Attached files
file | filename |
---|---|
10-K - ANNUAL REPORT - COSTAR GROUP, INC. | form_10-k.htm |
EX-31.1 - CEO CERTIFICATION - COSTAR GROUP, INC. | ceocert.htm |
EX-21.1 - SUBSIDS OF REGISTRANT - COSTAR GROUP, INC. | subsids.htm |
EX-31.2 - CFO CERTIFICATION - COSTAR GROUP, INC. | cfocert.htm |
EX-23.1 - CONSENT OF E&Y - COSTAR GROUP, INC. | ey-consent.htm |
EX-32.2 - CFO 906 CERTIFICATION - COSTAR GROUP, INC. | cfo-906_cert.htm |
EX-32.1 - CEO 906 CERTIFICATION - COSTAR GROUP, INC. | ceo-906_cert.htm |
EX-10.26 - LONDON ORIGINAL LEASE - COSTAR GROUP, INC. | londonoriglease.htm |
EX-10.27 - BETHESDA OFFICE LEASE ADDENDUM - COSTAR GROUP, INC. | bethofficelease_add.htm |
Exhibit
10.28
18 November
2009
WELLS
FARGO & COMPANY
and
COSTAR
UK LIMITED
SUB-UNDERLEASE
of
Office
premises at Fifth Floor, 40 Portman Square, London
W1
|
CMS
Cameron McKenna LLP
Mitre
House
160
Aldersgate Street
London
EC1A 4DD
T
+44(0)20 7367 3000
F
+44(0)20 7367 2000
CLJ/NMH/044105.00509
CONTENTS
LAND
REGISTRY PRESCRIBED CLAUSES
PARTICULARS
Clause
|
Headings
|
Page
|
1.
|
DEFINITIONS
|
1
|
2.
|
INTERPRETATION
|
6
|
3.
|
DEMISE
AND RENTS
|
7
|
4.
|
TENANT’S
OBLIGATIONS
|
8
|
4.1
|
Rent
|
|
8
|
4.2
|
VAT
|
|
8
|
4.3
|
Outgoings
|
9
|
4.4
|
Compliance
with Enactments
|
9
|
4.5
|
Official
communications
|
9
|
4.6
|
Repair
|
9
|
4.7
|
Decoration
and general condition
|
9
|
4.8
|
Refuse
|
10
|
4.9
|
Entry
by the Landlord
|
10
|
4.10
|
Remedying
breaches
|
10
|
4.11
|
Preserving
rights
|
10
|
4.12
|
Alterations
and reinstatement
|
11
|
4.13
|
Use
|
|
12
|
4.14
|
Signs,
blinds, aerials etc
|
12
|
4.15
|
Dealings
with the lease
|
12
|
4.16
|
Notifying
Landlord of dealings with the lease
|
14
|
4.17
|
Payment
of cost of notices, consents etc
|
14
|
4.18
|
Installing
machinery in the Premises
|
14
|
4.19
|
Obstruction/overloading
|
15
|
4.20
|
Goods
delivery
|
15
|
4.21
|
Complying
with Planning Law
|
15
|
4.22
|
Indemnifying
the Landlord
|
16
|
4.23
|
Notifying
defects in the Premises
|
16
|
4.24
|
Dangerous
and contaminative materials
|
16
|
4.25
|
Returning
the Premises to the Landlord
|
16
|
4.26
|
Regulations
and Covenants
|
16
|
4.27
|
Land
Registry
|
17
|
4.28
|
Superior
Lease
|
17
|
5.
|
LANDLORD’S
OBLIGATIONS
|
17
|
5.1
|
Quiet
enjoyment
|
17
|
5.2
|
Superior
Lease
|
17
|
5.3
|
Shared
Areas
|
18
|
6.
|
OTHER
AGREEMENTS AND DECLARATIONS
|
18
|
6.1
|
Forfeiture
and re-entry
|
18
|
6.2
|
No
implied rights
|
19
|
6.3
|
Common
Parts and Service Media
|
19
|
6.4
|
Service
of notices
|
19
|
6.5
|
Arbitration
fees
|
20
|
6.6
|
No
warranty as to use
|
20
|
6.7
|
Compensation
|
20
|
6.8
|
No
warranty as to security
|
20
|
6.9
|
Overriding
lease
|
20
|
6.10
|
Application
of Landlord and Tenant (Covenants) Act 1995
|
20
|
6.11
|
Exclusion
of Third Party Rights
|
20
|
6.12
|
Jurisdiction
|
20
|
6.13
|
Exclusion
of sections 24 - 28 of the 1954 Act
|
21
|
6.14
|
Tenant’s
break clause
|
21
|
7.
|
INSURANCE
|
22
|
8.
|
GUARANTOR’S
OBLIGATIONS
|
22
|
8.1
|
Guarantee
|
22
|
8.2
|
Preservation
of the Guarantee
|
22
|
8.3
|
No
right to participate in security
|
23
|
8.4
|
Disclaimer
|
23
|
8.5
|
Forfeiture
or the Tenant ceasing to exist
|
23
|
8.6
|
Transfer
of the reversion
|
24
|
|
APPENDIX
141
|
|
(BUILDING
PLAN)41
|
|
APPENDIX
242
|
|
(PART I OF SCHEDULE 5
TO SUPERIOR LEASE)42
|
|
APPENDIX
344
|
|
(PART II OF SCHEDULE 5
TO SUPERIOR LEASE)44
|
|
APPENDIX
446
|
|
(SPECIFICATION)46
|
LAND
REGISTRY PRESCRIBED CLAUSES
LR1.
Date of lease
|
2009
|
LR2.
Title number(s)
|
LR2.1
Landlord’s title number(s)
NGL903755
|
LR2.2
Other title numbers
None
|
|
LR3.
Parties to this lease
|
Landlord
WELLS FARGO & COMPANY,
a corporation duly incorporated and registered in Delaware, USA and
whose address for service in the UK is at 1 Plantation Place 30
Fenchurch Street London EC3M 3BD
|
Tenant
COSTAR UK LIMITED whose
registered office is at York House, 12 York
Street, Manchester M2 3BB (Co. Regn. No:
01789170)
|
|
LR4.Property
|
In
the case of a conflict between this clause and the remainder of this lease
then, for the purposes of registration, this clause shall
prevail
As
defined as the Premises in Part 1 of the Particulars to this
lease
|
LR5.
Prescribed statements etc.
|
None
|
LR6.
Term for which the Property is leased
|
The
term as specified in Part 1 of the Particulars to this lease and defined
as “Term”
|
LR7.
Premium
|
None
|
LR8.
Prohibitions or restrictions on disposing of this lease
|
This
lease contains a provision that prohibits or restricts
dispositions
|
LR9.
Rights of acquisition etc.
|
LR9.1
Tenant’s contractual rights to renew this lease, to acquire the reversion
or another lease of the Property, or to acquire an interest in other
land
None
|
LR9.2
Tenant’s covenant to (or offer to) surrender this lease
None
|
|
LR9.3
Landlord’s contractual rights to acquire this lease
None
|
|
LR10.
Restrictive covenants given in this lease by the Landlord in respect of
land other than the Property
|
None
|
LR11.
Easements
|
LR11.1
Easements granted by this lease for the benefit of the
Property
The
easements as specified in Schedule 2 to this lease
LR11.2
Easements granted or reserved by this lease over the Property for the
benefit of other property
The
easements as specified in Schedule 3 to this lease
|
LR12.
Estate rent charge burdening the property
|
None
|
LR13.
Application for standard form of restriction
|
None
|
LR14.
Declaration of trust where there is more than one person comprising the
Tenant
|
Not
applicable
|
PARTICULARS
PART
1
|
|
“Premises”
|
Part
Fifth Floor, 40 Portman Square, London W1, being the
premises described in schedule 1
|
“Term
Commencement Date”
|
25
August 2009
|
“Term”
|
From
and including the Term Commencement Date up to and including 20 October
2018
|
“Yearly
Rent”
|
Six
hundred and fifty eight thousand three hundred and twenty pounds
(£658,320) per annum (subject
to review)
|
“Rent
Commencement Date”
|
25
April 2010
|
“Review
Dates”
|
21
October 2013 and any date stipulated pursuant to paragraph 5 of schedule 4
|
“Permitted
Use”
|
Use
as high quality offices for any purpose within Class B1(a) (but not for
any other purpose within that Use Class) of the schedule to the Town and
Country Planning (Use Classes) Order 1987 and ancillary
uses.
|
PART
2
|
|
Term
Expiry Date
|
20
October 2018
|
Landlord’s
option to break
|
None
|
Tenant’s
option to break
|
Yes
|
Landlord
and Tenant Act 1954
|
Excluded
|
Interest
on late payments
|
4%
above base rate
|
Interest
on shortfall of rent review
|
Base
rate
|
THIS SUB-UNDERLEASE is made on the date and
between the parties specified in the Land Registry Prescribed
Clauses
WITNESSES as
follows:
1.
