UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) November 12, 2004
TITANIUM METALS CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 0-28538 13-5630895
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
1999 Broadway, Ste. 4300, Denver, Colorado 80202
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (303) 296-5600
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(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act (17 CFR 240.13e-4(c))
Section 1 - Registrant's Business and Operations
Item 1.01 Entry into Material Definitive Agreement.
On November 12, 2004, TIMET UK Ltd. ("TIMET UK"), a wholly owned subsidiary
of Titanium Metals Corporation ("TIMET"), entered into three new leases with The
Prudential Assurance Company Limited ("Prudential") for TIMET UK's principal
facilities located in Witton, England. The two leases for TIMET UK's
manufacturing facilities each have a term of 20 years, and the lease for TIMET
UK's office space has a term of 10 years. TIMET UK pays aggregate rent of
approximately (pound)752,580 per year for the three leases, which amount is
subject to adjustment every five years at a rate of 2.0% per annum, compounded
annually. The first rent payment under the new leases is not due until October
2006. The leases are substantially identical in form, and a form of lease is
attached hereto as Exhibit 10.1 and is incorporated herein by this reference.
Item 1.02 Termination of a Material Definitive Agreement.
Contemporaneously with entering into the new leases described in Item 1.01,
TIMET UK and Prudential agreed to terminate the previously effective leases for
the same facilities. The previously effective leases permitted TIMET to
terminate the leases at the end of 2006 or 2016, while the new leases do not
contain a similar termination right. Under the previously effective leases,
TIMET UK's aggregate rental rate was approximately (pound)663,224 per year,
which amount was subject to adjustment every five years based upon changes in
the Retail Prices Index for all items excluding housing as published by HM
Government's relevant statistics office, with the next adjustment scheduled for
February 2006. TIMET agreed to the new rental rate and lease terms under the new
leases in exchange for the abatement of rental payments until October 2006 and
the fixed rent escalation provision.
Section 9 - Financial Statements and Exhibits
Item 9.01 Financial Statements and Exhibits.
(c) Exhibits.
Item No. Exhibit Index
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10.1 Form of Lease Agreement dated November 12, 2004,
between The Prudential Assurance Company Limited and
TIMET UK Ltd., related to the premises known as Timet
Number 2 Plant, The Hub Birmingham.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
TITANIUM METALS CORPORATION
(Registrant)
/s/ Matthew O'Leary
Matthew O'Leary
Corporate Attorney and Assistant Secretary
Date: November 17, 2004
INDEX TO EXHIBITS
Exhibit No. Description
10.1 Form of Lease Agreement dated November 12, 2004,
between The Prudential Assurance Company Limited and
TIMET UK Ltd., related to the premises known as Timet
Number 2 Plant, The Hub Birmingham.
DATED 2004
(1) THE PRUDENTIAL ASSURANCE COMPANY LIMITED
(2) TIMET UK LIMITED
LEASE
- relating to -
the premises known as
Timet Number 2 Plant
The Hub
Birmingham
[LOGO]
Forsters LLP
67 Grosvenor Street
London W1K 3JN
Tel: 020 7863 8333
Fax: 020 7863 8444
Email: Mail@Forsters.co.uk
Ref: MH
TABLE OF CONTENTS
Page No.
1. Definition and Interpretation.................................................................1
2. The Grant of the Lease.......................................................................10
3. Rents And Other Financial Provisions.........................................................10
4. Insurance....................................................................................13
5. Repair Maintenance And Decoration............................................................19
6. Alterations The Planning Acts The CDM Regulations And Legislation Generally
And Aerials Signs And Advertisements.........................................................23
7. User.........................................................................................30
8. Disposal of the Property.....................................................................32
9. Miscellaneous Tenant's Covenants.............................................................36
10. Miscellaneous Landlord's Covenants...........................................................40
11. Miscellaneous Further Agreements and Declarations............................................41
12. Notices......................................................................................44
13. Exclusion of Security of Tenure..............................................................45
SCHEDULE 1............................................................................................46
Part One - The Property...............................................................................46
Part Two - Rights granted to the Tenant...............................................................47
Part Three - Rights Excepted and Reserved to the Landlord.............................................48
Part Four - The Title Encumbrances....................................................................50
SCHEDULE 2............................................................................................50
Services and Service Charge...........................................................................50
SCHEDULE 3............................................................................................58
Covenants and Agreements by a Surety of an Assignee...................................................58
SCHEDULE 4............................................................................................61
Covenants and agreements by a surety or sureties in respect of an underlease..........................61
i
61
THIS LEASE is made the day of 2004
BETWEEN:
(1) THE PRUDENTIAL ASSURANCE COMPANY LIMITED (registered in England and Wales
with number 0015454) whose registered office is at 142 Holborn Bars London
EC1N 2NH (hereinafter called "the Landlord") and
(2) TIMET UK LIMITED (registered in England and Wales with number 530589) whose
registered office is at PO Box 704 Witton Birmingham B6 7UR (hereinafter
called "the Tenant")
NOW THIS DEED WITNESSETH as follows:
1. Definition and Interpretation
1.1 In this Lease the following expressions shall have the following meanings:
Authorised User: means a purpose of purposes within Class B1 (except as
hereinafter mentioned) Class B2 and/or Class B8 of the
Schedule to the Town and Country Planning (Use Classes)
Order 1987 but for the purposes of this definition and this
Lease such Order shall be deemed to exclude paragraph (a)
from the wording of Class B1 as contained in the Schedule to
such Order together with ancillary offices and parking of
vehicles
Base Rate: means either the base rate from time to time in force of
HSBC Bank plc (or of such other bank being a member of the
Committee of London Clearing Banks as the Landlord may from
time to time nominate) or if at any time no such base rate
shall exist or be published then such alternative rate at
such time which the Landlord may reasonably specify in
substitution for such base rate
1
CDM Client: has the meaning designated to "Client" by the CDM
Regulations
CDM Regulations: means the Construction (Design and Management) Regulations
1994
Car Parking Spaces: means 25 car parking spaces upon the Estate as are
designated from time to time by the Landlord as which shall
be reasonably convenient for use by the Tenant or occupiers
or users of the Property
Common Parts: means those areas facilities and other things which are not
leased or intended to be leased by the Landlord and which
are designed or allocated by the Landlord for the use
enjoyment or benefit of tenants within the Estate and/or
persons using or visiting the Estate (including where
appropriate the Landlord) and/or estate management purposes
(as varied from time to time by the Landlord) including for
example all access and estate roads entrances pedestrian
ways street lighting the Car Parking Spaces and other
vehicle parking facilities vehicle circulation areas any
Service Areas and other vehicle loading and unloading areas
forecourts yards pathways perimeter walls fences gates
stores street signs and names Estate signs and signboards
street furniture sculptures decorations management offices
and security offices and gate houses and other common areas
and open spaces upon serving or enjoyed by the Estate or any
part or parts thereof
Conducting Media: means drains channels sewers flues conduits ducts pipes
wires cables watercourse gutters culverts soakaways and
other similar transmission media and installations and all
ancillary fixings
2
louvres cowls covers and other apparatus and references to
Conducting Media being "in" or "on" include Conducting Media
in on under or through
Construction Work: has the meaning designated to such term by the CDM
Regulations
Contractual Term: means 20 years as from (and including) the Term Commencement
Date
Estate: means that property which shall from time to time comprise
the estate of the Landlord known as The Hub Birmingham (the
boundaries of which as at the Term Commencement Date are for
the purposes of identification only shown edged red
(excluding the land shown hatched green) on Plan A) and any
additional property which the Landlord may notify the Tenant
shall be included in "the Estate"
Estate Footpaths: means such unadopted pedestrian footpaths or ways or parts
of such pedestrian footpaths or ways as are now or at any
time during the Term may be upon or lead into the Estate
including any alterations or additions to such pedestrian
footpaths or ways and which the Landlord shall from time to
time make available and designate for use by the tenants
occupiers and users of the Estate and visitors to the Estate
Estate Roads: means such unadopted roads or parts of such roads as are now
or at any time during the Term may be upon or lead into the
Estate including any alterations or additions to such roads
and which the Landlord shall from time to time make
available and designate for use by the tenants occupiers and
users of the Estate and visitors to the Estate
3
Group: means a group of companies within the meaning of Section 42
of the Landlord and Tenant Act 1954
Health and
Safety File: has the meaning designated to such term by the CDM
Regulations
Insured Risks: fire lightning explosion aircraft and articles dropped from
them riot civil commotion malicious damage storm tempest
flood earthquake bursting or overflowing of water tanks
apparatus and pipes impact by any vehicle and such other
risks as the Landlord may reasonably consider necessary to
insure
Landlord's Fixtures
and Fittings: has the meaning as defined in Part One of Schedule 1
Landlord's Group: means the Group of which the Landlord is a member
Landlords Neighbouring
Property: means any Neighbouring Property now or at any time hereafter
in the ownership of the Landlord or any member of the
Landlord's Group
Landlord's Surveyor: means such suitably qualified person who shall be appointed
or employed by the Landlord from time to time during the
Term and such person may be but not necessarily shall he in
the employ of or otherwise connected with the Landlord
Last Year
of the Term: means the period of twelve months the last day of which
shall be the Lease Termination Date
Lease
Termination Date: means the date of expiry of the Term unless for any reason
this Lease shall he terminated prior to the date of expiry
of the Contractual Term in which
4
case "Lease Termination Date" shall mean such date of
termination
Legislation: means any statute or any order instrument or regulation made
under any statute or any notice or order issued by a
government department or minister or by a local public
regulatory or other authority (and in each such case whether
present or future)
Loss: means in relation to any person any liability incurred by
such person any loss injury or damages suffered by it any
damage awarded against it any claim demand action or
proceeding made or brought against it or any costs expenses
or disbursements incurred by it (and "Losses" shall be
construed accordingly)
Neighbouring
Property: means any land or buildings or parts of buildings (whether
already or hereafter to he erected) adjoining or near to the
Property
Plan A: means the plan annexed to this deed marked "Plan A"
Plan B: means the plan annexed to this deed marked "Plan B"
Planning Acts: means the Town and Country Planning Act 1990 the Planning
(Listed Buildings and Conservation Areas) Act 1990 the
Planning (Hazardous Substances) Act 1990 the Planning
(Consequential Provisions) Act 1990 the Planning and
Compensation Act 1991 and any other Act of Parliament of a
similar nature in force from time to time
5
The Property: means the property described in Part One of Schedule 1
Quarter: means any period commencing upon (and including) a Quarter
Day and expiring upon (and including) the day immediately
before the next Quarter Day
Quarter Days: means 25 March 24 June 29 September and 25 December in each
year and "Quarter Day" shall be construed accordingly
the Rent: means the yearly rent which shall initially be
(pound)386,461 (Three hundred and eighty six thousand four
hundred and sixty one pounds) per annum exclusive and
thereafter:
from and including the fifth anniversary of the Term
Commencement Date (pound)426,684 (Four hundred and twenty
six thousand six hundred and eighty four pounds) per annum
exclusive;
from and including the tenth anniversary of the Term
Commencement Date (pound)471,093 (Four hundred and seventy
one thousand and ninety three pounds) per annum exclusive;
and
from and including the fifteenth anniversary of the Term
Commencement Date (pound)520,124 (Five hundred and twenty
thousand one hundred and twenty four pounds) per annum
exclusive
Rent
Commencement Date: means 12 October 2006
Service Areas: means that area or those areas upon the Estate (if any)
designated from time to time during the Term by the Landlord
as "the Service Areas"
6
Service Charge: has the meaning given to it by Schedule 2
Service Charge
Commencement
Date: means the date of this Lease
Schedule
of Condition: means a schedule of condition in two volumes totalling 101
pages dated November 1995 (including 571 representative
photographs) prepared by Chesterton for Holford Estates
Limited which the parties consider to be a representative
statement of the state of repair and condition of the
Property as at that date
Term: means the Contractual Term
Term Commencement
Date: means 29 September 2004
Title Encumbrances: means all rights easements quasi-casements privileges and
other matters affecting the Property including (but not by
way of limitation) so far as they affect the Property and
are subsisting or capable of taking effect or are
exercisable or capable of being enforced those matters
mentioned or referred to in Part Four of Schedule 1
Undertenant: means any undertenant deriving title under the Tenant (or
its predecessors in title) whether immediate or derivative
and such expression shall include any licensee of the Tenant
(or its predecessors in title) or of any such undertenant
and where the context so admits also any servant agent or
invitee of any such undertenant or licensee (and the
expression "Undertenants" shall be construed accordingly)
Uninsured Risk: an Insured Risk against which insurance ceases to be
obtainable on normal commercial terms in the
