UK-London-124/130 Southwark Street Lease - Nairn Developments Ltd. and BAM! Entertainment Ltd.
LEASE
of First Floor 124-130 Southwark Street London SE1
DATED 5 JUNE 2002
NAIRN DEVELOPMENTS LIMITED
(Landlord)
BAM ENTERTAINMENT LIMITED
(Tenant)
BAM ENTERTAINMENT INC.
(Surety)
[LOGO] DENTON WILDE SAPTE
LONDON
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CONTENTS
1 DEFINITIONS AND INTERPRETATION ................................... 1
1.1 Definitions ...................................................... 1
1.2 Interpretation ................................................... 5
2 DEMISE AND RENTS ................................................. 5
3 TENANT'S COVENANTS ............................................... 6
3.1 Rent ............................................................. 6
3.2 Interest ......................................................... 6
3.3 VAT .............................................................. 6
3.4 Rates and Outgoings .............................................. 6
3.5 Repair ........................................................... 7
3.6 Decoration ....................................................... 7
3.7 Cleaning ......................................................... 7
3.8 Alterations ...................................................... 7
3.9 Overloading of floors and services ............................... 8
3.10 Aerials, signs and advertisements ................................ 8
3.11 Default notices .................................................. 9
3.12 Use .............................................................. 9
3.13 Nuisance and prohibited uses ..................................... 9
3.14 Alienation ....................................................... 10
3.15 Compliance with Enactments etc ................................... 14
3.16 Planning ......................................................... 15
3.17 Yielding up ...................................................... 16
3.18 Encroachments, easements and third party rights .................. 16
3.19 Reletting and sale notices ....................................... 16
3.20 Landlord's costs ................................................. 17
3.21 Indemnity ........................................................ 17
3.22 Regulations ...................................................... 17
3.23 New surety ....................................................... 17
3.24 Other obligations ................................................ 17
4 LANDLORD'S COVENANTS ............................................. 18
4.1 Quiet enjoyment .................................................. 18
4.2 Services ......................................................... 18
4.3 Enforcement ...................................................... 18
5 INSURANCE ........................................................ 18
5.1 Landlord to insure ............................................... 18
5.2 Suspension of rent ............................................... 19
5.3 Reinstatement following damage or destruction .................... 20
5.4 Reinstatement prevented etc ...................................... 20
5.5 Tenant's insurance obligations ................................... 20
6 FORFEITURE ....................................................... 21
7 SURETY'S COVENANTS ............................................... 22
8 MISCELLANEOUS .................................................... 22
Contents (i)
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8.1 No implied easements ............................................. 22
8.2 Exclusion of warranty as to use .................................. 22
8.3 Representations .................................................. 22
8.4 Exclusion of Landlord's liability ................................ 22
8.5 Covenants relating to the Building and/or Adjoining Property ..... 22
8.6 Disputes with adjoining occupiers ................................ 22
8.7 Exclusion of statutory provisions ................................ 23
8.8 VAT .............................................................. 23
8.9 Notices .......................................................... 23
8.10 Stamp Duty ....................................................... 23
8.11 New tenancy ...................................................... 23
8.12 Effect of document ............................................... 23
8.13 Commencement ..................................................... 23
8.14 Third Parties .................................................... 23
8.15 Removal of Tenant's Goods ........................................ 24
8.16 Perpetuity Period ................................................ 24
9 OPTION TO DETERMINE .............................................. 24
SCHEDULE 1- THE PREMISES/THE BUILDING .................................... 25
SCHEDULE 2 - RIGHTS AND EASEMENTS GRANTED ................................ 26
SCHEDULE 3 - EXCEPTIONS AND RESERVATIONS ................................. 27
SCHEDULE 4 - DEEDS AND DOCUMENTS AFFECTING THE PREMISES .................. 28
SCHEDULE 5 - RENT REVIEW ................................................. 29
SCHEDULE 6 - SERVICE CHARGE .............................................. 33
SCHEDULE 7 - COVENANTS BY THE SURETY ..................................... 36
Contents (ii)
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LEASE
DATED 5 June 2002
BETWEEN
(1) NAIRN DEVELOPMENTS LIMITED (LANDLORD) a company registered in fine
British Virgin Islands whose registered office is at Trident Trust
Company (B.V.I.) Limited, Trident Chambers, PO Box 146, Road Town,
Tortola British Virgin Islands and whose address for service in the
United Kingdom is at Hamels Overseas Limited, St Georges Chambers,
Douglas, Isle of Man IM 1 1LD (or such other address as the Landlord
may notify to the Tenant in writing);
(2) BAM ENTERTAINMENT LIMITED (TENANT) Company Registration Number 04112030
whose registered office is at 3rd Floor, Upper Borough House, Upper
Borough Walls, Bath, Avon, BAI 1RG; and
(3) BAM ENTERTAINMENT INC. (SURETY) whose registered office is at Suite
930, 333 West Santa Clara St., San Jose, California, CA 95113, USA
Company Registration Number 7372 Delaware.
IT IS AGREED
1 DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Lease the following definitions apply.
1954 ACT means the Landlord and Tenant Act 1954.
1995 ACT means the Landlord and Tenant (Covenants) Act 1995.
ADJOINING PROPERTY means all parts of the Building (except the
Premises) and other property adjoining or near the Premises.
AUTHORITY means any statutory, public, local or other competent
authority or a court of competent jurisdiction.
BUILDING means the building described in Part 2 of Schedule 1.
COMMON PARTS means:
(a) those parts of the Building; and
(b) such other amenities available in connection with the Building
as the Landlord may designate acting reasonably from time to time for
use in common by the Landlord and the tenants and other occupiers of
the Building.
CONDUITS means media and ancillary apparatus capable of being used far
conducting or transmitting Utilities.
CONTAMINATION means the contamination or pollution (as defined by
Environmental Law) of any land water or air or the environment by any
substance in on under or emanating from the Premises.
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ENACTMENT means statute, statutory instrument, statutory guidance,
treaty, regulation, directive, byelaw, code of practice, guidance note,
circular, common law and any notice, order, direction or requirement
given or made pursuant to any of them, for the time being in force.
END OF THE TERM means the date on which the Term actually ends (however
determined).
ENVIRONMENTAL LAW means all Enactments relating to the environment
and/or pollution of the environment (as those terms are defined in
Section 1 of the Environmental Protection Act 1990).
GROUP means a group of companies within the meaning of section 42 of
the 1954 Act.
INSOLVENCY EVENT means any of the following:
(a) in relation to an individual:
(i) the making of an application for the appointment of
an interim receiver in respect of the individual's
property under section 286 of the Insolvency Act
1986;
(ii) the making of a bankruptcy order in respect of the
individual;
(iii) the making of an application for an interim order
under section 253 of the Insolvency Act 1986 in
respect of the individual;
(iv) the appointment of any person by the court to prepare
a report under section 273 of the Insolvency Act 1986
in respect of the individual;
(b) in relation to a company:
(i) the making of an administration order in respect of
the company;
(ii) the appointment of an administrative receiver in
respect of the company;
(iii) the making of an order or the passing of a resolution
to wind up the company;
(iv) the appointment of a provisional liquidator in
respect of the company;
(v) the making of a proposal under section 1 of the
Insolvency Act 1986 for a voluntary arrangement in
respect of the company; and
(c) in relation to any person (whether an individual or a
company):
(i) the appointment of a receiver (including an
administrative receiver) in respect of any of the
person's assets;
(ii) the person entering into an arrangement for the
benefit of creditors;
(iii) any distress or execution being levied on any of the
person's assets;
(iv) the person ceasing for any reason (except for a
release pursuant to the provisions of the 1995 Act)
to be or remain liable to perform its obligations
contained in this Lease.
INSURANCE RENT means a fair proportion (determined by the Landlord) of
the sums (including the proper cost of valuations for insurance
purposes and gross of any commission payable to the Landlord which the
Landlord pays from time to time for insuring the Building against the
Insured Risks and the other matters
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referred to in Clause 5.1.1 and the whole of the sums which the
Landlord pays from time to time for insuring against loss of the Rent
and additional rents payable under this Lease.
INSURED RISKS means fire, storm, tempest, flood, lightning, impact,
aircraft (other than hostile aircraft) and other aerial devices and
articles dropped therefrom, riot, civil commotion and malicious damage,
bursting or overflowing of water tanks, apparatus or pipes (but
excluding such risks as the Landlord in its reasonable discretion
considers cannot be insured against in the UK market at a reasonable
rate) and such other risks as the Landlord may in its absolute
discretion from time to time determine subject in each case to such
exclusions, excesses and limitations as may be imposed by the insurers.
INTEREST means interest at the rate of four per cent (4%) per annum
above the base lending rate from time to time of National Westminster
Bank PLC (or of such other bank as the Landlord may designate from time
to time by giving Notice to the Tenant) both before and after any
judgment, calculated on a daily basis from the date on which interest
becomes chargeable on any payment due under this Lease to the date on
which such payment is made, such interest to be compounded quarterly on
the usual quarter days.
LANDLORD means the person who is from time to time entitled to the
reversion immediately expectant on the determination of this Lease.
LANDLORD'S CONSENT means consent in writing signed by or on behalf of
the Landlord.
LEASE means this lease and any document supplemental to it or entered
into pursuant to its terms.
LETTABLE AREA means accommodation in the Building from time to time let
or intended to be let to occupational tenants.
NOTICE means written notice given by a Party to any other Party.
PARTY means a party to this Lease and Parties means more than one
Party.
PERMITTED HOURS means the hours of 8.00 am to 6.00 pm on Working Days
or such extended hours as the Landlord may stipulate in respect of the
Building ox the part of the Building in which the Premises are located.
PERMITTED USE means use as offices within Class B1(a) of the Town and
Country Planning (Use Classes) Order 1987.
PERSONNEL means servants, employees, contractors, workmen, agents,
licensees and visitors.
PLANNING ENACTMENTS means all Enactments relating to town and country
planning.
PLAN A means the Plan annexed and so marked.
PLAN B means the Plan annexed and so marked.
PREMISES means the premises described in Part 1 of Schedule 1.
RENT means the yearly rent of EIGHTY FOUR THOUSAND FOUR HUNDRED AND
SEVENTY EIGHT POUNDS ((pound)84,478) or such other yearly rent agreed
or determined pursuant to Schedule 5.
RENT COMMENCEMENT DATE means 14 October 2002.
RETAINED PARTS means all parts of the Building which are not from time
to time Lettable Areas including:
(a) the structure, walls, foundations and roofs of the Building;
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(b) the Common Parts;
(c) office, storage and other accommodation reserved within the
Building for the Landlord's Personnel;
(d) parts of the Building reserved for the housing of plant,
machinery and equipment for the supply of Utilities and/or for
the provision of the Services;
(e) Conduits and Facilities (as defined in Schedule 6) in, on,
over, under or serving the Building, except any which are
within and exclusively serve any Lettable Area.
REVIEW DATE means the fifth anniversary of the date on which the Term
commences.