|
DEFINITIONS
|
The
following expressions and those defined in Part 1 of the Particulars have the
respective specified meanings:
“1954 Act” means the Landlord
and Tenant Act 1954;
“Account Date” means 29
September or such other date in every year of the term granted by the Superior
Lease as the Superior Landlord may nominate to the Landlord in writing from time
to time;
“Act of Terrorism”
means:
|
(a)
|
an
act including, but not limited to the use of force or violence and/or
threat thereof of any person or group(s) of persons whether acting alone
or on behalf of or in connection with any organisation(s) or government(s)
committed for political, religious, ideological or similar purposes
including the intention to influence any government and/or put the public
or any section of the public in fear;
and
|
|
(b)
|
any
other like act which at the relevant time is commonly regarded in the
global insurance market as an act of terrorism and which is an exclusion
of coverage in the policy or policies of insurance for the Building
effected by the Landlord and/or the Superior
Landlord;
|
“Building” means the land,
including the Premises and the buildings and appurtenances from time to time on
it, which is known as 39-42 Portman Square, London W1 as shown edged red on the
Building Plan;
“Building Plan” means the plan
so marked annexed to the Superior Lease, a copy of which is annexed in Appendix
1 and labelled "Building Plan";
“Common Parts” means any
pedestrian ways, circulation areas, entrance halls, landings, staircases,
passages, toilets and any other areas which are at any time during the Term
provided for common use in the Building;
“Development” has the meaning
given by Planning Law;
“Enactment” means every Act of
Parliament, directive and regulation and all subordinate legislation which, at
any relevant time during the Term, has legal effect in England and
Wales;
“Garden Rate” means the
additional rent payable by the Tenant pursuant to the provisions of Schedule 8
to the Superior Lease;
“Group Company” means any
company which is either the holding company of the Tenant or a wholly-owned
subsidiary of the Tenant or of the Tenant’s holding company, as those
expressions are defined in section 736 Companies Act 1985;
“Guarantor” means any person
who, for the time being, guarantees performance of the Tenant’s
obligations;
“Head Lease” means the lease
under which the Superior Landlord holds the Building dated 17 February 2009 made
between (1) The Portman Estate Nominees (One) Limited and The Portman Estate
Nominees (Two) Limited and (2) the Landlord and “Head Landlord” means the
person for the time being entitled to the reversion immediately expectant on the
term granted by the Head Lease and every other person having an interest in
reversion to that term;
“Index” means the all items
retail prices index (or any identical index under a different title) officially
published from time to time by the Office for National Statistics or any other
government department ministry or other body upon which the duties in connection
with such index may have devolved PROVIDED THAT:
|
(a)
|
If
and so often as the Index is related to a commencing date other than 13
January 1987 (the date at which for the purposes of the present Index the
Index Figure was taken as 100) then any new Index Figure which is
published in relation to another commencing date will for the purpose of
this schedule be adjusted to the figure at which the Index would have
stood if 13 January 1987 had been retained as the commencing
date;
|
|
(b)
|
If
the Index ceases to be published or if there is any material change in its
method of compilation then a new arrangement for indexation (the “Revised Indexation”)
will be substituted for the calculations in this schedule under which the
parties to this Lease will agree a new basis by which the Service Charge
Cap will reflect increases in the cost of living on a similar basis to
that set out in this lease PROVIDED THAT if the Landlord and the Tenant
are unable to agree a basis for the Revised Indexation then either of them
may at any time request the President or other duly authorised officer
from time to time of the Institute of Chartered Accountants in England and
Wales to appoint an arbitrator to determine in accordance with the
Arbitration Act 1996 an appropriate basis for the Revised Indexation which
would achieve a basis as near as possible to that which applies under this
lease;
|
“Index Figure” means the
figure published at the relevant time in the Index;
“Initial Service Charge Cap”
means the sum of One hundred and nine thousand seven hundred and twenty pounds
(£109,720);
“Insurance Cost” means all the
money which the Landlord properly pays to the Superior Landlord pursuant to the
terms of the Superior Lease as a contribution towards the cost of:
|
(a)
|
effecting
and maintaining insurance against the Insured Risks in relation to the
Building for whatever amount the Superior Landlord reasonably considers
represents the Building’s full reinstatement cost with such allowance as
the Superior Landlord reasonably considers appropriate for related
liabilities and expenses (including, without limitation, fees or charges
on the submission of an application for planning permission, professional
fees cost of debris removal, scaffolding, hoardings, demolition and site
clearance costs and the costs of any works properly incurred in complying
with any Enactment, and all VAT);
|
|
(b)
|
effecting
and maintaining any insurance relating to the Superior Landlord’s property
owner’s and employer’s liability in relation to the Building and anything
done in it; and
|
|
(c)
|
reasonable
and proper professional fees relating to insurance, including fees for
insurance valuations carried out at reasonable intervals not more
frequently than once in every three years from the last
valuation;
|
“Insurance Rent” means, for
any relevant period, all of:
|
(a)
|
a
fair and proper proportion of the Insurance Cost attributable to the
Landlord’s Premises from time to time as properly determined by the
Superior Landlord;
|
|
(b)
|
the
amount which the Superior Landlord properly spends on effecting and
maintaining insurance against not less than five years’ loss of the rents
first and secondly reserved by the Superior Lease, having regard to
potential increases of rent pursuant to schedule 4 to the Superior Lease,
and with any addition to the amount insured as the Superior Landlord may
reasonably decide in respect of
VAT;
|
|
(c)
|
(without
prejudice to all other provisions of the Superior Lease or this lease
relating to the use of the Premises and the vitiation of any policy of
insurance) any amount which the Superior Landlord properly spends on all
additional premiums and loadings on any policy of insurance required as a
result of anything done or omitted by the Tenant;
and
|
|
(d)
|
an
amount equal to the total of all excess sums which the insurers are not
liable to pay out on any insurance claim in respect of the Premises and
which the Superior Landlord has paid in replacing the damaged or destroyed
parts of the Premises;
|
“Insured Risks” means loss
damage or destruction whether total or partial caused by fire, lightning,
explosion, riot, civil commotion and malicious damage, aircraft and aerial
devices, (other than hostile aircraft and devices) and articles accidentally
dropped from them, storm, flood, bursting or overflowing of water tanks and
pipes, impact, earthquake and accidental damage to underground water, oil and
gas pipes, or electricity wires and cables, subsidence, ground slip and heave,
breakdown and sudden and unforeseen damage to engineering plant and equipment
and such other risks or perils (excluding property owner’s liability) as the
Superior Landlord or Head Landlord may require but subject to the exclusion or
limitation of any risk or peril (including without limitation an Act of
Terrorism) where cover is not for the time being available in the London
insurance market on reasonable terms and otherwise subject to such reasonable
exclusions and limitations as are standard in the insurance market and are from
time to time imposed by the insurers;
“Interim Sum” means the yearly
sum reasonably assessed by or on behalf of the Superior Landlord as an estimate
of the Service Rent;
“Landlord’s Premises” means
the premises demised to the Landlord by the Superior Lease of which the Premises
form a part;
“Lettable Unit” means any unit
of accommodation in the Building which is intended by the Superior Landlord to
be for separate occupation;
“Normal Business Hours” means
7 am to 7 pm on Mondays to Fridays inclusive, and 8 am to 12 pm on
Saturdays, except in every case public holidays;
“Order” means the Regulatory
Reform (Business Tenancies) (England and Wales) Order 2003;
“Outside Normal Business Hours
Charge” means, for any Service Period, all charges properly paid by the
Landlord to the Superior Landlord in procuring the provision of any of the
Services outside Normal Business Hours at the request of the Tenant in
accordance with the Landlord’s obligation under the Superior Lease (but so that
where the Tenant shall have requested such services in common with any of the
Landlord's other tenants in the Building, the Landlord shall make a fair and
reasonable apportionment between the Tenant and such other tenants of the
overall amount paid by the Landlord to the Superior Landlord);
“Particulars” means the
particulars set out at the beginning of this lease;
“Planning Law” means every
Enactment and, to the extent they relate to the Building, every planning
permission, statutory consent and agreement, made pursuant to any Enactment
relating to the use, development and occupation of land and
buildings;
“Plan” means the plan annexed
to this lease in Appendix 1 and labelled "Premises Plan";
“Public Authority” means any
Secretary of State and any government department public local regulatory fire or
any other competent authority or institution having functions which extend to
the Premises or their use and occupation and any court of law and the companies
or authorities responsible for the supply of water gas and electricity or any of
them and any of their duly authorised officers;
“Services” means the services
and other matters specified in Part I of schedule 5 to the Superior Lease, a
copy of which is set out in Appendix 2;
“Service Charge Cap” means
whichever shall be the higher of:
|
(a)
|
the
figure calculated according to the following
formula:
|
[Missing Graphic Reference]
where:
|
A
=
|
the
Index Figure last published preceding the last day of the relevant year of
the Term
|
|
B
=
|
213.4
being the Index Figure in respect of the month of June
2009
|
|
C
=
|
the
Initial Service Charge Cap
|
and
|
(b)
|
the
Initial Service Charge Cap (for the first year of the Term for which the
Service Charge Cap is calculated) and (for each successive year of the
Term) the Service Charge Cap for the preceding year of the
Term;
|
“Service Cost” means, for any
Service Period, all expenditure incurred by the Superior Landlord in providing
the Services and in discharging the costs of the Services and in discharging the
costs specified in Part II of schedule 5 to the Superior Lease, a copy of which
is set out in Appendix 3;
“Service Media” means all the
apparatus in the Building which supplies, controls and monitors services to or
from the Building and all water supply pipes, any type of drain, gas and other
fuel pipes, electricity and telephone cables and all other common conducting
media and which (for the avoidance of doubt) includes the items specified in
paragraphs 12 and 13 of schedule 1;
“Service Period”
means:
|
(a)
|
the
period commencing on the Term Commencement Date to (but excluding) the
first Account Date;
|
|
(b)
|
the
period between two consecutive Account Dates (including the first and
excluding the second); and
|
|
(c)
|
the
period commencing on the last Account Date in the Term and expiring at the
end of the Term;
|
“Service Rent” means, for any
Service Period a fair proportion of the Service Cost applicable to the
Landlord’s Premises;
“Shared Areas” means those
parts of the Landlord’s Premises shown edged blue on the Plan;
“Specification” means the
specification annexed to the Superior Lease entitled the 40 Portman Square Base
Build Specification, a copy of which is annexed in Appendix 4;
“Stipulated Rate” means a
yearly rate of interest, calculated on a daily basis, four per cent above the
base rate of the Bank of Scotland or of such other U.K. bank as the Landlord may
reasonably nominate in writing from time to time;
“Superior Lease” means the
underlease under which the Landlord holds the Landlord’s Premises dated 20 March
2009 made between (1) Standard Life Investment Funds Limited (2) European Credit
Management Limited and (3) Wells Fargo & Company and “Superior Landlord” means the
person for the time being entitled to the reversion immediately expectant of the
term granted by the Superior Lease;
“Tenant’s Proportion” means
75.47%;
“Uninsured Damage” means in
relation to the Building or, as the context may require the Premises or the
essential means of access to them, damage or destruction by an uninsured Act of
Terrorism or any other risk which is uninsurable in the UK market or (in the
reasonable opinion of the Superior Landlord) such risk cannot be insured against
by the Superior Landlord in the UK market at a reasonably commercial rate and in
either case there is in fact no insurance against such risk pursuant to this
lease;
“Utilities Charge” means to
the extent the Tenant does not pay the provider directly the cost of providing
electricity (and if requested by the Landlord water and/or gas) to be calculated
by taking readings of the check meters for the Landlord’s Premises but otherwise
determined in such manner as the Superior Landlord shall consider to be fair and
reasonable in the circumstances; and
“VAT” means Value Added Tax as
referred to in the Value Added Tax Act 1994 (or any tax of a similar nature
which may be substituted for, or levied in addition to, it).
2.
|
INTERPRETATION
|
2.1
|
Where
a party is more than one person, their obligations are joint and
several.
|
2.2
|
A
Tenant’s obligation not to do or omit anything also operates as an
obligation not to permit or suffer it to be done or omitted by any person
deriving title from the Tenant or by their respective servants or agents
and to prevent or, as the case may be, to require it being
done.
|
2.3
|
References
to:
|
2.3.1
|
any
clause or schedule are references to the relevant clause or schedule of
this lease and any reference to a sub-clause or paragraph is a reference
to that sub-clause or paragraph of the clause or schedule in which the
reference appears;
|
2.3.2
|
any
right of or obligation to permit the Landlord to enter the Premises shall
also be construed, subject as provided in clause 4.9, as entitling the
Landlord to remain on the Premises (but only for as long as reasonably
necessary) with or without equipment and permitting such right to be
exercised by all persons properly authorised by the
Landlord;
|
2.3.3
|
any
consent of the Landlord, or words to similar effect including references
to approvals, mean a written consent signed by or on behalf of the
Landlord and given before the act requiring consent and any such reference
which states that the consent will not be unreasonably withheld also means
that it will not be unreasonably
delayed;
|
2.3.4
|
the
Premises (except in the definition of Premises and in clause 4.15) extend,
where the context permits, to any part of the
Premises;
|
2.3.5
|
a
specific Enactment includes every statutory modification, consolidation
and re-enactment and extension of it for the time being in force, except
in relation to the Town and Country Planning (Use Classes) Order 1987,
which shall be interpreted exclusively by reference to the original
provisions of Statutory Instrument 1987 No 764 whether or not it may have
been revoked or modified;
|
2.3.6
|
the
expiry of this lease means the date when the tenancy constituted by it
terminates either at the end or sooner determination of the Term and
references to the last year of this lease mean the year ending on the
expiry of this lease;
|
2.3.7
|
rents
or other sums being due from the Tenant to the Landlord mean that they are
exclusive of any VAT; and
|
2.3.8
|
the
Tenant’s obligations mean the Tenant’s obligations under this lease and
under every agreement which is supplemental or collateral to it;
and
|
2.3.9
|
The
Royal Institution of Chartered Surveyors extend to its President for the
time being.