7
London insurance market at rates generally available in the
London insurance market for a property of this type size and
location
Value Added Tax: means Value Added Tax and any tax duty or charge of a
similar nature that may he substituted for it or charged in
addition to it
1.2 In and for the purpose of this Lease:
(a) any reference to "the Landlord's reversion" means the immediate
reversion of the Property expectant on the expiry of the Term
(b) any reference to "this Lease" includes where the context so
admits this deed and any other deed or document which may at any
time be supplemental to or vary this Lease or which may he
entered into pursuant to or in accordance with this Lease at the
request or with the consent of the Tenant or any of its
predecessors in title
(c) the expression "Landlord" shall where the context so admits
include the person for the time being entitled to the Landlord's
reversion
(d) the expression "Tenant" shall include the person for the time
being in whom the tenant's interest under this Lease is vested
(e) the word "person" includes an individual a body corporate a firm
an unincorporated association or any other body or entity
possessing legal personality
(f) wherever this Lease provides for any matter to be determined by
the Landlord's Surveyor the determination of the Landlord's
Surveyor shall he binding (save in the case of manifest error)
(g) words importing the singular number include the plural number and
vice versa and words importing one gender include all genders
8
(h) where there are two or more persons included in the expression
"the Tenant" covenants and obligations expressed to be entered
into by the Tenant shall be deemed to be entered into by such
persons jointly and severally
(i) any statute or provision of any statute referred to in this Lease
shall be deemed to include any statutory amendment modification
or re-enactment thereof for the time being in force and any order
instrument and regulation made thereunder save that the foregoing
shall not apply to any reference herein to the Town and Country
Planning (Use Classes) Order 1987 or to Section 42 of the
Landlord and Tenant Act 1954 or to Section 16 of the Landlord and
Tenant (Covenants) Act 1995 (save for amendments to any of these
provisions in force at the date of this Lease)
(j) any covenant or agreement by the Tenant not to do an act or thing
shall be construed as if it were a covenant or agreement not to
do or permit or suffer such act or thing
(k) references to any right exercisable by or excepted and reserved
to the Landlord (including for example any right to have access
to or entry upon the Property) shall where the context so admits
include the exercise of such right by any superior landlord and
all persons authorised by the Landlord or any superior landlord
(l) in any case in which the consent or approval of the Landlord is
required under this Lease the giving of such consent or approval
shall be conditional upon the consent or approval of any superior
landlord or other reversioner being obtained and of any mortgagee
or mortgagees of the Landlord or any superior landlord or other
reversioner and of the insurers or underwriters of the Landlord
or any superior landlord or reversioner so far as any such
further consent or approval may be required and nothing in this
Lease implies that any such further consent may not he
unreasonably withheld
(m) any consent approval authorisation notification notice request
requirement or recommendation or demand for payment or repayment
of any money required given or made under this Lease shall take
effect or be given only if given or made in writing
9
(n) in interpreting this Lease the wording contained in the index
attached to this Lease or the headings to clauses sub-clauses
schedules parts of schedules or paragraphs within .this Lease or
upon the covers of this deed shall be disregarded
(o) references in this deed to clauses sub-clauses and schedules are
to clauses sub-clauses and schedules of this deed unless
otherwise stated
(p) all Schedules to this Lease shall form part of this Lease and it
is agreed that the Landlord and the Tenant shall comply with
their respective obligations contained in such Schedules
2. The Grant of the Lease
The Landlord lets the Property to the Tenant for the Contractual Term
Together With the rights set out in Part Two of Schedule I But Except
and Reserving the rights stated to be excepted and reserved in Part
Three of Schedule I And subject to the Title Encumbrances
3. Rents And Other Financial Provisions
3.1 Rents
The Tenant covenants with the Landlord to pay to the Landlord by way
of rent:
(a) The Rent as from (and including) the Rent Commencement Date
throughout the remainder of the Term such rent to be payable by
equal quarterly instalments in advance on the Quarter Days save
that:
(i) the first payment in respect of the period from and
including the Rent Commencement Date to and including that
day being the day immediately preceding the first of the
Quarter Days following the later of the Rent Commencement
Date and the date of this deed shall be made on the later of
the Rent Commencement Date and the date of this deed and
(ii) where the Rent shall be payable in respect of a period which
shall comprise part of (but not the whole of) a Quarter the
Rent shall be
10
apportioned on a daily basis by reference to the number of
days in such Quarter
(b) the Service Charge at the times and in the manner provided by
Schedule 2
(c) within 5 working days of written demand any sums specified in
clause 4
3.2 Rates and outgoings
(a) The Tenant shall pay and indemnify the Landlord against all
existing and future rates taxes duties charges assessments
impositions and other outgoings whatsoever (whether imposed by
statute or otherwise and whether of a national or local character
and whether in the nature of capital or revenue) now or at any
time during the Term payable in respect of or imposed or charged
upon the Property or upon the owner or occupier in respect of the
Property during the Term except such payments as shall be
occasioned by any disposition of or dealing with the ownership of
any estate or interest expectant in reversion on the Term and if
any such rates taxes duties charges assessments impositions and
other outgoings are charged in respect of the Property in
conjunction with any other property then the Tenant shall within
fourteen days after demand by the Landlord pay the Landlord a
fair and reasonable proportion of the same which proportion shall
in the absence of agreement be determined by the Landlord's
Surveyor
(b) If the Property or any part or parts thereof shall at any time
prior to the Lease Termination Date be unoccupied for any period
the Tenant shall indemnify the Landlord in respect of such relief
against rates or other outgoings which would have been available
to the Landlord following the Lease Termination Date (and which
is not available to the Landlord) if the Property or any part or
parts thereof had not been unoccupied as mentioned
(c) Without prejudice to any other provisions of this Lease if any
development shall be carried out or commenced upon the whole or
any part of the Property by the Tenant or any Undertenant or
there shall be any change of user of the whole or any part of the
Property by the Tenant or any Undertenant or any disposition
shall he effected of the whole or any part of the Property by the
Tenant or any Undertenant which in any such case shall render the
Landlord
11
liable to any tax levy duty charge assessment or imposition
whatsoever whether imposed by statute or otherwise and whether of
a national or local character and whether in the nature of
capital or revenue the Tenant shall indemnity the Landlord in
respect of any such tax levy duty charge assessment or imposition
3.3 To pay for utility services
The Tenant covenants with the Landlord to pay and discharge all
existing and future costs charges and outgoings of whatever nature
payable in respect of the supply or provision of any utility services
for or serving the Property or any part thereof
3.4 VAT
Where under the terms of this Lease the Tenant is obliged to pay any
sum (whether of a specified amount or otherwise) and such sum is
wholly or partly attributable to the supply of such goods or services
as are within the charge to Value Added Tax under the Law for the time
being in force such sum shall he deemed for all purposes to be
increased by the amount of such Value Added Tax and the Tenant shall
notwithstanding anything contained in this Lease pay such Value Added
Tax save in so far as the Landlord is able to obtain credit for such
Value Added Tax as an input tax and it is hereby agreed by the
Landlord and the Tenant that:
(a) the Landlord (or its managing agents) shall render a receipted
tax invoice addressed to the Tenant in respect of any taxable
supply made to the Tenant pursuant to this Lease upon receipt of
payment for the same
(b) for the purposes of this clause 3.4 the expressions "taxable
supply" "input tax" and "tax invoice" shall have the same
meanings as they do in the Value Added Tax Act 1994 and
(c) any Value Added Tax payable by the Tenant to the Landlord shall
be recoverable in the same manner as the sum in respect of which
such Value Added Tax is payable
3.5 Interest for late payment
(a) If any monies payable to the Landlord under this Lease shall not
be paid on any of the days appointed for payment (whether the
same shall have been formally
12
demanded or not) or if payable following demand shall not be paid
within fourteen days after demand being made the Tenant shall pay
interest upon such monies from the date when such monies shall
become due or (in the case of payments payable after demand) the
date of demand until and including the date of actual payment
(whether after or before any judgment) such interest to be
calculated from day to day at a rate of four per centum above
Base Rate and to be compounded on each of the Quarter Days
(b) If any payment of any monies payable to the Landlord under this
Lease shall as a result of a breach by the Tenant of any of its
obligations under this Lease be declined by the Landlord so as
not to waive any breach of covenant the Tenant shall pay interest
upon such monies from the date the payment became due to the
earlier of the date upon which payment is accepted by the
Landlord or that date which shall he fourteen days after the
Tenant notified the Landlord in writing that the breach has been
remedied (such notification to be given not earlier than the date
upon which the breach has been remedied) and proffers payment
such interest to he compounded and calculated in accordance with
the provisions of clause 3.5(a)
(c) Nothing in this clause 3.5 shall entitle the Tenant to withhold
or delay any payment of any sum payable under this Lease after
the date upon which it first becomes payable or in any other way
affect any other rights which the Landlord shall have arising
from any failure or delay on the part of the Tenant in payment of
any monies payable under this Lease
3.6 No right of' set off/direct bank payment
The Tenant covenants to pay all rents and other sums payable
under this Lease without any deduction whatsoever (whether by way
of set off or otherwise) and (if and to the extent required by
the Landlord) by banker's order or direct debit transfer to any
bank and account in the United Kingdom that the Landlord may from
time to time nominate
4. Insurance
4.1 Insurance Rent
The Tenant covenants with the Landlord to pay a sum equal to:
(a) the cost (which shall not be unreasonably above rates of
insurance premium generally available in the London insurance
market and offered by insurers of repute against risks no less
comprehensive than the Insured Risks for premises in all respects
similar to the Property in type size location construction and
capable of being used for all purposes permitted by this Lease as
they may be from time to time) the Landlord incurs in insuring
against employer's liability and public liability risks in
respect of the Property and insuring the Property against the
Insured Risks including:
(i) the preparation and settlement of any insurance claim
(ii) the cost of complying with any requirements of the insurer
and
(iii)valuation of the whole or any part of the Property (but not
more than once in every three year period)
(b) the cost the Landlord incurs in insuring against three years'
loss of the yearly rent and the Service Charge arising from
damage to the Property by any Insured Risks
The insurance cover may include VAT and take due account of the
effects of inflation and escalation of costs and the Landlord's proper
estimate of the market rent in the context of ensuing rent reviews
and/or the end of the Term and the Landlord will be entitled to retain
any commissions paid to it
4.2 Tenant's insurance obligations
The Tenant covenants with the Landlord:
(a) not to do or omit in or upon the Property anything which may:
(i) render the Landlord liable to pay in respect of the Property
more than the rate of premium it might expect to pay in the
open market to insure premises of a similar nature let on a
similar basis against the Insured Risks or
(ii) restrict or make void or voidable any policy for such
insurance
14
(b) to pay to the Landlord on demand any increase in the rate of
premium and all expenses properly incurred in connection with any
renewal of such policy rendered necessary by a breach of clause
4.2(a)
(c) If:
(i) any part of the Property is destroyed or damaged by any
Insured Risk and
(ii) the insurance monies are wholly or partially irrecoverable
by reason solely or in part of any act or default of the
Tenant or any person deriving title under the Tenant or any
of their respective agents employees or licensees
the Tenant must pay to the Landlord on demand a sum equal to
the whole or a fair proportion (as the case may require) of
the irrecoverable insurance monies
(d) not to insure the Property against any of the Insured Risks
(e) to notify the Landlord immediately in writing of damage to the
Property by any Insured Risk
(f) in the event of damage to the Property by any Insured Risk or
Uninsured Risk rendering them unfit for occupation or use (if so
required by the Landlord) to remove from the Property all
property belonging to the Tenant or to any third party within one
month of such damage and/or to indemnify the Landlord against the
cost of doing so
(g) in the event of damage to the Property by any of the Insured
Risks to pay to the Landlord on demand a sum equal to any
uninsured excess to which the insurance policy may be subject
(h) not to leave the Property continuously unoccupied for more than
21 days without notifying the Landlord and providing such
caretaking or security arrangements as the Landlord's insurers
may require and/or the Landlord may reasonably require
4.3 Landlord's covenant to insure
15
The Landlord covenants with the Tenant to keep insured the Property
against loss or damage by the Insured Risks with an insurer of repute
subject to such exclusions conditions limitations and uninsured
excesses as the insurer may reasonably apply in a sum equal to:
(a) the Landlord's opinion of the full cost of reinstatement
including professional fees and the cost of removing all debris
(excluding contents and stock debris) from the site of the
Property and other incidental expenses and
(b) three years' loss of the rent first reserved by this Lease and
Service Charge
4.4 Reinstatement
(a) The Landlord covenants with the Tenant subject to any necessary
labour and materials being and remaining available which the
Landlord must use reasonable endeavours to obtain as soon as