SERVICE CHARGE has the meaning described in Schedule 6.
SERVICES has the meaning described in Schedule 6.
SUPERIOR LANDLORD means any persons) entitled to any estate or interest
superior to the interest of the Landlord in the Building.
SURETY means:
(a) any person named as "Surety" in this Lease; and/or
(b) any person who guarantees compliance with the Tenant's
Covenants; and/or
(c) the successors in title and assigns of any such person and, in
the case of an individual, his personal representatives.
SURVEYOR means a person appointed by the Landlord to perform the
function of a surveyor for any purpose of this Lease (including an
employee of the Landlord or of a company in the same Group as the
Landlord and any person appointed by the Landlord to collect the rents
and manage the Building) but does not include the Independent Surveyor
defined in Schedule 5.
TENANT includes every person who is at any time the tenant under this
Lease and, in the case of an individual, his personal representatives.
TENANT'S COVENANTS means the covenants, terms, conditions, agreements,
restrictions, stipulations and obligations falling to be complied with
by the Tenant under this Lease.
TENANT'S PERSONNEL means the Personnel of the Tenant together with any
sub-tenant, licensee or other occupier from time to time of the
premises and their respective personnel.
TERM means the term granted by this Lease and the period of any holding
over or any extension or continuation of it by statute or at common
law.
UTILITIES means water, gas, sewerage, electricity and telephone and
such other supplies as are available for the benefit of the Premises
for the Permitted Use from time to time.
VAT means Value Added Tax as provided for in the Value Added Tax Act
1994 and any tax similar or equivalent to Value Added Tax.
WORKING DAY means any day except Saturday, Sunday and public holidays
in England.
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1.2 INTERPRETATION
1.2.1 Where a Party includes two or more persons, the covenants made by that
Party are made by those persons jointly and severally.
1.2.2 Words implying one gender include all other genders, words implying the
singular include the plural and vice versa and words implying persons
include any person or entity capable of being a legal person.
1.2.3 A covenant by the Tenant not to do any act or thing includes a covenant
not to permit or suffer such act or thing to be done.
1.2.4 A reference to any right of the Landlord to access or enter the
Premises extends to any Superior Landlord and all persons authorised by
the Landlord and/or any Superior Landlord, including in each case their
Personnel, mortgagees, professional advisers and others, with or
without equipment, plant and machinery.
1.2.5 Subject to Clause 3.12.1, a reference to any Enactment (including the
1954 Act and the 1995 Act) includes all modifications, extensions,
amendments and/or re-enactments of such statute in force for the time
being and all instruments, orders, notices, regulations, directions,
bye-laws, permissions and plans for the time being made, issued or
given under them or deriving validity from them.
1.2.6 Anything requiring the consent or approval of the Landlord is
conditional also on the consent or approval of any Superior Landlord
and any mortgagee being given (if required under the terms of the
relevant lease or mortgage) and a consent or approval from the Landlord
is not effective for the purposes of this Lease unless it is in writing
and signed by or on behalf of the Landlord.
1.2.7 Provisions are to be construed independently and if any provision is
void or wholly or partly unenforceable, then that provision, to the
extent that it is unenforceable, shall be deemed not to form part of
this Lease, but the validity and enforceability of the remainder of
that provision or of the Lease shall not be affected.
1.2.8 A reference to a numbered clause, schedule or paragraph is a reference
to the relevant clause, schedule or paragraph in this Lease.
1.2.9 Headings to clauses, schedules and paragraphs are for convenience only
and do not affect the meaning of this Lease.
1.2.10 The words "including" and "in particular" shall be construed as being
by way of illustration or emphasis only and shall not limit the
generality of the preceding words.
1.2.11 A reference to the Adjoining Property, the Building, the Common Parts,
the Lettable Areas, the Premises or the Retained Parts shall include in
each case each and every part of the same.
2 DEMISE AND RENTS
The Landlord DEMISES to the Tenant the Premises for ten years beginning
on and including the 5 day of June 2002.
TOGETHER WITH the rights and easements specified in Schedule 2
EXCEPT AND RESERVING the rights and easements specified in Schedule 3
SUBJECT TO (and where applicable with the benefit of) the provisions of
the documents listed in Schedule 4 and all rights, easements,
quasi-easements, privileges, covenants, restrictions and stipulations
affecting the Premises
PAYING to the Landlord during the Term:
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(a) the Rent by equal quarterly payments in advance on the usual
quarter days and proportionately for any period of less than a
year, the first payment being a proportionate sum for the
period from and including the Rent Commencement Date to the
day before the quarter day following the Rent Commencement
Date, and to be made on the Rent Commencement Date; and
(b) on demand as additional rent (and recoverable as rent):
(i) the Insurance Rent;
(ii) the Service Charge; and
(iii) all other moneys (including VAT) payable by the
Tenant under this Lease.
3 TENANT'S COVENANTS
The Tenant covenants with the Landlord throughout the Term to comply
with the requirements of this Clause 3.
3.1 RENT
3.1.1 The Tenant shall pay the Rent, Insurance Rent, Service Charge and all
other moneys (including VAT) payable by the Tenant under this Lease at
the times and in the manner specified in this Lease.
3.1.2 The Tenant shall not exercise or seek to exercise any right or claim to
legal or equitable set-off, or to withhold payment of any of the Rent,
Insurance Rent, Service Charge or any other moneys (including VAT)
payable by the Tenant under this Lease.
3.1.3 The Tenant shall pay the Rent by banker's order or credit transfer to
any bank account in the United Kingdom designated by the Landlord, if
the Landlord gives the Tenant Notice to that effect.
3.2 INTEREST
The Tenant shall pay Interest on:
(a) any Rent (whether or not formally demanded) and VAT on the
Rent if applicable which remains unpaid after the date when
payment is due; and
(b) any other sum of money payable to the Landlord by the Tenant
under this Lease which is not paid within seven days after the
date when payment is due.
3.3 VAT
3.3.1 The Tenant shall pay to the Landlord all VAT in respect of the Rent and
other consideration for any supply to the Tenant under this Lease at
the same time and in the same manner as the consideration to which it
relates. The Landlord shall provide a valid VAT invoice within 28 days
of such payment.
3.3.2 In every case where the Tenant is required to reimburse the Landlord
for any payment made by the Landlord under the terms of or in
connection with this Lease, then the Tenant shall also reimburse all
VAT paid by the Landlord on such payment, except to the extent that the
Landlord is able to claim an input credit for such VAT.
3.4 RATES AND OUTGOINGS
3.4.1 The Tenant shall pay and indemnify the Landlord against all rates,
taxes, duties, assessments, impositions, duties, charges and other
outgoings of any type payable in respect of the Premises or by the
owner or
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occupier of them (except any tax assessed on the Landlord in respect of
its ownership, rental income from or dealing with its interest in the
Premises).
3.4.2 The Tenant shall pay and indemnify the Landlord against the proportion
properly attributable to the Premises of any such outgoings which are
payable in respect of any premises (including the Building) of which
the Premises form part.
3.4.3 The Tenant shall pay and indemnify the Landlord against all charges for
supplies of Utilities to the Premises during the Term, including any
connection charges, standing charges and meter rents.
3.4.4 The Tenant shall not agree any rateable value for the Premises without
the Landlord's Consent (which shall not be unreasonably withheld or
delayed).
3.4.5 The Tenant shall not appeal against any rateable value assessed or
imposed in relation to the Premises without the Landlord's Consent
(which shall not be unreasonably withheld or delayed) and, if the
Landlord appeals against any such rateable value, the Tenant shall give
to the Landlord promptly such assistance for the pursuit of such appeal
as the Landlord acting reasonably requests.
3.5 REPAIR
3.5.1 The Tenant shall keep the Premises at all times in good and substantial
repair and condition (but the Tenant shall not be liable to repair or
make good damage to the Premises by the Insured Risks, except to the
extent that payment of insurance moneys is withheld because of any act,
neglect or default of the Tenant or any Tenant's Personnel or any
person under its or their control).
3.5.2 The Tenant shall replace with new items of no lesser quality than the
original (when new) any landlord's fixtures and fittings which at any
time during the Term become missing, damaged, broken or destroyed.
3.5.3 Without prejudice to the generality of Clauses 3.5.1 and 3.5.2 the
Tenant shall replace the carpets whenever necessary and in any case at
the End of the Term with carpets of no lesser quality than the original
(when new) and of a design and colour approved by the Landlord.
3.6 DECORATION
3.6.1 The Tenant shall keep the Premises decorated to a good standard.
3.6.2 In every fifth year of the Term and in the last three months before the
End of the Term the Tenant shall decorate (with two coats of good
quality paint) or otherwise treat as appropriate all internal parts of
the Premises in a good and workmanlike manner and to the reasonable
satisfaction of the Surveyor, (such decoration and treatment in the
last three months of the Term to be in such colours and materials as
the Landlord may reasonably require) provided that the Tenant shall not
be required to decorate the Premises more than once in any one year.
3.7 CLEANING
The Tenant shall keep the Premises in a clean and tidy condition and
free of vermin and pests and at least once in every month shall clean
the insides of all windows and both sides of the window frames and all
other glass in the Premises.
3.8 ALTERATIONS
3.8.1 The Tenant shall not alter or interfere with any part of the Building
which is not included in the Premises.
3.8.2 The Tenant shall make no alteration or addition to the Premises except
as permitted by Clause 3.8.3.
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3.8.3 The Tenant may make the following alterations:
(a) an alteration to the interior of the Premises which does not
alter or in any way affect the whole or any part of the
structure of the Building; and/or
(b) the installation of or an alteration to a Conduit forming part
of the Premises; and/or
(c) such alterations as the Tenant may be obliged to carry out
pursuant to or in anticipation of any Enactment (including the
Disability Discrimination Act 1995)
with the Landlord's Consent (which shall not be unreasonably withheld
or delayed and shall be contained in a formal licence).
3.8.4 Before consenting to any alteration under Clause 3.8.3 the Landlord may
require:
(a) the submission to the Landlord of drawings and specifications
(in triplicate) showing the proposed alteration; and
(b) the execution of the formal licence to carry out the proposed
alteration referred to in Clause 3.8.3, in such form as the
Landlord requires acting reasonably, which may incorporate a
covenant for the reinstatement of the Premises at the End of
the Term, and such assurances, warranties and further
covenants (including any from any relevant third party) as the
Landlord requires acting reasonably; and/or
(c) if it is reasonable for the Landlord to require it, the
provision of security (by way of bond, the deposit of money or
otherwise) sufficient to enable the Landlord to complete or
reinstate the works if the Tenant begins but does not complete
them within a reasonable time, such security to be provided
before the works are begun and to be released when they have
been completed to the satisfaction of the Surveyor acting
reasonably.
3.8.5 The Tenant shall not install or erect any exterior lighting, shade,
canopy, awning or other structure in front of or elsewhere outside the
Premises.
3.9 OVERLOADING OF FLOORS AND SERVICES
3.9.1 The Tenant shall not overload the floors of the Premises or suspend any
excessive weight from the roofs, ceilings, walls or structure of the
Building and shall not overload the Conduits or Utilities in or serving
the Premises or the Building.