|
2.4
|
Clause
and paragraph headings shall not affect the construction of this
lease.
|
2.5
|
2.5.1
|
When
the Landlord’s consent is required under this lease, the relevant
provision shall be construed as also requiring any necessary consent of
the Superior Landlord and the Head Landlord, for which the Landlord shall
apply at the Tenant’s cost, and nothing in this lease, or in any consent
by the Landlord, shall imply that the Superior Landlord’s consent or the
Head Landlord’s consent will not be unreasonably withheld or
delayed;
|
2.5.2
|
reference
to any right of (or obligation to permit) the Landlord to enter the
Premises extends to the Superior Landlord and the Head Landlord and to all
persons authorised by either of them and shall be construed in the manner
required by clause 2.3.2;
and
|
2.5.3
|
this
lease takes effect subject to the rights which are reserved out of the
Superior Lease and the Head Lease.
|
3.
|
DEMISE
AND RENTS
|
The
Landlord with full title guarantee DEMISES the Premises to the
Tenant TOGETHER WITH the
rights specified in schedule 2, EXCEPT and RESERVED to the Landlord, and
other persons properly authorised by it at any time during the Term or otherwise
entitled to exercise them, the rights specified in schedule 3 TO HOLD the Premises to the
Tenant for the Term SUBJECT
to all rights, obligations and other matters affecting them,
THE
TENANT PAYING TO THE LANDLORD:
3.1
|
Yearly
and proportionately for any part of a year, the Yearly Rent, by equal
quarterly payments in advance on the usual quarter days in every year, the
first payment or a proportionate part of it (being a proportion from the
Rent Commencement Date to but excluding the next quarter day) to be made
on the Rent Commencement Date;
|
3.2
|
Yearly
and proportionately for any Service Period by equal quarterly payments in
advance on the usual quarter days in every year, the first payment or a
proportionate part of it (being a proportionate part of the initial
Interim Sum from the Term Commencement Date to but excluding the next
quarter day) the Tenant’s Proportion of the Service Rent (including the
Interim Sum on account) PROVIDED THAT the Tenant’s Proportion of the
Service Rent will not exceed the Initial Service Charge Cap during the
first year of the Term and will not exceed the Service Charge Cap for the
relevant year in each successive year of the
Term;
|
3.3
|
On
written demand the Tenant's Proportion
of:
|
3.3.1
|
any
excess Service Rent demanded by the Superior Landlord pursuant to clause
6.3.1 of the Superior Lease PROVIDED THAT the Tenant’s Proportion of the
Service Rent will not exceed the Initial Service Charge Cap during the
first year of the Term and will not exceed the Service Charge Cap for the
relevant year in each successive year of the
Term;
|
3.3.2
|
the
elements of the Insurance Rent set out in paragraphs (a) and (b) of that
definition;
|
3.3.3
|
the
Garden Rate;
|
3.3.4
|
the
Utilities Charge and/or any costs of providing electricity, water or gas
to the Premises; and
|
3.3.5
|
the
reasonable costs properly incurred by the Landlord in complying with its
obligations under clause 5.3
|
3.4
|
On
written demand the Outside Normal Business Hours Charge and the elements
of the Insurance Rent set out in paragraphs (c) and (d) of that
definition;
|
3.5
|
Interest,
payable on demand, at the Stipulated Rate on any sum owed to the Landlord
pursuant to the Tenant’s obligations, whether or not as rent, which is not
received by the Landlord on the due date (or, in the case of money due
only on demand, within fourteen days after the date of written demand),
calculated for the period commencing on the due payment date and ending on
the date the sum (and the interest) is received by the Landlord;
and
|
3.6
|
All
VAT for which the Landlord is or may become liable on the supply by the
Landlord to the Tenant in connection with this lease or the interest
created by it and of any other supplies, whether of goods or services,
such rent to be paid at the same time as the other rents or sums to which
it relates.
|
4.
|
TENANT’S
OBLIGATIONS
|
The
Tenant agrees with the Landlord:
4.1
|
Rent
|
To pay
the rents reserved by this lease on the days and in the manner set out in clause
3 without deduction or set off (except as required by law) and (unless the
Landlord agrees otherwise) to pay the Yearly Rent (together with any VAT on it)
by banker’s standing order to such bank as the Landlord may nominate in writing
from time to time.
4.2
|
VAT
|
To pay
the Landlord an amount equal to any VAT incurred by it on any amount which the
Tenant is required to reimburse or indemnify against pursuant to the Tenant’s
obligations, except to the extent:
4.2.1
|
the
Landlord obtains credit for such VAT pursuant to sections 24, 25 and 26
Value Added Tax Act 1994 or any regulations made under them;
or
|
4.2.2
|
the
VAT is taken into account in the Service
Cost.
|
4.3
|
Outgoings
|
4.3.1
|
To
pay all rates, taxes and other outgoings assessed on or reasonably
attributable to the Premises or on their owner or occupier during the Term
(or, if they are paid by the Landlord in relation to the Landlord’s
Premises, to pay the Tenant’s Proportion of them on demand) excluding,
without prejudice to the rent reserved in clause 3.6 and to clause 4.2, any tax payable by the
Landlord as a direct result of any actual or implied dealing with the
reversion of this lease or of the Landlord’s receipt of
income.
|
4.3.2
|
To
pay all charges made directly to the Tenant for water, gas and electricity
(including meter rents) consumed in the Premises during the
Term.
|
4.4
|
Compliance
with Enactments
|
To comply
with all Enactments and with the requirements of any Public Authority affecting
the Premises, their use, occupation, employment of people in them and any work
being carried out to them (whether the requirements are imposed upon the owner,
lessee or occupier) and not to do or omit anything by which the Landlord or the
Superior Landlord may incur any liability under any Enactment or requirement of
a Public Authority.
4.5
|
Official
communications
|
As soon
as reasonably practicable, to supply the Landlord with a certified copy of any
official communication received from, or proposal made by, any Public Authority
and to comply fully with its provisions at the Tenant’s cost, except that (if
reasonably requested by the Landlord and at its cost) the Tenant shall make such
representations as the Landlord may require against any communication or
proposal, so long as the representations do not conflict with the Tenant’s
rights under this lease including its beneficial enjoyment of the
Premises.
4.6
|
Repair
|
Well and
substantially to repair the Premises and maintain and keep them in good and
substantial repair and condition (damage by any of the Insured Risks or
Uninsured Damage excepted, and where in the case of Insured Risks to the extent
that the Superior Lease obliges the Superior Landlord to insure against them and
to the extent that the insurance money is not rendered irrecoverable or
insufficient because of a breach of the Tenant’s obligations) and to replace the
Landlord’s fixtures and fittings in the Premises to the extent they are beyond
economic repair.
4.7
|
Decoration
and general condition
|
To keep
the Premises clean and at least once in the year of the Term commencing on 21
October 2012 and also in the last year of this lease (but not twice in any 18
month period), to redecorate and treat the Premises with appropriate materials
in a good and workmanlike manner (and during the last year of this lease in a
colour scheme and with materials reasonably approved by the Landlord) but the
Tenant shall not be obliged to redecorate or treat the Premises if the need to
do so is caused by any of the Insured Risks, to the extent that the insurance
money is not rendered irrecoverable or insufficient because of a breach of the
Tenant’s obligations, or by Uninsured Damage.
4.8
|
Refuse
|
Not to
deposit any refuse on any part of, or outside, the Premises and to ensure the
removal of refuse from the Premises at least once a week but, if the Landlord
notifies the Tenant that the Landlord itself or the Superior Landlord will
arrange for the removal of refuse for a specific period, the Tenant shall pay on
demand the proper and reasonable cost (or a fair proportion thereof) incurred by
the Landlord or the Superior Landlord in doing so.
4.9
|
Entry
by the Landlord
|
To permit
the Landlord, at reasonable times on not less than 24 hours prior written notice
(except in an emergency), to enter the Premises in order to:
4.9.1
|
investigate
whether the Tenant has complied with its
obligations;
|
4.9.2
|
take
any measurement or valuation of the
Premises;
|
4.9.3
|
inspect
and carry out work to the Building which, otherwise, could not be
inspected or carried out ;
|
4.9.4
|
allow
the Landlord to show the Premises to prospective purchasers and their
agents and during the last six months of the Term, to prospective tenants
and their agents; and
|
4.9.5
|
to
exercise the rights described in schedule 3 or reserved under the Superior
Lease or the Head Lease,
|
provided
the Landlord causes as little interference as reasonably possible to the
Tenant’s use of the Premises for its business (except where it is necessary to
do so in order to comply with any obligation to the Tenant) and, if the Landlord
exercises any of the rights by carrying out work on the Premises, it shall make
good any damage caused to them and to any of the Tenant’s chattels straight
away.
4.10
|
Remedying
breaches
|
4.10.1
|
To
comply with any notice requiring remedy of any breach of the Tenant’s
obligations contained in this
lease.
|
4.10.2
|
4.10.3
|
To
pay the Landlord, on demand, all the costs and expenses properly and
reasonably incurred by the Landlord in exercising its rights under this
clause.
|
4.11
|
Preserving
rights
|
4.11.1
|
Not
to give to any third party any acknowledgement that the Tenant enjoys the
access of light or air to any of the windows or openings in the Premises
by the consent of such third party or to pay any sum of money to or enter
into any agreement with such third party for the purpose of inducing or
binding him to abstain from obstructing the access of light or air to any
such windows or openings.
|
4.11.2
|
In
the event of the Tenant becoming aware of any such third party doing or
threatening to do anything which obstructs or would obstruct such access
of light or air to notify this forthwith in writing to the
Landlord.
|
4.11.3
|
To
take all reasonable steps to prevent and not to suffer any encroachment
upon the Premises or the acquisition of any right to light or air passage
drainage or other easement over upon or through the Premises and forthwith
to give notice in writing to the Landlord of any threatened encroachment
or attempt to acquire any such
easement.
|
4.11.4
|
In
the event of failure by the Tenant to comply with the requirements in
clauses 4.11.1, 4.11.2 and 4.11.3
then to permit the Landlord and those authorised by it to enter upon the
Premises for the purpose of taking such of the necessary steps as are
mentioned above and to permit the Landlord to bring all such actions as it
may think fit in respect of the obstruction of the access of light or air
to any of the windows or openings in the Premises or in respect of any
such encroachment or easement.
|
4.12
|
Alterations
and reinstatement
|
4.12.1
|
Not
to carry out:-
|
(A)
|
any
Development;
|
(B)
|
any
works to or affecting any load bearing structure of the
Building;
|
(C)
|
any
work affecting the external appearance of the Premises or the
Building;
|
(D)
|
the
erection of any structure on the
Premises.