possible to cause all insurance monies received (except sums
received for loss of rent) to be applied in clearing the site and
reinstating the Property and to pay any shortfall out of its own
monies save to the extent that shortfall arises due to the
failure of the Tenant to comply with its covenants in clause 4.2
(b) Any reference to reinstating the Property in clauses 4.3 4.4 4.5
4.6 and 4.7 means that the Property is reinstated substantially
as it was before the relevant damage or destruction but not so as
to provide accommodation identical in layout if it would not be
sensibly practicable to do so
4.5 Suspension of Rent
(a) If the Property or any part of it is so destroyed or damaged by
an Insured Risk as to make it unfit for occupation or use or
inaccessible the Rent and the Service Charge or a fair proportion
according to the nature and extent of the damage sustained will
not be payable until the earlier of the date on which:
(i) the Property has been (as the case may be) reinstated and
made fit for occupation or use (excluding fitting out and
replacement of contents) or made accessible or
16
(ii) the expiry of three years from the date of such damage (but
this shall not apply to the extent that insurance monies are
not payable owing to the act or default of the Tenant or any
person deriving title under the Tenant or their respective
agents employees licensees or contractors)
and the Landlord shall repay to the Tenant any Rent or
Service Charge (or a proportion as appropriate) paid by the
Tenant before the date of such damage and relating to a
period after such date
(b) Any dispute as to the amount or duration of the rent to be abated
will be settled by a single arbitrator to be appointed by the
president for the time being of the Royal Institution of
Chartered Surveyors
4.6 Options to Terminate
(a) If the Property or a substantial part of it is destroyed or
damaged by an Insured Risk this Lease may be terminated by the
Landlord giving to the Tenant (within 12 months after such
destruction or damage) not less than six months' notice
(b) If for any reason outside the Landlord's control it proves
impossible to commence rebuilding work within two years of the
date of such damage or destruction the Landlord may by notice to
the Tenant terminate this Lease and upon receipt by the Tenant of
such notice the Term shall end
(c) If either the Landlord has not commenced rebuilding work on site
within two years of the date of such damage or destruction or the
Landlord has not completed reinstatement of the Property within
two years and six months of such date then in either event this
Lease may be terminated by the Tenant giving to the Landlord not
less than six months' notice and upon the expiry of such notice
the Term shall end but if by the expiry of such notice the
Premises have been reinstated the notice will be void and this
Lease will continue in full force and effect
(d) If this Lease is terminated pursuant to clause 4.6(a) (b) or (c)
the Landlord will be entitled to retain the whole of the
insurance monies for its absolute use and benefit
17
4.7 Uninsured Risks
(a) For the purpose of this clause 4.7:
(i) These provisions shall apply from the date on which any
Insured Risk becomes an Uninsured Risk but only in relation
to the Uninsured Risk
(ii) References to an Insured Risk becoming an Uninsured Risk
shall without limitation include the application by insurers
of an exclusion condition or limitation to an Insured Risk
to the extent to which such risk thereby is or becomes an
Uninsured Risk
(iii)The Landlord shall notify the Tenant in writing as soon as
reasonably practicable after an Insured Risk becomes an
Uninsured Risk
(b) If during the Term the Property or a substantial part of it shall
be damaged or destroyed by an Uninsured Risk so as to make the
Property or a substantial part of it unfit for occupation or use
or inaccessible:
(i) the yearly rent or a fair proportion according to the nature
and extent of the damage sustained will not be payable until
the earlier of the date on which:
- the Premises shall again be fit for occupation or use
excluding fitting out and replacement of contents or
made accessible or
- this Lease shall be terminated in accordance with
clause 4.7(b)(ii)
(ii) the Landlord may within one year of the date of such damage
or destruction serve notice on the Tenant confirming that it
will reinstate the Property ("a Reinstatement Notice") so
that the Property shall be fit for occupation or use or made
accessible and if the Landlord fails to serve a
Reinstatement Notice this Lease will automatically end on
the date one year after the date of such damage or
destruction
18
(c) Clause 4.7(b) shall not apply if an Insured Risk shall have
become an Uninsured Risk owing to the act or default of the
Tenant or any person deriving title under the Tenant or their
respective agents employees licensees or contractors
(d) If the Landlord shall have served a Reinstatement Notice and such
reinstatement has not been completed by the date three years and
six months from the date of the Reinstatement Notice at any time
after that date the Landlord or the Tenant may terminate this
Lease by serving not less than six months' notice on the other
stating that it terminates this Lease and if by the end of such
notice the Property and/or access to it has been reinstated so
that the Property is fit for occupation or use and is accessible
the notice shall be void and this Lease shall continue in full
force and effect
(e) Service of a Reinstatement Notice shall not oblige the Landlord
to replace any Tenant's fitting out works or property belonging
to the Tenant or any third party
5. Repair Maintenance And Decoration
5.1 Repair and maintenance
The Tenant shall at all times during the Term repair and maintain the
Property (including any Landlord's Fixtures and Fittings but excluding
any Conducting Media which are not within the boundaries of the
Property or any Conducting Media whether within the Property or not
which do not serve the Property exclusively) so as to keep the
Property and the Landlord's Fixtures and Fittings in the state and
condition in which they were found in November 1995 as that is
evidenced by the Schedule of Condition but if any of' the Landlord's
Fixtures and Fittings become beyond repair the Tenant will replace the
same with items of equivalent value and usefulness but excluding
damage by:
(a) Insured Risks except to the extent insurance monies are
irrecoverable due solely or in part to any act or default of the
Tenant or any person deriving title under the Tenant or any of
their respective agents employees licensees or contractors
19
(b) an Uninsured Risk but only insofar as damage caused by an
Uninsured Risk makes the Property or a substantial part of it
unfit for occupation or use and only to the extent that the
Uninsured Risk shall not have become an Uninsured Risk by any act
or default of the Tenant or any person deriving title under the
Tenant or any of their respective agents employees licensees or
contractors
5.2 Decoration
(a) The Tenant shall as often as shall be necessary and also in the
seventh year of the Term and thereafter in every successive
seventh year of the Term and also in the last six months of the
Last Year of the Term prepare and paint varnish or otherwise
treat (as the case may require) in a proper and workmanlike
manner with suitable materials of good quality and to the
reasonable satisfaction of the Landlord all the internal parts of
the Property usually or requiring to be so treated and further so
often as may be necessary the Tenant shall have treated in a
proper and workmanlike manner with suitable materials of good
quality for preserving and protecting the same and in all
respects to the reasonable satisfaction of the Landlord all
internal parts of the Property requiring treatment for their
preservation and protection
(b) The Tenant shall as often as shall be necessary and also in the
fifth year of the Term and thereafter in every successive fifth
year of the Term and also in the last six months of the Last Year
of the Term paint or otherwise treat (as the case may require) in
a proper and workmanlike manner with suitable materials of good
quality and to the reasonable satisfaction of the Landlord all
the external parts of the Property usually or requiring to be
painted or otherwise treated and further so often as may be
necessary the Tenant shall have treated in a proper and.
workmanlike manner with suitable materials of good quality for
preserving and protecting the same and in all respects to the
reasonable satisfaction of the Landlord all external parts of the
Property requiring treatment for their preservation and
protection
(c) The Tenant shall at all times during the Term:
20
(i) at least once in every period of one month clean the inside
and outside of all windows and window frames of the Property
and all the glass (if any) in the entrance doors to the
Property and
(ii) keep the external parts of the Property in a clean and tidy
condition and free from litter and weeds
5.3 Tenant not to discharge into Conducting Media
The Tenant shall not discharge anything into any of the Conducting
Media serving the Property or any other property as may be in any way
harmful or corrosive to such Conducting Media or cause any obstruction
or deposit in such Conducting Media
5.4 Rubbish and Waste Material
(a) The Tenant shall ensure that all refuse rubbish scrap and waste
material are until removed stored upon the Property in proper
receptacles within the building or buildings the whole or part of
which obtain part of the Property and that not less frequently
than once a week all refuse rubbish scrap and waste material and
all used tins cans boxes and other containers which may have
accumulated on the Property are removed
(b) The Tenant shall not place upon any external part or parts of the
Property or any areas in the vicinity of the Property any refuse
rubbish scrap or waste materials
5.5 Inspection by Landlord and Schedule of Condition/Notice of Breach
(a) The Tenant shall permit the Landlord and all persons authorised
by the Landlord at reasonable times (but at any time in
emergency) with or without workmen and others upon reasonable
prior notice having been given (except in emergency) to enter the
Property to view the state of repair and condition of the
Property and to take a schedule of the Landlord's Fixtures and
Fittings in or upon the Property or to ascertain whether anything
has been done or is being done which constitutes a breach of this
Lease
(b) If the Landlord shall serve a notice upon the Tenant requiring
the Tenant to carry out any works of repair maintenance or
decoration which the Tenant is
21
obliged to do under this Lease or requiring the Tenant to replace
any of the Landlord's Fixtures or Fittings which shall have been.
removed or requiring the Tenant to remove any unauthorised
alterations additions signs or other things referred to in clause
6 (and restore the Property to its condition prior to the making
or installation of such unauthorised alterations additions signs
or other things) or in respect of any alterations or additions to
make good any works which shall not comply with the provisions of
clause 6 then the Tenant shall carry out such works of' repair or
maintenance or other works or effect such replacements as
required by such notice to the reasonable satisfaction of the
Landlord:
(i) immediately in the case of emergency or in so far as such
notice requires the Tenant:
- to make good any failure on its part to clean the
inside and outside of all windows and window frames of
the Property and all the glass (if any) in the entrance
doors thereto in accordance with the Tenant's
obligations under this Lease or
- to make good any failure on its part to remove any
refuse rubbish scrap or waste material or any used tins
cans boxes or other containers or
- to remove any unauthorised additions signs or other
things referred to in clause 6 (and restore the
Property to its condition prior to the making or
installation of such additions signs or other things)
(ii) in all other cases as soon as reasonably practicable and in
any event not later than the expiry of the period specified
by the notice which shall be not less than two months after
the service of such notice by the Landlord upon the Tenant
(c) If the Tenant shall not comply with a notice as referred to in
clause 5.5(b) within the period specified by such notice or
sooner is required in accordance with the provisions of clause
5.5(b) then (but without prejudice to) any other right of the
Landlord) the Landlord and persons authorised by the Landlord
22
may enter upon the Property and carry out such works of repair
maintenance or decoration or other works or replacements at the
expense of the Tenant and such expense together with all
professional charges and other expenses which may be reasonably
and properly incurred by the Landlord in connection with such
matters shall be repaid by the Tenant to the Landlord within
fourteen days after demand
5.6 Defective Premises
(a) The Tenant shall give notice to the Landlord of any defect to or
disrepair in the Property or any part thereof which may render
the Landlord subject to any liability under common law or
Legislation immediately the Tenant or any Undertenant shall have
knowledge of the same or ought to have had knowledge of the same
by the exercise of proper care diligence or enquiry
(b) The Tenant shall display and maintain upon the Property such
notice or notices as the Landlord shall reasonably require in
relation to any of the matters referred to in clause 5.6(a) and
in such position or positions as the Landlord shall reasonably
require
6. Alterations The Planning Acts The CDM Regulations And Legislation
Generally And Aerials Signs And Advertisements
6.1 Alterations
(a) The Tenant shall not make any alterations or additions to the
Property or any part or parts thereof or to any of the Conducting
Media in the Property or to any electrical equipment or
installations of any description within the Property without in
any such case the previous consent of the Landlord (such consent
not to he unreasonably withheld or delayed) nor otherwise than in
accordance with plans and specifications approved by the Landlord
(such approval not to be unreasonably withheld or delayed)
PROVIDED THAT the Landlord may seek such advice as the Landlord
shall require from surveyors and other professional advisers in
connection with any such application for consent or approval
23
(b) Without prejudice to the provisions of clause 6.1(a) or any other
provisions of this Lease if at any time during the Term any
alterations or additions shall be made to the Property or any
part thereof or the Tenant shall wish to make or to permit any
such alterations or additions:
(i) the Tenant shall (if and to the extent so required by the
Landlord in writing) during the Last Year of the Term
restore the Property to the condition in which it was prior
to the carrying out of such alterations or additions
(ii) the Tenant shall procure that the Landlord all relevant
authorities and the insurers or underwriters of the Landlord
are notified of the date on which work on such alterations
or additions is due to commence (such notification to be
given not later than fourteen days before such date) and
that the Landlord all relevant authorities and the insurers
or underwriters of the Landlord are subsequently notified in
writing as soon as any such alterations or additions are
completed the Landlord at the same time being supplied by
the Tenant with three complete sets of drawings and
