UK-London-1 Oliver's Yard Lease - Derwent Valley London Ltd. and Penson Financial Services Inc.
THIS LEASE is made on the date specified in the Lease Details between the
Landlord, the Tenant, the Surety and the Head Landlord.
THIS DEED WITNESSES as follows.
1. INTERPRETATION
1.1 In this Lease, except where the context otherwise requires:
"THE BUILDING" means the land and building at 1 Oliver's Yard, London EC2
demised by the Head Lease of which the demised premises form part;
"CONDUITS" means tanks, pipes, sprinklers, wires, cables, drains, meters,
ducts, trunking, sewers, gutters and associated apparatus and other
similar items;
"THE DEMISED PREMISES" means the Premises specified in the Lease Details
as more particularly described in Part 1 of Schedule 1;
"THE ENDING OF THE TERM" means the coming to an end of the term in any way
including expiration, termination, surrender, frustration and forfeiture;
"THE FIRST LEASE" means a Lease of part of the Second Floor of the
Building dated 9th September 2004 and made between the Landlord (1) the
Tenant (2) Penson Financial Services Inc (3) and Derwent Valley Central
Limited (4);
"GROUP COMPANY" means a body corporate which is a member of the same group
of companies as the Tenant within the meaning of Section 42 of the
Landlord and Tenant Act 1954;
"THE HEAD LANDLORD" means the party so described in the Lease Details and
includes the person for the time being entitled to the reversion
immediately expectant on the determination of the term of years created by
the Head Lease or if the Head Lease comes to an end (howsoever caused) the
Landlord;
"THE HEAD LEASE" means a lease dated 27th March, 2001 and made between
Colebrook Estates Limited (1) and Globix Limited and Globix Corporation
(2) whereby the Building was demised to Globix Limited and Globix
Corporation for a term of 30 years commencing on 19th March, 2001 subject
to the payment of the rent thereby reserved and the observance and
performance of the lessee's covenants and conditions therein contained and
under which the Landlord holds the Building at the date of this Lease;
"THE INSURED RISKS" means the risks against which the Head Landlord
covenants to insure pursuant to the Head Lease;
"THE LANDLORD" means the Landlord specified in the Lease Details or such
other person as may for the time being be entitled to the reversion
immediately expectant on the ending of the term;
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"THIS LEASE" means this deed and any instrument made under it or
supplemental to it;
"OPEN MARKET RENTAL VALUE" means the annual rent at which the demised
premises could reasonably be expected to be let as a whole on the open
market at the review date assuming that at that date:
(i) the demised premises are fully carpeted and fit for the immediate
occupation and use of the hypothetical tenant and all services are
available;
(ii) any concession or consideration which might reasonably be given to
the hypothetical tenant on a new letting in the open market for
fitting out has been given and has been exhausted and no reduction
is to be made to take account of it;
(iii) any rent free period which might reasonably be given to the
hypothetical tenant on a new letting in the open market for fitting
out has been given and has expired and no reduction is to be made
to take account of it;
(iv) no work has been carried out to the Building or its services
(unless by the Landlord or the Head Landlord) which has diminished
the rental value of the demised premises;
(v) if the Building or any of its services have been destroyed or
damaged it has been fully restored;
(vi) the demised premises are available to let by a willing landlord to
a willing tenant with vacant possession without a premium but
subject to the provisions of this Lease (other than the amount of
the principal yearly rent but including the provisions for review)
for a term of ten years commencing on the review date; and
(vii) the covenants in this Lease on the part of the tenant have been
fully performed and observed
there being disregarded:
(viii) any goodwill attached to the Building by reason of the carrying on
there of business by the Tenant any lawful undertenant any lawful
occupier or any of their predecessors in title;
(ix) any effect on rent of any improvement carried out to the demised
premises with the consent of the Landlord (where required and
otherwise than in pursuance of an obligation to the Landlord or its
predecessors in title) to the extent only that such improvement or
works were completed either during the Term or during any period of
occupation prior to the commencement of the Term arising out of an
agreement to grant this Lease provided that any works carried out
pursuant to a statute or legal obligation shall not be regarded as
having been carried out in pursuance of an obligation to the
Landlord;
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(x) any effect on rent of the fact that the Tenant any lawful
undertenant any lawful occupier or any of their respective
predecessors in title have been in occupation of the demised
premises or any other part of the Building;
(xi) so far as may be permitted by law all Statutes which would otherwise
restrict or reduce the amount of rent payable;
"PERMITTED USE" means in respect of the second floor, use within Class
B1(a) of the Schedule to the Town and Country Planning (Use Classes) Order
1987 and in respect of the basement, ancillary storage;
"THE PRINCIPAL YEARLY RENT" means the Yearly Rent specified in the Lease
Details or else the principal yearly rent ascertained in accordance with
Schedule 4;
"THE REVIEW DATE" means the Review Date specified in the Lease Details;
"THE SERVICE CHARGE RENT" has the meaning ascribed to it in Schedule 7;
"STATUTE" means:
(i) an Act of Parliament and sub-ordinate legislation; and
(ii) a law, decree or direction of the European Community or other
supranational body having effect as law in the United Kingdom
now or from time to time in force;
"THE SURETY" means the party so described in the Lease Details;
"THE TENANT" means the Tenant specified in the Lease Details and its
successors in title and assigns; and
"THE TERM" means the term of years granted by this Lease.
1.2 In this Lease, unless otherwise specified:
(A) a reference to a clause or a schedule is a reference to a clause of or a
schedule to this Lease;
(B) a reference to a paragraph is a reference to a paragraph of the schedule
in which the reference appears and a reference to a sub-paragraph is to a
sub-paragraph of the paragraph in which the reference appears;
(C) headings to clauses and paragraphs are for convenience only and do not
affect the interpretation of this Lease;
(D) a covenant by the Tenant not to do any act, matter or thing includes a
covenant not to cause or knowingly permit the doing of it;
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(E) a reference to a particular Statute (other than the Town and Country
Planning (Use Classes) Order 1987) shall be construed as a reference to
that Statute as it may have been or may in the future be amended, modified
or re-enacted and to any regulation, statutory instrument, order, byelaw,
direction or other provision that may have been made or may in the future
be made under it;
(F) where a party consists of two or more persons the obligations of such
persons are joint and several;
(G) land shown edged or coloured on the Plans is shown for the purpose of
identification only;
(H) a reference to any right reserved to or exercisable by the Landlord or any
right exercisable by the Tenant in common with the Landlord shall be
construed as including (where appropriate) the exercise of such right:
(i) by the Head Landlord and any mortgagee of the Landlord or the Head
Landlord and all persons authorised by them; and
(ii) in common with all other persons having a like right.
1.3 This Lease incorporates the Lease Details first before written.
2. DEMISE
In consideration of the rents reserved by this Lease and the covenants on
the part of the Tenant and the Surety the Landlord demises with full title
guarantee (but excluding any covenant that the obligations contained in
the Head Lease relating to the state and condition of the demised premises
have been complied with) unto the Tenant all those the demised premises
subject to the matters contained or referred to in the deeds and documents
listed in Schedule 8 and to hold the demised premises unto the Tenant for
the Term specified in the Lease Details together with the easements and
rights specified in Part 2 of Schedule 1 except and reserved to the
Landlord and all persons authorised by the Landlord or otherwise entitled
the easements and rights specified in Part 3 of Schedule 1 yielding and
paying to the Landlord:
(i) the principal yearly rent by equal quarterly payments in advance on
the usual quarter days in every year such payments to be made by
banker's order or otherwise as the Landlord may reasonably require,
the first payment in respect of the period commencing on the Rent
Commencement Date specified in the Lease Details upto the quarter
day next thereafter to be made on such Rent Commencement Date;
(ii) the relevant proportion of the costs and expenses incurred by the
Landlord in connection with its obligations under Schedule 5 such
payment to be made within fourteen days of written demand, the first
payment in respect of the period commencing on the date of this
Lease to be made on the date of this Lease; and
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(iii) the service charge rent at the times set out in Schedule 7, the
first payment in respect of the period commencing on the date of
this Lease upto the quarter day next thereafter to be made on the
date of this Lease.
3. TENANT'S COVENANT
The Tenant covenants with the Landlord in accordance with Schedule 2.
4. LANDLORD'S COVENANTS
The Landlord covenants with the Tenant:-
4.1 that subject to the Tenant paying the rents reserved by this Lease and
observing and performing the covenants on its part the Tenant may
peaceably hold and enjoy the demised premises during the term without any
interruption by the Landlord or any person lawfully claiming under or in
trust for it;
4.2 to pay the rents reserved by the Head Lease and to perform the covenants
and conditions on the part of the lessee contained in the Head Lease (save
insofar as the same are the responsibility of the Tenant under this Lease)
and to indemnify and keep indemnified the Tenant against all actions
claims proceedings costs and demands arising out of any breach of such
covenant;
4.3 at the request of the Tenant to use all reasonable endeavours to enforce
the covenants on the part of the lessor contained in the Head Lease;
4.4 to use reasonable endeavours to obtain any consent required under the Head
Lease where the Tenant makes application for consent under the Lease; and
4.5 to provide the services referred to in parts 2 and 3 of schedule 7 in
accordance with, and save as mentioned in, such schedule.
5. RE-ENTRY
Without prejudice to any other rights or remedies of the Landlord if:
(i) any of the rent reserved by this Lease is in arrears for twenty one
days after it becomes due (whether or not in the case of the
principal yearly rent it has been legally demanded); or
(ii) there is any breach of any of the Tenant's covenants in this Lease;
or
(iii) any of the rents reserved by the First Lease is in arrears for
twenty one days after it becomes due (whether or not in the case of
the principal yearly rent it has been legally demanded), or there is
any breach of the tenant's covenants in the First Lease or any of
the surety's covenants in the First Lease.
(iv) the Tenant:
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(a) proposes or enters into any scheme, compromise, moratorium or
arrangement with any of its creditors; or
(b) has an execution, distress, sequestration or other process
levied on any of its assets which is not discharged within
fourteen days;
(v) the Tenant being a company incorporated in the United Kingdom:
(a) is struck off the register of companies; or
(b) being an unlimited company is registered with limited
liability; or
(c) has an administrator appointed; or
(d) has a petition presented for its winding up or has a winding
up order made against it or it otherwise enters into a
voluntary winding up or a meeting is convened for the purpose
of considering a resolution for its winding up (other than a
voluntary winding up of a solvent company for the purpose of
amalgamation or reconstruction); or
(e) has a receiver or administrative receiver appointed over all
or any of its assets or has an encumbrancer take possession or
exercise any power of sale over all or any of its assets; or
(f) is deemed to be unable to pay its debts within the meaning of
section 123 of the Insolvency Act 1986;
(vi) the Tenant or any such surety being an individual:
(a) has a bankruptcy order made against him; or
(b) is the subject of an order or appointment under section 253,
273 or 286 of the Insolvency Act 1986; or
(c) appears to be unable to pay or to have any reasonable prospect
of being able to pay his debts within the meaning of sections
267 and 268 of the Insolvency Act 1986;
(vii) the Tenant being an overseas company, any circumstances exist or
event occurs with respect to the Tenant or any such surety in any
jurisdiction which has an effect equivalent or similar to any of
those mentioned in this clause
then the Landlord may at any time re-enter the demised premises or any
part in the name of the whole and forfeit this Lease whereupon this Lease
and the term created by it shall come to an end.