|
4.12.2
|
Subject
to the other provisions of this clause, not to make any other alteration
or addition to the Premises without the Landlord’s consent which will not
be unreasonably withheld or delayed but the installation and removal of
demountable partitioning which does not involve cutting into the load
bearing parts of the Building and which will not adversely affect any air
conditioning or sprinkler system, shall not require the Landlord’s consent
provided that if any such alterations are made the Tenant shall provide
the Landlord with a set of “as built” drawings relating to such works no
later than four weeks after the completion of such
works.
|
4.12.3
|
On
making alterations or additions to the Premises for which the Superior
Landlord has insurance obligations, to provide the Landlord without
unreasonable delay with a written, independent, current insurance (VAT
exclusive) valuation of the work, for replacement
purposes.
|
4.12.4
|
At
the expiry of the Term to remove all chattels, furniture and belongings of
the Tenant and any person sharing occupation with the Tenant or deriving
title from the Tenant.
|
4.12.5
|
At
the expiry of the Term to carry out all such works as are appropriate,
including where appropriate the removal of alterations and additions made
to the Premises at any time by the Tenant or by any person deriving title
from it, so as to quietly yield up the Premises reinstated and restored in
accordance with the Specification and in the condition decorative order
and layout otherwise required by this lease and any licences or consents
issued under it and to make good any damage so caused in a proper and
workmanlike manner to the Landlord’s reasonable satisfaction and to return
all keys to the Landlord provided that the Tenant may request the Landlord
no earlier than six months prior to the expiry of the Term to notify the
Tenant of any such items that the Landlord does not require reinstating in
accordance with this clause but any such decision as to what items are not
to be reinstated and restored in accordance with the Specification shall
be at the discretion of the
Landlord.
|
4.12.6
|
The
Tenant irrevocably authorises the Landlord to remove and dispose of any
chattels which may be left in the Premises after the Tenant has quit them
(without being obliged to obtain any consideration for the disposal) and
the Tenant irrevocably declares that any such chattels will stand
abandoned by it.
|
4.13
|
Use
|
Not to
use the Premises:
4.13.1
|
for
any purpose prohibited by Clause 4.14.1 and 4.14.2 of the Head
Lease;
|
4.13.2
|
for
any purpose which causes a nuisance, damage or obstruction to any person
or property;
|
4.13.3
|
for
any public auction or public meeting or for any noxious, noisy or immoral
use or one which would cause diplomatic or State immunity from the
Tenant’s obligations or for the business of a government agency which the
public visit without appointment or (except as incidental to the Permitted
Use) for the transmission of telecommunications signals;
or
|
4.13.4
|
(without
prejudice to the preceding paragraphs of this clause) except for the
Permitted Use.
|
4.14
|
Signs,
blinds, aerials etc
|
4.14.1
|
Not
to erect anything on the outside of the Building except as permitted
pursuant to the rights granted in Schedule
2.
|
4.14.2
|
Not
to affix or to exhibit on the exterior of the Premises any placard sign
notice fascia board or advertisements except as permitted pursuant to the
rights granted in Schedule 2.
|
4.14.3
|
Not
to install any blinds in the external windows of the Premises other than
those of a type reasonably specified by the Landlord from time to
time.
|
4.15
|
Dealings
with the lease
|
4.15.1
|
In
clause 4.15, any reference to a transfer includes an
assignment.
|
4.15.2
|
Not
to transfer, mortgage, charge, hold on trust for another, underlet or
otherwise part with possession of part only of the Premises or agree to do
so.
|
4.15.3
|
Not
to transfer, hold on trust for another, underlet or otherwise part with
possession of the whole of the Premises or agree to do so, except that the
Tenant may transfer the whole of the Premises if, before the transfer is
completed, the Tenant complies with the conditions described in clause
4.15.4.
|
(Transfer)
4.15.4
|
Not
to transfer the whole of the Premises without complying with the following
conditions (which are specified for the purposes of section 19(1A) of the
Landlord and Tenant Act 1927 and which operate without prejudice to the
Landlord’s right to withhold consent on any reasonable
ground):
|
(A)
|
that
the Tenant enters into an authorised guarantee agreement, as defined in
section 16 of the Landlord and Tenant (Covenants) Act 1995, with the
Landlord in a form which the Landlord reasonably requires;
and
|
(B)
|
that
any Guarantor guarantees to the Landlord that the Tenant will comply with
the authorised guarantee agreement in a form which the Landlord reasonably
requires; and
|
(C)
|
that,
subject as provided in paragraph (D) and if the Landlord so reasonably
requires, the proposed transferee procures one, but not both, of the
following:
|
(1)
|
covenants
with the Landlord by an additional guarantor or guarantors reasonably
approved by the Landlord in the terms contained in clause 8; or
|
(2)
|
a
deposit with the Landlord of an amount in cleared funds equal to half of
the then current Yearly Rent and an amount equal to VAT on that amount, on
terms which the Landlord reasonably requires;
and
|
(D)
|
if
the proposed transfer is to a Group Company;
and
|
(1)
|
if
the Tenant’s obligations, or any of them, are guaranteed by another Group
Company, that such Group Company covenants with the Landlord in the terms
contained in clause 8;
or
|
(2)
|
if
the Tenant’s obligations are not guaranteed by another Group Company and
if the transferee is not, in the Landlord’s reasonable opinion, of equal
financial standing to the Tenant, that the proposed transferee procures
covenants by a Group Company other than the Tenant and the transferee and
which is, in the Landlord’s reasonable opinion, of equal financial
standing to the Tenant, in a form which the Landlord reasonably requires;
and
|
(3)
|
(E)
|
that
the Landlord’s consent, which will not be unreasonably withheld, is
obtained to, and before, the
transfer.
|
(Sharing
occupation)
4.15.5
|
Not
to share the occupation of the Premises or any part of them except that
the Tenant may share occupation with a company which is, but only for so
long as it remains, a Group Company provided the Tenant does not grant the
company sharing occupation exclusive possession nor create any
relationship of landlord and tenant, nor otherwise transfer or create a
legal estate, and the Tenant shall upon request notify the Landlord of the
identity of each such Group
Company.
|
4.16
|
Notifying
Landlord of dealings with the lease
|
4.16.1
|
Within
15 working days after any disposition or devolution of this lease, or of
any estate or interest in or derived out of it, to give the Landlord
notice of the relevant transaction with two certified copies of the
relevant document (and of the notice and declaration relevant to the
exclusion of the 1954 Act from any underlease), and to pay the Landlord a
fee of one hundred pounds for registering each
notice.
|
4.16.2
|
To
register with the Landlord the name, home address and telephone number of
at least two key holders of the
Premises.
|
4.16.3
|
To
notify the Landlord of particulars of the determination of every rent
review under any underlease of the Premises within fourteen days after the
date of determination.
|
4.17
|
Payment
of cost of notices, consents etc
|
To pay
the Landlord on demand all reasonable and proper expenses (including bailiffs’
and consultants’ fees) incurred in connection with:
4.17.1
|
the
preparation and service of a notice under section 146 Law of Property Act
1925, notwithstanding that forfeiture is avoided otherwise than by relief
granted by the court;
|
4.17.2
|
every
reasonable and proper step taken during or within a reasonable time after
the expiry of this lease in connection with the enforcement of the
Tenant’s obligations, including the service or proposed service of all
notices and schedules of dilapidations and reasonable consultants’ fees
incurred in monitoring any action taken to remedy any breach of the
Tenant’s obligations; and
|
4.17.3
|
every
application for consent under this lease, even if the application is
withdrawn or properly refused but not where it is unreasonably withheld or
delayed or offered subject to unreasonable
conditions.
|
4.18
|
Installing
machinery in the Premises
|
Not to
install any plant or machinery in the Premises, other than usual office
equipment, without the Landlord’s consent which will not be unreasonably
withheld but no plant or machinery may be installed or operated in the Premises
and nothing shall be done or omitted in them which may cause:
4.18.1
|
the
efficiency of the heating, ventilation, air conditioning and cooling
systems installed in the Building to be diminished or impaired in any
material way; or
|
4.18.2
|
any
interference or other intrusive effect on any other part of the Building
or other adjoining property or persons outside the
Premises.
|
4.19
|
Obstruction/overloading
|
Not to
obstruct:
4.19.1
|
or
damage any part of the Building or exercise any of the rights granted by
this lease in a way which causes a nuisance or
disturbance;
|
4.19.2
|
any
means of escape;
|
4.19.3
|
or
discharge any deleterious matter
into:
|
(A)
|
any
conduit serving the Premises and, to the extent they lie within the
Premises, to keep them clear and functioning properly;
or
|
(B)
|
any
Service Media;
|
4.19.4
|
or
obscure any openings of the
Premises;
|
4.19.5
|
any
notice erected on the Premises, including any erected by the Landlord in
accordance with its powers under this
lease,
|
nor to
overload or cause undue strain to the Premises, the Service Media or any other
part of the Building.
4.20
|
Goods
delivery
|
To ensure
that all loading and unloading activities are carried out only by using the
service accesses and goods lifts reasonably designated by the Landlord for the
Tenant’s use and notified in writing to the Tenant and the Landlord shall be
obliged to make or procure such designations.
4.21
|
Complying
with Planning Law
|
4.21.1
|
Not,
without the Landlord’s consent (not to be reasonably withheld), to apply
for planning permission relating to the Premises or any other part of the
Building.
|
4.21.2
|
If
the Landlord reasonably requires in connection with any relevant proposal
by the Tenant, to apply for a determination under section 192 Town and
Country Planning Act 1990.
|
4.21.3
|
If
the Landlord gives consent under clause 4.21.1,
not to implement the planning permission before the Landlord, acting
reasonably, has acknowledged that its terms are
acceptable.
|
4.21.4
|
Unless
the Landlord directs otherwise, to complete before the end of the Term all
works on the Premises required as a condition of any planning permission
implemented by the Tenant or by any person claiming under or through
it.
|
4.22
|
Indemnifying
the Landlord
|
To
indemnify the Landlord against all consequences of any breach of any of the
Tenant’s obligations (including all costs properly and reasonably incurred by
the Landlord in an attempt to mitigate any such breach).
4.23
|
Notifying
defects in the Premises
|
To notify
the Landlord, as soon as reasonably practicable after becoming aware of the
same, of any defect in the Premises which becomes known to the Tenant and which
might give rise to:
4.23.1
|
an
obligation on the Landlord to do, or refrain from doing, anything at the
Premises; or
|
4.23.2
|
any
duty of care, or the need to discharge such duty, imposed by the Defective
Premises Act 1972,
|
and to
display such notices as the Landlord may reasonably require to be displayed at
the Premises relating to their state of repair and condition.
4.24
|
Dangerous
and contaminative materials
|
Not to
keep or use at the Premises any dangerous or contaminative materials which might
cause harm and, if there is any breach of that obligation, to remove all trace
of the material from the affected land and to leave it in a clean and safe
condition.