3.9.2 The Tenant shall not do anything which may subject the Premises or the
Building to any strain beyond that which they are designed to bear
(with due margin for safety).
3.10 AERIALS, SIGNS AND ADVERTISEMENTS
3.10.1 The Tenant shall not erect or display on the exterior of the Premises,
or in the windows of the Premises so as to be visible from outside, any
flag, aerial, mast, satellite dish, advertisement, television, moving
display, poster, notice or other sign or thing, except for a sign
stating the Tenant's name and the nature of its business, subject to
the Landlord's Consent (which shall not be unreasonably withheld or
delayed) as to its size, style and position.
3.10.2 The Tenant shall display and maintain all notices which the Landlord
may from time to time require acting reasonably to be displayed at the
Premises.
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3.11 DEFAULT NOTICES
3.11.1 If the Landlord gives to the Tenant Notice of any defects, wants of
repair or breaches of the Tenant's Covenants, the Tenant shall as soon
as is reasonably practical and in any event within two months of such
Notice, or as soon as reasonably possible in an emergency, begin and
then diligently continue to comply with such Notice to the satisfaction
of the Landlord acting reasonably.
3.11.2 If the Tenant fails to comply with the provisions of Clause 3.11.1, or
fails to complete compliance with the relevant Notice (to the
satisfaction of the Landlord acting reasonably) as soon as is
reasonably practical and in any event within three months, the Landlord
may enter the Premises and carry out or cause to be carried out all or
any of the works referred to in the Notice and the Tenant shall pay to
the Landlord on demand as a debt all costs and expenses (including
professional fees) thereby incurred.
3.12 USE
3.12.1 The Tenant shall not use the Premises except for the Permitted Use.
3.12.2 The Tenant shall secure the Premises against intrusion when not in use
and shall not leave the Premises continuously unoccupied for more than
28 consecutive days without both notifying the Landlord and providing
or paying for such caretaking or security arrangements as the Landlord
may reasonably require in order to protect the Premises from vandalism,
theft or unlawful occupation.
3.12.3 The Tenant shall ensure that the Landlord has at all times written
notice of the name, home address and home telephone number of at least
two keyholders of the Premises and shall provide the Landlord with a
set of keys to the Premises to enable the Landlords to enter the
Premises for security purposes or in an emergency.
3.12.4 If the Tenant requires access to the Premises outside the Permitted
Hours the Tenant shall:
(a) ensure that the doors giving access to the Building axe locked
after entry and/or exist by the Tenant; and
(b) take reasonable steps to ensure that the Tenant is not (in
locking such doors) locking any other tenants of or lawful
visitors to the Building into the Building.
3.13 NUISANCE AND PROHIBITED USES
3.13.1 Nuisance
(a) The Tenant shall not do anything in or about the Premises or
the Building which is or might be or become a nuisance or
which causes or might cause danger, damage, annoyance,
inconvenience or disturbance to the Landlord or to the owners,
tenants or occupiers of the Adjoining Property, or which might
be injurious to the value, tone, amenity or character of the
Premises or the Building.
(b) If any nuisance occurs at the Premises, the Tenant shall
forthwith take all necessary action to abate it.
3.13.2 The Tenant shall not emit from the Premises any noise, vibration,
smell, fumes, smoke, dust, soot, ash, grit or any noxious or
deleterious substances, effluvia or effluent.
3.13.3 Conduits
(a) The Tenant shall not overload any Conduits or discharge into
any Conduits any noxious or deleterious effluent, fluid or
substance or any substance which might cause an obstruction,
or might be or become a source of danger, or which might cause
damage or injury to any person or
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be deleterious to health, or which might harm the Premises or
any Adjoining Property or any Conduits.
(b) The Tenant shall take due precautions to avoid water freezing
in Conduits within the Premises.
3.13.4 The Tenant shall make available for collection refuse as and when
specified from time to time by the Landlord and shall not deposit on
the Common Parts or on any other part of the Building any waste,
rubbish or refuse other than in proper receptacles provided for the
purpose.
3.13.5 The Tenant shall not do or omit to do in relation to the Premises or
their use or occupation anything by reason of which the Landlord may
incur any liability for costs, any penalty, damages, compensation or
otherwise.
3.13.6 The Tenant shall not:
(a) use the Premises for any public or political meeting, nor for
any dangerous, noisy, noxious or offensive trade, business or
occupation, nor for any illegal or immoral purpose, nor for
residential or sleeping purposes; or
(b) invite the public generally, or any specified section of it,
to come to the Premises (except by prior appointment) and
shall not use the Premises for a purpose which attracts casual
callers.
3.13.7 The Tenant shall not conduct on the Premises any gambling, betting or
gaming and shall not play or use any musical instrument, loud speaker,
sound amplification equipment or similar apparatus in such a manner as
to be audible outside the Premises and shall not hold any auction on
the Premises.
3.13.8 The Tenant shall not:
(a) load or unload any goods arriving at or dispatched from the
Premises in such a way that access to or egress from any
Adjoining Property is obstructed; or
(b) permit loading, unloading, delivery or despatch of goods to be
carried out in areas or by means other than the entrances
designated for such purposes and at the times stipulated by
the Landlord; or
(c) use the service areas for loading or unloading at times other
than those stipulated by the Landlord.
3.13.9 The Tenant shall not bring onto or keep on the Premises, or do, any
thing which might increase the risk of damage or destruction to the
Building.
3.13.10 The Tenant shall not keep or operate in or on the Premises any
machinery which is unduly noisy or causes vibration or which is likely
to annoy or disturb the owners or occupiers of any Adjoining Property.
3.14 ALIENATION
3.14.1 DEFINITIONS
In this Clause the following definitions apply.
ASSIGNEE means a person to whom the Tenant proposes to assign the whole
of the Premises.
AUTHORISED GUARANTEE AGREEMENT means an authorised guarantee agreement
within the meaning of section 16 of the 1995 Act in such form as the
Landlord requires acting reasonably.
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CIRCUMSTANCES means the circumstances listed in Clause 3.14.4, which
are specified for the purposes of Section 19(1A) of the Landlord and
Tenant Act 1927.
CONDITIONS means the conditions listed in Clause 3.14.5, which are
specified for the purposes of Section 19(1A) of the Landlord and Tenant
Act 1927.
QUALIFYING PERSON means a person who is able to demonstrate to the
satisfaction of the Landlord acting reasonably that it is able to meet
all of the Tenant's commitments pursuant to this Lease (and an Assignee
shall be treated as a Qualifying Person if a Qualifying Person acts as
surety for the Assignee and covenants with the Landlord in the terms
set out in Schedule 7).
SUBTENANT means a person to whom the Tenant proposes to sublet the
whole or a Permitted Part of the Premises.
3.14.2 ALIENATION PROHIBITED
Unless permitted by this Clause the Tenant shall not do any of the
following:
(a) assign or sublet the Premises or agree to do so (unless such
agreement is conditional upon obtaining the Landlord's
Consent);
(b) mortgage or charge the Premises;
(c) hold the Premises expressly or impliedly on trust for another
person;
(d) part with possession or occupation of the Premises;
(e) share possession or occupation of the Premises;
(f) allow anyone other than the Tenant, any lawful subtenant or
their respective officers and employees to occupy the
Premises.
3.14.3 Assignment
(a) The Tenant shall not assign part (as distinct from the whole)
of the Premises.
(b) The Tenant may assign the whole of the Premises with the
Landlord's Consent (which shall not be unreasonably withheld
or delayed and shall be contained in a formal licence).
(c) The Landlord may withhold its consent to an assignment in any
of the Circumstances.
(d) The Landlord may grant its consent to an assignment subject to
any or all of the Conditions.
(e) The Landlord may if it is reasonable to do so:
(i) withhold its consent to an assignment in
circumstances other than the Circumstances; and/or
(ii) impose conditions instead of or as well as the
Conditions.
3.14.4 CIRCUMSTANCES
The Circumstances are:
(a) the Rent or any other money due under this Lease remains
unpaid;
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(b) the proposed assignee is not a Qualifying Person;
(c) there is a material breach of the Tenant's Covenants which has
not been remedied at the date of the Tenant's application;
(d) that in the opinion of the Landlord acting reasonably the
proposed assignment will have a detrimental effect on the
value of the Landlord's interest in the Premises or adversely
affect the Landlord's ability to dispose of such interest.
3.14.5 CONDITIONS
The Conditions are:
(a) that the Assignee has, if required by the Landlord acting
reasonably, procured that two individuals who are acceptable
to the Landlord (acting reasonably) or a company which is a
Qualifying Person have or has covenanted by deed with the
Landlord as surety for the Assignee as set out in Schedule 7;
(b) that the Assignee has, if required by he Landlord acting
reasonably deposited with the Landlord a sum equivalent to six
months' Rent or such higher sum as the Landlord requires
acting reasonably, as security for the Assignee's performance
of the Tenant's Covenants;
(c) that the Tenant has entered into an Authorised Guarantee
Agreement;
(d) that the Surety has entered into an agreement (if such
agreement may be required lawfully) in such terms as the
Landlord requires acting reasonably, guaranteeing the
performance by the Tenant of its obligations under the
Authorised Guarantee Agreement;
(e) that none of the Circumstances applies between the date of the
Tenant's written application for consent to an assignment of
the Premises to the Assignee and the date of the proposed
assignment.
3.14.6 Charging
(a) The Tenant shall not charge a part (as distinct from the
whole) of the Premises.
(b) The Tenant may charge the whole of the Premises to a bank or
another financial institution for a bona fide commercial
purpose, with the Landlord's Consent (which shall not be
unreasonably withheld or delayed and shall be contained in a
formal licence).
3.14.7 Subletting
(a) The Tenant shall not sublet part (as distinct from the whole)
of the Premises.
(b) The Tenant may sublet the whole of the Premises with the
Landlord's Consent (which shall not be unreasonably withheld
or delayed and shall be contained in a formal licence) if:
(i) the Subtenant has covenanted by deed with the
Landlord in such form as the Landlord reasonably
requires that during the term of the sublease the
Subtenant and its successors in title will comply
with the Tenant's Covenants except the covenant to
pay the Rent and the lessee's obligations in the
sublease; and
(ii) (if the Subtenant is a corporate. body and the
Landlord so requires acting reasonably) the Subtenant
has procured a covenant by two individuals who are
acceptable to the Landlord (acting reasonably) or a
company which is a Qualifying Person, by deed with
the Landlord, as surety for the Subtenant as set out
in Schedule 7.
