UK-Derby-New Enterprise House Lease - Howtin Investment Ltd. and uDate.com Ltd.
DATED 2ND OCTOBER 2000
-----------
HOWTIN INVESTMENT LIMITED
TO
UDATE.COM LIMITED
L E A S E
OF
PART 2ND FLOOR EXTENDING TO 4,054 SQ FT
PREMISES AT NEW ENTERPRISE HOUSE
ST. HELENS STREET, DERBY
<PAGE> 2
<TABLE>
<CAPTION>
THIS DEED OF LEASE is made the 2nd day of October 2000
---------- -------------
1. PARTICULARS
<S> <C> <C> <C>
1.1. 1.1.1. the Landlord HOWTIN INVESTMENTS LIMITED (Company
Number SC 105034) of Nocton Rise Lincoln LN4 2AF
1.1.2. the Tenant UPDATE.COM LIMITED
Mill Cottage, Mercaston, Derbyshire
DE6 3BL
1.2. the Building The building or buildings known as New
Enterprise House St. Helens Street Derby
of which the Premises form part
1.3. the Premises ALL THOSE offices situate on the second
floor of the building as more particularly
defined in the First Schedule
1.4. Contractual Term One year from 1st April 2000
1.5. Rent Commencement Date 1st August 2000 or such earlier date as
occupation shall commence
1.6. Rent Thirty nine thousand five hundred
and twenty six pounds and fifty
pence ((pound)39,526.50) p.a.
1.7. Interest Rate 4% per year above the
base lending rate of National
Westminster Bank Plc or such other
bank (being a member of the
Committee of London and Scottish
Bankers) as the Landlord may from
time to time nominate in writing.
1.8. User Professional Offices
1.9. Service Charge Percentage 33.39% subject to the provisions for
Variation contained in the Fifth Schedule
1.10. Initial Provisional Service
Charge For the first year of the term
(pound)2,88 per square foot of the
net internal floor area of the
Premises making a total of
(pound)11,675.52 (capped at this
figure for the first year of the
term)
</TABLE>
2
<PAGE> 3
<TABLE>
<S> <C> <C> <C>
1.11. Additional Right The right for the Tenant and all those
authorized by the Tenant at all times to
use eight car parking spaces in the car Park
of the building such car parking spaces being
those which the Landlord may from time to time
designate in writing
</TABLE>
3
<PAGE> 4
2. DEFINITIONS
2.1. The terms defined in clauses 1 and 2 and Part A of the Fifth
Schedule paragraph 1 of the Sixth Schedule shall for all
purposes of this Lease have the meaning specified
2.2. "the Accountant" means any chartered accountant appointed by the
Landlord (including any employee of the Landlord or a Group
Company) to perform any of the functions of the Accountant under
this Lease
2.3. "Adjoining Property" means any neighboring or adjoining land or
premises (excluding the Building) in which the Landlord or Group
Company has a freehold or leasehold interest or in which during
the Term the Landlord (or a Group Company) shall have acquired a
freehold or leasehold interest
2.4. "Group Company" means a company that is a member of the same
group as the Landlord within the meaning of Section 42 of the
1954 Act
2.5. "Interest" means interest during the period from the date on
which the payment is due to the date of payment both before and
after any judgement at the Interest Rate then prevailing or
should the base rate referred to in clause 1.7 cease to exist
such other rate of interest as is most closely comparable with
the Interest Rate to be agreed between the parties or in default
of agreement to be determined by arbitration in accordance with
and subject to the provisions for the arbitration Acts 1950 and
1979 and any statutory modification or re-enactment thereof for
the time being in force
2.6. "the 1954 Act" means the Landlord and Tenant Act 1954 and all
statutes regulations and orders included by virtue of clause
3.13
2.7. "the Office Covenants" means the covenants set out in the Fourth
Schedule
2.8. "Other Buildings" means all buildings now or at any time during
the Term executed on Adjoining Property
2.9. "Pipes" mean all pipes sewers drains mains ducts conduits
gutters watercourses wires cables channels flues and all other
conducting media for provision of water soil gas electricity air
stream oil telephone and telecommunications and other services
and supplies including any fixings louvres cowls and any other
ancillary apparatus
4
<PAGE> 5
2.10. "Common Part" means the kitchen and rest room on the ground
floor of the Building the access leading thereto the car park
pedestrian ways forecourts landscaped area front and rear
entrance halls toilets landings lifts lift shafts staircases