4.25
|
Returning
the Premises to the Landlord
|
At the
expiry of the lease:
4.25.1
|
to
return all keys of the Premises to the
Landlord;
|
4.25.2
|
to
remove all chattels and (to the extent the Landlord may require) tenant’s
fixtures and to vacate the Premises, reinstated and restored and made good
in accordance with clause 4.12 and in the
state of repair and condition required pursuant to the Tenant’s
obligations in this lease;
|
4.25.3
|
to
make due application to the Land Registry for the cancellation of any
notice of, or relating to, this lease or any document supplemental or
collateral to it and, on request, to supply the Landlord with a copy of
the application; and
|
4.25.4
|
subject
to clause 4.25.3, to return the documents
referred to in that clause to the
Landlord.
|
4.26
|
Regulations
and Covenants
|
To comply
with:
4.26.1
|
all
reasonable regulations made by the Landlord or the Superior Landlord and
notified to the Tenant in writing for the good management of the Building
so long as the regulations do not conflict with any express right of the
Tenant under this lease;
|
4.26.2
|
all
obligations affecting the Premises and not to interfere with any rights
which benefit them including in each case, but not limited to, those
contained or referred to in the documents referred to in schedule
6;
|
4.26.3
|
To
use all reasonable endeavours to ensure that the Tenant’s visitors to the
Premises observe any applicable security
regulations
|
4.27
|
Land
Registry
|
To the
extent the grant (or any transfer) of this lease and of any right appurtenant to
it requires to be completed by registration pursuant to the Land Registration
Act 2002 in order to operate at law, to comply with the relevant registration
requirements and, as soon as reasonably practicable, to provide the Landlord’s
solicitors with a copy of an official copy of the relevant register evidencing
compliance with them.
4.28
|
Superior
Lease
|
4.28.1
|
To
comply with the lessee’s obligations contained in the Superior Lease so
far as they relate to the Premises, except the obligations to pay
rent.
|
4.28.2
|
Not
to knowingly do or omit any act or thing which would or might cause the
Landlord to be in breach of the Superior
Lease.
|
5.
|
LANDLORD’S
OBLIGATIONS
|
The
Landlord agrees with the Tenant:
5.1
|
Quiet
enjoyment
|
That the
Tenant may peaceably hold and enjoy the Premises without any interruption by the
Landlord or any person rightfully claiming from or in trust for it.
5.2
|
Superior
Lease
|
5.2.1
|
To
comply with the lessee’s obligations in the Superior Lease to the extent
the Tenant is not liable to do so pursuant to clause 4.28.
|
5.2.2
|
On
the request of the Tenant and at its expense, to take all reasonable steps
to enforce the Superior Landlord’s obligations in the Superior
Lease.
|
5.2.3
|
Wherever
the Tenant makes application for any consent under this lease and the
Landlord is prepared in principle to give its consent, to take all
reasonable steps, at the Tenant’s expense, to obtain any necessary consent
from the Superior Landlord.
|
5.3
|
Shared
Areas
|
To keep
the Shared Areas cleaned and maintained to a reasonable standard and adequately
lit when appropriate unless (but only so long as) prevented from so doing by any
cause beyond the reasonable control of the Landlord.
5.4
|
Defects
|
To pay to
the Tenant the fair and reasonable proportion properly attributable to the
Premises of any sums recovered by the Landlord from the Superior Landlord
pursuant to the provisions of schedule 9 to the Superior Lease, after deduction
of the costs of recovery.
6.
|
OTHER
AGREEMENTS AND DECLARATIONS
|
6.1
|
Forfeiture
and re-entry
|
If:
6.1.1
|
any
rent is unpaid for twenty-one days after becoming payable (whether the
rent has been demanded or not); or
|
6.1.2
|
there
is any other material breach of the Tenant’s obligations;
or
|
6.1.3
|
any
guarantee of the Tenant’s obligations is or becomes wholly or partly
unenforceable for any reason; or
|
6.1.4
|
if
the Tenant or any Guarantor (or if more than one person any one of
them):
|
(A)
|
is
the subject of a winding up order, bankruptcy order or a petition is
presented, filed or lodged at court for winding up or liquidation whether
voluntarily (except for reconstruction or amalgamation of a solvent
company on terms agreed by the Landlord) (acting reasonably) or
compulsorily;
|
(B)
|
is
the subject of a winding up resolution, except for a voluntary
reconstruction as stated in paragraph
(1);
|
(C)
|
is
subject to the appointment of any receiver, manager or administrative
receiver or a provisional liquidator, or an administrator is appointed, or
a petition or application for an administration order is presented, in
relation to the Tenant or the
Guarantor;
|
(D)
|
enters
into any form of compromise of debts, scheme of arrangement, rescheduling
or restructuring with its creditors or any of them, including but not
limited to any scheme of arrangement under the Companies Act 1985 or any
voluntary arrangement under the Insolvency Act
1986;
|
(E)
|
obtains,
or takes any steps to obtain, any moratorium or other form of protection
against creditors or a general suspension of the payment of debts due and
payable, including but not limited to any moratorium available under the
Insolvency Act 1986;
|
(F)
|
dies
or is dissolved or is otherwise struck off any register of companies in
its place of incorporation or any other place where it is registered or
located;
|
(G)
|
is
the subject of any forfeiture, execution, distraint, repossession in
relation to any of its assets; or
|
(H)
|
is
the subject of any analogous procedure, regime, process or step in any
jurisdiction outside England and
Wales.
|
the
Landlord may, notwithstanding the waiver of any previous right of re-entry,
re-enter on any part of the Premises and on such re-entry this lease shall
absolutely determine, but without prejudice to any Landlord’s right of action
for any prior breach of the Tenant’s obligations.
6.2
|
No
implied rights
|
6.2.1
|
Neither
the Tenant nor the Premises is entitled to any right, including any
quasi-easement, except those expressly granted by this
lease.
|
6.2.2
|
The
Tenant may not enforce, or prevent the release or modification of, any
type of right or obligation attaching to the Landlord’s interest in the
Premises or in any other land so as to prevent or restrict the development
or use of any other land.
|
6.2.3
|
Clause
6.2.2 does not prejudice any right described in
schedule 2.
|
6.2.4
|
Any
provision of this lease which would, apart from this provision, be in
conflict with this clause takes effect subject to
it.
|
6.3
|
Common
Parts and Service Media
|
6.3.1
|
The
Common Parts and the Service Media remain under the exclusive control and
management of the Superior Landlord who may, if it shall be in keeping
with the principles of good estate management, alter, divert, substitute,
stop up or remove any of them, leaving available for use by the Tenant
reasonable and sufficient means of access to and egress from, and
servicing for, the Premises provided always that the same does not
materially adversely affect the Tenant’s use and enjoyment of the
Premises.
|
6.3.2
|
The
Landlord shall not be liable for any closure of any of the Common Parts or
stoppage or severance affecting any of the Service Media due to any cause
beyond the Landlord’s control provided that the Landlord shall
take all reasonable steps to procure that the Superior Landlord re-opens
such Common Parts or restores such Service Media as soon as
practicable.
|
6.4
|
Service
of notices
|
6.4.1
|
In
addition to any other method of service, any notice which is served under
this lease shall be validly served if it is served in accordance with
section 196 Law of Property Act 1925, as amended by the Recorded Delivery
Service Act 1962.
|
6.4.2
|
If
the Tenant or any Guarantor comprises more than one person, it shall be
sufficient if notice is served on one of them, and a notice duly served on
the Tenant does not need to be served on any
Guarantor.
|
6.5
|
Arbitration
fees
|
Any
arbitrator’s fees may be paid by the Landlord or the Tenant, notwithstanding any
direction or prior agreement as to liability for payment, and if either party
chooses to do so, it shall be entitled to an appropriate repayment by the other
party on demand.
6.6
|
No
warranty as to use
|
The
Landlord does not warrant that the Premises are authorised under Planning Law to
be used, or are otherwise fit for, any specific purpose.
6.7
|
Compensation
|
Any
statutory right of the Tenant to claim compensation from the Landlord on
vacating the Premises is excluded to the extent lawful.
6.8
|
No
warranty as to security
|
Nothing
in this lease (and no exercise of any of the Landlord’s powers under it)
constitutes a warranty by the Landlord that the Premises shall be kept secure or
that any security service to the Common Parts shall be effective.
6.9
|
Overriding
lease
|
If,
during the Term, the Landlord grants a tenancy of the reversion immediately
expectant on the determination of this lease, whether pursuant to section 19
Landlord and Tenant (Covenants) Act 1995 or otherwise, any obligation of the
Tenant to obtain the consent of the Landlord under this lease to any dealing
with it includes an obligation to obtain the consent of the lessor under such
tenancy to that dealing.
6.10
|
Application
of Landlord and Tenant (Covenants) Act
1995
|
This
lease is a new tenancy for the purposes of the Landlord and Tenant (Covenants)
Act 1995.
6.11
|
Exclusion
of Third Party Rights
|
The
parties confirm that no term of this lease is enforceable under the Contracts
(Rights of Third Parties) Act 1999 by a person who is not a party to
it.
6.12
|
Jurisdiction
|
This
lease is governed by and construed in accordance with the law of England and the
Guarantor submits to the exclusive jurisdiction of the English courts and agrees
that any process may be served on it by leaving a copy of the relevant document
at the address for service of the Guarantor and each party to this
lease undertakes to notify the others in advance of any change from time to time
of such address for service and to maintain an appropriate address at all
times.
6.13
|
Exclusion
of sections 24 - 28 of the 1954 Act
|
6.13.1
|
The
Tenant confirms that before it became contractually bound to enter into
the tenancy created by this lease:
|
(A)
|
the
Landlord served a notice dated 21 August 2009 (the “Notice”) on the Tenant
in accordance with section 38A(3)(a) of the 1954
Act;
|
(B)
|
the
Tenant (or a person duly authorised by the Tenant) made a statutory
declaration dated 21 August 2009 (the “Declaration”)
confirming receipt of the Notice in accordance with schedule 2 to the
Order.
|
6.13.2
|
The
Tenant further confirms that where the Declaration was made by a person
other than the Tenant that person was duly authorised by the Tenant to
make the Declaration on the Tenant’s
behalf.
|
6.13.3
|
The
parties agree that sections 24 to 28 (inclusive) of the 1954 Act will not
apply to the tenancy created by this
lease.
|
6.14
|
Tenant’s
break clause
|
6.14.1
|
In
this clause the “Termination Date” is 18
October 2013.
|
6.14.2
|
The
Tenant may terminate the Term on the Termination Date by giving the
Landlord not less than six months’ written notice following which the Term
and this lease will then terminate on the Termination Date but without
prejudice to any claim by a party in respect of any antecedent breach of
any obligation of any other party under this
lease.
|
6.14.3
|
If
any sums have been paid by the Tenant in relation to the period falling
after the Termination Date they will be refunded by the Landlord to the
Tenant within fourteen days of the Termination Date and each of the sums
to be refunded will be apportioned at the Termination Date in accordance
with the following formula:
|
[Missing Graphic Reference]
where:
|
A
|
is
the full annual amount of the relevant
sum;
|
|
B
|
is
365; and
|
|
C
|
is
the number of days from but excluding the Termination Date to but
excluding the first date after the Termination Date upon which an
instalment of the relevant sum is due or (where such first date after the
Termination Date is the day after the Termination Date)
zero.
|
6.14.4
|
If
the Tenant does not exercise its right to break the Term pursuant to
clause 6.14.1 then the Yearly Rent shall not
be payable by the Tenant for the period from and including 21 October 2013
up to and including 20 June 2014 so
that:
|
(A)
|
clause
6.14.3 shall apply to any Yearly Rent which
has been paid by the Tenant in relation to the period falling after 20
October 2013; and
|
(B)
|
on
21 June 2014 the Tenant shall pay the Yearly Rent apportioned for the
period from and including 21 June 2014 up to and including 28 September
2014.
|
7.
|
INSURANCE
|
The
provisions of schedule 6 shall apply.