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6. PROVISIONS
This Lease incorporates:
(i) the insurance provisions in Schedule 5;
(ii) the further provisions in Schedule 6; and
(iii) the service charge provisions in Schedule 7
and the Landlord and the Tenant covenant with one another to comply with
their respective obligations in such schedules.
7. CERTIFICATE
The parties certify that this Lease is a new tenancy for the purposes of
the Landlord and Tenant (Covenants) Act 1995.
8. AGENT FOR SERVICE
8.1 This clause applies to any writ, summons, order, judgment or other process
issued out of the courts of England and Wales in connection with any
proceeding, suit or action arising out of or in connection with this Lease
to the exclusion of any other provision of this Lease relating to the
service of notices.
8.2 Penson Worldwide, Inc irrevocably agrees that any document to which this
clause applies may be sufficiently and effectively served on it by service
on its agent Penson Financial Services Limited, if no replacement agent
has been appointed and notified to the Landlord pursuant to clause 8.5, or
on the replacement agent if one has been appointed and notified to the
Landlord.
8.3 Any such document served pursuant to this clause shall be marked for the
attention of:
(i) Penson Financial Services Limited at the demised premises or such
other address within England or Wales as may be notified to the
Landlord by Penson Worldwide, Inc;
(ii) such other person as is appointed as agent for service pursuant to
clause 8.5 at the address notified pursuant to clause 8.5.
8.4 Any such document addressed in accordance with clause 8.3 shall be deemed
to have been duly served if:
(i) left at the specified address, when it is left; or
(ii) sent by first class post, three clear days after the date of
posting.
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8.5 If the agent referred to in clause 8.2 (or any replacement agent appointed
pursuant to this sub-clause) at any time ceases for any reason to act as
such, Penson Worldwide, Inc shall appoint a replacement agent to accept
service having an address for service in England or Wales and shall notify
the Landlord of the name and address of the replacement agent; failing
such appointment and notification, the Landlord may by notice to Penson
Worldwide, Inc appoint such a replacement agent to act on Penson
Worldwide, Inc's behalf.
8.6 A copy of any document served on an agent pursuant to this clause shall be
sent by post to Penson Worldwide, Inc at its address for the time being
for the service of notices and other communications under this Lease, but
no failure or delay in so doing shall prejudice the effectiveness of the
service of the document in accordance with the provisions of this clause.
9. JURISDICTION
9.1 The parties irrevocably agree for the exclusive benefit of the Landlord
that the courts of England shall have jurisdiction to settle any disputes
which may arise out of or in connection with this Lease and that
accordingly any proceedings, suit or action in connection with this Lease
may be brought in such courts.
9.2 Without prejudice to clause 9.1, Penson Worldwide, Inc further irrevocably
agrees that any such proceedings, suit or action may be brought in the
courts of California and submits (and agrees to submit) to the
non-exclusive jurisdiction of such courts.
9.3 Nothing contained in this clause shall limit the right of the Landlord to
take such proceedings, suit or action against Penson Worldwide, Inc in any
other court of competent jurisdiction, nor shall the taking of
proceedings, suit or action in one or more jurisdictions preclude the
taking of such proceedings, suit or action in any other jurisdiction,
whether concurrently or not, to the extent permitted by the law of such
other jurisdiction.
9.4 Penson Worldwide, Inc irrevocably waives (and irrevocably agrees not to
raise) any objection which it may have now or hereafter to the laying of
the venue of any such proceedings, suit or action in any such court as is
referred to in clause 9.1 or 9.2 and any claim that any such proceedings,
suit or action have been brought in an inconvenient forum and further
irrevocably agrees that a judgment in any such proceedings, suit or action
brought in any court referred to in this clause shall be conclusive and
binding upon Penson Worldwide, Inc and may be enforced in the courts of
any other jurisdiction.
9.5 This Lease shall be governed by and construed in accordance with English
law.
10. BREAK CLAUSE
10.1 If the Tenant (in this clause 10 meaning Penson Financial Services
Limited) wishes to determine the Lease on 23rd June 2009 and shall give to
the Landlord not less than nine months' prior notice in writing and shall
up to the time of such determination pay the
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rents reserved by this Lease (save for any service charge rent unpaid in
the case of a bona fide dispute between the parties) then upon the expiry
of such notice and the delivery up of vacant possession to the Landlord
this Lease shall immediately cease and determine but without prejudice to
the respective rights of either party in respect of any antecedent claim
or breach of covenant provided that any notice served pursuant to this
clause shall only have effect where it simultaneously serves a notice
terminating the First Lease in accordance with its terms.
10.2 Time is of the essence in relation to this clause 10.
11. EXCLUSION ORDER
11.1 By a statutory declaration made on the day of 2005 in
the form, or substantially in the form, set out in paragraph 8 of schedule
2 to the Regulatory Reform (Business Tenancies) (England and Wales) Order
2003 the Tenant acknowledges that it has been served with a notice in the
form, or substantially in the form, set out in schedule 1 to that Order.
11.2 Having complied with the requirements of section 38A(3) of the Landlord
and Tenant Act 1954 the Landlord and Tenant agree that the provisions of
sections 24 to 28 of that Act are excluded in relation to this Lease.
12. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
The parties to this Lease do not intend that any term of this Lease is to
be enforceable, by virtue of the Contracts (Rights of Third Parties) Act
1999, by any person who is not a party to this Lease.
13. HEAD LANDLORD'S CONSENT
The Head Landlord grants licence for the Landlord to grant this Lease to
the Tenant.
14. SURETY'S COVENANT
The Surety covenants with the Landlord in accordance with Schedule 3.
IN WITNESS whereof the Head Landlord, the Landlord, the Tenant and the Surety
have executed this document as a deed the day and year first before written.
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SCHEDULE 1
PART 1
THE DEMISED PREMISES
All those internal parts of the second floor of the Building shown edged red on
Plan 1 annexed hereto including:-
(i) the entrance doors from the common parts of the Building;
(ii) the doors, frames, equipment and fitments and any glass in the doors of
the demised premises;
(iii) the internal plaster or other surfaces of load bearing walls and columns
within the demised premises and of walls which form boundaries of the
demised premises;
(iv) the whole of all non-bearing walls within the demised premises;
(v) the surfaces of the floor slab and ceiling slab;
(vi) the raised floor and supports and the void between the floor slab and the
raised floor;
(vii) the false ceiling and supports and the void between the ceiling slab and
the false ceiling;
(viii) all conduits, plant and machinery now or after the date of this deed
installed in any part of the Building and exclusively serving the demised
premises;
(ix) all fixtures and fittings from time to time on the demised premises; and
(x) all additions and improvements to the demised premises;
but excluding the structural parts, loadbearing framework, roof, foundations,
external walls and the conduits, plant and machinery within but not exclusively
serving the demised premises.
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PART 2
EASEMENTS AND RIGHTS GRANTED
1. The right of passage and running of water, soil, gas, electricity in and
through the conduits in the Building at the date of this Lease and
presently serving the demised premises and any replacement of such
conduits.
2. The right to pass and repass over and along the entrance hall, landings,
passages and staircases of the Building serving the demised premises and
intended for the common use of the occupiers of the Building.
3. The right to use the lifts, plant and machinery in the Building and any
replacement of such lifts, plant and machinery.
4. The right to use the male and female lavatory accommodation on the same
floor of the Building as the demised premises.
5. The right to have the names of the lawful occupiers of the demised
premises displayed on the notice board provided by the Landlord for the
purpose in the ground floor reception hall of the Building and on or
adjacent to the entrance doors to the demised premises.
6. The right to pass and repass on foot for emergency purposes only over and
along the roadway known as Winters Mews to the rear of the Building.
7. The right (to the extent and is so far as the Landlord is able to grant
the same) to pass and repass either by foot or with vehicles over and
along the roadway adjoining the Building and known as Oliver's Yard.
8. The right to place plant, machinery and telecommunications and other
communications apparatus (including one domestic sized satellite dish, one
aerial and one condenser unit) on the roof of the Building within
designated plant areas subject to compliance with Statute and subject to
the approval of the Landlord as to the nature, size and location of such
plant, machinery and telecommunications and other communication apparatus,
such approval not to be unreasonably withheld or delayed.
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PART 3
EXCEPTIONS AND RIGHTS RESERVED
1. The right to erect or alter or to consent to the erection or alteration of
any building now or from time to time on any adjoining or neighbouring
property notwithstanding that such erection or alteration may diminish the
access of light and air enjoyed by the demised premises and the right to
deal with any such property as it may think fit.
2. The right of passage and running of water, soil, gas, electricity and of
all other services or supplies through such conduits as are now or may
after the date of this Lease be installed in the demised premises and
serving or capable of serving other parts of the Building or adjoining or
neighbouring property or any buildings now or after the date of this deed
erected on such property together with the right to enter upon the demised
premises to inspect, repair or maintain any such conduits.
3. The right to enter upon the demised premises in connection with the
erection, alteration, improvement, repair or maintenance of any such parts
or property or building or any adjoining or neighbouring property and for
such purpose to underpin, shore up and bond and tie into the structure of
the demised premises subject to the persons entering causing as little
disturbance as reasonably practicable and promptly making good any damage
caused.
4. The right to lay or construct new conduits in the demised premises and to
connect into such conduits as are now or may after the date of this Lease
be installed in the demised premises (other than conduits capable of
serving only the demised premises subject to the persons entering causing
as little disturbance as reasonably practicable and promptly making good
any damage caused.).
5. The rights and liberties to enter upon the demised premises in the
circumstances in which in the covenants by the Tenant contained in this
Lease the Tenant covenants to permit such entry.
6. The right temporarily to close any part of the Building other than the
demised premises, but not so as to deny the Tenant access to and use of
the demised premises or (so far as is reasonably practicable) the roof.
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SCHEDULE 2
TENANT'S COVENANTS
2.1 RENT
(A) To pay the rents reserved by this Lease at the times and in the manner
specified without any deduction save as may be required by law.
(B) Not to exercise or seek to exercise any right or claim to withhold rent or
any right or claim to set-off save as may be required by law.
