cost of entering into any contracts for the carrying
out of all or any of the said duties and services that the Landlord may
reasonably deem desirable or necessary and the provision of estate buildings,
medicines, medical equipment, uniforms, working clothes, tools,
30
appliances, cleaning and other materials, bins, receptacles, fixtures and
fittings and other equipment for the proper performance of their duties and for
the general management security maintenance and cleanliness of Kembrey Park and
all parts thereof____
5. Making repairing maintaining rebuilding and cleansing all ways roads
pavements sewers drains pipes watercourses party walls party structures party
fences walls or other conveniences which may belong to or be used for Kembrey
Park in common with other premises near or adjoining thereto____
6. Taking all steps reasonably deemed desirable or expedient by the Landlord for
complying with, making representations against or otherwise contesting, the
incidence of the provisions of any legislation or orders or statutory
requirements thereunder concerning town planning, public health, highways,
streets, drainage or other matters relating to or alleged to relate to Kembrey
Park for which the Tenant is not directly liable____
7. Complying with any statutory requirement in respect of Kembrey Park made for
the benefit or protection of the occupiers_____
8. Disposing or arranging the disposal of waste from all or part of Kembrey
Park____
9. Where the Landlord has been advised by its environmental engineers to carry
out such work or to take such measures, any reasonable work done or measures
reasonably taken to counteract prevent or reduce the likelihood of the spread or
presence of any virus bacteria or other dangerous substance within or around the
Kembrey Park____
10. All reasonable fees properly incurred by the Landlord or its managing agents
(if any) in connection with general management or maintenance of Kembrey Park
and so that the Landlord may if it so elects (such election to be notified to
the Tenant in writing) for such period as it does not employ and charge for
managing agents charge a management fee to be fixed by the Landlord but not to
exceed 10% of the total of the items (excluding this paragraph 10) set out in
this part of this schedule____
11. Such additional services as the Landlord may now or at any time in the
future reasonably decide to be in the interests of good estate management and
for the benefit of the tenants at Kembrey Park generally____
12. Reasonable provision for anticipated expenditure in respect of the foregoing
as the Landlord or its agents may in its or their reasonable discretion
determine____
B. The Birch Phase
1. The keeping in good and substantial repair and condition (including external
decoration) and (where the Landlord considers appropriate) renewal of the whole
or any part of so much of the Buildings as is not comprised in the Demised
Premises and as would not form part of the demise of any other unit within the
Birch Phase were all such units let on terms similar to this lease including
reasonable provision for anticipated expenditure in respect of such work as the
Landlord or its agents may in its
31
or their reasonable discretion determine____
2. The regular inspection maintenance repair and (where the Landlord considers
appropriate) replacement or renewal of the heating (including the plumbing for
the heating), ventilation and electrical systems and the fire fighting equipment
and fire and intruder alarm equipment at the Buildings where these have been
installed by the Landlord____
3. The external and internal cleaning of all windows and external cladding to
the Buildings____
4. Disposing or arranging the disposal of waste from all or any part of the
Birch Phase____
5. Taking out such insurance or maintenance contracts as the Landlord reasonably
considers appropriate relating to any such items or services as are mentioned in
this Part 2B of the Second Schedule
6. All reasonable fees properly incurred by the Landlord or its managing agents
(if any) in connection with the general management of the Birch Phase and so
that the Landlord may if it so elects (such election to be notified to the
Tenant in writing) for such period as it does not employ and charge for managing
agents charge a management fee to be fixed by the Landlord but not to exceed 10%
of the total of the items (excluding this paragraph 5) set out in Part 2 of this
schedule____
7. Such other services as the Landlord in its reasonable discretion shall deem
desirable or necessary to enable it to carry out or maintain the said services
and for the general conduct and good management of the Birch Phase___
8. Reasonable provision for anticipated expenditure in respect of the foregoing
as the Landlord or its agents may in its or their reasonable discretion
determine_____
Part 3
Calculation of the Tenant's proportion
The Tenant's proportion of the cost of providing the services set out in Part 2
of this schedule shall be determined by the Landlord or its agents and unless
(in each case) the Landlord or its agents consider that particular circumstances
make some other basis of calculation appropriate:
1. The Tenant's proportion in respect of the services set out in Part 2A of this
Schedule shall be a just proportion based on the ratio which the gross internal
area of the Demised Premises bears to the gross internal area of all units
(including the Demised Premises) let or available for letting at Kembrey Park
but excluding from the calculation of the latter figure any unlet new building
completed during the relevant Service Charge Year____
2. The Tenant's proportion in respect of the services set out in Part 2B of this
Schedule shall be a just proportion based on the ratio which the gross internal
area of the Demised Premises bears to the gross internal area of all units
(including the Demised Premises) in the Birch Phase let or available for letting
in respect of which the relevant service or services are
32
provided____
THE THIRD SCHEDULE
Car Parking Arrangements
1. The Tenant will park its motor cars in the part or parts of the car park area
as the Landlord shall at its sole discretion from time to time allocate to the
use of the Tenant, which allocation may be changed by the Landlord upon one
month's previous notice in writing as frequently as it may deem fit and nothing
in this lease shall be construed as conferring upon the Tenant any exclusive
right to the enjoyment of any particular position in the car park area provided
that nine of the parking spaces allocated to the Tenant will always be within
the Birch Phase and the rest will be within reasonably convenient walking