8.
|
GUARANTOR’S
OBLIGATIONS
|
If any
guarantee is required pursuant to clause 4.15.4, the Guarantor as a principal
obligor will agree with the Landlord that:
8.1
|
Guarantee
|
Until the
expiry of this lease or until any earlier date when the Guarantor is released by
virtue of the Landlord and Tenant (Covenants) Act 1995 from its obligations
under this sub-clause:
8.1.1
|
the
Tenant’s obligations will be
performed;
|
8.1.2
|
the
Tenant will comply with any authorised guarantee agreement which it enters
into on a transfer of this lease;
and
|
8.1.3
|
to
the extent the Tenant’s obligations or any such authorised guarantee
agreement are not complied with, the Guarantor will comply with them and
will indemnify the Landlord against any loss it suffers as a result of any
non-compliance.
|
8.2
|
Preservation
of the Guarantee
|
The
Guarantor’s obligations under sub-clause 8.1 are
not affected by:
8.2.1
|
any
indulgence, compromise or neglect in enforcing the Tenant’s obligations or
any refusal by the Landlord to accept tendered
rent;
|
8.2.2
|
any
variation or waiver of any of the terms of this
lease;
|
8.2.3
|
any
partial surrender of this lease (and the Guarantor’s liability shall
continue but only in respect of the Tenant’s continuing
obligations);
|
8.2.4
|
any
forfeiture of this lease, whether in whole or in
part;
|
8.2.5
|
any
legal limitation, immunity, incapacity, insolvency or the winding-up of
the Tenant or by the fact that the Tenant otherwise ceases to
exist;
|
8.2.6
|
any
action taken by or on the Landlord’s behalf in contemplation of re-letting
the Premises;
|
8.2.7
|
any
other act or omission which, but for this provision, would have released
the Guarantor from liability;
|
or any
combination of any such matters.
8.3
|
No
right to participate in security
|
The
Guarantor may not participate in, or exercise any right of subrogation in
respect of, any security held by the Landlord for the Tenant’s
obligations.
8.4
|
Disclaimer
|
If this
lease is disclaimed:
8.4.1
|
The
Landlord may require the Guarantor at its cost to accept a new lease of
the Premises on the same terms of, and containing the same agreements as,
this lease (and, where any such term applies as at a particular date or
period, as at the same date or period), as if this lease had not been
disclaimed and as the terms have effect immediately before the disclaimer,
for the residue of the Term, and with effect, from the date of disclaimer
but the new lease shall omit this
clause.
|
8.4.2
|
For
the purposes of sub-clause 8.4.1:
|
(A)
|
the
Landlord may notify the requirement to the Guarantor only within the
period of three months commencing on the date of
disclaimer;
|
(B)
|
if
there are any matters outstanding under this lease immediately before it
is disclaimed, they shall be determined between the Landlord and the
Guarantor and be reflected, as appropriate, in the new
lease;
|
(C)
|
the
new lease shall be completed within 4 weeks after the date when the
Landlord notifies the requirement to the
Guarantor.
|
8.5
|
Forfeiture
or the Tenant ceasing to exist
|
If this
lease is forfeited or if the Tenant ceases to exist, the Landlord may require
the Guarantor to:
8.5.1
|
accept
a new lease of the Premises in accordance with sub-clause 8.4, as if it applies to forfeiture or the
Tenant ceasing to exist and to the date of forfeiture or cessation;
or
|
8.5.2
|
pay
the Landlord an amount equal to the sum by which any money which would
have been due from the Tenant pursuant to the Tenant’s obligations exceeds
any money received by the Landlord in respect of the same type of
obligation which may be undertaken by a third party, in both cases from
the date of forfeiture or cessation until the earlier of the first date
when all the Premises are re-let and income producing and the last day of
the Term,
|
and the
Guarantor will comply with the relevant requirement.
8.6
|
Transfer
of the reversion
|
The
benefit of the Guarantor’s obligations under this clause will pass to a
transferee of the Landlord’s reversion in the Premises without need for an
express assignment.
IN WITNESS whereof this deed
has been executed by the parties hereto and is intended to be and is hereby
delivered on the date first above written.
SCHEDULE
1
(The
Premises)
ALL THOSE office premises
situate on the fifth floor and being part of the Building which are shown edged
red on the Plan ALL
which premises include:
1.
|
the
interior coverings and interior facing materials of those parts of the
external walls of the Building bounding the said premises and of the
columns within the said premises and of the walls within the Building
separating them from other parts of the
Building;
|
2.
|
the
fixed floor coverings and all materials lying between the upper surface of
the structural floor slab and the floor
surface;
|
3.
|
the
ceilings, including all materials, light fittings and lights forming part
of them, lying below the lower surface of the structural ceiling
slab;
|
4.
|
all
non-load bearing walls and partitions lying within the said
premises;
|
5.
|
the
doors and door frames within, and on the boundaries of, the said
premises;
|
6.
|
subject
to the exclusion in paragraph 10 of this schedule, the window glazing and
window frames and other fenestration within the said premises;
and
|
7.
|
all
plant and other apparatus and conducting media which are designed to serve
the said premises exclusively including any which the Landlord may permit
under clause 4.14 but subject to paragraph 12
below,
|
but
exclude:
8.
|
all
Service Media including all plant and other apparatus and conducting media
which are designed to serve the said
premises;
|
9.
|
the
load bearing structure of the Building including the load bearing
structure of the roofs, foundations, external and internal walls and
columns and the structural slabs of the ceilings and
floors;
|
10.
|
the
external surfaces of the Building (except the external surfaces of any
doors and door frames referred to in paragraph 5) and the whole of the
window glazing and window frames and other fenestration constructed in the
external walls and in the other boundaries of the said premises;
and
|
11.
|
all
other parts of the Building which are not comprised in any Lettable
Unit;
|
12.
|
the
Superior Landlord’s building management system, the Building’s fire alarm
system and sprinklers; and
|
13.
|
the
fan-coil units and associated pipes and ducts to the fan-coils located
within the said premises.
|
SCHEDULE
2
(Easements
and rights granted)
Each of
the following, all of which are exercisable in common with others except to the
extent any is referred to as being exclusive:
1.
|
The
right in connection with the permitted use, subject to clause 6.3 and to
compliance with the superior landlord’s reasonable rules and regulations
(if any) for the exercise of such
right:
|
1.1
|
for
the Tenant, its servants and duly authorised agents and visitors, for the
purpose only of using the Premises in accordance with this lease, to use
the Common Parts for the purpose for which they are
provided;
|
1.2
|
to
use the Service Media; and
|
1.3
|
to
use such lavatories in the Building as the Landlord or the Superior
Landlord (as appropriate) shall reasonably designate and (if relevant) the
Landlord shall be obliged to take all reasonable steps to procure that the
Superior Landlord makes or procures such
designations.
|
2.
|
The
right of support, shelter and protection for the Premises from the other
parts of the Building as are enjoyed by the Premises at the date of this
lease.
|
3.
|
The
right to use the refuse area in the Building as reasonably specified by
the Superior Landlord and (if relevant) the Landlord shall be obliged to take all
reasonable steps to procure that the Superior Landlord makes or
procures such designations.
|
4.
|
The
right to have displayed the name-plate or sign referred to in clause 4.14.2 but the Superior Landlord shall be
entitled to relocate the name-plate or sign at any
time.
|
5.
|
The
right to install in the area edged red on Plan 2 annexed to the Superior
Lease (or such other area on the roof of the Building as the Landlord
shall from time to time designate) Tenant’s plant and equipment serving
the Premises subject to the Landlord’s prior approval of the type and size
of the equipment, the manner of its installation and its precise location
which approval shall not be unreasonably withheld or delayed together with
the right of access at all times to such area for inspection, repair and
maintenance purposes provided that under no circumstances shall such plant
or equipment once installed exceed in height the perimeter fence situated
on the roof of the Building.
|
6.
|
The
exclusive right to use the terraced area edged green on the Plan subject
to observing such reasonable rules and regulations as to the use of such
terrace as are notified to the Tenant by the Landlord from time to
time.
|
7.
|
The
right to use the Portman Square gardens in accordance with schedule
7.
|
8.
|
The
right to pass and repass on foot only over and along the Shared Areas for
the purposes of access to and egress from the Premises and the Common
Parts.
|
SCHEDULE
3
(Exceptions
and reservations)
1.
|
The
right to build, alter or extend (whether vertically or laterally) any
building on any adjacent premises of the landlord notwithstanding that
access of light and air to the premises may be
diminished.
|
2.
|
The
right, at reasonable times on reasonable prior notice (except in an
emergency), to enter the Premises as often as may be necessary for any
purpose for which the Tenant agrees to permit entry and for all purposes
in connection with carrying out the Services or complying with any
Enactment.
|
3.
|
The
right to use and to deal in any way with any Service Media located in or
accessible only through the Premises for the benefit of any other part of
the Building or any adjacent or neighbouring
land.
|
4.
|
The
right to erect and maintain scaffolding on or against any part of the
Building so long as reasonable and sufficient means of accessing and
servicing the Premises are
maintained.
|
5.
|
All
rights of light, air and other easements and rights enjoyed by the
Premises from or over any other part or parts of the Building or any
adjacent or neighbouring land.
|
6.
|
The
right for any security staff employed by the Landlord or its agents to
enter the Premises if it shall be considered necessary or desirable so to
do for the security of the
Building.
|
7.
|
The
right at reasonable times on 48 hours prior written notice (except in an
emergency) to pass and repass on foot only through the
Premises:
|
7.1
|
between
any two parts of the Shared Areas;
|
7.2
|
between
the Landlord's Premises and the goods lift marked “Goods Lift” on the Plan
(provided that the goods lift is only used for items which cannot
reasonably or properly be transported by the passenger lift);
and
|
7.3
|
in
the event of fire or other emergency or emergency evacuation practice from
the Landlord's Premises to the fire escape marked “Fire Escape” on the
Plan.
|
such
rights being reserved for the benefit of the Landlord's Premises and the
premises demised by the Superior Lease and the Head Lease
Provided
That:
|
(a)
|
entry
shall only be effected upon such part or parts of the Premises as shall be
reasonably necessary and only for such periods as are reasonably necessary
and the person exercising such rights shall comply with the Tenant’s
reasonable security requirements:
|
|
(b)
|
the
persons exercising such right (and in default the Landlord) shall cause as
little damage or inconvenience to the Premises and the Tenant or any other
lawful occupiers as reasonably possible;
and
|
|
(c)
|
the
Landlord shall make good to the reasonable satisfaction of the Tenant any
damage caused by such entry whether to the Premises or to the contents
thereof and shall indemnify the Tenant against such loss thereby suffered
by it.
|
SCHEDULE
4
(Rent
and rent review)
1.