2.2 OUTGOINGS
To pay and discharge all existing and future rates, taxes, duties,
charges, assessments, outgoings and impositions (whether parliamentary,
local or otherwise and whether of a capital, revenue, non-recurring or
wholly novel nature) which are now or may at any time be assessed, charged
or imposed upon the demised premises or on the owner or occupier in
respect of them or anything done on them or pending separate assessment of
the demised premises a fair proportion to be reasonably determined by the
Landlord of any sum payable in respect of the Building but excluding any
taxes or other fiscal impositions relating to or generated by the grant of
this Lease or any dealing with any interest expectant in reversion on the
ending of the term or by reason of the receipt by the Landlord or its
agents of the rents and other sums payable pursuant to this Lease.
2.3 REPAIR
(A) Save in the case of damage by insured risks (except to the extent the
insurance effected by the Landlord is vitiated, avoided or forfeited or
the payment of the policy monies is refused or withheld by reason of the
act or omission of the Tenant or any person deriving title under the
Tenant or their respective servants, agents or licensees):
(i) to keep the demised premises in good and substantial repair and
condition and in whole or in part replace or renew them as
necessary; and
(ii) to repair or (when beyond economic repair) replace with others of
modern and up to date design all lessor's fixtures and fittings
which become obsolete or unusable.
(B) To keep in good and substantial repair all conduits within the demised
premises which are used by the owner or occupier of the demised premises.
2.4 DECORATION
In 2009 or more frequently if necessary and also in the six months
immediately before the ending of the term to paint, clean or otherwise
treat as the case may be all the inside
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structure and other internal parts of the demised premises usually or
requiring to be painted, cleaned or otherwise treated with two coats of
good quality paint or other suitable material of good quality in a proper
and workmanlike manner and generally to redecorate the interior of the
demised premises and afterwards grain, varnish, wash, strip, stop,
distemper, colour, paper or otherwise decorate in the usual manner all
parts usually or requiring to be so dealt with the colour and method of
all such painting and other works of decoration to be approved by the
Landlord.
2.5 YIELDING UP
(A) At the ending of the term:
(i) quietly to yield up the demised premises (except lessee's and trade
fixtures and fittings which shall at the request of the Landlord but
not otherwise be removed prior to the ending of the term) in a
condition consistent with the due performance and observance by the
Tenant of its covenants in this Lease;
(ii) if any alterations or additions have been made to the Building by
the Tenant or any person deriving title under the Tenant to
reinstate the Building (if so required by the Landlord but not
otherwise) to the state and condition it was in prior to the making
of the alterations and additions;
(iii) to remove from the Building every sign, notice or other notification
belonging to the Tenant or any person deriving title under the
Tenant; and
(iv) to make good all damage caused to the Building by the removal of
fittings, furniture and effects
to the reasonable satisfaction of the Landlord.
(B) If the Tenant fails to leave the Building in such condition, to pay to the
Landlord the proper cost remedying such default.
2.6 STATUTES
(A) To comply with all Statutes and the requirements or directions of any
government department, local authority or other competent authority
affecting the demised premises or their use and occupation.
(B) To execute all works and obtain all certificates and licences and provide
and maintain all arrangements which by or under any Statute or any such
requirement or direction are or may be directed or required to be
executed, obtained, provided or maintained upon or in respect of the
demised premises whether by the Landlord or the Tenant.
(C) Not to do or omit to do in the Building anything by reason of which the
Landlord may under any Statute or any such requirement or direction incur
or have imposed upon it or
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become liable to pay any penalty, damages, compensation, costs, levies,
charges or expenses.
(D) Upon receipt to deliver to the Landlord a copy of any communication from a
government department, local authority or other competent authority
affecting the demised premises and at the cost of the Landlord to make or
join in making such objections, representations or appeals against or in
respect of it as the Landlord may reasonably require.
2.7 PLANNING
(A) To obtain from the relevant planning authority on its own behalf and on
behalf of the Landlord all permissions and to serve such notices as may be
required for the carrying out of any development on the demised premises
or the institution or continuance of any use.
(B) Notwithstanding any other approval granted under this Lease, not to make
any application for such permission or to implement such permission once
granted without the consent of the Landlord (such consent not to be
unreasonably withheld or delayed) provided that the Tenant is not
permitted to make any application in relation to a change of use.
(C) Before the ending of the term and unless the Landlord shall otherwise
reasonably direct, to carry out in a good and workmanlike manner with
suitable materials of good quality any works stipulated to be carried out
by a date after the ending of the term as a condition of any planning
permission granted during the term and implemented by the Tenant in whole
or in part.
2.8 ENTRY UPON THE DEMISED PREMISES
(A) To permit the Landlord, the Head Landlord and persons authorised by them
to enter the demised premises at reasonable times after 48 hours prior
written notice (except in an emergency) and where requisite to remain with
or without workmen, materials and equipment:
(i) to alter, maintain or repair any other part of the Building or any
adjoining property;
(ii) in connection with the development of such property;
(iii) in connection with the easements and rights reserved by this Lease;
(iv) to comply with such covenants, conditions and restrictions (if any)
as may affect any reversion on the term;
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16
(v) to inspect the demised premises and any alterations or additions
being carried out;
(vi) to complete an inventory of the lessor's fixtures and fittings;
(vii) to measure or value the demised premises;
(viii) to remedy any breach of the Tenant's covenants in this Lease; and
(ix) in connection with the provision of the services referred to in
Schedule 7
without payment for any nuisance, annoyance, damage or inconvenience
caused to the occupiers of the demised premises but subject to the
Landlord causing as little disturbance as reasonably practicable and
making good to the reasonable satisfaction of the Tenant any damage caused
to the demised premises without delay.
(B) To give notice to the Landlord upon becoming aware of the same of any
destruction or damage to the demised premises and of any defect which
would or might give rise to any obligation on the Landlord's part to do or
refrain from doing any act or thing in order to comply with the duty of
care imposed by the Defective Premises Act 1972.
2.9 BREACHES
(A) To make good all breaches of the Tenant's covenants in this Lease within
two months after the giving of written notice by the Landlord to the
Tenant or sooner if requisite.
(B) If the Tenant continues to default in the performance of any of such
covenants of which notice has been given, to permit the Landlord and all
persons authorised by the Landlord to take steps to remedy the breaches.
2.10 COSTS
To indemnify the Landlord against all properly incurred costs arising from
or in reasonable and direct contemplation of:
(i) the enforcement of the Tenant's covenants in this Lease or of the
obligations of any person who at any time guarantees the obligations
of the Tenant;
(ii) the preparation and service of any notices or proceedings under
sections 146 and 147 of the Law of Property Act 1925 or the
Leasehold Property (Repairs) Act 1938 and the inspection and
supervision of any works required to be done;
(iii) the taking of steps subsequent to any such notice notwithstanding
forfeiture is avoided otherwise than by relief granted by the Court;
(iv) the effecting of any forfeiture not requiring such notice;
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17
(v) the recovery of sums due under this Lease including the levy or
attempted levy of any distress;
(vi) the preparation and service of all notices and schedules (whether
statutory or otherwise) relating to wants of repair to the demised
premises or other breaches of any of the Tenant's covenants in this
Lease and the inspection and supervision of any works required to
be done whether served during the term or after its ending;
(vii) the preparation and service of any notices, applications or
proceedings under the Landlord and Tenant (Covenants) Act 1995 (but
excluding any whereby the Landlord is seeking a release in respect
of its obligations hereunder); and
(viii) any application for a consent, licence or approval whether it is
granted or refused or proffered subject to any qualification or
condition or whether the application is withdrawn or abandoned
unless such refusal qualification or condition is held by a court
of competent jurisdiction to be unlawful whether because it is
unreasonable or otherwise.
2.11 ALTERATIONS
(A) Not without the consent of the Landlord (such consent not to be
unreasonably withheld or delayed) to make any internal non-structural
alterations or additions to the demised premises but so that (except in
the case of the Tenant's initial fitting out works) consent shall not be
required for the removal, modification, alteration or erection of
demountable partitioning of a specification approved by the Landlord if
drawings showing the proposed layout or any revisions to the layout are
deposited with the Landlord prior to work commencing.
(B) Not to make any alterations or additions to the Building or any
installations, conduits, plant or machinery serving it otherwise than in
accordance with sub-paragraph (A).
(C) Not to commence any alterations or additions before all necessary
licences, approvals, permissions and consents from all relevant government
departments, local authorities and other competent authorities and the
insurers have been produced to the Landlord and approved by it such
approval not to be unreasonably withheld or delayed.
(D) To procure in respect of any alterations to the air conditioning systems
that the contractors carrying out alterations or additions and the
architects, engineers or other persons engaged in a consultative capacity
in connection with their design or supervision enter into collateral
assurances with the Landlord acknowledging in terms acceptable to the
Landlord a duty of care to the Landlord in connection with the carrying
out, design or supervision as the case may be.
(E) To carry out all alterations and additions in a good and workmanlike
manner with suitable materials of good quality to the satisfaction of the
Landlord in accordance with
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18
all such licences, approvals, permissions and consents and the plans and
specifications approved by the Landlord without causing any undue
nuisance, damage or inconvenience to the Landlord or the owners or
occupiers of any other part of the Building or any neighbouring property.
(F) To remove on demand all alterations and additions made in contravention of
this paragraph or in respect of which any licence, approval, permission or
consent is withdrawn or lapses and make good all damage caused by such
removal and restore all parts of the demised premises affected to a good
and substantial condition and properly decorated under the supervision and
to the reasonable satisfaction of the Landlord.
2.12 USE
(A) Not to use the demised premises for any dangerous, noxious, noisy,
offensive, illegal or immoral purpose.
(B) Not to use the demised premises for any purpose which causes a nuisance,
damage or inconvenience to the Landlord or the owners or occupiers of any
other part of the Building or any neighbouring property.
(C) Not to hold any auction, public meeting, entertainment or exhibition on
the demised premises.
(D) Not to use the demised premises as a betting shop or a betting office.
(E) Not to use the demised premises for the sale of alcohol for consumption
either on or off the demised premises.
(F) Not to allow any person to sleep in the demised premises nor to use the
demised premises for residential purposes.
(G) Not without the consent of the Landlord to use the demised premises
otherwise than for the Permitted Use specified in the Lease Details.
2.13 SIGNS
Subject to the rights granted in Schedule 1 Part 2 of this Lease, not to
display on the demised premises so as to be visible from outside any sign,
fascia, poster, blind or advertisement other than a sign of a size and a
kind approved by the Landlord (acting reasonably) showing the name and
business of the permitted occupier.
2.14 "FOR SALE" AND "TO LET" SIGNS
To permit all persons authorised by the Landlord or its agents to view the
demised premises at reasonable times in connection with any proposed
disposal or reletting without interruption.
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19
2.15 SECURITY ARRANGEMENTS
Not to leave the demised premises continuously unoccupied for more than
one month without notifying the Landlord and providing security and
caretaking arrangements approved by the Landlord (acting reasonably) and
the insurers.