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(c) The Tenant shall not sublet the whole of the Premises except
by way of a sublease which:
(i) is granted without any fine or premium; and
(ii) reserves a yearly rent, payable in advance on the
usual quarter days, at least as high as the best rent
which the Tenant ought reasonably to obtain in the
open market on the grant of such sublease and
provides for the review of the yearly rent at the
same times and on the same basis as in this Lease;
and
(iii) requires the Subtenant to obtain the Landlord's
Consent (which shall not be unreasonably withheld or
delayed) to assignment of the premises comprised in
the sublease and requires the assignee on any such
assignment to enter into direct covenants with the
Landlord to the same effect as those in Clause
3.14.7(b)(i); and
(iv) is in the same form as this Lease (except as to Rent
and any amendments approved by the Landlord, such
approval not to be unreasonably withheld or delayed,
but including provisions enabling the Tenant to
obtain vacant possession on or before the. date of
any determination of this Lease) except that further
subletting shall be prohibited; and
(v) contains an agreement authorised by the court
excluding in relation to the tenancy created by such
sublease the provisions of sections 24-28 of the 194
Act and such Court authorisation has been obtained
and a certified copy produced to and approved by the
Landlord before the sublease is granted.
(d) The Tenant shall:
(i) enforce and shall not waive or vary the provisions of
a sublease (including the dates on which the rent
installments are payable or paid) and in particular
shall not enter into any collateral deed or side
letter varying, or relieving the Subtenant from, any
obligation in the sublease, or reduce, waive,
commute, set-off or otherwise vary, whether directly
or indirectly, the rents reserved by the sublease
(except in accordance with the sublease's rent review
provisions); and
(ii) operate at the relevant times the rent review
provisions contained in every sublease, but shall not
agree a reviewed rent without the Landlord's Consent
(and, if the rent review is determined by a surveyor
pursuant to the review provisions of the sublease, to
procure that the Landlord's representations as to the
rent payable are made to such surveyor); and
(iii) upon the termination of any sublease (however it
occurs) not accept any rent from any subtenant or
permit it to hold over or acknowledge any tenancy but
forthwith take all necessary steps at the Tenant's
expense to secure possession of the sublet premises.
(iv) (if the Tenant exercises its option to determine this
Lease in accordance with Clause 9) forthwith exercise
its option to determine each sublease and obtain
vacant possession of the Premises on or before the
date of determination of this Lease; and
3.14.8 GROUP SHARING
The Tenant may share occupation of the Premises with a company in the
same Group:
(a) for so long as both the Tenant and that company remain members
of the same Group; and
(b) provided that no tenancy is created; and
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(c) provided that within 21 days of such sharing beginning the
Landlord receives Notice of the identity of the company
sharing occupation and the address of its registered office.
3.14.9 DISPOSITIONS
The Tenant shall within 28 days of any assignment, charge or underlease
or of any other devolution of this Lease, or of any interest deriving
from this Lease, give Notice of such devolution to the Landlord's
solicitors, produce for registration the original or a certified copy
of the document effecting or evidencing such devolution (together with
a copy of any Authorised Guarantee Agreement, made pursuant to Clause
3.14.5(c)) and pay such reasonable registration fee as the Landlord's
solicitors may require, being not less than (pound)30 (plus VAT).
3.14.10 DISCLOSING INFORMATION
The Tenant shall:
(a) notify the Landlord of any change of name, address or
registered office of the Tenant or any Surety within three
weeks of the change; and
(b) from time to time on demand give the Landlord full details of
all derivative interests of or in the Premises, including
details of the actual user, rents, rent reviews and service
and maintenance charges payable in respect of them; and
(c) give the Landlord such further information relating to such
derivative interests as the Landlord may require (including
names, addresses and telephone numbers of the keyholders of
the Premises).
3.15 COMPLIANCE WITH ENACTMENTS ETC
3.15.1 ENACTMENTS
(a) The Tenant shall:
(i) observe and comply with all Enactments applicable to
the Premises or their occupation or use; and
(ii) carry out (always complying with the provisions of
Clause 3.8) such works of modification and
improvement to the Premises as are required from time
to time by any Enactment; and
(iii) promptly give Notice to the Landlord of any damage to
or defect in the Premises which might give rise to
any obligation, duty of care or liability on the
Landlord pursuant to the Defective Premises Act 1972
or otherwise.
(b) If the Tenant receives any notice, order or direction, or a
proposal for one, it shall forthwith produce a copy to the
Landlord and if in the Landlord's reasonable opinion such
notice, order or direction is contrary to the interests of the
Landlord the Tenant shall make such objection or
representation against it as the Landlord reasonably requires.
(c) Where any such notice, order or direction requires works to be
carried out, the Tenant shall, so far as the same and any
relevant Enactment permits, also comply with the provisions of
this Lease in relation to such works.
3.15.2 FIRE PRECAUTIONS AND EQUIPMENT
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(a) The Tenant shall comply with the requirements and
recommendations of the fire authority, the insurers of the
Building and the Landlord in relation to fire precautions
affecting the Premises.
(b) The Tenant shall not obstruct the access to or means of
working of any fire fighting and extinguishing appliances or
the means of escape from the Premises or the Building in case
of fire or other emergency and shall not use the fire escape
doors or corridors except in emergency.
(c) If the Premises are occupied by more than one occupier (as a
result of any permitted subletting of part or sharing of the
Premises) the Tenant shall indemnify the Landlord against any
costs expenses fees and disbursements incurred by the Landlord
in relation to any fire precaution works which the Landlord is
required to carry out to the Premises and in relation to the
testing, maintenance and operation of any fire alarm system at
the Premises.
3.15.3 ENVIRONMENTAL LAW
(a) The Tenant shall not cause or permit any Contamination of the
Premises or the Building or any Adjoining Property.
(b) The Tenant shall inform the Landlord as soon as practicable
after the Tenant becomes aware of any breach or material
non-compliance with Environmental Law in relation to the
Premises and/or the Permitted Use.
3.16 PLANNING
3.16.1 The Tenant shall not commit a breach of planning control (as defined in
section 171A(I) of the Town and Country Planning Act 1990) in relation
to the Premises.
3.16.2 The Tenant shall observe and comply with the Planning Enactments in
relation to the Premises.
3.16.3 The Tenant shall make no application under the Planning Enactments in
relation to the Premises or the Building without the Landlord's Consent
and then only in a form previously approved by the Landlord (which
consent and approval shall not be unreasonably withheld or delayed in
relation to the Premises where works permitted by the Landlord under
Clause 3.8 require planning permission).
3.16.4 The Tenant shall promptly supply to the Landlord copies of all notices,
orders and directions and other formal communications under the
Planning Enactments received by the Tenant which relate to the
Premises, and where such communications relate only to the Premises or
to an application made by the Tenant then the Tenant shall at its own
expense take such action to protect the Landlord's interests as the
Landlord may require.
3.16.5 The Tenant shall not implement a planning permission without the
Landlord's Consent (such consent not to be unreasonably withheld or
delayed where planning permission is granted pursuant to an application
approved by the Landlord and where the Landlord's interests are not
likely to be prejudiced by the implementation of such planning
permission).
3.16.6 Where a planning permission imposes conditions the Landlord may before
giving consent to its implementation require the Tenant:
(a) to provide reasonable security for compliance with the
conditions; and
(b) to undertake that if it implements the planning permission it
will carry out before the End of the Term all works which the
planning conditions require.
3.16.7 Where on the Tenant's application a planning permission is refused or
granted subject to conditions and, in the Landlord's opinion (acting
reasonably), the Landlord's, interests are thereby materially
prejudiced and a
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planning appeal is justified, then the Landlord may give Notice to the
Tenant of its desire that a planning appeal be made and, if the Tenant
does not make such an appeal (and give Notice of it to the Landlord)
within two months of such Notice of the Landlord's desire:
(a) the Landlord may make such an appeal (as the Tenant's agent);
and
(b) if the Landlord does so, the Tenant shall give to the Landlord
promptly such assistance for the pursuit of such appeal
(including appointing the Landlord as its agent) as the
Landlord acting reasonably requests.
3.17 YIELDING UP
3.17.1 Immediately prior to the End of the Term the Tenant shall at its own
cost:
(a) remove from the Premises any moulding, sign, writing or
painting of the name or business of the Tenant or the
occupiers of the Premises and all tenant's fixtures, fittings,
furniture, plant, machinery and effects and make good to the
Landlord's satisfaction acting reasonably all damage caused by
such removal; and
(b) ensure that wherever any items removed in accordance with
Clause 3.17.1(a) are connected to or take supplies from any
Utilities, they are disconnected and made safe; and
(c) except to the extent released from this obligation by a Notice
from the Landlord to that effect remove and make good all
alterations or additions made to the Premises during or during
any period of occupation prior to the Term and well and
substantially reinstate the Premises in such manner as the
Landlord may direct and to its satisfaction (acting
reasonably).
3.17.2 At the End of the Term the Tenant shall deliver all keys of the
Premises to the Landlord and yield up the Premises to the Landlord with
vacant possession and in a state of repair and condition and in all
other respects in compliance with the Tenant's Covenants.
3.18 ENCROACHMENTS, EASEMENTS AND THIRD PARTY RIGHTS
3.18.1 The Tenant shall not stop up or obstruct any window or light belonging
to the Premises and shall not permit any new window, light, opening,
doorway, passage, Conduit or other encroachment or easement to be made
or acquired into, on or over the Premises and if any person attempts to
make or acquire any encroachment or easement the Tenant shall on
becoming aware of it give Notice immediately to the Landlord and at the
request of the Landlord but at the cost of the Tenant shall adopt such
means as the Landlord may reasonably require for preventing any such
encroachment or the acquisition of any such easement.
3.18.2 Without prejudice to the provisions of Clause 3.14, the Tenant shall
not grant any right in favour of any third party which may continue
after the End of the Term (including any right in favour of a
communications supplier).
3.19 RELETTING AND SALE NOTICES
The Tenant shall permit the Landlord at all reasonable times to enter
the Premises and affix and retain without interference on suitable
parts of the Premises (but not so as materially to affect the access of
light and air to the Premises) during the last six months of the Term
notices for reletting the Premises and at any time during the Term
notices for selling the Landlord's interest in the Premises or the
Building and shall not remove or obscure such notices and shall permit
all persons with the written authority of the Landlord to view the
Premises at reasonable hours in the daytime on prior appointment.
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3.20 LANDLORD'S COSTS
The Tenant shall pay on demand and indemnify the Landlord against all
proper costs, fees, charges, disbursements and expenses incurred by the
Landlord including, but not limited to, those payable to solicitors,
counsel, architects, surveyors, bailiffs and the Landlord's internal
management fee in relation to or in contemplation of:
(a) the preparation and service of a notice under section 146 of
the Law of Property Act 1925 and any proceedings under
sections 146 or 147 of that Act even if forfeiture is avoided
otherwise than by relief granted by the Court;
(b) the preparation and service of notices and schedules relating
to wants of repair whether served during or after the End of
the Term;
(c) the recovery or attempted recovery of arrears of Rent or other
additional rents, or other sums due from the Tenant or in
remedying any breach of the Tenant's Covenants;
(d) any application for consent or approval made necessary by this
Lease (such costs to include reasonable management fees and
expenses) whether or not consent or approval is granted and
whether or not the application is withdrawn provided the costs
of such application shall be reasonable;
(e) the supervision by the Landlord of any works which the Tenant
is obliged to carry out pursuant to any of the provisions of
this Lease; and
(f) any risk assessment relating to the Premises which the
Landlord must carry out in order to comply with any statutory
or other obligation of the Landlord.