distance of the Demised Premises____
2. The Tenant shall at all times diligently perform and observe any reasonable
rules and regulations which may from time to time be circulated or displayed by
the Landlord in relation to the car park area____
3. The Landlord shall be under no liability for the entry of unauthorised
persons to the car park area or any loss or damage occasioned to motor cars or
their contents or to the Tenant____
4. The Tenant will reimburse the Landlord a due proportion attributable to the
said part from time to time allocated to the Tenant of any Impositions
(whensoever assessed charged or imposed upon the Landlord) payable by the
Landlord in respect of the car park area, (save to the extent that such
Impositions are recovered through the Service Charge) such reimbursement to be
made on demand____
THE FOURTH SCHEDULE
Rent Review
1. The revised Rent for any Review Period may be agreed 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) such valuer to 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 the Landlord or the Tenant made not
earlier than six months before the relevant Review Date but not later than the
end of the relevant Review Period and so that in the case of such valuation the
revised Rent to be determined by the valuer shall be such as he shall decide is
the yearly rent at which the Demised Premises might reasonably be expected to be
let at the relevant Review Date____
(A) On the following assumptions at that date:
(i) that the Demised Premises:
(a) are available to let on the open market without a fine or
premium with vacant possession by a willing landlord to a
willing tenant for a term
33
of 10 years or the residue then unexpired of the term of this
lease (whichever be the longer) ____
(b) are to be let as a whole subject to the terms of this lease
(other than the amount of the Rent hereby reserved but
including the provisions for review of that rent on a basis
and of a frequency as set out in this lease) ____
(c) are fit and available for immediate occupation_____
(d) may be used for any of the purposes permitted by this lease as
varied or extended by any licence granted pursuant thereto____
(ii) that the covenants contained in this lease on the part of the Tenant
have been fully performed and observed____
(iii) that no work has been carried out to the Demised Premises which has
diminished the rental value and that in case the Demised Premises
have been destroyed or damaged they have been fully restored____
(iv) that the rent will become payable after the expiry of a rent-free
period of such length as would be negotiated in the open market
between a willing landlord and a willing tenant____
(v) that the hypothetical tenant is and tenants in the market generally
are registered for VAT and will be able to set off in full by way of
input tax any VAT payable in respect of the Rent or other sums due
under the provisions of this lease against the output tax payable by
him or them____
(B) But disregarding:
(i) any effect on rent of the fact that the Tenant its sub-tenants or
their respective predecessors in title have been in occupation of
the Demised Premises____
(ii) any goodwill attached to the Demised Premises by reason of the
carrying on thereat of the business of the Tenant its sub-tenants or
their predecessors in title in their respective businesses and
(iii) any increase in rental value of the Demised Premises attributable to
the existence at the relevant Review Date of
(a) any improvement to the Demised Premises or any part thereof
carried out with consent where required and otherwise than in
pursuance of an obligation to the Landlord or its predecessors
in title by the Tenant its sub-tenants or their respective
predecessors in title during the Term or during any period of
occupation prior thereto arising out of an agreement to grant
such term or
(b) the Additional Works as defined in an agreement for lease
dated 20 February 1995 between the Landlord (1) and the Tenant
(2)
2. (A) the fees and expenses of the valuer referred to in paragraph 1
including the cost of his nomination shall be
34
borne as the valuer directs and the Landlord and the Tenant shall otherwise 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 nominated in accordance with paragraph 1 shall die delay
or become unwilling unfit 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 shall in his absolute discretion think fit he
may on the application of either the Landlord or the Tenant by writing discharge
the valuer and appoint another in his place____
3. When the amount of any Rent to be ascertained as provided above shall have
been ascertained memoranda recording that shall immediately be signed by or on
behalf of the Landlord and the Tenant and annexed to this lease and its
counterpart and the Landlord and the Tenant shall bear their own costs in
respect of those memoranda____
4. (A) If the revised Rent payable on and from any Review Date has not been
agreed by that Review Date the Rent shall continue to be payable at the rate
previously payable and immediately upon the revised Rent being ascertained the
Tenant shall pay to the Landlord any shortfall between the Rent and the revised
Rent payable from and including the Review Date up to and including the day
prior to the quarter day following the ascertainment of the revised Rent
together with interest on any shortfall at the Base Rate from time to time of
Lloyds Bank Plc such interest to be calculated on a day-to-day basis from the
date on which such shortfall (or each part of such shortfall) would have been
payable if the revised Rent had been ascertained prior to the relevant Review
Date to the date of ascertainment and thereafter in accordance with sub-clause
3.4 and the interest so payable shall be recoverable in the same manner as Rent
in arrear____
(B) for the purpose of this paragraph 4 the revised Rent shall be deemed
to have been ascertained on the date when the same has been agreed between the
Landlord and the Tenant or as the case may be the date of the determination by
the valuer____
5. If either the Landlord or the Tenant shall fail to pay the relevant
proportion of the fees and expenses of the valuer under the provisions of
paragraph 2 within twenty-one 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
by the party chargeable on demand____
35
[GRAPHIC] (THE COMMON SEAL of SUN ALLIANCE
(AND LONDON ASSURANCE COMPANY LIMITED
(was hereunto affixed in the presence
(of:-
/s/ [illegible]
Authorised Signatory
/s/ [illegible]
Authorised Signatory
(THE COMMON SEAL of XXXXXXX ROBOR plc
(was hereunto affixed in the
(presence of:-
Director
Secretary
36