2.16 OVERLOADING
(A) Not to submit any part of the Building to any excessive load nor to
suspend any excessive weight from the ceilings or structure.
(B) Not to overload or obstruct the conduits serving the Building or to
discharge into any pipes, drains, or sewers any trade effluent or any
harmful matter or substance.
2.17 ENTRANCES AND SERVICE AREAS
Not to load or unload or receive delivery of or dispatch goods otherwise
than in the areas and through the entrances, designated by the Landlord
nor to leave any article or vehicle so that such areas or the entrances,
roadways or means of access to the Building are blocked to trade or other
vehicles or so that access by others is precluded, hindered or
inconvenienced.
2.18 RIGHTS OF LIGHT
(A) Not to darken or obstruct any windows belonging to the Building nor to
accept payment or other consideration for consenting to anyone else doing
so.
(B) To give notice to the Landlord of any third party making or acquiring or
attempting to make or acquire any encroachment or easement against the
Building and at the request of the Landlord to take such steps as the
Landlord may reasonably require to prevent any such encroachment or
easement being acquired.
2.19 ALIENATION
(A) Not to assign or charge any part (as distinct from the whole) of the
demised premises.
(B) Not to assign the whole of the demised premises or underlet, hold upon
trust for another or part with or share possession or occupation of the
whole or any part of the demised premises except as provided in the
following paragraphs.
(C) Not to assign the whole of the demised premises nor to underlet the whole
or any part to a person entitled to claim diplomatic or sovereign
immunity.
(D) Not to part with or share possession or occupation of the whole or any
part of the demised premises otherwise than to companies which are Group
Companies of the Tenant upon terms such that:
<PAGE>
20
(i) no assignment or sub-letting is effected and no right to exclusive
possession is conferred; and
(ii) any rights of occupation or possession come to an end immediately
the relevant company ceases to be a Group Company.
(E) Not to assign the whole of the demised premises without:-
(i) simultaneously assigning the First Lease to the same person; and
(ii) first providing copies of the audited accounts of the intended
assignee (being a body corporate) for the three immediately
preceding accounting periods if available, taking into account the
date of incorportation of the proposed assignee (including the
accounting period last expired), and management accounts of the
intended assignee (being a body corporate) for the immediately
preceding 12 months;
(F) Upon any assignment of the First Lease simultaneously to assign the
demised premises to the person becoming as a result of the first mentioned
disposition the tenant under the First Lease
2.20 ASSIGNMENT
(A) Not to assign the whole of the demised premises without first entering
into an authorised guarantee agreement with the Landlord in accordance
with section 16 of the Landlord and Tenant (Covenants) Act 1995 in such
form as the Landlord may lawfully require:
(i) imposing liability on the Tenant as principal debtor in respect of
the obligations owed by the assignee under the covenants in this
Lease falling to be complied with by the tenant of the demised
premises;
(ii) imposing liability on the Tenant as guarantor in respect of the
assignee's performance of the covenants which is equivalent to that
to which the Tenant would be subject as sole or principal debtor in
respect of the obligations owed by the assignee under the covenants;
(iii) requiring the Tenant, in the event of this Lease being disclaimed,
to enter into a new lease of the demised premises:
(a) whose term expires not later than the Term specified in the
Lease Details; and
(b) whose covenants falling to be complied with by the tenant of
the demised premises are equivalent to those of this Lease;
and
<PAGE>
21
(iv) making provision incidental or supplementary to any provision made
by virtue of (i) to (iii) of this sub-paragraph.
(B) Subject to sub-paragraph (A), not to assign the whole of the demised
premises without the consent of the Landlord (such consent not to be
unreasonably withheld or delayed) provided that for the purposes of
section 19(1A) of the Landlord and Tenant Act 1927 the Landlord may:
(i) withhold its consent in circumstances where the Tenant has been
unable to satisfy the Landlord (acting reasonably) within one month
of the original application for such consent that the intended
assignee is of appropriate financial standing to be able to comply
with the Tenant's covenants contained in this Lease;
(ii) withhold its consent unless prior to the date of the proposed
assignment the Tenant has paid all sums which have fallen due for
payment under this Lease before that date and has remedied any
outstanding breaches of the Tenant's covenants in this Lease
provided that if there shall be a bona fide dispute as to any sum
payable the Tenant shall discharge this condition by depositing such
sum as an escrow account pending resolution of such dispute;
(iii) make it a condition of its consent that the intended assignee enters
into direct covenants with the Landlord to pay the rents reserved by
this Lease and to observe and perform the Tenant's covenants in this
Lease throughout the term; and
(iv) make it a condition of its consent that such surety or sureties as
the Landlord reasonably requires covenant by deed directly with the
Landlord as principal debtors or covenantors in the terms set out in
Schedule 3 by reference to the intended assignee.
2.21 UNDERLETTING
(A) Not to underlet the whole of the demised premises otherwise than by an
instrument in writing approved by the Landlord such approval not to be
unreasonably withheld or delayed on the same terms and conditions as this
Lease so far as applicable to the premises underlet:
(i) containing an absolute prohibition against the underlessee
underletting, charging, parting with possession or sharing the
occupation of the premises underlet or any part of them or assigning
part of them;
(ii) at the rent which can reasonably be obtained without taking a fine
or premium;
(iii) containing provisions for the rent reserved by the underlease to be
reviewed in an upwards direction only with effect from the same
dates as the principal yearly
<PAGE>
22
rent under this Lease is liable to be reviewed and upon the same
principles of ascertainment; and
(iv) containing or having endorsed upon it.
(a) a reference to the notice served on the undertenant in the
form, or substantially in the form, set out in schedule 1 to
the Regulatory Reform (Business Tenancies) (England and Wales)
Order 2003;
(b) a reference to the declaration or statutory declaration made
by the undertenant in the form, or substantially in the form,
set out in paragraph 7 or paragraph 8 as appropriate of
schedule 2 to that Order; and
(c) a valid agreement under section 38(A)(1) of the Landlord and
Tenant Act 1954 excluding sections 24 to 28 of that Act.
(B) Subject to sub-paragraph (A), not to underlet the whole of the demised
premises without the consent of the Landlord (such consent not to be
unreasonably withheld or delayed) provided that for the purposes of
section 19(1A) of the Landlord and Tenant Act 1927 the Landlord may:
(i) withhold its consent in circumstances where the Tenant has been
unable to satisfy the Landlord (acting reasonably) that the intended
underlessee is of appropriate financial standing to be able to
comply with the covenants contained in the Underlease;
(ii) withhold its consent unless prior to the date of the proposed
underletting the Tenant has paid all sums which have fallen due for
payment under this Lease before that date and has remedied any
outstanding breaches of the Tenant's covenants in this Lease
provided that if there shall be a bona fide dispute as to any sum
payable the Tenant shall discharge this condition by depositing such
sum in an escrow account pending resolution of such dispute;
(iii) make it a condition of its consent that the intended underlessee
enters into direct covenants with the Landlord;
(a) to observe and perform the Tenant's covenants in this Lease
(other than as to the payment of rent) insofar as they relate
to the premises to be underlet;
(b) to pay the rents reserved by the proposed underlease and to
observe and perform the underlessee's covenants in such
underlease; and
(c) not to assign the premises to be underlet without the prior
consent of the Landlord under this Lease, such consent not to
be unreasonably withheld or delayed.
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23
(iv) (if it is reasonable to do so) make it a condition of its consent
that such surety or sureties as the Landlord requires covenant by
deed directly with the Landlord as principal debtors or covenantors
in such form as the Landlord requires:
(a) that the underlessee will pay the rent reserved by the
proposed underlease and observe and perform the underlessee's
covenants in the proposed underlease; and
(b) to pay to the Landlord all losses, costs and expenses arising
out of or incidental to any failure by such underlessee to
comply with its obligations to the Landlord from time to time.
(C) To enforce the observance and performance of and not to vary or waive the
covenants on the part of any underlessee or surety and the provisions for
review of rent contained in any underlease.
(D) Not to defer or accelerate the payment of rent under any underlease.
(E) Not to agree any review of rent or the appointment of any expert or
arbitrator under any underlease without the consent of the Landlord under
this Lease such consent not to be unreasonably withheld or delayed.
2.22 REGISTRATION
Within fourteen days after any assignment, underletting, assent, mortgage
or charge or release or vacation of any mortgage or charge or devolution
of or other instrument relating to the demised premises or any estate or
interest in the demised premises however remote or inferior to give notice
to the Landlord and produce to it for its retention a certified copy of
the deed or instrument effecting the transaction.
2.23 INDEMNITY
To indemnify the Landlord against:
(i) any tax or imposition which becomes payable either during the term
or after its ending by reason of any act or default of the Tenant or
any person deriving title under the Tenant or their respective
agents, servants or licensees and which but for such act or default
would not have been payable; and
(ii) all actions, costs, claims, demands and expenses arising as a result
of any breach of the Tenant's covenants in this Lease or by reason
of any act or default of the Tenant or any person deriving title
under the Tenant or their respective agents, servants or licensees.
<PAGE>
24
2.24 PRODUCTION OF INFORMATION
To produce within 14 days of written demand such evidence as the Landlord
may reasonably require to satisfy itself that the Tenant's covenants in
this Lease have been complied with and particulars of all derivative or
occupational rights existing in respect of the demised premises however
remote or inferior.
2.25 INTEREST
To pay to the Landlord if so required and without prejudice to the
Landlord's other remedies (as well after as before any judgment) interest
at the rate of four per centum per annum above the base rate of HSBC Bank
Plc from time to time on any sum becoming due under this Lease (whether or
not formally demanded) and not paid within fourteen days of its becoming
due from the date it becomes due until the date of payment and on any sum
due under this Lease but not accepted by the Landlord from the date of its
becoming due until the date of acceptance (where acceptance of rent would
prejudice any right of the Landlord).
2.26 VALUE ADDED TAX
To pay an amount equal to all value added tax or other tax of a similar
nature payable in respect of any sum payable under this Lease so that any
such sum is deemed to be tax exclusive provided that the Landlord shall
provide to the Tenant a valid VAT invoice in respect of any such sums as
soon as reasonably practicable following receipt thereof.
2.27 MATTERS AFFECTING THE REVERSION
Not to cause the Landlord to be in breach of the Head Lease or any
covenants, conditions and restrictions (if any) to which any reversion
immediately or mediately expectant on the term may be subject.
2.28 REGULATIONS
To observe and perform and cause all persons deriving title under it and
their respective servants, agents and licensees to observe and perform any
reasonable rules and regulations made by the Landlord from time to time
for the orderly and safe use of the Building and its facilities.