specifications showing the alterations and additions as
carried out
(iii)the Tenant shall ensure that all such alterations and
additions are carried out in a good and workmanlike manner
with maximum despatch with good quality materials (not, in
any event including high alumina cement woodwool slabs or
formers calcium silicate bricks or tiles calcium chloride or
blue asbestos or other deleterious materials or substances)
and (so far as they shall apply) strictly in accordance with
all relevant British Standards and British Standard Codes of
Practice
(iv) the Tenant shall procure that all such alterations and
additions are carried out in accordance with all the
requirements and regulations of all utility companies
providing electricity gas water drainage services and/or
other services who may be affected and the Tenant shall
further ensure that any electrical works included in such
alterations and additions are carried out in accordance with
the terms and conditions laid down by the Institution of
Electrical Engineers
24
(v) the Tenant shall ensure that all such alterations and
additions are carried out in accordance with all the
requirements and regulations of all public bodies in any way
affected the requirements and recommendations of the local
fire officer and the requirements of all Legislation and in
particular (but not by way of limitation) the Tenant shall
ensure that the provisions of clause 6.2 are complied with
in all respects insofar as they are relevant
(vi) the Tenant shall procure that any such alterations or
additions are carried out in such manner that all covenants
conditions restrictions stipulations or agreements affecting
the whole or any part of the Property or the Landlord as
owner are strictly observed and performed and that any
easements rights privileges or liberties which third parties
enjoy in on over or under the whole or any part of the
Property or other land are not obstructed or interfered with
and that there is no trespass upon or damage to any
Neighbouring Property nor any injury nuisance or
inconvenience to the Landlord or any owners and occupiers of
any Neighbouring Property or to the general public
(vii)the Tenant shall permit the Landlord's Surveyor the
Landlord and all other persons authorised by the Landlord at
all times without in any way affecting the Tenant's
obligations under this Lease or relieving the Tenant from
liability in respect of such obligations to inspect and test
the work in progress on any such alterations or additions
and the materials used or to be used and the Tenant shall
procure the removal remedying and making good as the
Landlord or the Landlord's Surveyor shall direct of any work
or materials which do not fulfil the requirements contained
in this clause 6.1 and in all respects to the Landlord's
reasonable satisfaction
(viii) the Tenant shall keep the Landlord fully indemnified
against all Losses of the Landlord or any third party on
account of the death of or injury to any person or the
destruction of or damage to any property or
25
the obstruction of or interference with any proprietary
right or by any statutory undertaking local authority or
other body in any way affected in or in consequence of the
carrying out of such alterations or additions or any failure
by the Tenant to comply fully with the Tenant's obligations
in this clause 6.1
(ix) if the Landlord shall so reasonably require prior to the
commencement of any such alterations or additions the Tenant
shall provide adequate security on terms reasonably required
by the Landlord in the form of a deposit of money or the
provision of a bond to ensure that such alterations or
additions shall be fully completed and in compliance in all
respects with the provisions of this clause 6.1
(x) if and when called upon to do so the Tenant shall produce to
the Landlord such evidence as the Landlord may reasonably
require to satisfy itself that the provisions of this clause
6.1 have complied with in all respects
6.2 The Planning Acts and Legislation generally
(a) The Tenant shall at all times during the Term comply in all
respects with the provisions and requirements of all Legislation
(including but not by way of limitation the Planning Acts) and
all licences consents permissions and conditions (if any) granted
or imposed under the Planning Acts or any other Legislation so
far as they respectively relate to or affect the whole or any
part of the Property or any operations works acts or things
already or hereafter to be carried out executed done or omitted
on the whole or any part of the Property or the user of' the
whole or any part of the Property for any purpose or purposes
(b) The Tenant shall throughout the Term so often as occasion shall
require at the expense in all respects of the Tenant obtain from
(as the case may be) the local planning authority or the
appropriate Government Department or Secretary of State or other
authority or regulatory body all such licences consents and
permissions (if any) as may be required for the carrying out by
the Tenant or any Undertenant of any operations on the whole or
any part of the Property or the institution or continuance by the
Tenant or any Undertenant on the whole or any part of the
Property of any use of the whole or
26
any part of the Property which may he required under the Planning
Acts or any other Legislation But the Tenant shall not make any
application for planning permission without the previous consent
of the Landlord (such consent not to be unreasonably withheld or
delayed)
(c) The Tenant shall pay and satisfy any charge that may be imposed
under the Planning Acts in respect of the carrying out by the
Tenant or any Undertenant of any alterations on the whole or any
part of the Property or the institution or continuance by the
Tenant or any Undertenant of any use of the whole or any part of
the Property
(d) Immediately after the grant of any planning permission or
refusals of any application for planning permission made by the
Tenant or any Undertenant the Tenant shall give to the Landlord
full particulars in writing of such grant or refusal and supply a
copy to the Landlord and in the case of a refusal of such an
application or a grant subject to conditions which the Landlord
considers unreasonable if the Landlord so requires at the
Landlord's expense the Tenant shall itself (where such refusal or
grant is in respect of an application for planning permission
made by or on behalf of the Tenant) give notice of appeal to the
relevant authority and proceed diligently with such appeal and
keep the Landlord informed of the progress or where such refusal
or grant is in respect of an application for planning permission
made by or on behalf of any Undertenant the Tenant shall procure
that the Undertenant shall give notice of appeal to the relevant
authority and proceed diligently with such appeal and keep the
Landlord informed of the progress of such appeal
(e) Notwithstanding any consent which may be granted by the Landlord
under this Lease the Tenant shall not carry out or make any
alteration or addition to the whole or any part of the Property
or any change of use of the whole or any part of the Property
(being an alteration or addition or change of use for which a
planning permission needs to be obtained) before a planning
permission for such matter has been produced to and approved by
the Landlord (such approval not to be unreasonably withheld or
delayed) PROVIDED ALWAYS that the grounds upon which the Landlord
may refuse to express its approval to any
27
such planning permission shall include (but shall not he limited
to) the ground that the period of the permission or anything to
which such permission is made subject is in the reasonable
opinion of the Landlord prejudicial to its interest in the
Property or in any other property whether during the Term or
following the expiry of the Term
(f) If the Tenant or any Undertenant commences any development for
which planning permission has been granted then (save to the
extent the Landlord shall otherwise direct) the Tenant shall
carry out before the Lease Termination Date any works stipulated
to be carried out to the Property by a date subsequent to the
Lease Termination Date as a condition of any planning permission
which may have been granted during or prior to the commencement
of the Term
(g) If the Tenant or any Undertenant shall receive any compensation
in respect of' the interest of the Tenant or such Undertenant in
the whole or any part of the Property because of any restriction
placed upon the user or development of the whole or any part of
the Property under or by virtue of the Planning Acts then within
fourteen days after demand by the Landlord the Tenant shall pay
to the Landlord such proportion of such compensation as is fair
and reasonable having regard to any decrease in value of the
interest of the Landlord in the Property by virtue of such
restriction and in the event of the Landlord and the Tenant being
unable to agree the amount of such proportion such amount shall
be determined by a single arbitrator acting in accordance with
the Arbitration Act 1996 and appointed in default of agreement by
the President or next most senior officer available of the Royal
Institution of Chartered Surveyors on the application of the
Landlord or the Tenant
(h) If and when called upon to do so the Tenant shall produce to the
Landlord all such plans documents and other evidence as the
Landlord may reasonably require in order to satisfy itself that
the provisions of this clause 6.2 have been complied with in all
respects
(i) The Tenant shall not without the consent of the Landlord enter
into any agreement under the Planning Acts affecting the whole or
any part of the Property (such consent not to be unreasonably
withheld or delayed where the Tenant has obtained the Landlord's
consent in principle pursuant to any other term of this Lease in
respect of the matter to which such agreement shall relate and
provided that such agreement does not impose any actual or
contingent liability upon the Landlord or any superior landlord)
28
(j) The Tenant shall immediately upon receipt of any notice
communication or proposal beneficially or detrimentally affecting
the whole or any part of the Property send a copy of such
communication notice or proposal to the Landlord and if so
requested by the Landlord join with the Landlord in opposing any
such communication notice or proposal
(k) The Tenant shall not serve any notice under the Planning Acts nor
permit any Undertenant to serve any notice under the Planning
Acts requiring any authority to purchase the interest of the
Tenant or such Undertenant in the whole or any part of the
Property
(l) The Tenant shall not make any application or enter into any
agreement for or in respect of the adoption by any authority or
company of any road footpath Conducting Media or any other thing
upon fronting or serving the whole or any part of the Property
6.3 The CDM Regulations
(a) To the extent that any Construction Work to be undertaken by the
Tenant or any Undertenant or any licensee of or person authorised
by the Tenant or any Undertenant in connection with the Property
comes within the scope of the CDM Regulations the Tenant
covenants and warrants with and to the Landlord that a notice of
declaration in accordance with the CDM Regulations shall be
served on the Health and Safety Executive by the Tenant or (if
appropriate) the relevant Undertenant identifying the Tenant or
the Undertenant (as appropriate) as the CDM Client in respect of
such Construction Work and that a copy of' such notice shall he
supplied at the same time to the Landlord
(b) To the extent that any Construction Work to be undertaken by the
Landlord in connection with the Property comes within the scope
of the CDM Regulations the Landlord covenants and warrants with
and to the Tenant that a notice of declaration in accordance with
the CDM Regulations shall be served on the Health and Safety
Executive by the Landlord identifying itself as the CDM Client in
respect of such Construction Work and that a copy of such notice
shall be supplied at the same time to the Tenant
29
6.4 Aerials signs and advertisements
With the prior consent of the Landlord (which may not unreasonably be
withheld or delayed) the Tenant may attach to the Property any signs
notices flag poles aerials and dishes which comply with Legislation
but no such consent will be required for the Tenant to attach to the
Property any reasonable signs identifying the occupier of the Property
and the business carried on there so long as such signs nevertheless
comply with Legislation
7. User
7.1 Use of the Property
(a) The Tenant shall not use or occupy the whole or any part of the
Property otherwise than for the Authorised User
(b) The Tenant shall not bring into the Property or place or store or
permit to remain in or about the Property any articles or things
which are noxious offensive especially combustible explosive
radioactive or dangerous
(c) The Tenant shall not reside or sleep upon the Property and shall
not use the whole or any part of the Property for an illegal or
immoral purpose or for any noisy noxious dangerous or offensive
trade manufacture or business or occupation or for the purposes
of any public or political meeting or entertainment or for the
purposes of an auction or for anything which shall be a nuisance
or annoyance or cause damage or inconvenience to the Landlord or
occupiers of any Neighbouring Property or to the public or to any
local or other authority
(d) The Tenant shall not do anything which will overload with due
margin for safety or which will in any way cause damage strain or
cause damage to or be likely to overload cause undue strain or
cause damage to the walls staircases (if any) lifts (if any) or
ceilings ceiling members roof or root members of the Property or
any Conducting Media within or serving the Property
30
(e) The Tenant shall not do anything which will overload with due
margin for safety or be likely to overload the capacity of the
Conducting Media and any related plant and equipment used in
connection with the supply to the Property of any utility
services or services which are referred to in Schedule 2
(f) The Tenant shall not leave the whole or any part of the Property
continuously unoccupied for more than twenty-one days without
first notifying the Landlord and providing such caretaking or
security arrangements as the Landlord shall reasonably require or
as its insurers or underwriters shall require in order to protect
the Property from vandalism theft damage or unlawfuI occupation
7.2 Use of the Estate Footpaths the Estate Roads the Car Parking
Spaces and the Service Areas
(a) The Tenant shall not use the Estate Footpaths the Estate Roads
the Car Parking Spaces or any Service Areas other than for the
purposes expressly authorised by this Lease
(b) The Tenant shall not park or leave unattended any vehicle upon
the Estate Roads or upon any other part of the Estate with the
exception of the Car Parking Spaces and with the exception also
that temporary parking of vehicles upon the Estate Roads and/or
any Service Areas for the purposes of loading and unloading shall
be permitted to the extent that and so long as the free passage
of traffic upon the Estate Roads is not impeded
(c) The Tenant shall not deposit any articles of any description or
any oil fuel or rubbish upon the Estate Roads the Estate
Footpaths the Car Parking Spaces any Service Areas or any other
parts of the Common Parts and shall not cause any damage to the
Estate Roads the Estate Footpaths the Car Parking Spaces any
Service Areas or any other parts of the Common Parts (save for
fair wear and tear)