3.21 INDEMNITY
The Tenant shall indemnify and keep the Landlord fully indemnified
against all actions, proceedings, claims, demands, losses, costs,
expenses, damages and liabilities arising directly or indirectly out of
the state of repair or use or condition of the Premises or any breach
of the Tenant's Covenants or any act, default or negligence of the
Tenant or any person deriving title from the Tenant or their respective
Personnel.
3.22 REGULATIONS
The Tenant shall comply with such regulations in connection with the
use and operation of the Premises and/or the Building as are made by
the Landlord in accordance with the principles of good estate
management from time to time and communicated to the Tenant in writing.
3.23 NEW SURETY
If an Insolvency Event occurs in relation to the Surety then the Tenant
shall within 14 days give Notice of that fact to the Landlord, and if
the Landlord so requires the Tenant shall within 30 days of service of
such Notice procure that some other person acceptable to the Landlord
executes and delivers to the Landlord a deed containing a covenant with
the Landlord as a primary obligation in the terms contained in Schedule
7.
3.24 OTHER OBLIGATIONS
The Tenant shall comply with the agreements, covenants, restrictions
and stipulations referred to in the deeds and documents listed in
Schedule 4 so far as they are still subsisting and capable of taking
effect and relate to the Premises and shall indemnify and keep the
Landlord fully indemnified against all actions, claims, demands,
losses, costs, expenses, damages and liabilities relating to them.
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4 LANDLORD'S COVENANTS
The Landlord covenants with the Tenant throughout the Term to comply
with the requirements of this Clause 4.
4.1 QUIET ENJOYMENT
The Landlord shall permit the Tenant peaceably and quietly to hold and
enjoy the Premises without any interruption or disturbance from or by
the Landlord or any person claiming under or in trust for the Landlord.
4.2 SERVICES
The Landlord shall use its reasonable endeavours to carry out the
Services PROVIDED THAT the Landlord will have no liability to the
Tenant:
(a) for any failure to provide Services during any period when the
Tenant is in arrears with payment of Rent, Insurance Rent,
Service Charge or any other moneys due from the Tenant to the
Landlord under the Lease;
(b) for the interruption of a Service for reasons of inspection,
maintenance, repair, cleaning or other works (in which event
the Landlord will restore the Service as soon as reasonably
practicable);
(c) for failure to provide a Service due to damage, breakdown,
inclement weather, shortage of fuel or water, or any other
cause beyond the Landlord's reasonable control (although the
Landlord will then take all reasonable steps to restore such
Service or provide an alternative Service as soon as
reasonably practicable);
(d) for withdrawal of a Service if the Landlord considers, acting
reasonably, it is no longer appropriate;
(e) for temporary closure of the Common Parts (subject to adequate
means of access to the Premises being maintained) if necessary
to prevent their dedication or the accrual of any third party
rights over them or for the purpose of inspection,
maintenance, repair, cleaning or other works to them; or
(f) in respect of any act, omission or negligence of any employee
of the Landlord or other person providing or purporting to
provide any services unless the act, omission or negligence
arises from the direct instructions of the Landlord.
4.3 ENFORCEMENT
At the reasonable request and- at the Tenant's cost (the Tenant
providing such reasonable security for costs as shall reasonably be
required by the Landlord) to take reasonable steps to enforce any
building contract or collateral warranty in respect of the
refurbishment of the Building carried out in the year 2001 of which the
Landlord may from time to time have the benefit.
5 INSURANCE
5.1 LANDLORD TO INSURE
The Landlord and the Tenant covenant with each other throughout the
Term to comply with the requirements of this Clause 5.
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5.1.1 The Landlord shall insure against damage or destruction by the Insured
Risks in a reputable insurance office or with such underwriters and
through such agency as the Landlord may choose from time to time and
(except to the extent that the insurance is invalidated by any act or
default of the Tenant or of any of the Tenant's Personnel) such
insurance covering:
(a) the Building (excluding tenant's fixtures and fittings) for
such sum as the Landlord acting reasonably estimates to be
sufficient to cover the full cost of reinstatement assuming
total loss, including professional fees, the cost of obtaining
all necessary consents, the cost of demolition, site clearance
and shoring up, ancillary costs, all applicable VAT and
appropriate allowance for inflation but the Landlord shall not
be required to include in the full cost of reinstatement any
alteration or addition to the Premises carried out by the
Tenant unless:
(i) the alteration or addition was carried out in
accordance with the provisions of this Lease; and
(ii) following completion of the alteration or addition
the Tenant has given the Landlord Notice of the
necessary increase in the full cost of reinstatement;
and
(b) the loss of the Rent (plus any applicable VAT) which the
Landlord acting reasonably estimates to be payable under this
Lease (taking account of any review of the Rent which may
become due under this Lease) for three years or such longer
period as the Landlord from time to time considers (acting
reasonably) sufficient to complete the reinstatement of the
Building following a total loss; and
(c) third party and public liability at the Building for such sum
as the Landlord considers prudent from time to time.
5.1.2 At the request of the Tenant (but no more than once a year) the
Landlord shall produce to the Tenant reasonable evidence of the terms
of the insurance policy and the fact that the policy is in force.
5.2 SUSPENSION OF RENT
If the Building or any part of it is damaged or destroyed by any of the
Insured Risks so that the Premises are unfit for use and occupation or
inaccessible and the insurance has not been invalidated or payment of
any insurance moneys refused as a result of some act or default of the
Tenant or any of the Tenant's Personnel then:
(a) the Rent or a fair proportion of it according to the nature
and extent of the damage sustained shall be suspended until:
(i) the Premises are fit for use and occupation (and
accessible); or
(ii) the expiry of three years (or such longer period as
the Landlord insures loss of the Rent pursuant to
Clause 5.1.1(b)) from the date of the damage or
destruction (whichever is the earlier); and
(b) any dispute over such suspension of the Rent shall be referred
to a single arbitrator appointed by agreement between the
Landlord and the Tenant or otherwise (on the application of
either Party) by or on behalf of the President for the time
being of the Royal Institution of Chartered Surveyors (or any
successor organisation) in accordance with the Arbitration Act
1996.
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5.3 REINSTATEMENT FOLLOWING DAMAGE OR DESTRUCTION
If the Building or any part of it is damaged or destroyed by any of the
Insured Risks so as to make the Premises unfit for use and occupation
or inaccessible then unless payment of the insurance moneys is refused
because of any act or default of the Tenant or any of the Tenant's
Personnel:
(a) the Landlord shall use its reasonable endeavours to obtain all
consents necessary to enable the Building to be rebuilt and
reinstated but shall not be obliged to appeal against any
refusal to grant them; and
(b) the Landlord, save in any of the circumstances referred to in
Clause 5.4.1 shall apply all insurance money received in
respect of such damage or destruction (other than any in
respect of loss of the Rent or additional rents) in connection
with replacing the Building or the parts, as the case may be,
so damaged or destroyed with such premises as the Landlord
elects to build, and making up any shortfall in such
reinstatement from its own resources and provided such
shortfall does not result from some act or default of the
Tenant or any of the Tenant's Personnel, but so that the
Premises are of a substantially commensurate size and with
amenities no worse than they were prior to the damage or
destruction.
5.4 REINSTATEMENT PREVENTED ETC
5.4.1 The circumstances referred to in Clause 5.3(b) are:
(a) the insurance policy has been invalidated or the payment of
insurance moneys is refused (unless the Tenant reimburses the
Landlord with all such moneys in accordance with Clause
5.5.3);
(b) despite having used its reasonable endeavours to do so, the
Landlord is unable to obtain all necessary consents on terms
acceptable to the Landlord acting reasonably;
(c) the necessary labour and materials cannot be obtained at
reasonable cost;
(d) the destruction or damage occurred during the last three years
of the Term;
(e) the Building has been totally destroyed;
(f) there are, other circumstances beyond the Landlord's
reasonable control which would make it uneconomic or not
feasible to carry out works pursuant to Clause 5.3(b) within a
reasonable time.
5.4.2 If any destruction or damage renders the Premises unfit for occupation
and use or inaccessible and either:
(a) any of the circumstances mentioned in Clause 5.4.1 apply then
the Landlord (only); or
(b) the Premises have not been rendered fit for occupation and use
and accessible before the insurance for loss of the Rent
effected by the Landlord has expired then the Landlord or
(unless the circumstances in clause 5.4.1(a) apply) the Tenant
may in such event upon giving to the Tenant or, as
appropriate, the other Notice, determine this Lease forthwith
(but such determination shall be without prejudice to any
claim by the Landlord in respect of any prior breach of
covenant).
5.4.3 If this Lease is determined pursuant to Clause 5.4.2 then the Landlord
shall be solely entitled to all the insurance moneys.
5.5 TENANT'S INSURANCE OBLIGATIONS
5.5.1 The Tenant shall comply with all the requirements and recommendations
of the insurers in respect of the Building and the Premises.
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5.5.2 The Tenant and the Tenant's Personnel shall not do or omit to do
anything:
(a) that could cause any policy of insurance in respect of the
Premises and/or the Building and/or any Adjoining Property to
become void or voidable (wholly or partly); or
(b) that could cause any additional insurance premium to become
payable; or
(c) that could cause the payment of any insurance moneys to be
refused; or
(d) that could cause any policy of insurance to become subject to
any excess, exclusion or limitation.
5.5.3 Without prejudice to the indemnity given by the Tenant in Clause 3.21
the Tenant shall on demand pay to the Landlord:
(a) all expenses incurred by the Landlord in reinstating` any
policy which the Tenant has caused to be void or voidable; and
(b) any increased insurance premium attributable to the Tenant;
and
(c) an amount equal to all moneys which the Landlord is unable to
recover under any insurance policy because of an act, default
or omission of the Tenant plus Interest and a fair proportion
of all such moneys which are irrecoverable because of
(i) a condition of the policy; or
(ii) the imposition by the insurer or the acceptance by
the Landlord (acting reasonably) of an obligation to
bear part of an insured loss (commonly called an
excess).
5.5.4 The Tenant shall not effect any insurance of the type specified in
Clause 5.1 but if it does so it shall pay to the Landlord all moneys
received as a result of such insurance.
5.5.5 The Tenant shall give Notice to the Landlord forthwith on the happening
of any event or thing which might affect any insurance policy relating
to the Building or the Premises.
6 FORFEITURE
If and whenever during the Term:
(a) any of the rents reserved by this Lease are unpaid 28 days,
after becoming payable (whether or not formally demanded); or
(b) there is a material breach of any of the Tenant's Covenants;
or
(c) there is a breach of any of the covenants by the Surety
contained in this Lease; or
(d) there occurs in relation to the Tenant or the Surety (or where
the Tenant or any Surety comprises two or more persons there
occurs in relation to any of such persons) an Insolvency
Event; or
(e) distress or execution is levied on the Tenant's goods at the
Premises
then the Landlord may at any time thereafter re-enter the Premises or
any part of them in the name of the whole and thereupon the Term shall
absolutely cease arid determine but without prejudice to any rights or
remedies of any Party in respect of any antecedent breach of any of the
obligations contained in this Lease.