2.29 SURETY
If in respect of any surety who at any time hereafter shall have
guaranteed the obligations of the Tenant in this Lease any of the events
specified in Clause 5 (iii) (iv) (v) or (vi) above shall occur or if such
surety shall cease to exist then provided that such surety's obligations
to the Landlord remain extant the Tenant for the time being shall give
written notice to the Landlord within seven working days of any such event
and, if so
<PAGE>
25
required in writing by the Landlord and at the expense of the Tenant,
shall within two months after notification of the Landlord's
requirements:-
(A) procure some other person, reasonably acceptable to the Landlord, to
covenant by deed directly with the Landlord in the manner provided
for at paragraph 2.20(B)(iv) above, or
(B) provide such other security for the performance of the tenant's
obligations in this Lease as is reasonably acceptable to the
Landlord.
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26
SCHEDULE 3
SURETY'S COVENANTS
3.1 PAYMENT
The Surety in consideration of the demise contained in this Lease having
been made at its request covenants with the Landlord that:
(i) the Tenant will throughout the term as well after as before any
disclaimer of this Lease pay the rents reserved by this Lease as
from time to time reviewed and will observe and perform the Tenant's
covenants in this Lease;
(ii) in case of default or delay on the part of the Tenant the Surety
will by way of primary obligation and not merely as a guarantor or
as collateral to the Tenant's obligation pay to the Landlord any
proper sum which ought to be paid and make good any breaches of the
Tenant's covenants in this Lease including all losses, damages,
costs and expenses arising or incurred by the Landlord; and
(iii) the Surety will indemnify the Landlord against all proper costs
arising from or in contemplation of the enforcement of the Surety's
covenants in this Lease.
3.2 NEW LEASE
(A) The Surety further covenants with the Landlord that if any event or
default occurs rendering this Lease liable to forfeiture or disclaimer
(and the Landlord forfeits it or it is disclaimed) the Surety or such of
the persons for the time being comprising the Surety as the Landlord may
choose shall upon being required so to do by the Landlord by written
notice given at any time within 3 months of such forfeiture or disclaimer
take up a new lease of the demised premises and deliver a duly executed
counterpart to the Landlord upon the same terms as this Lease save that:
(i) the term will commence on the date of such notice and expire on the
date the Term specified in the Lease Details is due to expire or
would have expired but for its having already ended;
(ii) so far as there are outstanding breaches of the Tenant's covenants
in this Lease, the Landlord may require without prejudice to its
other remedies that such lease contains a covenant that they will be
remedied promptly at the cost of the Surety to the satisfaction of
the Landlord.
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27
(B) The Surety will:
(i) join in any consent, approval or licence required by any other
person interested in the demised premises in connection with the
grant of the lease; and
(ii) on completion of such lease indemnify the Landlord against its
proper costs in connection with the obtaining of any such consent,
approval or licence and the grant of the lease.
3.3 RANKING OF CLAIMS
(A) The Surety will only be entitled to enforce its rights in respect of any
sums it pays or liabilities it incurs under the Surety's covenants in this
Lease or in any new lease it is required to take up under this schedule
after the Surety's obligations under all such covenants have been
observed, performed and discharged in full and the Surety shall not:
(i) seek to recover from the Tenant or any third party whether directly
or by way of set-off, lien, counter-claim or otherwise or accept any
money or other property or security or exercise any rights in
respect of any sum which may be or become due to the Surety on
account of failure by the Tenant to observe, perform or discharge
the Tenant's covenants in this Lease;
(ii) claim, prove for or accept any payment in any composition by or
winding up or liquidation of the Tenant or any third party in
competition with the Landlord for any amount owing to the Surety on
any account; and
(iii) exercise any right or remedy in respect of any amount paid by the
Surety under the Surety's covenants in this Lease.
(B) The Surety warrants to the Landlord that it has not taken and will not
take any security from the Tenant or any third party in connection with
the Surety's covenants in this Lease or in any new lease it is required to
take up under this schedule and any such security so taken shall be held
in trust for the Landlord as security for the respective liabilities of
the Surety and the Tenant.
3.4 SOLE OR PRINCIPAL DEBTOR
Without prejudice to the rights of the Landlord against the Tenant as
principal the Surety as a separate and independent stipulation agrees that
any liability mentioned in this schedule which may not be recoverable on
the footing of a guarantee whether by reason of any legal limitation,
disability or incapacity on or of the Tenant or any other fact or
circumstance and whether known to the Landlord or not will nevertheless be
recoverable from the Surety as though it had been incurred by the Surety
and the Surety was the
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28
sole or principal debtor in respect of it and will be paid by the Surety
on demand together with interest (as well after as before any judgment) at
the rate of four per centum per annum above the base rate of HSBC Bank Plc
from time to time from the date of demand until payment.
3.5 IMMEDIATE RECOURSE
The provisions of this schedule are in addition to and not in substitution
for any other rights which the Landlord may have and may be enforced
against the Surety whether or not recourse has been had to any such rights
and whether or not any steps or proceedings have been taken against the
Tenant.
3.6 OBLIGATIONS TO SUBSIST
The rights of the Landlord and the obligations of the Surety will continue
to subsist notwithstanding:
(i) the neglect or forbearance of the Landlord in endeavouring to
obtain payment of the rents reserved by this Lease or
enforcing the observance and performance of the Tenant's
covenants in this Lease whether from or by the Tenant, the
Surety or any other person;
(ii) any time which may be given by the Landlord for the payment of
the rents reserved by this Lease or the observance and
performance of the Tenant's covenants in this Lease whether
from or by the Tenant, the Surety or any other person;
(iii) the demand or acceptance of sums at a time when the Landlord
has notice of a breach of the Tenant's covenants in this
Lease;
(iv) the refusal by the Landlord to accept rent tendered by or on
behalf of the Tenant, the Surety or any other person;
(v) the grant of any licence, consent or approval by the Landlord;
(vi) any variation of this Lease agreed between the Landlord and
the Tenant for the time being;
(vii) the disposition of the Landlord's reversion or any part of it
or any disposition of the demised premises by the Tenant;
(viii) the release of any one or more persons for the time being
constituting the Tenant or the Surety; or
(ix) any other act omission, matter or thing by which (but for this
provision) the Tenant or the Surety would be exonerated either
wholly or in part from its
<PAGE>
29
obligations to the Landlord other than a release under seal
given by the Landlord.
3.7 SUPPLEMENTAL
If so required by the Landlord the Surety will join in any instrument made
under or supplemental to this deed for the purpose of acknowledging it is
bound by it and that the obligations in this schedule extend to it.
3.8 STATUTORY AVOIDANCE
No assurance, security or payment which may be avoided under any Statute
nor any release, settlement or discharge of the Surety which may have been
given or made on the faith of any such assurance, security or payment
shall prejudice or affect the right of the Landlord to recover from the
Surety to the full extent of this schedule as if such release, settlement
or discharge had not occurred.
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30
SCHEDULE 4
RENT REVIEW
4.1 RENT REVIEW
With effect from the review date, the principal yearly rent payable by the
Tenant shall be which ever is the greater of:
(i) the principal yearly rent payable immediately before the review
date; and
(ii) the open market rental value at the review date.
4.2 REFERRAL OF DISPUTES
The Landlord and the Tenant shall endeavour to agree the open market
rental value as at the review date but if it has not been agreed by the
day three months before the review date the question may be referred by
the Landlord or the Tenant to the determination of a referee acting as an
arbitrator pursuant to the Arbitration Act 1996.
4.3 REFEREE
(A) The referee (who is to have substantial recent experience of the valuation
and letting of property such as the demised premises and in their
vicinity) may be agreed on by the Landlord and the Tenant or if not agreed
on by them within two weeks from the nomination in writing of a referee by
one party to the other is to be appointed on the application of either
party by the President for the time being of the Royal Institution of
Chartered Surveyors.
(B) If the referee relinquishes his appointment or dies or if it becomes
apparent that he will be unable or unwilling to complete his duties the
Landlord and the Tenant may agree upon or either of them may apply to the
President for a substitute in his place which procedure may be repeated as
many times as necessary.
(C) If the President is unable or unwilling to make an appointment at the time
of application the appointment may be made by the Vice-President or next
senior officer of the Institution then able and willing to make it or if
no such officer is available by such officer of such professional body as
the Landlord reasonably designates.
(D) The referee shall give reasons for his award and may provide for the
manner in which the costs of the determination are to be borne and for the
payment of costs by one party to the other.
(E) If either the Landlord or the Tenant fails to pay the fees and expenses of
the referee payable by it within seven days of demand the other party may
pay them and the amount so paid shall be repaid by the party chargeable on
demand.
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31
4.4 INTERIM PERIOD
(A) In respect of the period beginning with the review date and ending on the
day preceding such one of the quarter days as immediately follows the date
on which the increased rent is ascertained the principal yearly rent will
continue to be paid at the yearly rate payable immediately before the
review date.
(B) At the expiration of the period, the Tenant shall pay to the Landlord a
sum equal to the aggregate of:
(i) the amount (if any) by which the increased rent for the period
exceeds the rent paid for the period; and
(ii) interest at the rate of the base rate of HSBC Bank Plc on the
difference between the increased rent for the period and the rent
paid for the period calculated from the relevant review date until
the actual payment of such difference (as well after as before any
judgment).
4.5 RENT REVIEW MEMORANDUM
For information and record purposes only, once the increased rent (if any)
has from time to time been ascertained the Landlord and the Tenant shall
execute a memorandum in duplicate specifying such rent which shall be
prepared by the Landlord's solicitors and attached to the original and
counterpart of this Lease.
4.6 RESTRICTIONS ON PAYMENT
If the Landlord is restricted, prevented or constrained by any limitation
(which expression in this paragraph includes any Statute, public policy or
imposition by any means whatsoever (whether legally binding or not) of
control over rents) from obtaining, demanding or accepting from the Tenant
or the Tenant is similarly restricted, prevented or constrained from
paying to the Landlord the full rent for the time being reserved by this
Lease the Tenant shall pay rent at the highest level from time to time
recoverable and the monies passing under this Lease by way of rent are to
be increased by such amounts and at such times as may be permitted until
such full rent passes and the Landlord will not be prevented from
requiring a revision of rent in accordance with this Lease on the ground
that the revised rent or any previous revised rent will not or has not yet
become payable in full.
4.7 RESTRICTIONS ON REVIEW
If the Landlord is similarly restricted, prevented or constrained from
requiring a revision of the principal yearly rent in accordance with this
schedule then the Landlord may after each modification, removal or
relaxation on giving notice to the Tenant introduce an intermediate review
date and the principal yearly rent payable by the Tenant with effect
<PAGE>
32
from the intermediate review date to the next succeeding review date will
be whichever is the greater of:
(i) the principal yearly rent payable immediately before the
intermediate review date; and
(ii) the open market rental value at the intermediate review date
to the intent that this schedule shall apply (mutatis mutandis) as though
the intermediate review date were a Review Date specified in the Lease
Details.