(d) If the Tenant or any Undertenant or their respective servants
agents invitees or licensees shall deposit any oil fuel rubbish
or articles of any description (or shall cause any damage (other
than fair wear and tear) to the Estate Footpaths the Estate Roads
the Car Parking Spaces any Service Areas or any other parts of
the Common Parts then without prejudice to) any other rights
which the Landlord may have against the Tenant the Tenant shall
within fourteen days after demand repay to the Landlord any
expenses reasonably and properly incurred by the Landlord in or
about the removal of such oil fuel rubbish or articles or the
making good of such damage
31
7.3 Estate Regulations
The Tenant shall observe and comply in all respects throughout the
Term with such regulations which may at any time be made or imposed by
the Landlord or any superior landlord or management company and
notified to the Tenant in relation to the Estate in connection with
safety security estate management or other matters which are of
general benefit to the occupiers and users of the Estate and shall
procure that its servants agents invitees and licensees and its
Undertenants shall observe and comply with such regulations in all
respects throughout the Term
8. Disposal of the Property
8.1 Disposal or the Property and parting with possession or occupation by
the Tenant or an Undertenant
(a) The Tenant shall not assign transfer or underlet part only of the
Property nor permit nor suffer the assignment transfer or
underletting of part only of the Property by any Undertenant or
any sub-underletting of the Property by any Undertenant and the
Tenant shall not accept or agree to a surrender of part only of
the Property by the Tenant or any Undertenant
(b) The Tenant shall not part with possession or permit the
occupation by a third party of the whole or any part of' the
Property and shall not share the occupation of the whole or any
part of tile Property with a third party nor permit nor suffer
any Undertenant to do so other than in any such case by way of an
assignment or an underlease hereinafter permitted under this
clause 8.1 save that while the estate hereby created or the
estate created by any underlease permitted by this clause 8.1
shall he vested in a company the Tenant or Undertenant (as the
case may be) may share occupation of the whole or part or parts
of the Property with another company or other companies within
the same Group as itself provided that such shared occupation
does not create the relationship of landlord and tenant and
provided further that each such other
32
company shall immediately vacate the Property upon it ceasing to
be in the same Group as the Tenant or the Undertenant (as the
case may be) and the Tenant shall notify the Landlord of the
nature and identity of the occupants whenever any change shall
take place
(c) The Tenant shall not hold or occupy the Property or any part
thereof as trustee or agent or otherwise for the benefit of any
other person
(d) The Tenant shall not assign the Property as a whole or underlet
the Property as a whole or permit the assignment of such an
underlease by an Undertenant without the prior consent of the
Landlord (which consent (subject to clause 8.1(e)) shall not he
unreasonably withheld or delayed) and without first procuring in
the case of any assignment or underletting that:
(i) the assignee or undertenant shall covenant directly with the
Landlord to observe and perform the covenants and conditions
contained in this Lease (except in the case of an
underletting the covenant to pay the rents payable under
this Lease)
(ii) any intended underlessee of the Tenant shall covenant
directly with the Landlord not to be a party or privy to any
agreement or arrangement for commutation in whole or in part
of any rent payable under the proposed underlease whether or
not in consideration of the payment of a lump sum of money
or monies worth and also not to pay the rack rent payable
under the proposed underlease in advance at intervals or for
periods which are greater than the intervals or periods at
or for which the Rent is payable in advance under the Lease
(iii)in the case of an assignment a surety or sureties
acceptable to the Landlord shall if the Landlord so requires
(where it is reasonable for the Landlord so to do having
regard to the financial standing of the proposed assignee)
act as surety for the assignee and shall enter into
covenants and agreements with the Landlord in the terms set
out in Schedule 3 with such variations as the Landlord shall
reasonably require (and for the avoidance of doubt for the
purposes of this clause 8.1(d)(iii) (but not otherwise) any
reference in Schedule 3 to "the
33
Surety" means the surety or sureties referred to in this
clause 8.1(d)(iii)
(iv) in the case of an underlease a surety or sureties acceptable
to the Landlord shall if the Landlord so requires (where it
is reasonable for the Landlord so to do having regard to the
financial standing of the proposed undertenant) act as
surety for the undertenant and shall enter into covenants
and agreements with the Landlord in the terms set out in
Schedule 4 with such variations as the Landlord shall
reasonably require (and for the avoidance of doubt for the
purposes of this clause 8.1(d)(iv) (but not otherwise) any
reference in Schedule 4 to the Surety means the surety or
sureties referred to in this clause 8.1(d)(iv))
(v) the intended assignee or underlessee shall covenant with the
Landlord in the same terms as are contained in this clause
8.1
(vi) in the case of an underlease such underlease shall contain
no provision whereunder the rack rent is payable in advance
at intervals or for periods which are greater than the
intervals or periods at or for which the Rent is payable in
advance under this Lease
(vii)in the case of an underlease the provisions of Sections 24
to 28 (inclusive) of the Landlord and Tenant Act 1954 shall
be excluded
(viii) in the case of an underlease such underlease shall contain
a provision prohibiting the undertenant from granting a
sub-underlease of the whole or any part of the Property
(ix) The Tenant shall not grant any right to occupy or use nor
part with or share possession or occupation of the Car
Parking Spaces or any Service Areas or any of such spaces or
any part of such areas nor permit nor suffer any Undertenant
to grant any right to occupy or use or to part with or share
possession or occupation of the Car Parking Spaces or any
Service Areas or any of such spaces or any part of such
areas other than to or with a permitted assignee undertenant
or occupant of the whole or part of the Property for so long
as such permitted assignee undertenant or occupant shall he
entitled to occupy the whole or part of the Property
34
(e) The Landlord may require as a condition of giving its consent to
the Tenant to assign the Property (but only if such requirement
does not unreasonably delay the giving of such consent) that the
Tenant enters into an "authorised guarantee agreement" within the
meaning of section 16 of The Landlord and Tenant (Covenants) Act
1995 in favour of the Landlord to contain such terms as are
reasonably required by the Landlord having regard to current
market practice at the time and are permitted by that section
8.2 Mortgages and charges by the Tenant or an Undertenant
The Tenant shall not:
(a) create any mortgage or charge over part only of the Property
(b) create any mortgage or charge over the whole of the Property
without the previous consent of the Landlord (which shall not he
unreasonably withheld or delayed in the case of a bona fide loan
arrangement with a reputable bank or financial institution)
8.3 Notice of disposals mortgages or charges or the Property by the Tenant
or an Undertenant
Within one calendar month after such matter being effected and without
any demand from the Landlord the Tenant shall give notice to the
Landlord and to supply for its retention to the Landlord or its
Solicitors a copy certified by a Solicitor as a true copy of any
Assignment Underlease Probate of a Will Letters of Administration
Mortgage or Charge and any other disposition which during the Term
shall he made of or affect the whole or any part of the Property and
shall pay to the Landlord or its Solicitors such reasonable sum in
respect of the registration of such notice as shall he demanded by the
Landlord or its Solicitors payment to be made within fourteen days
after demand
8.4 Signs of and viewing upon sale or re-letting by the Landlord
The Tenant shall permit the Landlord or its agents at any time within
six calendar months next before the Lease Termination Date or at any
time in the event of the
35
Landlord wishing to dispose of any interest in the whole or any part
of the Property which shall be superior to the interest created by
this deed to enter upon the Property and to affix upon any suitable
part but so as not to interfere unreasonably with the occupation of
the Property by the Tenant or any Undertenant) a notice board for
reletting our selling the whole our any part of the Property and the
Tenant shall not remove or obscure any such notice board and shall
permit all persons by order in writing of the Landlord or its agents
to view by appointment the Property at reasonable hours in the daytime
without interruption
9. Miscellaneous Tenant's Covenants
9.1 Payment of Landlord's Costs
(a) The Tenant shall pay (and in each case within fourteen days after
demand by the Landlord) all reasonable costs and expenses
(including but nut by way of limitation the reasonable lees and
disbursements of relevant professionals) reasonably incurred by
the Landlord in connection with or incidental to:
(i) the recovery of sums payable to the Landlord under this
Lease or the levy of distress (whether or not any distress
in the event be levied) or the preparation and/or service of
a notice under Section 146 of the Law of Property Act 1925
and/our in or in contemplation of proceedings under Sections
146 and/or 147 of that Act notwithstanding forfeiture is
avoided otherwise than by relief granted by the Court or
(ii) the preparation and/or service of any notice and/or schedule
relating to dilapidations whether or not the same is served
prior to or after the Lease Termination Date (but relating
in all cases only to dilapidations which accrued upon or
prior to the Lease Termination Date) or otherwise incurred
by the Landlord in relation to any breach of the provisions
of this Lease by the Tenant or
(iii)enforcing or requiring the Tenant to remedy a breach of any
of the Tenant's obligations under this Lease or
36
(iv) any application for consent or approval under this Lease
even if the same be refused our proffered subject to any
lawful qualification our condition our even if the
application be withdrawn
(b) Where the Landlord could recover the cost of professional advice
our services under clause 9.1(a) if they were undertaken by a
third party but those services or that advice are provided by
employees of the Landlord or by a company within the Landlord's
Group the Tenant shall pay to the Landlord within fourteen days
alter demand by the Landlord a reasonable sum for such advice and
services but not more than the amount which would have been
payable if that advice or service had been provided by a third
party
9.2 Creation of easements
The Tenant shall not permit any new wayleave easement privilege or
encroachment to be made or acquired into against or upon the Property
and in case any such wayleave easement privilege or encroachment shall
be made or attempted to be made to the knowledge of the Tenant or any
Undertenant (or which could have been known by the Tenant or any
Undertenant by the exercise of proper care diligence or enquiry) the
Tenant shall give immediate notice of such matter to the Landlord and
permit the Landlord and its agents to enter upon the Property for the
purpose of ascertaining the nature of any such wayleave easement
privilege or encroachment And at the request of the Landlord the
Tenant shall adopt such means as may be reasonably required by the
Landlord for preventing any such encroachment or the acquisition of
any such easement right privilege or encroachment
9.3 Indemnities
(a) The Tenant shall indemnify and keep the Landlord indemnified
against all Losses relating to or arising from:
(i) the interference with or obstruction of any right or
easement existing for the benefit of other premises over the
Property our any part thereof
(ii) the stoppage of any of the Conducting Media upon or serving
the whole or any part of the Property our any part thereof
used by or in common with other property
37
(b) The Tenant shall indemnify and keep indemnified the Landlord
against all Losses by reason of or arising directly or indirectly
out of the repair or condition of the Property (in so far as the
Tenant is liable for such matters under this Lease) or any
alteration to the Property by the Tenant or any Undertenant or
the user of the whole or any part of the Property
(c) The Tenant shall indemnify and keep indemnified the Landlord
against all Losses incurred or sustained by the Landlord as a
consequence of any breach of the obligations of the Tenant
(whether contained in this Lease our implied)
9.4 Delivery of the Property to the Landlord as at the Lease Termination
Date
(a) Upon or prior to the Lease Termination Date the Tenant shall
quietly deliver up the Property (and the keys of the Property) to
the Landlord in such repair and condition as prescribed by the
covenants on the part of the Tenant contained in this Lease (and
clear of any refuse oil and noxious substances and any items of
property which are not Landlord's Fixtures and Fittings and which
are owned hired or leased by the Tenant or any Undertenant or
their respective servants agents or licensees)
(b) The Tenant shall upon our prior to the Lease Termination Date
have removed every sign of the name or business of the Tenant or
other occupiers from the Property
(c) If the Tenant shall not fully observe the foregoing covenants
contained in this clause 9.4 then (without prejudice to any other
right of the Landlord):
(i) the Tenant shall continue to pay to the Landlord the Rent
and all other sums payable under this Lease in all respects
as if the Term had continued until (and including) whichever
of the following three dates shall first occur:
- the date when the Tenant shall have fully complied with
the Tenant's covenants contained in this clause 9.4 or
- the date when the Landlord could reasonably have been
expected to complete all remedial works required to
remedy the breach of the Tenant's covenants contained
in this clause 9.4 or
38
- the date from which the Landlord becomes entitled to
receive a full open market rent for the Property upon
an arms length re-letting of the whole of the Property
(ii) the Tenant shall pay to the Landlord within fourteen days
after demand:
- the cost of putting the Property into the state of
repair condition and decoration in which it would have
been had the Tenant complied with the terms of this
Lease and
- on an indemnity basis all costs and expenses (including
fees and disbursements of relevant professionals)
reasonably incurred by the Landlord in connection with
the matters referred to in this clause 9.4
(d) If after the Lease Termination Date any items of property which
are required to be cleared from the Property in accordance with
clause 9.4(a) shall remain in or on the Property then (but
without prejudice to any other rights which the Landlord may
have) the Landlord may as the agent of the Tenant or such
Undertenant sell such property and may keep the proceeds of the