passages and other areas which are from time to time during the
Term provided by the Landlord for common use and enjoyment by
the Tenant and the occupiers of the Building and all persons
expressly or by implication authorised by them the Tenant having
the right to use the same
2.11. "Permitted Parts" means any part of the Premises approved by the
Landlord
2.12. "Plan" means the plan or plans annexed to this Lease
2.13. "the Planning Acts" mean the Town and Country Planning Act 1990
and all statutes regulations and orders included by virtue of
clause 3.13
2.14. "Rent" does not include the Service Charge but the term "rents"
includes Rent and the Service Charge
2.15. "the Surveyor" means any chartered surveyor appointed by the
Landlord (including an employee of the Landlord or a Group
Company) to perform any of the functions of the surveyor under
this Lease
2.16. "the Tenant's Covenants" means the covenants and conditions
contained or referred to in clause 5 and the Office Covenants
3. INTERPRETATION
3.1. The expressions "the Landlord" and "the Tenant" wherever the
context so admits include the person for the time being entitled
to the reversion immediately expectant on the termination of the
Term and the Tenant's successors in title respectively and any
reference to a superior landlord includes the Landlord's
immediate reversioner (and any superior landlords) at any time
3.2. Where the Landlord the Tenant or the Guarantor for the time
being are two or more persons obligations expressed or implied
to be made by or with such party are deemed to be made by or
with such persons jointly and severally
3.3. Words importing one gender include all other genders and words
importing the singular include the plural and vice versa
5
<PAGE> 6
3.4. The expression "Guarantor" includes not only the person referred
to in clause 1.1.3 (if any) but also any person who enters into
covenants with the Landlord pursuant to clauses 5.9.5 or 5.23
3.5. The expression "the Term" includes the Contractual Term and any
period of holding-over or extension or continuance of the
Contractual Term whether by statute or common law but not so
that thereby the Tenant shall incur any liability as original
lessee if he shall not be the tenant in actual occupation upon
any such continuation or holding-over
3.6. References to "the last year of the Term" include the last year
of the Term if the Term shall determine otherwise than by
effluxion of time and references to "the expiration of the Term"
include such other determination of the Term
3.7. References to any right of the Landlord to have access to the
Premises shall be construed as extending to a superior landlord
and any mortgage of the Premises and to all persons authorised
by the Landlord and any such superior landlord or mortgagee
(including agents professional advisers contractors workmen and
others) where such superior lease or mortgage grants such rights
to access to the superior landlord or mortgagee
3.8. Any covenant by the Tenant not do to an act or thing shall be
deemed to include any obligation not to knowingly permit or
suffer such act or thing to be done by anyone authorised by the
Tenant to be present upon the Premises
3.9. Any provisions in this Lease referring to the consent or
approval of the Landlord shall be construed as also requiring
the consent or approval of any such superior landlord aforesaid
(if any) where such consent shall be required but on the basis
that any such superior landlord shall not unreasonably refuse
any such consent or approval
3.10. References to "consent of the Landlord" or words to similar
effect mean a consent in writing signed by or on behalf of the
Landlord and to "approved" and "authorised" or words to similar
effect mean (as the case may be) approved or authorised in
writing by or on behalf of the Landlord
3.11. The terms "the parties" or "party" mean the Landlord and/or the
Tenant but except where there is an express indication to the
contrary exclude the Guarantor
6
<PAGE> 7
3.12. "Development" has the meaning given by the Planning Acts
3.13. Any reference to a specific statue include any statutory
extension or modification amendment or re-enactment of such
statute and any regulations or orders made under such statute
and any general reference to "statute" or "statutes" includes