4.8 TIME NOT OF THE ESSENCE
Time is not of the essence for the purpose of this schedule.
<PAGE>
33
SCHEDULE 5
INSURANCE PROVISIONS
5.1 INSURANCE PARTICULARS
(A) The Landlord covenants with the Tenant to supply to the Tenant annually
and on the occasion of any material change a summary of the insurance
effected under the Head Lease sufficient to enable the Tenant to know the
extent of the cover provided and the sums insured and any exclusions,
excesses, conditions or limitations.
(B) The Landlord shall not be obliged to insure any fixtures or fittings which
may be installed by the Tenant (whether landlord's or tenant's fixtures
and fittings).
5.2 TENANT'S OBLIGATIONS
The Tenant covenants with the Landlord:
(i) not knowingly to do or bring or keep in the Building anything which
might increase the risk of damage by any of the insured risks;
(ii) not knowingly to do anything to cause the insurance effected on the
Building to become void or voidable or the premium to be increased;
(iii) to comply with the requirements or reasonable recommendations of the
insurers of the Building and the local fire officer;
(iv) if the demised premises or any other part of the Building is damaged
or destroyed by any risk insured against by the Head Landlord and
the policy of insurance in respect of it is vitiated, avoided or
forfeited or the payment of the policy monies or any part of them is
refused or withheld by reason of the act or default of the Tenant or
any person deriving title under the Tenant or their respective
agents, servants or licensees then and in every such case to pay to
the Landlord on the date when the policy monies would otherwise have
been paid an amount equal to the sum so refused or withheld;
(v) not knowingly to insure the demised premises against any risks which
are from time to time insured against by the Head Landlord and to
hold any monies received from any policy effected in breach of this
paragraph upon trust for the Landlord; and
5.3 CESSER OF RENT
(A) If the whole or any part of the Building is damaged by any of the insured
risks so as to render the demised premises unfit for occupation and use
and the insurance effected by the Head Landlord is not vitiated, avoided
or forfeited or the payment of the insurance
<PAGE>
34
proceeds or of any part of them refused or withheld by reason of any act
or default of the Tenant or any person deriving title under the Tenant or
their respective agents, servants or licensees then the rents hereby
reserved or a fair proportion of them according to the nature and extent
of the damage sustained will be suspended until the demised premises are
again fit for occupation and use.
(B) Any dispute arising under sub-paragraph (A) is to be determined by a
single arbitrator in accordance with Arbitration Act 1996.
5.4 TERMINATION
If the Head Landlord is unable or unwilling to rebuild or reinstate the
demised premises after loss or damage by an insured risk and within
thirty-six months of the happening of the loss or damage so notifies the
Tenant in writing the Head Landlord's obligation in that respect and this
Lease will determine and the Head Landlord will be entitled to retain the
whole of the insurance moneys without prejudice to any further right or
remedy of any party hereto.
5.5 INSURANCE RENT
The Landlord covenants to pay the insurance rent reserved by clause 2 (iv)
of the Head Lease.
<PAGE>
35
SCHEDULE 6
FURTHER PROVISIONS
6.1 LICENCES TO BE OBTAINED
(A) Any licence, consent or approval required from the Landlord under this
Lease is to be obtained before the act or event to which it applies is
carried out or done and is effective only when given in writing.
(B) Whether or not it says so expressly any such licence, consent or approval
is conditional on the Tenant obtaining all requisite licences, consents,
permissions or approvals from the relevant government department, local
authority or other competent authorities and from the insurers and any
other person interested in the demised premises.
6.2 NO IMPLIED WARRANTY
Nothing contained or implied in this Lease or in any such licence, consent
or approval is to be taken to be a covenant, warranty or representation by
the Landlord or its agents that the demised premises can be or are fit to
be used for the Permitted Use or any other purpose or that any alteration
or addition or change of use which the Tenant may intend to carry out will
not require the approval of the relevant government department, local
authority or other competent authority or the insurers or any other person
interested in the demised premises.
6.3 UNWANTED PROPERTY
If after the ending of the term any property remains on the demised
premises the Landlord may either in so far as the same is annexed to the
demised premises treat it as having reverted to the Landlord or as the
agent of the Tenant (and the Landlord is appointed by the Tenant to act in
that behalf) remove, store, and sell such property and then hold the
proceeds of sale after deducting the costs and expenses of removal,
storage and sale incurred by it to the order of the Tenant provided that
the Tenant shall indemnify the Landlord against liability incurred by it
to any third party whose property is dealt with by the Landlord.
6.4 NO IMPLIED EASEMENTS
This Lease does not confer upon or include by implication or otherwise in
favour of the Tenant any right, privilege, estate or interest not
expressly set out in, through, over or upon any other part of the Building
or any land or premises adjoining or near to the Building or the air space
over it.
<PAGE>
36
6.5 COSTS
Costs payable to the Landlord or against which the Landlord is entitled to
be indemnified include but are not limited to all solicitors', surveyors',
architects' and other fees, disbursements and irrecoverable value added
tax and other expenditure incurred by the Landlord on its own account or
by the insurers or any other person interested in the demised premises.
6.6 ADJOINING PROPERTY
Nothing contained or implied in this Lease imposes or is to be deemed to
impose any restriction on the use of any other part of the Building or any
adjoining or neighbouring property or give the Tenant the benefit of or
the right to enforce or to have enforced or to prevent the release or
modification of any covenant, agreement or condition or to prevent or
restrict its development.
6.7 INTEREST RATES
If it ceases to be practicable to determine interest rates by reference to
the base rate of HSBC Bank Plc the Landlord may specify a reasonable
alternative.
6.8 COMPENSATION
The Tenant will not be or become entitled to any compensation under
section 37 or 59 of the Landlord and Tenant Act 1954 unless the conditions
set out in section 38(2) of that Act are satisfied in relation to the
tenant claiming compensation.
6.9 NOTICES
Any notice, request, demand or other instrument under this Lease shall be
in writing and may be served either in accordance with section 23 of the
Landlord and Tenant Act 1927 or, in the case of service on a person who is
for the time being the Tenant or any surety for the Tenant by sending it
by first class letter post addressed to that person at the demised
premises.
6.10 POWER TO DEAL WITH NEIGHBOURING LAND
Notwithstanding anything contained in this Lease other than in Part 1 of
Schedule 1 the Head Landlord and the Landlord and all persons authorised
by either of them shall have power without obtaining any consent from or
making any compensation to the Tenant to deal as it or they may think fit
with the adjoining property or any of the lands buildings or parts of
buildings and hereditaments adjacent adjoining or near to the demised
premises or any part thereof and to erect or suffer to be erected thereon
or on any part thereof any buildings whatsoever and to make any
alterations or additions and carry out any demolition or rebuilding
whatsoever which it or they may think fit or desire to do to such land or
buildings of any part or parts thereof and without prejudice to the
generality of the
<PAGE>
37
foregoing whether such buildings alterations or additions shall or shall not
affect or diminish the light or air which may now or at any time during the term
be enjoyed by the Tenant or the tenants or occupiers of the demised premises.
<PAGE>
38
SCHEDULE 7
SERVICE CHARGE PROVISIONS
PART 1
7.1 INTERPRETATION
(A) In this schedule, except where the context otherwise requires:
"THE DUE PROPORTION" means the property attributed share of the total
costs attributable to the demised premises by the Landlord acting
reasonably;
"SERVICE CHARGE PERIOD" means the period of twelve months ending on and
including 31st December in each year or such other period as the Landlord
may reasonably determine from time to time;
"THE SERVICE CHARGE RENT" means the due proportion for the service charge
period concerned as appearing from the summary submitted in accordance
with this schedule; and
"THE TOTAL COSTS" means the aggregate of the costs and expenses properly
incurred by the Landlord in:
(i) complying with its obligations under the Head Lease (other than as
to the payment of the principal yearly rent thereunder);
(ii) meeting the proper cost of valuations of the Building for insurance
purposes (no more frequently than once a year);
(iii) meeting the excess on the policy of insurance in respect of the
Building in case of damage by an insured risk;
(iv) providing the services specified in Parts 2 and 3 of this schedule;
(v) engaging managing agents for the Building;
(vi) engaging independent accountants to audit the total costs and to
provide other accounting services in connection with the calculation
and collection of the service charge;
(vii) in the event the Head Lease comes to an end (howsoever caused),
performing the like obligations as those of the Head Landlord under
Schedule 6 ("Insurance Provisions") thereof subject to the like
terms and conditions; and
<PAGE>
39
(viii) providing and supplying such other services or facilities, making
such other payments or carrying out such other repairs and works
(including the provision or replacement of plant and machinery) as
in the reasonable opinion of the Landlord may be necessary or
expedient to maintain the Building to a high standard and may be
for the benefit of the Tenant or occupiers of the Building
and defraying incidental and associated costs, charges and overheads.
(B) In calculating the due proportion the Landlord may (acting reasonably)
apply the same or different percentages to constituent elements of the
total costs.
7.2 PAYMENT OF THE SERVICE CHARGE RENT
(A) The Tenant shall pay to the Landlord the service charge rent for each
service charge period beginning or ending during the term.
(B) The Tenant shall make payments on account of the service charge rent in
advance on the usual quarter days in each year of such amounts as the
Landlord may reasonably require.
(C) After the Landlord has submitted the summary of the total costs for a
service charge period in accordance with this schedule, if the aggregate
of the on account payments made by the Tenant differs from the service
charge rent for the service charge period concerned then any shortfall
shall be paid to the Landlord within fourteen days of written demand and
any over-payment shall either be allowed to the Tenant against the next on
account payment due under this schedule or, after the ending of the term
and subject to the settlement of any outstanding sums due to the Landlord
under this Lease, returned to the Tenant.
(D) If so required, the Tenant will within 21 days of written demand
re-imburse to the Landlord the due proportion of any heavy or unusual
expenditure forming part of the total costs.
(E) Save as specifically provided in this paragraph, the Tenant will not be
entitled to the repayment of any amounts paid by it or by any other tenant
or occupier of the Building by way of or on account of the service charge
rent whether such amounts have been applied to a sinking fund or a reserve
fund.
(F) For the purpose of any apportionment in respect of a period shorter than a
service charge period, the service charge rent for the service charge
period concerned will be deemed to accrue on a daily basis.
(G) Notwithstanding the ending of the term, this paragraph will continue to
apply in respect of the then current and any earlier service charge
periods.
<PAGE>
40
7.3 SUMMARY OF THE TOTAL COSTS
(A) As soon as practicable after the end of each service charge period, the
Landlord shall submit to the Tenant a summary of the total costs for such
period audited by an independent accountant.
(B) At any time within two months from the date such summary is submitted, the
Tenant may after reasonable prior notice have access to the accounts,
invoices and other materials from which such summary is derived and be
provided with copies.