sale unless the Tenant or any Undertenant claims such proceeds
within three months after the Lease Termination Date
(e) The Tenant shall indemnify the Landlord against any liability
incurred by it to any third party whose property shall have been
sold by the Landlord in accordance with clause 9.4(d) in the bona
fide belief (which shall be assumed in the absence of proof to
the contrary) that such property was owned hired or leased by the
Tenant or any Undertenant or their respective servants agents or
licensees and liable to be so dealt with by the Landlord
(f) On the Lease Termination Date the Tenant shall hand over to the
Landlord each and every Health and Safety File which has come
into existence in connection with any Construction Work in
relation to the Property within the scope of the CDM Regulations
and which has been undertaken by the Tenant or any Undertenant or
any licensee of or person authorised by the Tenant or any
Undertenant
39
9.5 Supply of Information
(a) Upon making an application for any consent or approval which is
required under this Lease the Tenant shall supply to the Landlord
such information as the Landlord may reasonably require
(b) If and when called upon by the Landlord so to do the Tenant shall
supply to the Landlord from time to time a schedule containing
full details (including for the avoidance of doubt particulars of
rent and review dates) of all subsisting underlettings and
occupations of the Property and any other information in relation
to such matters as the Landlord shall reasonably require
9.6 Observance of the Encumbrances
Without prejudice to any other provision or provisions of this Lease
the Tenant shall observe and perform (but by way of indemnity only)
the Title Encumbrances in so far as they affect the whole or any part
of the Property and are subsisting or capable of taking effect or are
exercisable our capable of being enforced and shall keep the Landlord
indemnified against all Losses arising as a result of any breach our
non-observance of such matters during the Term
10. Miscellaneous Landlord's Covenants
10.1 Quiet enjoyment
The Landlord covenants that the Tenant paying the rents payable under
this Lease and observing and performing the covenants and conditions
contained in this Lease and on the part of the Tenant to be observed
and performed shall and may peaceably and quietly possess and enjoy
the Property during the Contractual Term without any interruption by
the Landlord or any person lawfully claiming under or in trust for the
Landlord
10.2 Obtaining of consents of third parties
40
Where the consent or approval of the Landlord is required under this
Lease and the giving of such consent or approval is conditional upon
the consent or approval of any superior landlord or other reversioner
being obtained or of any mortgagee or mortgagees of the Landlord or
any superior landlord or of the insurers or underwriters of the
Landlord or any superior landlord or any other reversioner so far as
may be required then (save where the Landlord shall be entitled to
withhold its own consent or approval and elects to do so) the Landlord
shall at the request and cost of the Tenant use reasonable endeavours
to obtain any such consent or approval and any such cost shall be
repaid by the Tenant to the Landlord within fourteen days after demand
11. Miscellaneous Further Agreements and Declarations
11.1 Forfeiture
(a) A "Forfeiting Event' is any of the following:
(i) any Rent or other sum payable by the Tenant to the Landlord
under this Lease is outstanding four twenty-one days after
becoming due whether formally demanded or not
(ii) a breach by the Tenant of any of the provisions of this
Lease
(iii)the Tenant has any distress or execution levied on its
goods
(iv) the Tenant or any surety who at any time guarantees the
obligations of the Tenant under this Lease is Insolvent (but
in the case of a surety only where the Tenant does not
provide a substitute surety reasonably acceptable to the
Landlord)
(v) any surety who at any time guarantees the obligations of the
Tenant under this Lease dies or ceases to exist and the
Tenant does not provide a substitute surety reasonably
acceptable to the Landlord
(b) "Insolvent" for the purposes of this Lease means in relation to a
company it shall be unable to pay its debts within the meaning of
Section 123 of the Insolvency Act 1986 or a proposal is made for
a voluntary arrangement under Part I of the Insolvency Act 1986
or a receiver administrative receiver or manager is appointed
over all or any of its assets or a provisional liquidator is
41
appointed under Section 135 of the Insolvency Act 1986 or it goes
into liquidation either voluntary or compulsory (other than a
voluntary liquidation solely for the purpose of amalgamation or
reconstruction while solvent) or a proposal is made for a scheme
of arrangement under Section 425 of the Companies Act 1985
(c) "Insolvent" for the purposes of this Lease means in relation to
an individual an application is made for an interim order or a
proposal is made for a voluntary arrangement under Part VIII of
the Insolvency Act 1986 or a bankruptcy petition is presented
under Part IX of the Insolvency Act 1986 or he enters into any
deed or arrangement or composition with his creditors or a
receiver of the income of the Property is appointed
(d) Whenever a Forfeiting Event exists or occurs the Landlord may
enter the whole or part of the Property even if a previous right
of entry has been waived and then the Term shall end but without
prejudice to any right of action of either the Landlord or the
Tenant in respect oil any antecedent breach of any out the
covenants of the other contained in this Lease
11.2 Exclusion of Landlord's liability
PROVIDED ALWAYS that nothing contained in this clause 11 .2 shall
apply to any Losses caused by the negligence of the Landlord or the
Landlord's agents servants invitees or licensees or by breach of any
covenant on the part of the Landlord contained in this Lease the
Landlord shall not be responsible to the Tenant or any Undertenant or
their respective servants agents invitees or licensees in or upon the
Property or the Estate or calling upon the Property or the Estate for
any Losses sustained on the Property or the Estate or when calling
upon the Property or the Estate and the Tenant shall indemnify the
Landlord against all such Losses
11.3 Waiver
Notwithstanding the acceptance of our demand for rent by the Landlord
the Landlord's Surveyor or its or their agent with knowledge on the
part of any such parties of a breach of any of the covenants on the
part of the Tenant contained in this Lease the Landlord's right to
enforce such covenant or to forfeit this Lease on the ground of such
breach shall
42
remain in force and the Tenant shall not in any proceedings for
forfeiture or otherwise be entitled to rely upon any such acceptance
or demand as aforesaid as a defence
11.4 Covenants both real and personal
The covenants and agreements contained in this Lease shall he deemed
to be not only personal covenants and agreements hut also real
covenants and agreements affecting and running with the Property and
each and every part of the Property and the Landlord's reversion
11.5 No implied rights
Nothing contained in this Lease shall operate expressly or impliedly
to confer upon or grant to the Tenant any easement right or privilege
other than those expressly hereby granted
11.6 Freedom of Landlord to deal with other property
Nothing herein contained or implied shall give the Tenant the benefit
of or the right to enforce or to have enforced or to prevent the
release or modification of any covenant agreement or condition entered
into by any purchaser from or by any lessee or occupier of the
Landlord in respect of property not leased by this Lease
11.7 Exclusion of representations and warranties
The Tenant acknowledges that this Lease has not been entered into in
reliance wholly or partly upon any statement or representation made by
or on behalf of the Landlord save in so far as any such statement or
representation is expressly set out in this deed and in particular
(but not by way of limitation):
(a) the Landlord makes no representation express or implied and gives
no warranty as to the fitness of the Property or any parts of the
Estate for the purpose or purposes for which the Tenant or any
Undertenant intend the same to be used or for any other purpose
(b) notwithstanding the provisions as to user of the Property
contained in this Lease the Landlord does not thereby or in any
way give or make nor has given or made at any other time any
representation or warranty that any such user is
43
or will be or will remain a permitted user within the provisions
of the Planning Acts or any other relevant Legislation nor shall
any consent which the Landlord may give to any change of user be
taken as including any such representation or warranty and that
notwithstanding that any such user is not a permitted user within
such provisions as aforesaid the Tenant shall remain fully bound
and liable to the Landlord in respect oil the obligations
undertaken by the Tenant by virtue of this Lease without any
compensation recompense or relief of any kind whatsoever
11.8 Recovery of sums payable by the Tenant
The Landlord shall be entitled to such remedies and to take such
actions for the recovery of all monies payable by the Tenant under
this Lease in all respects as if all such monies were expressed to be
rent or payable as rent (whether or not such is the case)
11.9 Deed contains all agreed terms
This deed contains the whole agreement as at the date of this deed
between the parties to this deed relating to the letting of the
Property and supersedes all previous agreements (if any) between the
parties to this deed relating to such letting
11.10 Perpetuity Period
The perpetuity period applicable to this Lease is eighty years
beginning on the Term Commencement Date and whenever in this Lease
either the Landlord or the Tenant is granted a future interest it must
vest within that period and if it has not it will he void for
remoteness
11.11 English Law
The provisions of this Lease shall be governed by English Law and all
of its parties submit to the exclusive jurisdiction of the English
Courts
12. Notices
12.1 A notice to be served under or pursuant to this Lease shall he valid
if (and only if) the provisions hereinafter contained are complied
with in respect of such notice or
44
alternatively the party to whom such notice is addressed or its
authorised agent acknowledges receipt in writing
12.2 All notices to be served under or pursuant to this Lease shall be
served in accordance with the regulations as to service of notices
contained in Section 196 of the Law of Property Act 1925 save that any
notice to be served under or pursuant to this Lease on a company with
a registered office in the United Kingdom shall be served at such
registered office
12.3 Any notice to be served under or pursuant to this Lease may he served
in any of the following manners:
(a) by personal delivery (in which case service shall he deemed to
have been effected at the time of delivery) or
(b) by prepaid first class recorded delivery post from any address in
the United Kingdom (in which case service shall be deemed to have
been effected at the expiration of forty-eight hours)
(c) by facsimile or telemessage (in which case service shall be
deemed to have been effected at the time of arrival at the
address of the addressee of such notice)
12.4 In proving service of any notice to be served under or pursuant to
this Lease it shall be sufficient to prove that personal delivery was
made or that the envelope containing such notice was properly
addressed and delivered into the custody of the postal authorities as
a prepaid first class recorded delivery or that the facsimile or
telemessage giving such notice was properly addressed transmitted and
received
12.5 If the party to whom any notice to he served under or pursuant to this
Lease shall consist of more than one person the service of notice upon
one of such persons shall he service upon all of them
13. Exclusion of Security of Tenure
13.1 The Tenant hereby confirms that before the date of this Lease:
45
(a) The Landlord served on the Tenant a notice dated 2004 in relation
to the tenancy created by this Lease ("the Notice") in a form
complying with the requirements of Schedule 1 to the Regulatory
Reform (Business Tenancies) (England and Wales) Order 2003 ("the
Order")
(b) The Tenant or a person duly authorised by the Tenant in relation
to the Notice made a statutory declaration ("the Declaration")
dated 2004 in a form complying with the requirements of Schedule
2 of the Order
13.2 The Tenant further confirms that where the Declaration was made by a
person other than the Tenant the declarant was duly authorised by the
Tenant to make the Declaration on the Tenant's behalf
13.3 The Landlord and the Tenant confirm that there is no Agreement for
Lease to which this Lease gives effect
13.4 The Landlord and Tenant agree to exclude the provisions of sections 24
to 28 (inclusive) of the Landlord and Tenant Act 1954 in relation to
the tenancy created by this Lease
IN WITNESS whereof the parties to this deed have executed this Lease as a deed
the day and year first before written
SCHEDULE 1
Part One - The Property
ALL THAT property comprising that piece of land situate at the Estate which is
shown edged red on Plan B TOGETHER WITH the building or buildings on such land
or on part of such land and shortly known as Timet Number 2 Plant The Hub
Birmingham and TOGETHER WITH the Landlord's fixtures fittings and plant in or
upon such property (herein called "the Landlord's Fixtures and Fittings") (all
which property and the Landlord's Fixtures and Fittings and all alterations and
additions to the said property and to any to the Landlord's Fixtures and
Fittings are herein called "the Property")
46
Part Two - Rights granted to the Tenant
1. There are granted to the Tenant the following rights throughout the
Term (but in common with the Landlord and all other persons from time
to time entitled thereto or authorised by the Landlord):
1.1 subject to the provisions of paragraph 1 of Part Three of this
Schedule the right of passage and running oil gas electricity water
soil and other matter or services from and to the Property through
such of the Conducting Media as serve the Property and head into or
are in under or upon the remainder of the whole or any part of the
Estate
1.2 the right of support and protection to the Property from the adjoining
land of the Landlord comprised within the Estate
1.3 a right of way at all times and for all purposes permitted by this
Lease with or without vehicles over the Estate Roads to and from the
Property the Car Parking Spaces and any Service Areas BUT so that and
PROVIDED THAT there shall be designated as "the Estate Roads" at all
times during the Term such road or roads upon or leading to the Estate
as shall be reasonably necessary to afford means of access to and
egress from the Property the Car Parking Spaces and the Service Areas
with or without vehicles the Landlord and persons authorised by the
Landlord shall have the right to close add to or alter any road or
roads upon or leading to the Estate and any vehicular route or routes
of access to and egress from the Property the Car Parking Spaces and
any Service Areas
1.4 a right of way upon foot at all times and for all purposes permitted
by this Lease to and from the Property the Car Parking Spaces and any
Service Areas over the Estate Footpaths BUT so that and PROVIDED THAT
there shall be designated as "the Estate Footpaths" at all times
during the Term such footpaths and pedestrian ways upon or leading to