|
DEFINITIONS
|
In this
schedule:
1.1
|
“Current Rent” means the
amount of the Yearly Rent payable immediately before the Review Date
ignoring any cesser of the Yearly Rent pursuant to paragraph 1.2 of
schedule 6;
|
1.2
|
“Review Rent” means the
yearly market rack rental value which might reasonably be expected to be
payable, following the expiry of any period at the beginning of the term
which might be negotiated in the open market for the purposes of fitting
out, during which no rent, or a concessionary rent, is payable, if the
Premises had been let in the open market by a willing lessor to a willing
lessee with vacant possession, on the Review Date, without fine or
premium, for a term of ten years from the Review Date, and otherwise upon
the provisions (save as to the amount of the Yearly Rent but including the
provisions for rent review at five yearly intervals) contained in this
lease and on the assumptions that:
|
1.2.1
|
the
provisions of this lease have been complied with (save in respect of the
Landlord’s obligations where the Landlord is in persistent breach of the
same);
|
1.2.2
|
the
Permitted Use and the Premises comply with Planning Law and every other
Enactment and that the lessee may lawfully implement and carry on the
Permitted Use;
|
1.2.3
|
the
Premises are fit for immediate occupation and operation of the Permitted
Use;
|
1.2.4
|
the
Premises have been completed to the standard described in the
Specification;
|
1.2.5
|
no
work has been carried out to the Premises which has diminished their
rental value;
|
1.2.6
|
in
case the Premises or the remainder of the Building or any part of it has
been destroyed or damaged it has been fully
restored;
|
1.2.7
|
the
Net Internal Area of the Premises is 10,972 square
feet,
|
1.2.8
|
but
disregarding any effect on rent of:
|
(A)
|
the
fact that the Tenant or other occupier or their respective predecessors in
title has been or is in occupation of the
Premises;
|
(B)
|
any
goodwill attached to the Premises by the carrying on of any business in
them;
|
(C)
|
any
works carried out to the Premises during the Term by or on behalf of the
Tenant or any permitted underlessee, in either case at its own expense
pursuant to a licence granted by the Landlord and otherwise than pursuant
to an obligation to the Landlord provided that the obligation to comply
with all Enactments in clause 4.2 shall not
be an obligation to the Landlord for the purposes of this
paragraph; and
|
(D)
|
the
Tenant's Works (save for the Division Works) as defined in the Agreement
for Lease dated 25 August 2009 made between the Landlord (1) and the
Tenant (2).
|
1.3
|
“Review Surveyor” means
an independent chartered surveyor appointed pursuant to paragraph 3.1 and, if he is to be nominated by The Royal
Institution of Chartered Surveyors, it shall be requested to nominate an
independent chartered surveyor having not less than ten years’ practice
next before the date of his appointment and recent substantial experience
in the letting and valuation of office premises of a similar character and
quality to those, and in the locality, of the Premises and who is a
partner or director of a leading firm or company of surveyors having
specialist market and valuation knowledge of such
premises.
|
2.
|
YEARLY
RENT FROM REVIEW
|
The
Yearly Rent from the Review Date until the end of the Term shall be the higher
of:
2.1
|
the
Current Rent; and
|
2.2
|
the
Review Rent.
|
3.
|
FAILURE
TO AGREE REVIEW RENT
|
If the
Landlord and the Tenant have not agreed the Review Rent three months before the
Review Date it shall, without prejudicing the Landlord’s and Tenant’s ability to
agree it at any time, be assessed as follows:
3.1
|
the
Review Surveyor shall, if his appointment is agreed, be
appointed by the Landlord and the Tenant to assess the Review Rent or, if
his appointment is not agreed at any time, be nominated to assess the
Review Rent by The Royal Institution of Chartered Surveyors on the
application of the Landlord or the
Tenant;
|
3.2
|
the
Review Surveyor shall act as an arbitrator and the arbitration shall be
conducted in accordance with the Arbitration Act 1996:
and
|
3.3
|
if
the Review Surveyor refuses to act, or is or becomes incapable of acting
or dies, the Landlord or the Tenant may apply for the appointment of
another Review Surveyor.
|
4.
|
PAYMENTS
ON ACCOUNT
|
If the
Review Rent has not been agreed or assessed by the Review Date, the Tenant
shall:
4.1
|
continue
to pay the Current Rent on account;
and
|
4.2
|
pay
the Landlord, within fourteen days after the Review Rent is determined and
notified in writing to the Tenant:
|
4.2.1
|
any
amount by which the Review Rent, for the period commencing on the Review
Date and ending immediately before the quarter day following the date of
payment, exceeds the Current Rent paid on account for the same period;
and
|
4.2.2
|
interest,
but calculated at 4% below the Stipulated Rate and in respect of each
instalment of the Yearly Rent due for payment during the period referred
to in paragraph 4.2.1, on the difference
between the amount which would have been payable on the relevant quarter
day, had the Review Rent then been determined, and the amount then paid on
account (the interest being payable from the date on which the instalment
was due up to the date of payment of the
interest).
|
5.
|
RESTRICTIONS
ON REVIEW
|
If an
Enactment restricts the right to review rent or to recover an increase in rent
otherwise payable then, when the restriction is released, the Landlord may, at
any time within six months after the date of release, give the Tenant not less
than one month’s notice requiring an additional rent review as at the next
following quarter day, which shall for the purposes of this lease be a Review
Date.
6.
|
MEMORANDUM
|
As soon
as possible after any increase in rent is agreed or determined pursuant to this
schedule, a memorandum recording the increase shall be signed on behalf of the
Landlord the Tenant and the Guarantor (if any) respectively and exchanged
between them.
SCHEDULE
5
(Covenants
etc.)
Those
contained in the title registers for title number NGL903755 so far as they
subsist and relate to the Premises.
SCHEDULE
6
(Insurance
and Uninsured Damage)
1.
|
INSURANCE
|
1.1
|
Tenant’s
obligations
|
The
Tenant agrees:
1.1.1
|
Not
to do or omit anything by which any insurance policy, of which the Tenant
shall have been provided with particulars, relating to the Building or any
part of it becomes void or voidable or by which the rate of premium on
such policy may be increased.
|
1.1.2
|
To
comply with all requirements and reasonable recommendations of the
insurers and to provide and maintain unobstructed, appropriate operational
fire fighting equipment and fire notices on the
Premises.
|
1.1.3
|
To
notify the Landlord, without unreasonable delay, of any incidence of an
Insured Risk or any Uninsured Damage on the Premises and of any other
event which ought reasonably to be brought to the insurers’
attention.
|
1.1.4
|
If
the Tenant or any person claiming title from it is entitled to the benefit
of any insurance of the Premises, to cause all money paid under such
insurance to be applied in making good the loss or damage for which it was
paid.
|
1.1.5
|
If
any damage is caused to the Building and any insurance money under the
Superior Landlord’s insurance is irrecoverable because of a breach of the
Tenant’s obligations, to pay the Superior Landlord on demand the whole of
the irrecoverable insurance money.
|
1.1.6
|
If
there is any deficiency in any insurance money received by the Superior
Landlord in respect of the replacement of any damage or destruction
referred to in paragraph 1.1.5 of Schedule 7 to the Superior Lease because
the Tenant has failed to comply with its obligations under clause 4.12.3
to pay the Superior Landlord the amount of the deficiency in the insurance
money.
|
1.1.7
|
To
pay to the Superior Landlord on demand an amount equal to the total of all
excess sums which the insurers are not liable to pay out on any insurance
claim in respect of the Premises and which the Superior Landlord has paid
in repairing damage to the Premises caused by an Insured
Risk.
|
1.2
|
Rent
Cesser
|
If:
1.2.1
|
the
Premises (except any demountable partitioning, window blinds and wall or
floor surface coverings not installed by or at the cost of the Superior
Landlord and fixtures which are tenant’s trade fixtures) or the essential
means of access to them are damaged by an Insured Risk, so that the
Premises are incapable of occupation and use;
and
|
1.2.2
|
payment
of any insurance money has not been vitiated by a breach of the Tenant’s
obligations,
|
the
Yearly Rent and the Service Rent, or a fair proportion of them according to the
nature and extent of the damage sustained, shall cease to be payable from the
date when the damage occurred until whichever is the earlier of the date on
which the Premises (except as set out in paragraph 1.2.1) and, if applicable, the essential means of
access to them are made fit for substantial occupation and use and the date of
expiry of the period for which loss of rent is insured by the Superior Landlord
(not being less than five years) and any dispute about such cessation shall be
determined by an arbitrator to be appointed, in default of agreement, on the
application of the Landlord or the Tenant to The Royal Institution of Chartered
Surveyors in accordance with the Arbitration Act 1996.
1.3
|
Ending
of the lease following major damage
|
If the
Premises or the essential means of access to them are damaged by an Insured Risk
so that the Premises are incapable of occupation and use, this lease may be
determined:
1.3.1
|
by
the Tenant, but only if:
|
(A)
|
the
Superior Landlord has not commenced the necessary replacement work by the
expiry of 24 months after the date when the damage occurred;
or
|
(B)
|
the
necessary replacement work is not substantially complete by the expiry of
the period for which loss of rent is
insured,
|
and, in
either case:
(C)
|
payment
of any insurance money has not been vitiated by a breach of the Tenant’s
obligations; and
|
(D)
|
(E)
|
it
serves the Landlord, by the expiry of 26 months after the date when the
damage occurred (if paragraph (A) applies) or
by the expiry of the period for which loss of rent is insured (if
paragraph (B) applies), with not less than
three months prior notice to determine provided that such notice cannot be
served if the reinstatement works have been completed;
and
|
1.3.2
|
by
the Landlord, but only if:
|
(A)
|
despite
having used all reasonable endeavours to achieve a lawful commencement of
the necessary replacement work by the expiry of the period specified in
paragraph 1.3.1(A), the Superior Landlord was
unable to do so; or
|
(B)
|
the
necessary replacement work is not substantially complete by the expiry of
the period for which loss of rent is
insured,
|
(C)
|
it
serves the Tenant, by the expiry of 28 months after the date when the
damage occurred (if paragraph (A) applies) or
by the expiry of the period for which loss of rent is insured (if
paragraph (B) applies), with not less than 21
days’ prior notice to determine provided that such notice cannot be served
if the reinstatement works have been
completed.
|
1.3.3
|
1.3.4
|
For
the purposes of this clause, reinstatement
work:
|
(A)
|
commences
when it would be treated as commencing under Section 56 of the Town &
Country Planning Act 1990 but work of demolition does not, of itself,
signify commencement; and
|
(B)
|
is
substantially complete when any person, appointed by the Landlord to
certify its completion, certifies that it is complete, whether by issue of
a certificate of practical completion or
otherwise.
|
1.3.5
|
Time
is of the essence of the periods referred to in this
clause.
|
2.
|
OPTION
TO DETERMINE FOLLOWING UNINSURED
DAMAGE
|
2.1
|
If
there is Uninsured Damage such that the Premises or the essential means of
access to them are damaged so that the Premises are incapable of
occupation and use and the Superior Landlord by service of notice in
writing (an “Election
Notice”) on the Landlord following the date on which such Uninsured
Damage occurs elects to rebuild or reinstate the Premises and the Common
Parts at its own cost;
|
2.1.1
|
paragraph
1.2 shall apply as if the Uninsured Damage
had been damage by an Insured Risk which occurred on the date on which the
Election Notice is served; and
|
2.1.2
|
2.2
|
If
the Superior Landlord has not served an Election Notice within 12 months
following the date on which Uninsured Damage occurs (time being of the
essence) in accordance with paragraph 2.1
either the Landlord or the Tenant may at anytime thereafter (unless in the
meantime the Superior Landlord serves an Election Notice) forthwith
determine this lease (but without prejudice to any claim by either party
in respect of any antecedent breach of
covenant).
|
3.
|
TERMINATION
OF SUPERIOR LEASE
|
This
lease shall also terminate if the Superior Lease is terminated pursuant to any
of the provisions contained in Schedule 7 to the Superior Lease.