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7 SURETY'S COVENANTS
Where there is a Surety named as a party to this Lease the Surety
covenants with the Landlord as a direct and primary obligation in the
terms set out in Schedule 7.
8 MISCELLANEOUS
8.1 NO IMPLIED EASEMENTS
Nothing contained in this Lease shall impliedly confer on or grant to
the Tenant any easement, right or privilege other than those expressly
granted by this Lease.
8.2 EXCLUSION OF WARRANTY AS TO USE
Nothing contained in this Lease or in any consent or approval given by
the Landlord pursuant to the terms of this Lease shall imply or warrant
that the Premises or the Building may be used under the Planning
Enactments for the Permitted Use or for any other purpose authorised by
the Landlord and the Tenant hereby acknowledges that the Landlord has
not given or made at any time any representation or warranty that any
such use is or will be or will remain a lawful use under the Planning
Enactments.
8.3 REPRESENTATIONS
The Tenant acknowledges that this Lease has not been entered into in
reliance wholly or partly on any statement or representation made by or
on behalf of the Landlord except any statements and representations
expressly made in this Lease and any written replies made prior to the
grant of this Lease by the Landlord's solicitors in reply to written
questions or enquiries made by the Tenant's solicitors in relation to
the Premises.
8.4 EXCLUSION OF LANDLORD'S LIABILITY
The Landlord shall not incur any liability:
(a) for any inconvenience or any injury or death of any person or
any damage to property arising through mechanical breakdown,
failure or malfunction of any equipment, plant or machinery
(other than that arising through any failure of the Landlord
to comply with its obligations under and subject to the terms
of this Lease), strikes, labour disputes, shortages, malicious
damage or terrorist activity; or
(b) for any other cause or circumstance beyond the reasonable
control of the Landlord.
8.5 COVENANTS RELATING TO THE BUILDING AND/OR ADJOINING PROPERTY
Nothing contained in or implied by this Lease shall give the Tenant the
benefit of or the right to enforce or to prevent the release or
modification of any covenant, agreement or condition entered into by
any person in respect of any property not comprised in this Lease.
8.6 DISPUTES WITH ADJOINING OCCUPIERS
Any dispute arising between the Tenant and the tenants or occupiers of
any part of any Adjoining Property belonging to the Landlord as to any
easement, quasi-easement, right, privilege or Conduit used in
connection with the Premises or such Adjoining Property shall be
determined by the Landlord and the proper costs which the Landlord so
incurs shall be paid as the Landlord directs acting reasonably.
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8.7 EXCLUSION OF STATUTORY PROVISIONS
Pursuant to an order of the Mayor's and City of London Court made on 1
May 2002 (Case Number RG 203821) under Section 38(4) of the 1954 Act
(as amended by the Law of Property Act 1969) the Landlord and Tenant
agree that the provisions of Sections 24 to 28 of the 1954 Act shall be
excluded in relation to the tenancy created by this Lease.
8.8 VAT
The consideration for any supply made by the Landlord under this Lease
is exclusive of VAT and any applicable VAT shall be paid by the Tenant
in addition to the consideration.
8.9 NOTICES
Section 196 of the Law of Property Act 1925 shall apply to all Notices
served under this Lease but such provisions shall be extended as
follows:
(a) where the expression "Tenant" or "Surety" includes more than
one person service on any one of them shall be deemed to be
service on them all.
(b) any Notice shall be correctly served if it is sent by recorded
delivery post in a stamped addressed envelope, addressed to
the Landlord or to the Tenant or to the Surety as the case may
be, at the last known place of abode or business or registered
office in the United Kingdom or in the case of the Tenant at
the address of the Premises and any Notice sent shall on proof
of post be deemed to have been received.
(c) any demand or Notice sent by mail shall be treated
conclusively as having been made, given or served on the
second Working Day after the day of posting.
8.10 STAMP DUTY
It is certified that there is no agreement for lease to which this
Lease gives effect.
8.11 NEW TENANCY
This Lease creates a "new tenancy" as defined by section 28(1) of the
1995 Act.
8.12 EFFECT OF DOCUMENT
This Lease is intended to be and shall take effect as a deed and shall
be governed by and construed in accordance with the laws of England and
Wales and the Parties irrevocably agree that the courts of England and
Wales shall have exclusive jurisdiction in respect. of any dispute,
suit, action or proceedings which may arise out of or in connection
with this Lease.
8.13 COMMENCEMENT
For the avoidance of doubt the provisions of this document (other than
those contained in this Clause) shall not have any effect until this
document has been dated.
8.14 THIRD PARTIES
The Parties to this Lease do not intend that any term of this Lease
shall be enforceable solely by virtue of the Contracts (Rights of Third
Parties) Act 1999 by any person who is not a Party.
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8.15 REMOVAL OF TENANT'S GOODS
8.15.1 If after the End of the Term any property of the Tenant remains in or
on the Premises and the Tenant fails to remove it within seven days
after the Landlord requests it to do so then the Landlord may as the
Tenant's agent (and the Tenant appoints the Landlord to act in that
capacity) sell such property.
8.15.2 If the Landlord sells any property pursuant to Clause 8.15.1, it shall
hold the sale proceeds (after deducting the costs and expenses of
removal, storage and sale reasonably and properly incurred and any
other debts owed by the Tenant to the Landlord) to the Tenants order,
provided that the Tenant will indemnify the Landlord against any
liability the Landlord incurs to any third party whose property the
Landlord sells in the bona fide mistaken belief (which shall be
presumed unless proved otherwise) that such property belonged to the
Tenant.
8.15.3 If, having made reasonable efforts to do so, the Landlord is unable to
contact the Tenant, then the Landlord may sell property in accordance
with this Clause and retain the sale proceeds absolutely, unless the
Tenant claims them within six months of the End of the Term.
8.16 PERPETUITY PERIOD
The perpetuity period applicable to this Lease is 80 years from the
beginning of the Term and if any Party is granted a future interest by
this Lease that interest will be void for remoteness if it does not
vest within that period.
9 OPTION TO DETERMINE
9.1 If either party wishes to terminate this Lease at the end of the fifth
year of the Term then that party shall serve not less than six (6)
months nor more than twelve (12) months prior Notice on the other party
following expiry of which this Lease shall terminate provided always
that:
(a) the Tenant shall have paid the Rent the Insurance Rent and the
Service Charge in full down to the date of termination; and
(b) the Tenant shall give vacant possession on the date of
termination.
9.2 Termination of this Lease under the provisions of Clause 9.1 and 9.2
shall be without prejudice to the rights of any Party in respect of any
pre-existing breach in the teams of this Lease.
9.3 Where the Tenant under this Lease is also the Tenant of Part Ground
Floor pursuant to a lease dated the 5 day of June, 2002 between the
Landlord (1) and Tenant (2) ("the Part Ground Floor Lease") any Notice
served pursuant to Clause 9.1 of this Lease shall also constitute a
valid Notice by the Landlord under Clause 9.1 of the Part Ground Floor
Lease. The provision of this Clause 9.3 shall only apply for so long as
BAM Entertainment Limited is the Tenant under this Lease and the Part
Ground Floor Lease.
EXECUTED by the Parties as a Deed.
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SCHEDULE 1- THE PREMISES/THE BUILDING
PART 1 - THE PREMISES
All those office premises on the First Floor of the Building shown for the
purpose of identification only edged red on Plan A and including:
(a) the internal surfaces of all walls enclosing the said
premises;
(b) all non loadbearing walls within the said premises;
(c) all ceilings of the said premises up to the level of (but
excluding) the bottom of the joists, beams or slabs above
them;
(d) all floors and floorboards of the said premises down to the
level of (but excluding) the tops of the joists, beams or
slabs below them and all carpets and floor coverings in the
said premises;
(e) the window frames and the glass in all windows of the said
premises;
(f) all internal and external doors and door frames belonging to
the said premises;
(g) all additions alterations and improvements to the said
premises;
(h) all fixtures and fittings from time to time in or on the said
premises except those fixed by the Tenant which are generally
regarded as tenant's or trade fixtures;
(i) all Conduits and Facilities within and exclusively serving the
said premises
but not including any part of the structure or the exterior of the
Building.
PART 2 - THE BUILDING
All that land, together with the building or buildings from time to time on it
or on any part of it, known as 124-130 Southwark Street London SE1, shown for
the purpose of identification only edged blue on Plan B and registered at H.M.
Land Registry under Title Numbers 326644, SGL91499 and 340625.
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SCHEDULE 2 - RIGHTS AND EASEMENTS GRANTED
The following rights and easements are granted to the Tenant for the benefit of
the Premises and the Tenant's Personnel (in common with the Landlord and others
having the right), but any person exercising such rights shall cause as little
damage and disturbance as possible to any Adjoining Property and its owners and
occupiers and shall at its own expense and as quickly as possible make good all
damage caused in the exercise of such rights.
1 The right at all times to use the Common Parts for reasonable purposes
ancillary to the reasonable use and enjoyment of the Premises for the
Permitted Use, subject to compliance with any regulations made from
time to time by the Landlord.
2 In relation to Utilities:
(a) subject always to paragraph 2(b), the free passage and running
of Utilities (subject to temporary interruption for repair,
alteration or replacement) to and from the Premises through
the Conduits which are now or during the Term laid in, on,
under, over or through other parts of the Building, so far as
is necessary for the reasonable use and enjoyment of the
Premises for the Permitted Use;
(b) the Landlord retains the right to change the location and
arrangements for use by the Tenant of any of the Conduits,
provided there remains available for the benefit of the
Premises access to Utilities reasonably commensurate with that
granted at the date of this Lease.
3 The right of support and protection for the benefit of the Premises as
now enjoyed from other parts of the Building.
4 The right to use common toilet accommodation within the Retained Parts
in accordance with reasonable regulations relating thereto from time to
time published by the Landlord.
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SCHEDULE 3 - EXCEPTIONS AND RESERVATIONS
The following rights and easements are excepted and reserved out of the Premises
to the Landlord and any Superior Landlord and the owners and occupiers of the
Adjoining Property and their respective Personnel and all other persons having
similar rights and easements or being similarly authorised:
1 The free and uninterrupted passage and running of Utilities through the
Conduits which are now or in the future in, on, under, over or through
the Premises.