7.4 FURTHER COSTS
The Landlord may include in the total costs for any service charge period:
(i) any item of the total costs for an earlier service charge period
beginning or ending during the term and not recovered in full from
the tenants and occupiers of the Building;
(ii) interest at two percent per annum above the base lending rate of
National Westminster Bank Plc from time to time from the date of
expenditure until the date of recovery on any item of the total
costs met by the Landlord from its own resources whether because of
an insufficiency of service charges received from the tenants and
occupiers of the Building or otherwise;
(iii) any tax assessed upon the Landlord during such period in respect of
sums received from the tenants or occupiers of the Building by way
of or on account of the service charge rent; and
(iv) a reasonable fee for managing the Building insofar as managing
agents are not engaged.
7.5 SINKING FUND AND RESERVE FUND
(A) The Landlord may include in the total costs for any service charge period
an amount which the Landlord reasonably determines from time to time as
appropriate to build up and maintain a sinking fund and a reserve fund in
accordance with the principles of good estate management.
(B) Such a sinking fund may be established and maintained to provide for the
renewal and replacement of lifts, boilers, plant, machinery and equipment
in or upon the Building.
(C) Such a reserve fund may be established and maintained to cover prospective
and contingent costs of carrying out repairs, decorations, maintenance and
renewals and of complying with all Statutes and the requirements or
directions of any government department, local authority or other
competent authority relating to the use, occupation or enjoyment of the
Building.
<PAGE>
41
7.6 DEPOSIT ACCOUNT
(A) The Landlord shall keep the sums paid by the tenants and occupiers of the
Building by way of service charge rent in a separate, interest earning,
deposit account until and save to the extent that they may be required for
the purposes provided for in this schedule.
(B) Interest on the amounts standing to the credit of the account shall be
credited to the account net of any tax payable in respect of such
interest.
(C) Until actual disbursement, such amounts shall be held by the Landlord for
the benefit of the tenants and occupiers of the Building as a class.
(D) Upon any transfer of the reversion immediately expectant on the ending of
the term, the Landlord may retain out of such account an amount sufficient
to discharge any costs and expenses properly incurred by the Landlord but
remaining outstanding.
(E) The receipt of the Landlord's successor to the reversion shall be a good
receipt for the Landlord and relieve the Landlord from any liability as to
the future application of amounts handed over.
7.7 LANDLORD'S PROTECTION PROVISIONS
The Tenant may not object to the total costs or any item comprised in them
or otherwise on the ground that:
(i) an item of the total costs included at a proper cost might have been
provided or performed at a lower cost;
(ii) an item of the total costs fails to comply with an estimate which
was given;
(iii) an item of the total costs includes an element of betterment or
improvement of the Building, its services or its amenities;
(iv) the Tenant disagrees with any estimate of future expenditure for
which the Landlord requires to make provision so long as the
Landlord has acted reasonably and in good faith; or
(v) the Tenant disagrees with the Landlord's exercise of any discretion
reserved to it so long as a reasonable landlord could have reached
the conclusion that the Landlord has.
7.8 TENANT'S PROTECTION PROVISIONS
(A) The relevant proportion of the total costs is not to be increased or
altered by reason only that at any relevant time any part of the Building
is vacant or is occupied by the Landlord
<PAGE>
42
or because any other tenant or occupier of the Building defaults in the
payment of its due proportion of the total costs.
(B) The total costs are not to include any liability or expense for which any
tenant or occupier of the Building is responsible under the terms of the
lease, tenancy or other arrangement under which it uses or occupies the
Building.
7.9 LANDLORD'S OBLIGATION TO PROVIDE SERVICES
(A) The Landlord shall provide the services specified in Part 2 of this
schedule and may provide the services specified in Part 3 of this
schedule.
(B) The Landlord is not to be liable for any failure to provide such services
to the extent that the Landlord is prevented from doing so by an insured
risk or other peril, accident, strike, shortage of materials or power or
other cause or circumstance beyond the Landlord's control.
(C) The Landlord is not to be under any obligation to continue to provide the
services specified in Part 3 of this schedule and may in its absolute
discretion discontinue, suspend, vary, extend, alter or add to such
services if the Landlord considers that by doing so the Building, its
services or amenities may be improved or the management of the Building
may be more efficiently conducted.
<PAGE>
43
PART 2
1. The repair, decoration, maintenance, renewal, rebuilding, cleaning and
upkeep of the structure, floor slabs, main walls, vaults, foundations,
exterior and roof of the Building.
2. The cleaning, lighting, decoration, repair and maintenance of the common
parts of the Building (including any W.C. facilities intended for the use
of more than one tenant of the Building), emergency and external lighting,
and the external surface of the entrance doors to the premises let or
intended to be let to tenants.
3. The cleaning of the exterior of the windows in the Building and the
interior of the windows in the common parts of the Building.
4. The repair, maintenance, renewal and replacement of all roads, paths,
pavements, conduits and other conveniences including the car park and
access ramp to the car park used or capable of being used by the owner or
occupier of the demised premises in common with others other than those
which are the responsibility of the Tenant or any other tenant or occupier
of the Building.
5. The provision during normal business hours of mechanical ventilation and
heating and cooling and of hot water to the hot water taps in the
Building.
6. The repair, maintenance, renewal, replacement and testing of the chillers
and boilers and of all conduits, plant and equipment for or in connection
with the supply of heating and cooling and hot and cold water.
7. The repair, maintenance, renewal and replacement of the lifts and of all
plant and equipment for or in connection with the working and operation of
the lifts.
8. The effecting of engineering equipment insurance in respect of the
mechanical and electrical equipment in or about the Building.
9. The payment of rates, taxes or other outgoings in respect of the common
parts of the Building.
10. The provision, repair, maintenance and renewal of fire alarm systems and
fire extinguishing equipment throughout the Building.
11. The carrying out of fire, health and safety and disability audits.
12. The carrying out in accordance with the directions of the insurers such
works to any part of the Building as may be required or reasonably
recommended by them.
13. The compliance with the requirements of any Statutes whether now in
existence or hereafter to be made in respect of the Building or the use
thereof.
<PAGE>
44
PART 3
1. The employment of staff or outside agencies for the maintenance and upkeep
of and the provision of services in the Building.
2. The provision of uniforms, overalls and protective clothing for staff
required in connection with their duties.
3. The provision of living accommodation for staff and the payment of all
rates, taxes and other outgoings in respect of such accommodation.
4. The provision of arrangements for the safety and security of the Building
including the installation, repair, maintenance, renewal and replacement
of a closed circuit television system and the cost of pest control
services.
5. The provision, maintenance, renewal and replacement of planting in the
common parts of the Building.
6. The carpeting and furnishing of the common parts of the Building.
7. The provision, repair, maintenance, renewal and improvement of any
public address systems and sprinkler equipment through the Building.
<PAGE>
45
SCHEDULE 8
DEEDS AND DOCUMENTS
DATE DOCUMENT PARTIES
30.12.1950 Conveyance The Trustees of the Welsh Wesleyan Methodist Chapel, City Road (1) The Church
Commissioners for England (2)
25.03.1960 Conveyance The Church Commissioners for England (1) Leigh Commercial Developments Limited (2)
25.03.1960 Transfer The Church Commissioners for England (1) Leigh Commercial Developments Limited (2)
18.04.1962 Transformer Leigh Commercial Developments Limited (1) The London Electricity Board (2)
Chamber Lease
02.08.1965 Transfer Leigh Commercial Developments Limited (1) Kennedy Leigh Commercial Properties Limited
(2) Leigh Industrial Developments Limited (3) Kennedy Leigh (Holdings) Limited (4)
Leigh London & Provincial Properties Limited (5) The British Newburn Company Limited
(6) Commerce & Industry House Limited (7) The Norwich Union Life Insurance Society (8)
18.11.1966 Agreement as to The Trustees of Wesley's Chapel (1) The Norwich Union Life Insurance Society (2) The
Rights of Light Minister of Public Building and Works (3)
13.01.1987 Agreement Norwich Union Life Insurance Society (1) The Secretary of State for the Environment
(2) Trustees for Methodist Church Purposes (3)
08.09.1988 Section 52 The London Borough of Islington (1) The Norwich Union Life Insurance Society (2)
Agreement
22.10.1999 Section 106 The London Borough of Islington (1) Colebrook Estates Limited (2)
Agreement
<PAGE>
46
The common seal of )
DERWENT VALLEY LONDON LIMITED )
was hereunto affixed in the )
presence of: )
Director
Secretary
The common seal of )
PENSON FINANCIAL SERVICES )
LIMITED )
was hereunto affixed in the )
presence of: )
Director
Secretary
Executed as a deed by )
PENSION WORLDWIDE, INC )
acting by Dan Son )
)
)
The common seal of )
DERWENT VALLEY CENTRAL LIMITED )
was hereunto affixed in the )
presence of: )
Director
Secretary
<PAGE>
LEASE DETAILS
DATE : 2005.
LANDLORD : DERWENT VALLEY LONDON LIMITED (registered in
England number 229333) whose registered office is at
25 Savile Row, London W1S 2ER.
TENANT : PENSON FINANCIAL SERVICES LIMITED (registered in
England number 02331085) whose registered office is
at One Oliver's Yard, City Road, London EC1Y 1HQ.
SURETY PENSON WORLDWIDE, INC of 1700 Pacific Avenue, Suite
1400 Dallas TX 752021.
HEAD LANDLORD : DERWENT VALLEY CENTRAL LIMITED (registered in
England no 205226) whose registered office is at 25
Savile Row, London W1S 2ER.
PREMISES : Part Second Floor of 1 Oliver's Yard, London EC2,
shown edged red on Plan 1 annexed hereto.
TERM : commencing on and including up to and including
23rd June 2014.
BREAK DATE 23rd June 2009.
YEARLY RENT : Fifty Eight Thousand Six Hundred and Eighty-Eight
pounds ((pound)58,688) per annum exclusive.
RENT : 11 August 2005
COMMENCEMENT
DATE
REVIEW DATE : 24th June 2009
PERMITTED USE : Offices within Class B1 (a) of the Schedule to the
Town and Country Planning (Use Clauses) Order 1987.