the Estate as shall be reasonably necessary to afford means of access
to and egress from the Property the Car Parking Spaces and the Service
Areas the Landlord and persons authorised by the Landlord shall have
the right to close add to or alter any footpaths or pedestrian ways
upon or leading to the Landlord's Estate and any pedestrian route or
routes of access to and egress from the Property the Car Parking
Spaces and any Service Areas
47
2. There are granted to the Tenant the following rights:
2.1 the non-exclusive right to park vehicles being motor cars or other
vehicles of no greater weight or size than normal motor cars upon the
Car Parking Spaces
2.2 the exclusive right to load and unload commercial vehicles upon any
Service Areas which may from time to time be made available for the
exclusive use of the Property in connection with the activity carried
on upon the Property
Part Three - Rights Excepted and Reserved to the Landlord
There are excepted and reserved throughout the Term (but where appropriate in
common with the Tenant any Undertenant and their respective agents servants
invitees and licensees):
1. The right for the Landlord and persons authorised by the Landlord and
their respective agents and (in each case) with or without workmen at
all reasonable times during the Term (and at any time in the case of
emergency) to) enter and remain upon the whole or any part of the
Property having given forty-eight hours prior written notice to the
Tenant (except in case of emergency) for the purpose of executing
repairs additions or alterations to any Neighbouring Property or for
making alterations or additions to repairing maintaining renewing
connecting or cleansing any Conducting Media now or at any time during
the Term serving or in under or over the Property PROVIDED THAT the
Landlord or other person entering the Property pursuant to the rights
reserved by this paragraph 1 shall cause as little damage as is
reasonably practicable to the Property and make good so far as is
reasonably practicable all damage so caused as soon as reasonably
practicable and take all reasonable steps to minimise disruption to
the conduct of the activity carried on upon the Property
2. To the Landlord and all persons authorised by the Landlord and all
others who may from time to time be entitled such right the right to
the free passage and running of water soil gas electricity and other
matter or services to and from any other part or parts of the Estate
or any Neighbouring Property in and through the Conducting Media in on
under or over the Property or which may within the Term be in on under
or over the Property
3. The right for the Landlord and all persons authorised by the Landlord
to use the Property or any part or parts of the Property as a means of
escape in case of fire or other emergency
48
4. All rights of support light or air and other easements privileges or
similar rights now or hereafter capable of being used or enjoyed for
the benefit of any Neighbouring Property
5. The right for the Landlord and all persons authorised by the Landlord
and their respective agents at all reasonable times (and at any time
in case of emergency) with or without workmen on giving not less than
forty-eight hours' prior notice (except in the case of emergency) to
the Tenant to enter and remain upon the Property for the purpose of
enabling the Landlord to comply with its obligations contained in this
Lease or to measure the Property or to make a valuation of the
Property or for any other reasonable purpose
6. The right for the Landlord to erect and keep and maintain upon the
Property such signs in connection with safety or security as the
Landlord may from time to time consider appropriate and to place and
keep and maintain within or upon the Property such fire alarm or
Security System or systems as the Landlord may from time to time deem
necessary including (but without prejudice to the generality of the
foregoing) security cameras (but the foregoing shall not imply that
there shall be any obligation on the part of the Landlord to do so)
7. The right for the Landlord and persons authorised by the Landlord at
any time or times during the Term to pull down alter erect or rebuild
or otherwise deal with any Neighbouring Property to any extent and in
any manner desired and to make any excavations in the Property and to
undermine underpin shore-up and build into the Property or any part of
the Property in such manner as the Landlord may think fit or permit
(PROVIDED THAT at all times proper support for the Property is
preserved) and full right and liberty for the Landlord and persons
authorised by the Landlord upon giving to the Tenant reasonable prior
notice to enter into and upon the Property for the purpose of such
undermining underpinning shoring-up or building into or for such other
purpose as mentioned and to use any Neighbouring Property for any
purpose desired notwithstanding that the access of light and air to
the Property or any part of the Property or any easements rights or
amenities of any kind for the time being appertaining to or enjoyed
with the Property or any part of the Property may be thereby
obstructed or interfered with or that the Tenant might otherwise be
entitled on any ground to object and so that any light or air or other
easements rights or amenities at any time enjoyed in respect tub the
Property or any part of the Property which might otherwise interfere
with
49
the rights of the Landlord or of any neighbouring owner or occupier
shall be deemed to have been and to be enjoyed by consent and not as
of right PROVIDED THAT the Landlord or other person entering the
Property pursuant to the rights reserved by this paragraph 7 shall
cause as little damage as is reasonably practicable to the Properly
and make good so far as is reasonably practicable all damage so caused
as soon as reasonably practicable and take all reasonable steps to
minimise the disruption caused thereby to the conduct of the activity
carried on upon the Property
8. The right for the Landlord at any time or times to close temporarily
for works of repair or any other necessary purposes any area (other
than the Property) the use of which is available to the Tenant
Part Four - The Title Encumbrances
All those matters mentioned as referred to in the Property and Charges Registers
at the Land Registry under Title Number WM790365 insofar as such matters are
subsisting or capable of taking effect and affect the whole or any part of the
Property
SCHEDULE 2
Services and Service Charge
1. In this Schedule the following expressions shall have the following
meanings:
Accounting Period: means a period of one year ending on the
Thirty-first day of December in any year or such other
period as the Landlord may in its absolute discretion from
time to time determine (but any such period shall not be
longer than fifteen months) being in each case a period the
whole or part of which falls during the Term and also upon
or after the Service Charge Commencement Date
Additional Expenses: has the meaning given to it by paragraph 3 of this Schedule
50
the Adjoining Land
Instruments: means the instruments by which certain land adjoining or
neighbouring the Estate has been dealt with as follows:
a lease dated 20 February 1995 and made between Holford
Estates Limited (1) IMI Kynoch Limited (2) and Hamastead
Limited (3)
a lease dated 9 April 1997 and made between Holford Estates
Limited (1) IMI Kynoch Limited (2) and Hamastead Limited (3)
a transfer dated 6 March 1998 and made between Holford
Estates Limited (1) IMI Kynoch Limited (2) and Severn Trent
Property Limited (3)
a transfer dated 11 September 1998 made between Holford
Estates Limited (1) and Wilson Bowden Properties Limited (2)
a transfer dated 2 October 2000 and made between Holford
Estates Limited (1) and Wilson Bowden Properties Limited (2)
and where applicable any of them
Lettable Part: means any accommodation in the Estate from time to time let
or occupied or intended for letting or occupation to or by a
single tenant or occupier but excluding any accommodation
occupied in connection with the management of the Estate
(and "Lettable Parts" shall be construed accordingly)
the Service Charge: has the meaning as defined by paragraph 6 of this Schedule
51
the Services: has the meaning as defined by paragraph 2 of this Schedule
the Services Costs: has the meaning as defined by paragraph 4 of this Schedule
2. The Services
In this Lease the expression "the Services" means:
2.1 maintaining repairing renewing replacing or improving and keeping in
sufficient repair and condition (including as often as necessary the
periodic inspecting examining and overhauling) of the Common Parts and
providing replacing repairing renewing improving and maintaining any
appliances and equipment used in the repair and maintenance of the
Common Parts
2.2 cleaning and lighting the Common Parts
2.3 maintaining any landscape features in the Common Parts
2.4 maintaining repairing cleansing emptying draining and renewing all of
the Conducting Media serving the Estate except those that are within
and solely serve the Property or any Lettable Part
2.5 collecting and disposing of refuse from the Estate and the provision
repair maintenance and renewal of plant or equipment for the
collection treatment packaging or disposal of refuse
2.6 providing such fire alarms and such security systems and installations
(including (but not by way of limitation) security cameras if the
Landlord shall so elect) and employing such safety security or
supervisory personnel as the Landlord may in its discretion elect to
provide in respect of the Estate
2.7 taking such steps as may be necessary for the control of pests and
vermin and any other steps necessary to safeguard the health and
safety of persons using the Estate
2.8 effecting insurance against third party employers and public liability
in respect of the Common Parts
52
2.9 effecting such further insurances as the Landlord shall consider
necessary or expedient in respect of the Common Parts
2.10 carrying out such other works and providing such other services as the
Landlord shall reasonably consider ought to be carried out and
provided for the benefit of the Estate or for the proper maintenance
and servicing of any part or parts of the Estate
3. Additional Expenses
In this Lease the expression "Additional Expenses" means each of the
following incurred by the Landlord:
3.1 the reasonable fees and expenses properly incurred of:
(a) all surveyors managing agents (whether or not the Landlord's
Surveyor) and accountants in connection with the management of
the Estate and the preparation and audit of the Service Charge
payable by the Tenant and other tenants and occupiers of the
Estate
(b) any individual firm or company employed or retained by the
Landlord to perform (or in connection with) any of the Services
(c) the Landlord or any company in the Landlord's Group which may
perform any of the functions or duties referred to in paragraphs
3.1(a) to 3.1(c) (inclusive) of this Schedule
3.2 the reasonable cost of employing (whether by the Landlord the
Landlord's Surveyor or any other individual firm or company) such
staff as the Landlord may acting reasonably deem necessary or
desirable for the performance or the better performance of the
Services and the other functions and duties referred to in paragraph
3.1 of this Schedule and all other reasonable incidental expenditure
in relation to such employment including (but not by way of
limitation) insurance pension and welfare contributions any provision
of uniforms and working clothing transport facilities and benefits in
kind and the provision of vehicles tools appliances cleaning and other
materials fixtures fittings and other equipment for the proper
performance of their duties
3.3 the amount which the Landlord shall be called upon to pay as a
contribution towards the expense of making repairing maintaining
rebuilding and cleansing any ways roads pavements Conducting Media or
other things which may belong or be used for the Estate or any part of
it exclusively or in common with other neighbouring or adjoining
property whether under the terms of the Adjoining Land Instruments or
otherwise
53
3.4 the reasonable cost of taking all steps deemed desirable or expedient
by the Landlord for complying with making representations against or
otherwise contesting the incidence of the provisions of any
Legislation affecting the Estate or any part of it for which any
tenant or occupier of any Lettable Part is not directly and
exclusively
3.5 the reasonable cost to the Landlord of abating a nuisance in respect
of the Estate or any part of it insofar as the same is not the
liability of any tenant or occupier of any Lettable Part
3.6 all rates and other outgoings assessed charged or imposed upon or
payable in respect of the Common Parts and/or any area or management
offices or other building or part of any building upon the Estate or
upon any adjoining or nearby property used or occupied in connection
with the management of the Estate and there shall be treated as
expenditure by the Landlord for the purposes of this Schedule a fair
notional rent accruing from day to day as determined by the Landlord's
Surveyor for such management offices or other building or part of such
building as is used or occupied in connection with the management of
the Estate
3.7 the expense of supplying to the tenants and occupiers of the Estate
any regulations relating to the Estate
3.8 the cost including interest and bank charges of borrowing to finance
the Services Costs and the Additional Expenses
3.9 the proper costs where these cannot be recovered from another party of
enforcing any claim or taking or defending any proceedings that the
Landlord may at its discretion take or defend in relation to the
Estate including (for example) against contractors consultants
architects consulting engineers surveyors or other employed or engaged
in connection with the Services and/or to establish preserve or defend
any rights amenities or facilities used or enjoyed by tenants or
occupiers of the Estate or to which they may be entitled and/or to
recover arrears of rent service charge or other payments from a tenant
or other occupier of any part of the Estate
54
3.10 any other sums properly incurred by the Landlord in connection with
the Estate
PROVIDED THAT (for the avoidance of doubt) nothing contained in
paragraphs 3.1 or 3.2 of this Schedule shall either impose upon the
Landlord any obligation to carry out any works or provide any services
beyond the matters set out in paragraph 2 of this Schedule
4. Service Costs
In this Schedule "the Service Costs" of any Accounting Period means
all the reasonable costs expenses overheads payments charges and
outgoings (together with Value Added Tax where applicable save where
the Landlord is able to recover the same as an input) reasonably and
properly incurred by or on behalf of the Landlord in or in respect of
that Accounting Period in relation to the Services and the Additional
Expenses of that Accounting Period
5. Performance of Services
The Landlord shall at all times during the Term carry out provide
manage and operate or procure the provision management and operation
of the Services (save to the extent that they are properly to be
undertaken by a third party pursuant to the Adjoining Land
Instruments) in an efficient manner and in accordance with the
principles of good estate management and will use all reasonable
endeavours to ensure that any third party bound by the Adjoining Land
Instruments fulfils their obligations in the Adjoining Land
Instruments as to the provision of the Services but:
5.1 in performing such obligations the Landlord shall be entitled in its
discretion to employ managing agents contractors or such other persons
as the Landlord may from time to time think fit
5.2 the Landlord shall not be responsible for any breach of such
obligations due to any cause or circumstances not within the
Landlord's reasonable control or to the extent that the Landlord is
prevented from performing such obligations by Insured Risks or
Uninsured Risks but the Landlord shall take all practicable steps to
remedy such breach as soon as is reasonably practicable after being
notified of the breach by the Tenant
55
5.3 the Landlord may in its absolute discretion withhold add to extend
vary or make any alteration in the rendering of the Services or any of
them from time to time if the Landlord reasonably considers it
desirable to do so in time interest of good estate management
6. The Service Charge
6.1 The Tenant shall as from the Service Charge Commencement Date pay to
the Landlord by way of service charge (herein called "the Service
Charge") a contribution towards the Service Costs in respect of each
Accounting Period during the Term being that proportion of the Service
Costs in the Accounting Period to which the Service Charge relates
which is determined by the Landlord's Surveyor as being reasonable
(and in the case of the first and last Accounting Periods with such
allowance as the Landlord's Surveyor shall determine to be reasonably
appropriate)
6.2 Before or as soon as reasonably practicable after time commencement of
each Accounting Period (or in the case of the first Accounting Period
the Service Charge Commencement Date) the Landlord's Surveyor shall
make an estimate of the Service Charge payable by the Tenant in
respect of such Accounting Period and shall notify the Tenant
accordingly and the estimate of the Landlord's Surveyor shall he
conclusive and final
6.3 The Tenant shall pay to the Landlord the Service Charge attributable
to each Accounting Period as follows:
(a) the amount estimated by the Landlord's Surveyor as described in
clause 6.2 shall he payable in equal amounts on the last day of
each calendar month during the relevant Accounting Period but:
(i) the first such instalment payable on the Service Charge
Commencement Date will be an apportioned amount determined
by the Landlord's Surveyor if the Service Charge
Commencement Date is not the end of a calendar month and
(ii) the monthly amounts payable during the final Accounting
Period may be adjusted by such amount as the Landlord's
Surveyor shall determine to be reasonable to take into
account of the fact that the Lease Termination Date may be
earlier than time final day of such Accounting Period (if
such is in fact the case)
56
(b) if any sum payable by the Tenant pursuant to paragraph 6.3(a) of
this Schedule shall not have been ascertained as at the date when
such sum is expressed to be payable because the relevant estimate
by the Landlord's Surveyor of the Service Charge payable by the
Tenant has not then been notified to the Tenant the Tenant shall
within fourteen days after demand by the Landlord (demand not to
be made prior to the relevant estimate being notified to the
Tenant) pay to the Landlord such sum as would otherwise then have
been payable
(c) if at any time during any Accounting Period it becomes apparent
that the Service Charge payable by the Tenant for such Accounting
Period will exceed or is likely to exceed the payments made or to
be made by the Tenant under the foregoing provisions of this
paragraph 6.3 the Landlord shall be entitled to call upon the
Tenant to increase each of the remaining payments due in that
Accounting Period by such amount as the Landlord's Surveyor shall
certify in a notice to the Tenant to be responsible
(d) upon the service by the Landlord on the Tenant of an account as
referred to in paragraph 7 of this Schedule the Tenant shall pay
to the Landlord within fourteen days after demand by the Landlord
or there shall be allowed by the Landlord to the Tenant (as the
case may be) the balance by which the Service Charge payable by
the Tenant exceeds or falls short of the total sums paid by the
Tenant to the Landlord pursuant to paragraphs 6.3(a) to 6.3(c) of
this Schedule for the Accounting Period to which such account
relates and the provisions of this paragraph 6.3(d) shall
continue to apply notwithstanding the earlier expiry of the Term
but only in respect of the period down to such expiry
7. Accounting
7.1 As soon as reasonably practicable after time expiry of each Accounting
Period the Landlord will prepare and supply to the Tenant an account:
(a) showing the Service Costs for the relevant Accounting Period
(b) containing a fair summary of the items referred to in it and
57
(c) including a certificate by the Landlord of the Service Charge
payable by the Tenant such Accounting Period
7.2 Save in the case of manifest error any account referred to in
paragraph 7.1.of this Schedule will be conclusive evidence for the
purposes of this Lease
SCHEDULE 3
Covenants and Agreements by a Surety of an Assignee
1. The Surety covenants with the Landlord as a primary obligation:
1.1 that the Tenant or the Surety shall at all times during the Term duly
perform and observe all the covenants conditions and other provisions
on the part of the Tenant to be observed and performed in this Lease
and shall indemnify the Landlord against all Losses sustained by the
Landlord in any way directly or indirectly arising out of or resulting
from any default by the Tenant in the performance and observance of
any such covenants conditions and other provisions
1.2 not to claim in any liquidation bankruptcy administration receivership
composition or arrangement of the Tenant in competition with the
Landlord and to remit to the Landlord the proceeds of all judgments
and all distributions it may receive from any liquidator trustee in
bankruptcy administrator administrative receiver or supervisor of the
Tenant to the extent any sums shall be payable to the Landlord by the
Tenant or the Surety
1.3 if any of the following events shall occur (any such event which
occurs being herein called a "Relevant Event" and the date on which
any such event occurs being herein called "the Relevant Event Date"):
(a) the Tenant (being a Company) shall go into liquidation and the
Liquidator shall disclaim this Lease or
(b) the Tenant (being a Company) shall cease to exist or
(c) the Tenant (being an individual) shall become bankrupt and the
Trustee in bankruptcy shall disclaim this Lease or
(d) the Tenant (being an individual) shall die or
58
(e) this Lease shall be forfeited under the provisions of this Lease
then the Surety will take from the Landlord but only if so required by
the Landlord by written notice to the Surety a Lease of the Property
for a term equal to the residue of the Contractual Term unexpired at
the Relevant Event Date at the same several rents payable immediately
prior to time Relevant Event Date and subject to the like covenants
and conditions (including the same dates and provisions for the review
of rent as are applicable to this Lease) as are contained in this
Lease and the Surety shall execute and deliver to the Landlord a
counterpart of such Lease PROVIDED ALWAYS that the Landlord shall not
serve such written notice upon the Tenant later than six months after:
(i) (where time Relevant Event is one of the events described in
sub-paragraphs 1.3(a) to 1.3(d) (inclusive) of this
paragraph 1.3) the Surety shall have served written notice
upon the Landlord (here meaning the person or persons at
such time entitled to the immediate reversion of the
Property expectant on the expiry of the Term) stating that
the Relevant Event has occurred and specifying time Relevant
Event and stating that the provisions hereinbefore contained
in this paragraph 1.3 apply
(ii) (where the Relevant Event is the event described in
sub-paragraph 1.3(e) of this paragraph 1.3) the Relevant
Event Date
AND such new Lease and the counterpart thereof shall be prepared by
the Landlord and all reasonable costs and legal charges and stamp
duties incurred in respect thereof and the notices hereinbefore
referred to shall be borne by the Surety
1.4 if a Relevant Event occurs and the Landlord shall not require the
Surety to take a lease the Surety shall nevertheless upon demand pay
to the Landlord the rents and all other sums that would have been
payable under this Lease if the Relevant Event had not occurred in
respect of the period from and including time Relevant Event Date
until the last date upon which the Landlord shall be entitled to serve
a written notice upon time Surety requiring the Surety to take a new
Lease of the Property or until the Landlord shall have granted a lease
of the Property to a third party (whichever shall first occur)
2. The Surety agrees that:
59
2.1 it is jointly and severally liable with the Tenant (whether before or
after the occurrence out any Relevant Event) for the fulfilment of all
the Tenant's covenants conditions and other provisions contained in
this Lease until and including the last day upon which the Landlord
shall he entitled to serve a written notice upon the Surety pursuant
to paragraph 1.3 of this Schedule requiring the Surety to take a new
lease of the Property and the Landlord in the enforcement of its
rights may proceed against the Surety as if the Surety was named as
the Tenant in this Lease but (subject to and without prejudice to the
provisions of paragraphs 1.3 and 1.4 of this Schedule) the Surety
shall have no greater liability under this Lease than it would have
had if the Surety had been named as time Tenant in this Lease
2.2 it waives any right to require the Landlord to proceed against the
Tenant or to pursue any other remedy of any kind which may be
available to the Landlord before proceeding against the Surety
2.3 none of the following (or any combination of them) shall release
determine discharge or in any way lessen or affect the liability of
the Surety as principal debtor under this Lease or otherwise prejudice
or affect the liability of the Surety to accept a new Lease in
accordance with the provisions of this Schedule:
(a) any neglect delay or indulgence or extension of time given by the
Landlord in enforcing payment of rents or any other sums due
under this Lease or in enforcing the performance or observance of
any of the Tenant's covenants conditions or other provisions
contained in this Lease
(b) any refusal by the Landlord to accept rent tendered by or on
behalf of the Tenant following a breach of covenant by the Tenant
(c) any variation of the terms of this Lease (including any reviews
of the rent payable under this Lease or the transfer of the
Landlord's reversion
(d) any legal limitation or any immunity disability or incapacity of
the Tenant (whether or not known to the Landlord) or the fact
that any dealings with the Landlord by the Tenant may be outside
or in excess of the powers of the Tenant (whether or not known to
the Landlord)
60
(e) any other act omission matter or thing of any kind by virtue of
which (but for this provision) the Surety would be exonerated
either wholly or in part (other than a release under seal given
by the Landlord)
2.4 the benefit of the covenants and agreements contained in this Schedule
shall subsist for the benefit of the Landlord and the successors and
assigns of the Landlord's reversion without the necessity for any
assignment of it
2.5 where the Surety comprises more than one person such covenants and
agreements shall have been entered into) jointly and severally by such
persons
2.6 the provisions of this Schedule shall he governed by English Law and
the Surety agrees to submit to the jurisdiction of the English courts
SCHEDULE 4
Covenants and agreements by a surety or sureties in respect of an
underlease
1. In this Schedule:
the Intermediate
Landlord: means "the Tenant" within time meaning of this Lease
the Licence
to Underlet: means the Licence in which the Landlord grants to the Tenant
licence to grant an underlease of the Property to the
Undertenant
the Superior
Landlord: means "the Landlord" within the meaning of this Lease
the Underlease: means the underlease to be granted by the Tenant to the
Undertenant and
the Undertenant: means the proposed undertenant
2. The Surety covenants within the Superior Landlord as a primary
obligation:
2.1 that the Undertenant or the Surety shall at all times duly perform and
observe all the covenants conditions and other provisions on the part
of the Undertenant to be observed
61
and performed in the Licence to Underlet and shall indemnify the
Superior Landlord against all Losses sustained by the Superior
Landlord in any way directly or indirectly arising out of or resulting
from any default by the Undertenant in the performance and observance
of any such covenants conditions and other provisions
2.2 not to claim in any liquidation bankruptcy administration receivership
composition or arrangement of the Undertenant in competition within
the Superior Landlord and to remit to the Superior Landlord the
proceeds of all judgments and all distributions it may receive from
any liquidator trustee in bankruptcy administrator administrative
receiver or supervisor of the Tenant to the extent any sums shall he
payable to the Superior Landlord by the Undertenant
3. The Surety agrees that:
3.1 It is jointly and severally liable with the Undertenant for the
fulfilment of all the Undertenants covenants conditions and other
provisions contained in the Licence to Underlet
3.2 it waives any right to require the Superior Landlord to proceed
against the Undertenant or to pursue any other remedy of any kind
which may be available to the Superior Landlord before proceeding
against the Surety
3.3 none of the following (or any combination of them) shall release
determine discharge or in any way lessen or affect the liability of
the Surety as principal debtor to the Superior Landlord:
(a) any neglect delay or indulgence or extension of time given by the
Superior Landlord in enforcing the performance or observance of
any of the Undertenant's covenants conditions or other provisions
contained in the Licence to Underlet
(b) any variation of the terms of the Underlease (including any
reviews of the rent payable under the Underlease)
(c) any legal limitation or any immunity disability or incapacity of
the Undertenant (whether or not known to the Superior Landlord or
the Intermediate Landlord) or the fact that any dealings with the
Superior Landlord or the Intermediate Landlord by the Undertenant
may be outside or in excess of the powers if the Undertenant
(whether or not known to the Landlord or the Superior Landlord)
62
(d) any other act omission matter or thing of any kind by virtue of
which (but for this provision) the Surety would be exonerated
either wholly or in part (other than a release under seal given
by time Superior Landlord)
3.4 the benefit of the covenants and agreements contained in this Schedule
shall subsist for the benefit of the Superior Landlord and the
successors and assigns of the Superior Landlord's interest in the
Property immediately expectant on the determination of the Term
without the necessity for any assignment of it
3.5 where the Surety comprises more than one person such covenants and
agreements shall have been entered into) jointly and severally by such
persons
3.6 the provisions of this Schedule shall be governed by English Law and
the Surety agrees to submit to the jurisdiction of the English courts
SIGNED as a Deed by )
TIMET UK LIMITED acting by a director )
and its secretary/two directors: )
Director
Director/Secretary