2 The right at all reasonable times, after at least forty-eight hours'
Notice by or on behalf of the Landlord (save in emergency), to enter
(or in an emergency to break and enter) the Premises with materials and
equipment in order to:
(a) view and examine the state and condition of the Premises and
to take schedules or inventories of the Landlord's fixtures;
(b) inspect, cleanse, maintain, repair, connect, remove, lay,
renew, re-lay, replace, alter or execute any works to or in
connection with the Conduits or any other services;
(c) execute repairs, decorations, alterations and any other works
and to make installations to the Premises or to the Adjoining
Property or to do anything which the Landlord may or must do
under this Lease;
(d) exercise any of the rights excepted and reserved by this
Lease;
(e) have access to (for all purposes) all risers, ducts, manholes,
boiler and plant rooms, cable trays, switchgear and meter
cupboards and rooms, under pavement vaults, distribution
boards and common plant and machinery
and for any other purpose connected with the interest of the Landlord
in the Premises or the Building, including valuing or disposing of any
interest of the Landlord, but any person exercising such rights shall
cause as little inconvenience as possible to the Premises and shall
make good without unreasonable delay any damage caused to the Premises.
The right to:
(a) carry out any works of repair, construction, development,
improvement, alteration, cleaning or otherwise to any
Adjoining Property (including to raise the height of any
Adjoining Property or to erect new buildings of any height on
any Adjoining Property);
(b) use in any way the Adjoining Property
and for such purposes to oversail the Premises with cranes and cradles
and to erect scaffolding notwithstanding interference with the access
of light or air to the Premises or temporary interference with any
other right or easement.
4 All rights of light, air, support, protection and shelter and all other
easements and rights which now or in future belong to or are enjoyed by
the Adjoining Property over the Premises.
5 The right in the case of fire and other emergency to pass through the
Premises and to enter the Premises, with or without workmen equipment
and materials, to execute and take all necessary or desirable measures
or precautions.
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SCHEDULE 4 - DEEDS AND DOCUMENTS AFFECTING THE PREMISES
The register entries for title numbers 326644, SGL91499 and 340625.
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SCHEDULE 5 - RENT REVIEW
1 DEFINITIONS
1.1 In this Schedule the following definitions apply.
1.2 Assumptions means each of the following:
(a) that the Premises are ready and fit for immediate occupation
and use for any use permitted by this Lease and that all
Utilities and other facilities necessary for such occupation
and use are connected to and immediately available for use at
the Premises;
(b) that no work has been carried out to the Premises by the
Tenant, any undertenant or their respective predecessors in
title which has diminished the rental value of the Premises;
(c) that if the Premises or the Building or the means of access to
them, or any Utilities or other facilities necessary for their
occupation and use, have been destroyed or damaged (or, in the
case of Utilities or other facilities, suspended), they have
been fully rebuilt and restored;
(d) that all the covenants and conditions contained in this Lease
have been fully complied with (but without prejudice to any
rights of any Party in respect of the same);
(e) that the Permitted Use and the Premises comply with all
Enactments (and any work to comply with Enactments has been
done so as to avoid as far as reasonably practicable any
decrease in usable area in the Premises);
(f) that all licences and consents required for the Permitted Use
(and for the actual use if different) have been obtained and
are effective.
DECISION DATE means the date on which the amount of the Reviewed Rent
is agreed or determined in writing.
DISREGARDED MATTERS means each of the following:
(a) the fact that the Tenant, any undertenant or their
predecessors in title in their respective businesses has been
in occupation of the Premises or any part of them;
(b) any goodwill attached to the Premises by reason of any
business conducted at the Premises;
(c) any increase in rental value of the Premises attributable to
the existence at the Relevant Review Date of any improvement
to the Premises, carried out:
(i) during the Term; and
(ii) by the Tenant, or any subtenant or their respective
predecessors in title; and
(iii) with the Landlord's Consent where required; and
(iv) not pursuant to or in anticipation of an obligation
to the Landlord; and
(v) within 21 years before the Review Date.
HYPOTHETICAL TERM means a term equal to 10 years from the Review Date.
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INDEPENDENT SURVEYOR means an independent chartered surveyor of not
less than ten years' standing who is experienced in the rental
valuation of property similar to the Premises and is acquainted with
the market for such premises in the locality.
INTERIM PERIOD means a period beginning on the Review Date and ending
on the next quarter day after a Decision Date.
OPEN MARKET RENT means the yearly rent which could reasonably be
expected to become payable for the Premises after the expiry of a rent
free or concessionary rent period (or the receipt of a sum by way of
contribution or other inducement in lieu of the same) which might be
negotiated in the open market for fitting out purposes
(a) on a new letting of the Premises as a whole or of the whole
Premises in Permitted Parts if this would produce a higher
aggregate rent in the open market on the Review Date
(b) by a willing landlord to a willing tenant
(c) with vacant possession
(d) without any fine or premium payable by either party for the
grant of it
(e) for the Hypothetical Term and otherwise on the terms and
conditions and subject to the covenants and provisions
contained in this Lease
(i) other than as to the amount of the Rent immediately
before the Review Date;
(ii) but including
(aa) these provisions for the review of rent,
such reviews to be deemed to occur on the
fifth anniversary of the first day of the
Hypothetical Term; and
(bb) the option to determine the term contained
in Clause 9, such option to be deemed to
occur on the fifth anniversary of the first
day of the Hypothetical Term
(f) and making the Assumptions but disregarding any effect on
value attributable to the Disregarded Matters and any decrease
in value attributable to any temporary works, operations or
other activities on any Adjoining Property.
PRESIDENT means the President for the time being of the Royal
Institution of Chartered Surveyors or any successor organisation and
includes any person authorised by the President to make appointments on
his behalf.
RENT RESTRICTIONS means the statutory restrictions for the control of
rent in force on a Review Date or on the date on which any increased
rent is ascertained under this Schedule and which limit in time or
amount an increase in the Rent.
REVIEWED RENT means the higher o(pound)
(a) the Rent payable immediately before the Review Date (or if
payment of the Rent or part of it has been suspended, the Rent
which would otherwise have been payable); and
(b) the Open Market Rent on the Review Date.
2 RENT REVIEW
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From and including each Review Date the Rent shall be the Reviewed
Rent.
3 AGREEMENT OR DETERMINATION OF THE REVIEWED RENT
3.1 The Open Market Rent at any Review Date may be agreed in writing at any
time between the Landlord and the Tenant, but the Landlord and/or the
Tenant (as the case may be) may at any time not earlier than three
months before the Review Date:
(a) either by agreement between them, or
(c) by the Landlord or the Tenant giving Notice to the other
require the Open Market Rent to be determined by the Independent
Surveyor.
3.2 Any such determination by the Independent Surveyor shall be the Open
Market Rent on the Review Date, unless the Open Market Rent has been
agreed in writing by the Landlord and the Tenant at any time prior to
such determination.
4 APPOINTMENT OF INDEPENDENT SURVEYOR
The Independent Surveyor shall be appointed by agreement between the
Landlord and the Tenant or, failing such agreement, nominated by the
President on the written application of either the Landlord or the
Tenant.
5 FUNCTIONS OF THE INDEPENDENT SURVEYOR (ACTING AS EXPERT)
5.1 The Independent Surveyor shall act as expert.
5.2 The Independent Surveyor shall invite the Landlord and the Tenant to
submit to him a valuation accompanied by a statement of reasons with
supporting evidence and to submit such representations and cross
representations in respect of the other Party's valuation, statement of
reasons and supporting evidence as they wish and shall give to each of
them written notice of the amount of the Open Market Rent as determined
by him.
6 COSTS OF REFERENCE TO THE INDEPENDENT SURVEYOR
The costs of any reference to the Independent Surveyor shall be in the
award of the Independent Surveyor and failing such award the costs
shall be payable by the Landlord and the Tenant in equal shares.
7 APPOINTMENT OF NEW INDEPENDENT SURVEYOR
If the independent Surveyor fails to give notice of his determination
within 90 days of his appointment or dies or is unwilling to act or
becomes incapable of acting or for any reason is unable to act, then
either the Landlord or the Tenant may request the President to
discharge the Independent Surveyor and to appoint another surveyor in
his place and this procedure may be repeated as many times as
necessary.
8 INTERIM PAYMENTS PENDING DETERMINATION
If the amount of the Reviewed Rent has not been agreed or determined
before the Review Date then the Tenant shall continue to pay the Rent
at the rate applicable immediately before the Review Date and within 14
days of the Decision Date the Tenant shall pay to the Landlord as
arrears of Rent the amount by which the Reviewed Rent for the Interim
Period exceeds the Rent actually paid during the Interim Period
(apportioned on a daily basis) together with interest at the base
lending rate from time to time of National Westminster Bank PLC (or of
such other bank as the Landlord may designate from time to time by
giving Notice to the Tenant) from the Relevant Review Date to the date
of actual payment (inclusive).
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9 RENT RESTRICTIONS
Whenever Rent Restrictions prevent or prohibit either wholly or
partially either the operation of the above provisions for review of
the Rent or the normal collection and retention by the Landlord of any
increase in the Rent or any installment or part of it,
THEN:
(a) the operation of such provisions for review of the Rent shall
be postponed to take effect on the first date or dates upon
which such operation may occur; and
(b) the collection of any increase or increases in the Rent shall
be postponed to take effect on the first date or dates that
such increase or increases may be collected and/or retained in
whole or in part and on as many occasions as shall be required
to ensure the collection of the whole increase
AND until the Rent Restrictions are relaxed the Rent shall be the
maximum sum from time to time permitted by such Rent Restrictions as
may be applicable.
10 MEMORANDA OF REVIEWED RENT
Within 28 days after the Reviewed Rent has been agreed or determined,
memoranda shall be signed by or on behalf of the Landlord and the
Tenant and annexed to this Lease and the counterpart of it and the
Parties shall bear their own associated costs.
11 TIME NOT OF THE ESSENCE
For the purpose of this Schedule time shall not be of the essence.
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SCHEDULE 6 - SERVICE CHARGE
1 DEFINITIONS
In this Schedule the following definitions apply.
ACCOUNT DATE means 31 December in each year or such other date in each
year as the Landlord may stipulate from time to time.
ACCOUNT PERIOD means the period from but excluding one Account Date up
to and including the next Account Date.
ACCOUNT STATEMENT means a statement certified by the Surveyor (and in
the absence of manifest error to be accepted by the Tenant as
conclusive), showing the Total Charge for the relevant Account Period;
the Due Proportion; the Service Charge; details of all Estimated
Service Charge received in respect of the relevant Account Period; and
any balance of Service Charge due from the Tenant or refund due to the
Tenant.
DUE PROPORTION means a fair proportion as conclusively determined by
the Surveyor which will have regard to the proportion which the floor
area of the Premises during the relevant Account Period bears to the
total floor area of all Lettable Areas at the Building during the
relevant Account Period, provided that if the Landlord reasonably
considers that the Tenant:
(a) is the sole beneficiary of or receives materially more
benefits than the other occupiers of the Building from the
provision of any one of the particular Services; or
(b) is in breach of any of the Tenant's Covenants resulting in the
Landlord incurring additional and/or extra-ordinary Service
Costs
then the Landlord reserves the right to include in the Service Charge
the whole or an appropriate proportion of the cost of providing the
same.
ESTIMATED SERVICE CHARGE means payment on account of the Service
Charge.