4.
|
RETENTION
OF INSURANCE PROCEEDS
|
On the
termination of this lease pursuant to paragraphs 1.3 or 2 or 3 the Superior Landlord may retain for its
exclusive benefit the proceeds of the insurance.
SCHEDULE
7
(Garden
Rate)
1.
|
In
consideration of the covenants and conditions hereinafter reserved and
contained and on the part of the Tenant to be observed and performed the
Landlord grants or procures the grant to the Tenant of the right to use in
connection with the Premises (in common with the other persons to whom a
like right may be granted by the head landlord or the Superior Landlord or
the Landlord or other owners or trustees of the garden as hereinafter
defined) the (the “Garden”) (the garden of
Portman Square) for the purpose of recreation and leisure for the term
such purposes however to be subject to the rules and regulations for the
use and good management of the Garden as hereinafter
provided.
|
2.
|
The Tenant covenants
with the Landlord that the Tenant will conform to and observe all
Enactments and all rules and regulations made as hereinafter provided for
the maintenance and use of the Garden and will not admit into the Garden
any person not entitled to the use of the
same.
|
3.
|
The
Tenant agrees that:
|
3.1
|
the
said rules and regulations may provide for the exclusion from the use and
enjoyment of the Garden of the Tenant or any other person who would
otherwise be entitled to such use under the foregoing grant in case of
default in payment of the Garden Rate or of other wilful breach of such
rules and regulations or any of
them;
|
3.2
|
the
Tenant may in the exercise of the right hereby granted allow such other
persons as may be authorised by it to use the Garden subject to the terms
and conditions here mentioned provided that the Tenant will indemnify the
Landlord in respect of any loss or damage caused by such persons so
authorised;
|
4.
|
Rules
and Regulations
|
The
Tenant agrees that:
4.1
|
The
use of the Garden is reserved exclusively to the Head Landlord and its
lessees and sub-lessees and their licensees of the premises fronting to or
abutting on Portman Square and their families and to any other persons to
whom the Clerk of the Garden in his discretion may allow
access.
|
4.2
|
No
persons other than those having the right of entrance shall be entitled to
hold or possess a key of the Garden gates and no person so entitled shall
permit his key to be given or lent to or used by any person other than the
members of his family. Every person entering the Garden shall
at the request of the gardener produce his key and give his name and
address.
|
4.3
|
Young
children must be accompanied by a nurse or other responsible
person.
|
4.4
|
No
person shall climb damage pull down or destroy any of the trees shrubs or
plants or pluck the flowers in the Garden or break deface or injure any of
the seats or any other property belonging thereto or wilfully cut up or
injure the surface of the gravel walks or lawns or trample on or injure
the beds or place or leave any obstructions or things on the walks or
elsewhere. No person shall leave the gates
open.
|
4.5
|
Bicycles
or tricycles are not allowed in the
Garden.
|
4.6
|
Stone
throwing and noisy and disorderly conduct and every other practice likely
to annoy the residents or to interfere with the quiet use and enjoyment of
the Garden is forbidden.
|
4.7
|
No
carpets rugs doormats or other articles shall be beaten shaken cleaned or
dusted in any part of the Garden. No dust or rubbish shall be
swept or thrown or paper scattered on any part of the Garden or on the
railings or gates thereof.
|
4.8
|
Only
dogs in the charge of owners or their representatives are allowed in the
Garden and they must be under control and kept on a lead at all
times.
|
APPENDIX
1
(Premises
Plan Building
Plan)
APPENDIX
2
(Part
I of schedule 5 to Superior Lease)
“(Services to be provided by the
Landlord in accordance with the principles of good estate management, to at
least a reasonable standard and at a commensurate reasonable cost pursuant to
clause 5.2)
1.
|
Inspecting,
maintaining and repairing, altering, rebuilding and renewing and, where
appropriate, treating, washing down, painting and decorating all parts of
the Building described in paragraphs 8 to 11 of schedule
1.
|
2.
|
Inspecting,
servicing, maintaining and repairing, renewing, overhauling and replacing
all apparatus, plant, machinery and equipment within the Building which is
at any time not serving any Lettable Unit
exclusively.
|
3.
|
Inspecting,
maintaining, repairing, cleansing, emptying, altering and renewing all
Service Media.
|
4.
|
Providing,
maintaining, operating, renewing and replacing any fire alarms and
ancillary apparatus and fire prevention and fire fighting equipment and
apparatus in the Common Parts.
|
5.
|
Keeping
the Common Parts properly cleansed, treated, maintained, repaired and
adequately lit.
|
6.
|
Providing
such mechanical ventilation, heating and cooling for such parts of the
Building and for such hours and times of the year as the Landlord shall
determine.
|
7.
|
Providing
and maintaining any architectural or ornamental features or murals and any
plants, shrubs, trees or garden area in the Common Parts and maintaining
the same.
|
8.
|
Supplying,
whether by purchase or hire, and maintaining, renewing, replacing,
repairing and servicing all fixtures and receptacles, appliances,
materials, equipment, plant and other things reasonably necessary for the
maintenance, upkeep or cleanliness of the Building or any part of it or
otherwise in connection with the provision of the
Services.
|
9.
|
Cleaning
as frequently as shall be reasonably necessary the exterior and interior
of all window glazing and window frames and other fenestration units in
the Common Parts and the outside of the window glazing referred to in
paragraph 10 of schedule 1.
|
10.
|
Providing
a security service to the Common
Parts.
|
11.
|
Collecting,
and if appropriate treating or packaging, and disposing of refuse from the
Building and the provision, repair, maintenance and renewal of any plant
and equipment in connection with
it.
|
12.
|
Maintaining
during Normal Business Hours an adequate supply of hot and cold water and
supplying washing and toilet requisites in the lavatory accommodation in
the Common Parts.
|
13.
|
Implementing
any infestation control in the Common
Parts.
|
14.
|
Providing
one or more commissionaires in the ground floor entrance lobby of the
Building during Normal Business
Hours.
|
15.
|
Any
other services relating to the Building or any part of it provided by the
Landlord from time to time which shall
be:
|
15.1
|
reasonably
capable of being enjoyed by the occupier of the Premises;
or
|
15.2
|
reasonably
calculated to be for the benefit of the Tenant and other tenants of the
Building; or
|
15.3
|
appropriate
for the maintenance, upkeep or cleanliness of the Building;
or
|
15.4
|
otherwise
in keeping with the principles of good estate
management,
|
and any
reference in this schedule to renewal includes renewal, in accordance with the
principles of good estate management, of the relevant part of the Building which
is beyond its natural life even though it is not malfunctioning.”
APPENDIX
3
(Part
II of schedule 5 to Superior Lease)
“(All undermentioned costs to be
properly incurred in accordance with the principles of good estate
management)
1.
|
All
fees and disbursements of any individual, firm or company retained by or
on behalf of the Landlord or its agents in connection with discharging
management functions in respect of the Building and the provision of the
Services, including managing agents'
fees.
|
2.
|
The
reasonable fees of the Landlord for any of the Services or for the
functions and duties referred to in paragraph 1 of this part of this
schedule which shall be undertaken by the Landlord and not by a third
party.
|
3.
|
The
cost (in addition to any fees referred to in paragraph 2 and where the
context permits paragraph 1 of this part of this schedule) of employing
(whether by the Landlord or any managing agents or any other individual or
firm or company) such staff as the Landlord may consider appropriate for
the performance of the Services and the functions and duties referred to
in paragraph 1 of this part of this schedule and all other incidental
expenditure in relation to such employment including, without prejudice to
the generality of the foregoing:
|
3.1
|
salaries,
wages, pensions and pension contributions, benefits in kind and other
emoluments and National Insurance and other statutory contributions or
levies;
|
3.2
|
the
provision of uniforms and working
clothing;
|
3.3
|
the
provision of vehicles, tools, appliances, IT and communications equipment,
furniture cleaning and other material fixtures, fittings and other
equipment for the proper performance of their duties and a store for
housing the same; and
|
3.4
|
a
reasonable notional rent for any premises reasonably provided rent-free
for every such person's use occupancy or
residence.
|
4.
|
The
cost of entering into any contracts for the carrying out of all or any of
the Services.
|
5.
|
All
rates and other outgoings which are now or during the Term shall be
assessed on:
|
5.1
|
the
whole of the Building, where there is no separate assessment on or for a
Lettable Unit;
|
5.2
|
the
whole or any part of the Common
Parts;
|
5.3
|
any
residential accommodation provided for staff employed in connection with
the Building and any other premises provided as referred to in paragraph
3.4 of this part of this schedule,
|
excluding
any tax (other than VAT) payable by the Landlord as a direct result of any
actual or implied dealing with the reversion of any lease or of the Landlord's
receipt of income.
6.
|
The
cost of the supply of electricity and other fuel for the provision of the
Services and the cost of any electricity generating, transforming,
monitoring, metering and distribution plant, machinery and equipment in or
servicing the Building.
|
7.
|
The
cost which the Landlord may be called upon to pay as a contribution
towards the expense of making, repairing, maintaining, rebuilding and
cleansing any ways, roads, pavements or structures, Service Media or
anything which may belong to or be used for the Building or any part of it
exclusively or in common with other neighbouring or adjoining
premises.
|
8.
|
The
cost of taking all steps for complying with or making representations
against or otherwise contesting the incidence of the provisions of any
Enactment relating to or alleged to relate to the Building or any part or
it for which any tenant is not directly and exclusively
liable.
|
9.
|
The
cost to the Landlord of any payments made pursuant to clause 4.4.2 of the
Head Lease.
|
10.
|
The
cost to the Landlord of abating any nuisance in or at the Building or any
part of it insofar as the same is not the liability of any
tenant.
|
11.
|
The
cost of making such provision (if any) for anticipated expenditure in
respect of any of the Services as the Landlord shall consider
appropriate.
|
12.
|
Any
interest and fees in respect of money borrowed to finance the provision of
the Services and the costs referred to in this part of this schedule or
any of them.
|
13.
|
Any
VAT (or any tax of a similar nature which may be substituted for or levied
in addition to it) incurred by the Landlord on any other amount comprised
in the Service Cost, save to the extent that the Landlord obtains credit
for such VAT incurred by the Landlord pursuant to sections 24, 25 and 26
Value Added Tax Act 1994 or any regulations made
thereunder.
|
14.
|
All
other costs incurred in connection with the provision of the
Services.”
|
APPENDIX
4
(Specification)
SIGNED AS A DEED by WELLS
FARGO )
& COMPANY a company
incorporated )
in
Delaware, USA acting by Donald E Dana
)
being a person who,
in )
accordance
with the laws of that territory, is )
acting
under the authority of the
company )
/s/
Donald E. Dana
Authorised
signatory
SIGNED AS A DEED by COSTAR
UK )
acting
by two directors or one director
and )
the
company
secretary )
/s/
Paul Marples
Director
/s/
Matthew Green
Director/Secretary