<PAGE>
DATED 2005
DERWENT VALLEY LONDON LIMITED
AND
PENSON FINANCIAL SERVICES LIMITED
AND
PENSON WORLDWIDE INC
AND
DERWENT VALLEY CENTRAL LIMITED
------------------------------
LEASE
OF PART SECOND FLOOR,
OF 1 OLIVER'S YARD, LONDON EC2
------------------------------
TERM: FROM UP TO AND INCLUDING 23RD JUNE 2014
(WITH TENANT'S RIGHT TO BREAK ON 23RD JUNE 2009)
RENT: (pound)58,688 PER ANNUM EXCLUSIVE (SUBJECT TO REVIEW)
SLAUGHTER AND MAY
ONE BUNHILL ROW
EC1Y8YY
TEL NO: 020 7600 1200
FAX NO: 020 7090 5000
REF: DJB/RXYS
PR043230086 (26224)
<PAGE>
THIS LICENCE is made the day of
Two thousand and Five
BETWEEN:
1. DERWENT VALLEY LONDON LIMITED (registered in England number 229333) whose
registered office is at 25 Savile Row, London W1S 2ER;
2. PENSON FINANCIAL SERVICES LIMITED (registered in England number 02331085)
whose registered office is at 1 Oliver's Yard, City Road, London EC1Y 1HQ;
3. PENSON WORLDWIDE, INC of 1700 Pacific Avenue, Suite 1400, Dallas TX 75021;
AND
4. DERWENT VALLEY CENTRAL LIMITED (registered in England number 205226) whose
registered office is at 25 Savile Row, London W1S 2ER.
THIS DEED WITNESSES as follows:
1. GENERAL
1.1 In this deed, except where the context otherwise requires, the following
words and expressions have the following meanings:
"THE BUILDING" means 1 Oliver's Yard, London EC2 as more particularly
described in the Lease;
"THE CONSENTS" means all requisite licences, consents, permissions and
approvals from the relevant planning and other competent authorities;
"THE DEMISED PREMISES" means part second floor, One Oliver's Yard, London
EC2 as more particularly described in the Lease;
"THE HEAD LANDLORD" means the fourth named party to this deed;
"THE LANDLORD" means the first named party to this deed and includes the
person for the time being entitled to the reversion immediately expectant
on the determination of the term;
"THE LEASE" means a lease dated and made between the parties
to this deed and any consent, licence, approval or other instrument made
under or supplemental to it whether varying it or not and made before the
date of this deed;
"THE PLANNING ACTS" means the Town and Country Planning Act 1990, the
Planning (Listed Buildings and Conservation Areas) Act 1990, the Planning
(Consequential Provisions) Act 1990 and the Planning and Compensation Act
1991;
<PAGE>
2
"THE REGULATIONS" means the Construction (Design and Management)
Regulations 1994;
"THE SPECIFICATION" means the plans detailed in the schedule, copies of
which are annexed;
"THE SURETY" means the third named party to this deed;
"THE TENANT" means the second named party to this deed and includes its
successors in title and assigns;
"THE TERM" means the term of years granted by the Lease; and
"THE WORKS" means the alterations to the demised premises described in the
Specification and includes the reinstatement referred to in this deed.
1.2 Any amounts payable by the Tenant under this deed shall be recoverable as
arrears of rent under the Lease.
1.3 The condition for re-entry in the Lease shall be exercisable on any breach
of any covenant in this deed as well as on the happening of any of the
events referred to in the Lease.
1.4 This deed is supplemental to the Lease.
1.5 In this deed, unless otherwise specified:
(A) a reference to any statute or statutory provision shall be construed
as a reference to it as it may have been or may in the future be
amended, modified or re-enacted and to any statutory instrument,
order, byelaw or other provision that may have been or may in the
future be made under it;
(B) where a party consists of two or more persons the obligations of
such persons shall be joint and several;
(C) nothing in this deed shall release or in any way lessen the
liability of any person to the Landlord in respect of the covenants
and conditions in the Lease or constitute a waiver of any
outstanding breach;
(D) nothing in this deed permits any action not permitted expressly; and
(E) headings to clauses are for convenience only and do not affect the
interpretation of this deed.
2. WORKS
The Landlord grants licence for the carrying out of the Works.
<PAGE>
3
3. PRIOR TO COMMENCEMENT
The Tenant covenants with the Landlord not to commence the Works before:
(A) the Consents for the Works have been obtained; and
(B) the Landlord has been notified in writing of the commencement of the
Works.
4. COVENANTS RELATING TO THE WORKS
The Tenant covenants with the Landlord:
(A) to comply with the Consents for the Works;
(B) to comply with every enactment (which expression in this sub-clause
includes any and every statute now or for the time being in force
and every order, regulation, byelaw or direction made or issued
under or in pursuance of any such statute) and every provision,
requirement or direction of any governmental, local or other
competent authority relating to the Works;
(C) not to carry out the Works otherwise than in a good and workmanlike
manner with suitable materials of good quality and in accordance
with the Specification to the reasonable satisfaction of the
Landlord;
(D) to allow the Landlord to inspect and test the Works whilst they are
progressing and after their completion;
(E) to carry out the Works with the least possible inconvenience or
annoyance to the Landlord and any owners or occupiers of adjoining
or neighbouring premises and to make good forthwith all damage
arising out of or incidental to the Works;
(F) to permit the Landlord and all persons authorised by the Landlord
(but without prejudice to the right of re-entry contained in the
Lease) to enter upon the demised premises to remedy any breaches of
the covenants contained in this deed of which written notice is
given by the Landlord and to pay the proper costs incurred by the
Landlord in so doing on demand;
(G) to produce on demand such evidence as the Landlord may reasonably
require to satisfy itself that the covenants contained in this deed
have been complied with; and
(H) on completion of the Works to supply to the Landlord two copies of
as-built drawings showing the completed Works and a copy of the
operation and maintenance instructions necessary for the safe and
efficient operation and maintenance of any plant comprised in the
Works.
<PAGE>
4
5. REGULATIONS
The Tenant covenants with the Landlord to the extent the Regulations apply
to the Works:
(A) to observe and perform and to ensure that the contractors carrying
out the Works and the architects, engineers or other persons engaged
in connection with the Works observe and perform their respective
obligations under the Regulations;
(B) to advise the Landlord of the identity of the appointed planning
supervisor;
(C) to advise the Landlord of the identity of the appointed principal
contractor;
(D) to provide the Landlord with a copy of the health and safety plan
and any amendments or additions made to it;
(E) on completion of the Works to deliver to the Landlord a copy of the
completed and updated health and safety file and on the expiration
or sooner determination of the Lease the original health and safety
file;
(F) on an assignment of the Lease, to deliver to the assignee the
completed and updated health and safety file; and
(G) to provide to the Landlord a copy of the declaration made under
Regulation 4 and any other declaration made or notice given or
received under the Regulations in connection with the Works.
6. REINSTATEMENT
The Tenant covenants with the Landlord to dismantle and remove the Works
and in a good and workmanlike manner reinstate and make good the demised
premises and the Building and restore the same to the state and condition
in which they were prior to the commencement of the Works to the
reasonable satisfaction of the Landlord:
(A) on demand if in the reasonable opinion of the Landlord such
reinstatement is required to remedy or prevent damage to the demised
premises or to any adjoining or neighbouring premises;
(B) on demand if any of the Consents for the Works is withdrawn or
lapses;
(C) on demand upon the licence contained in this deed becoming void; and
(D) during the period of six months immediately preceding the expiration
or sooner determination of the term unless released by the Landlord
in writing from compliance with this obligation.
<PAGE>
5
7. COSTS AND EXPENSES
The Tenant covenants with the Landlord throughout the term:
(A) to pay and satisfy any charge or levy imposed under the Planning
Acts in respect of the carrying out of the Works;
(B) to indemnify and keep indemnified the Landlord from and against all
actions, costs, claims, demands and expenses arising as a result of
the carrying out of the Works or any breach or non-observance of the
covenants contained in this deed or by reason and of any act or
default of the Tenant or its agents, servants or licensees;
(C) to indemnify the Landlord against any tax or imposition which
becomes payable by reason of the carrying out of the Works and
against any additional tax or imposition which either during or
after the expiration or sooner determination of the term becomes
payable in respect of the demised premises.
8. AGREEMENT AND DECLARATION
It is agreed and declared that:
(A) the licence contained in this deed is voidable at the option of the
Landlord without prejudice to its rights under this deed if:
(i) the Consents for the Works are not obtained and produced to
the Landlord within 3 months after the date of this deed, or
(ii) the Works are not commenced and commencement notified to the
Landlord within 6 months after the date of this deed, or
(iii) the Works are not completed and completion notified to the
Landlord within 6 months after the date of this deed, or
(iv) the Tenant fails to make good all breaches of the covenants
contained in this deed of which written notice is given by the
Landlord within one month after the giving of such notice or
sooner if requisite;
(B) nothing in this deed nor any approval of the Specification or the
Works whilst progressing or when completed shall release any party
from the covenants in this deed or in the Lease or imply or
constitute any representation or warranty on the part of the
Landlord, its solicitors, surveyors or professional advisers that
the demised premises and their services are suitable for the purpose
of the Works;
(C) the lessee's covenants and conditions contained in the Lease shall
apply to the demised premises in their altered state after
completion of the Works;
<PAGE>
6
(D) nothing in this deed nor any notice, specification or plan of the
Works served on the Landlord shall be deemed to be notice under the
Landlord and Tenant Acts 1927 and 1954 of an intention to make
improvements to the demised premises and there shall be no
entitlement to compensation in respect of the Works at the
expiration or sooner determination of the term; and
(E) any effect on the rental value of the demised premises caused by the
Works or by the obligations contained in this deed shall be
disregarded for the purpose of any review of rent under the Lease.
9. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
The parties to this deed do not intend that any term of this deed is to be
enforceable, by virtue of the Contracts (Rights of Third Parties) Act
1999, by any person who is not a party to this deed.
10. SURETY
At the request of the Tenant, the Surety joins in this deed for the
purpose of acknowledging it is bound by it and that the obligations of the
Tenant under the Lease extends to the obligations of the Tenant under this
deed.
11. HEAD LANDLORD
The Head Landlord permits the Landlord to grant the Licence contained in
this deed.
IN WITNESS whereof the parties have executed this document as a deed the day and
year first before written.
<PAGE>
7
The common seal of )
DERWENT VALLEY LONDON LIMITED )
was hereunto affixed in the )
presence of: )
Director
Secretary
The common seal of )
PENSON FINANCIAL SERVICES )
LIMITED )
was hereunto affixed in the )
presence of: )
Director
Secretary
Executed as a deed by )
PENSON WORLDWIDE, INC )
acting by Dan Son )
The common seal of )
DERWENT VALLEY CENTRAL LIMITED )
was hereunto affixed in the )
presence of: )
Director
Secretary
<PAGE>
DATED 2005
DERWENT VALLEY LONDON LIMITED
AND
PENSON FINANCIAL SERVICES LIMITED
AND
PENSON WORLDWIDE, INC
AND
DERWENT VALLEY CENTRAL LIMITED
--------------------------
LICENCE FOR ALTERATIONS
--------------------------
PREMISES: PART SECOND FLOOR, 1
OLIVER'S YARD, LONDON
EC2
SLAUGHTER AND MAY
ONE BUNHILL ROW
LONDON EC1Y 8YY
TEL NO: 020 7600 1200
FAX NO: 020 7090 5000
REF: DJB/RXYS
(41080) PR050770072