FACILITIES means such systems, facilities and Utilities as may from
time to time be provided for the general amenity of the Building,
including, to the extent provided from time to time, security and
surveillance systems; fire alarm and prevention equipment; sprinklers;
heating; ventilation and air conditioning plant; air cooling and air
extraction; lifts; reception facilities; communal nameplates and signs;
car park equipment; public address and other communication facilities.
SERVICES means:
(a) keeping the Retained Parts in good and substantial repair and
condition (including, at the Landlord's discretion,
inspection, testing, maintenance, servicing, refurbishment
and, where beyond economic repair, renewal);
(b) keeping any Facilities in good working order and the Common
Parts adequately cleaned and lit;
(c) decorating and furnishing the Retained Parts and decoration
external parts of window frames within the Building;
(d) operating all Facilities required by an Authority and during
the Permitted Hours such other Facilities as may from time to
time be provided;
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(e) carrying out such works and taking such other action in
respect of the Retained Parts as may be appropriate in order
to comply with the lawful requirements or recommendations of
an insurer or an Authority;
(f) providing refuse disposal (when the same as provided by the
Landlord).
SERVICE CHARGE means the Due Proportion of the Total Charge.
SERVICE COSTS means the aggregate of the following costs and expenses
incurred by the Landlord:
(a) the cost of complying with the Landlord's obligations
contained in Clause 4.2;
(b) all rates, taxes, charges, assessments and outgoings payable
in respect of all or any part of the Retained Parts or in
respect of the Building as a whole (as distinct from any one
or more Lettable Areas);
(c) the cost of electricity, gas, oil or other fuel supplies for
the provision of the Services or otherwise consumed in the
Retained Parts;
(d) the cost of employing or arranging for the employment of staff
to provide the Services, such cost to include all incidental
expenditure such as (without prejudice to the generality of
the foregoing) that relating to insurance, pension and welfare
contributions; the provision of clothing; the provision of
tools and equipment; employer's liability insurance the
provision of accommodation (and where such accommodation is
provided in the Building a notional rent for it being such
figure as the Landlord is from time to time advised by the
Surveyor represents its open market rent);
(e) the cost of providing, maintaining, inspecting and renewing
such equipment materials and supplies as are from time to time
required in order to provide the Services;
(f) the cost of all maintenance and other contracts entered into
in relation to the provision of the Services;
(g) all contributions to roads, pipes, walls, structures or other
things common to or used in common by the Building and any
Adjoining Property;
(h) the cost to the Landlord of complying with or contesting the
requirements or proposals of any Authority insofar as they
relate to the Building (as distinct from any particular
Lettable Area or Areas);
(i) commitment fees, interest and any other cost of borrowing
money where necessary to finance the Service Costs;
(j) the fees of managing agents retained by the Landlord in
relation to the management of the Building, the provision of
the Services and the routine collection of Rent, Service
Charge and Estimated Service Charge due from tenants and
occupiers of the Building (but not the collection of arrears
of the same) (or where any such task is carried out by the
Landlord a reasonable charge for the Landlord in relation
thereto);
(k) the cost of preparing and auditing Service Charge accounts
(whether carried out by the Landlord or by the Landlord's
agents or accountants);
(l) the cost of obtaining such professional advice as may from
time to time be required in relation to the management of the
Building and the provision of Services;
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(m) the cost of pedestrian control, security and the preparation
and enforcement of regulations;
(n) the cost of the insurance of plant and equipment and of the
furnishings and contents of the Retained Parts and such other
insurance relating to the management of the Building as the
Landlord may consider prudent;
(o) the cost of providing and maintaining decorative features
(such as landscaped areas, flowers and seasonal decorations);
(p) the cost of providing such further and improved Facilities as
the Landlord may require for the greater amenity of those
using the Building or the more efficient management of the
Building, or as an Authority may require;
(q) VAT (or other tax) where chargeable on any of the Service
Costs to the extent that it cannot be recovered by the
Landlord;
(r) all other costs, charges, expenses and outgoings properly
incurred in or incidental to the provision of the Services;
and
(s) such provision for anticipated future expenditure in relation
to the Services as may in the Landlord's opinion (acting
reasonably) be appropriate
TOTAL CHARGE means the total of all Service Costs during an Account
Period net of any receipts from insurers, the Tenant or other occupiers
of the Building or third parties (otherwise than by way of a payment
for services) which are properly applicable towards payment of such
Service Costs.
2 THE SERVICE CHARGE
2.2 The Tenant covenants to pay to the Landlord by way of equal instalments
in advance on each quarter day during the Term (the first payment or
proportionate payment to be made on the first day of the Term) an
Estimated Service Charge of such sum as the Landlord may reasonably
demand, having regard to actual and anticipated Service Costs (being
the First Estimated Service Charge during the first Account Period of
the Term).
2.2 As soon as practicable after an Account Date, the Landlord shall submit
to the Tenant an Account Statement for the Account Period ending on
that Account Date and:
(a) if the Account Statement shows that a balance of Service
Charge is due from the Tenant, the Tenant shall pay such
balance to the Landlord within fourteen days of receipt of the
Account Statement;
(b) if the Account Statement shows that a refund is due to the
Tenant, such refund shall during the Term be set off against
future Service Charge Payments and following the determination
of the Term be set off against any other moneys due from the
Tenant to the Landlord and the balance (if any) paid to the
Tenant.
2.3 Where the date of this Lease and/or the End of the Term do not coincide
with the beginning or end respectively of an Account Period, the
Service Charge for the initial and/or final partial Account Periods
shall be that proportion of the Service Charge which relates to the
period from and including [the first day of the Term] or ending on the
End of the `Term as the case may be, apportioned on a daily basis
according to the number of days in the whole of the relevant Account
Period.
2.4 The provisions of this paragraph 2 will survive the End of the Term
(but only in respect of the period up to the End of the Term).
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SCHEDULE 7 - COVENANTS BY THE SURETY
1 INDEMNITY BY SURETY
The Tenant or the Surety shall while the Tenant remains bound by the
Tenant's Covenants comply with the Tenant's Covenants and the Surety
shall indemnify the Landlord against all claims, demands, losses,
damages, liabilities, costs, fees and expenses sustained by the
Landlord by reason of or arising out of any default by the Tenant in
complying with the Tenant's Covenants.
2 SURETY JOINTLY AND SEVERALLY LIABLE WITH TENANT
The Surety shall be jointly and severally liable with the Tenant
(whether before or after any disclaimer by a liquidator or trustee in
bankruptcy or any forfeiture of this Lease) for the fulfillment of all
the obligations of the Tenant under this Lease and agrees that the
Landlord in the enforcement of its rights under this Lease may proceed
against the Surety as if the Surety were named as the Tenant in this
Lease.
3 WAIVER BY SURETY
The Surety waives any right to require the Landlord to proceed against
the Tenant or to pursue any other remedy whatsoever which may be
available to the Landlord before proceeding against the Surety.
4 NO RELEASE OF SURETY
None of the following or any combination of them shall release,
discharge or lessen or affect the liability of the Surety under this
Lease:
(a) any neglect, delay or forbearance of the Landlord in
endeavouring to obtain payment of [the Rent or any additional
rents] or in enforcing compliance with the Tenant's Covenants;
(b) any refusal by the Landlord to accept rent tendered by or on
behalf of the Tenant at a time when the Landlord is entitled
(or would after the service of a notice under section 146 of
the Law of Property Act 1925 be entitled) to re-enter the
Premises;
(c) any extension of time given by the Landlord to the Tenant;
(d) save as provided for in the 1995 Act any variation of the
terms of this Lease (including any reviews of the Rent) or the
transfer of the Landlord's reversion or the assignment of this
Lease;
(e) any surrender by the Tenant of any part of the Premises (in
which event the liability of the Surety shall continue in
respect of the part of the Premises not so surrendered after
making any necessary apportionments);
(f) any other act, omission, matter or thing whereby but for this
provision the Surety would be exonerated wholly or in part
(other than a release under seal given by the Landlord).
5 DISCLAIMER OR FORFEITURE OF LEASE
5.1 If the Tenant (being an individual) becomes bankrupt or (being a
company) enters into liquidation and the trustee in bankruptcy or
liquidator disclaims or surrenders this Lease or this Lease is
forfeited THEN the Surety shall if the Landlord gives Notice to the
Surety within 90 days after such disclaimer or other event accept from
and execute and deliver to the Landlord at the cost of the Surety a
counterpart of a new lease of the Premises:
(a) to take effect from the date of the disclaimer or other event;
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(b) for a term beginning on the date of the disclaimer and equal
in length to the residue of the Term which would have remained
had there been no disclaimer;
(c) reserving by way of initial rent an amount equal to the Rent
payable immediately before the date of the disclaimer or other
event such initial rent to be payable from that date;
(d) imposing on the Surety the same obligations as the Tenant was
subject to immediately before the disclaimer or other event;
and
(e) otherwise containing the same terms and provisions as this
Lease, including the provisions for rent review, except that
the Surety shall not be required to procure that any other
person is made a party to the new lease as surety.
5.2 If the Landlord does not require the Surety to take a new lease, the
Surety shall nevertheless on demand pay to the Landlord a sum equal to
the rents and other sums that would have been payable under this Lease
(and for the avoidance of doubt the provisions of Schedule 5 shall
apply mutatis mutandis) but for the disclaimer or other event, from and
including the date of such disclaimer or other event for the period of
two years or (if sooner) until the date on which a lease or underlease
of the Premises to a third party is completed.
6 SUPPLEMENTAL DOCUMENTS
The Surety shall at the request of the Landlord join in any document
made supplemental or collateral to this Lease.
7 AUTHORISED GUARANTEE AGREEMENT
The Surety shall join in as a party to any Authorised Guarantee
Agreement entered into by the Tenant in order to guarantee that the
Tenant shall duly perform and observe the obligations it undertakes
within such Authorised Guarantee Agreement and shall covenant to
indemnify the. Landlord against all claims, demands, losses, damages,
liabilities, costs, fees and expenses sustained by the Landlord by
reason of or arising out of any default by the Tenant in complying with
such obligations.
8 ADDRESS FOR SERVICE
The Surety shall immediately notify the Landlord in writing of any
change in the Surety's address for service and until such Notice has
been given the Surety's address for service shall be the Surety's
address for service most recently notified in writing to the Landlord.
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THE COMMON SEAL OF )
NAIRN DEVELOPMENTS LIMITED )
was affixed )
in the presence of: )
Director /S/ ILLEGIBLE
Secretary /S/ ILLEGIBLE
EXECUTED as a deed by )
BAM ENTERTAINMENT LIMITED )
acting by its secretary and a director or by)
two directors )
Director /s/ ANTHONY R. WILLIAMS
---------------------------
Director/Secretary /s/ RHYS WILLIAMS
-----------------
SIGNED as a deed on behalf of )
BAM ENTERTAINMENT INC. a company )
incorporated in Delaware by Anthony ) /s/ ANTHONY R. WILLIAMS
Williams being persons who, in accordance ) --------------------------------
with the laws of that territory, are ) Director
acting under the authority of the company )
Authorised Signatories