any regulations or orders made under such statute or statutes
3.14. The clause paragraph and schedule headings do not form part of
this Lease and shall not be taken into account in its
construction or interpretation
4. DEMISE
The Landlord demises to the Tenant the Premises TOGETHER with the
Additional Right and the right specified in the Second Schedule but
EXPRECTING AND RESERVING to the Landlord the right specified in the
Third Schedule TO HOLD the Premises to the Tenant for the Contractual
Term SUBJECT to all rights easements privileges restrictions covenants
and stipulations of whatever nature affecting the Premises YIELDING AND
PAYING to the Landlord:
4.1. The Rent payable without any deduction by equal quarterly
payments in advance on the usual quarter days in every year and
proportionately for any period of less than a year first such
payment being a proportionate sum in respect of the period from
and including the Rent Commencement Date to and including the
day before the quarter day next after the Rent Commencement Date
to be paid on the date of this Lease and
4.2. By way of further rent the Service Charge payable in accordance
with the Fifth Schedule
5. THE TENANT'S COVENANTS
The Tenant covenants with the Landlord:
5.1. RENT
To pay the rents on the days and in the manner set out in this
Lease and not to exercise or seek to exercise any right or claim
to withhold rent or any right or claim to legal or equitable
set-off save in respect of overpayment of the rents erroneously
made by the Tenant
7
<PAGE> 8
5.2. Outings and VAT
To pay and to indemnify the Landlord against:
5.2.1 all rates taxes assessments duties charges impositions
and outgoings which are now or during the Term shall be
charged assessed or imposed upon the occupier of the
Premises of a periodical or recurring nature or upon the
owner or occupier of them (except such payment which
become due as a result of a dealing with the
reversionary interest of the Landlord in the Premises);
and
5.2.2 Value Added Tax (or any tax of a similar nature that may
be substituted for it or levied in addition to it)
chargeable (whether required by statute or at the
Landlord's election) in respect of the rents or any
other payment made by the Tenant under any of the terms
of or in connection with this Lease or in respect of any
payment made by the Landlord where the Tenant agrees in
this Lease to reimburse the Landlord for such payment
PROVIDED THAT nothing in this Lease shall require the
Tenant to pay Value Added Tax on the amount of any Value
Added Tax charged to the Landlord by third parties
5.3. REPAIR CLEANING DECORATING ETC
5.3.1 To repair the Premises and keep them in repair expecting
damage caused by an Insured Risk other than where the
insurance money is irrecoverable in consequence of any
act or default of the Tenant or anyone at the Premises
expressly with the Tenant's authority
5.3.2 To replace from time to time the Landlord's fixtures and
fitting in the Premises specified in the Seventh
Schedule which may be or become beyond repair at any
time during or at the expiration of the Term fair war
and tear expected
5.3.3 Not to cause any land roads or pavements abutting the
Building to be untidy or in a dirty condition and in
particular (but without prejudice to the generality of
the above) not to deposit on them refuse or other
materials
5.4 WASTE AND ALTERATIONS
5.4.1 Not to:
8
<PAGE> 9
5.4.1.1 commit any waste
5.4.1.2 make any addition to the Premises
5.4.1.3 unite the Premises with any adjoining premises
5.4.1.4 make any alteration to the Premises save as
permitted by the following provisions of this
clause
5.4.2 Not to make non-structural (save for internal
demountable partitions) alterations to the Premises
without:
5.4.2.1 obtaining the Landlord's consent (such consent
not to be unreasonably withheld)
5.4.2.2 obtaining and complying with all necessary
consent of any competent authority and paying
all charges of any such authority in respect of
such consents
5.4.2.3 if requested by the Landlord to supply to the
Landlord drawings and where appropriate a
specification in duplicate prepared by an
architect or member of some other appropriate
profession (who shall supervise the work
throughout to completion)
5.4.2.4 paying the reasonable and proper fees of the
Landlord and any superior landlord mentioned in
clause 3.9 and their professional advisers and
5.4.2.5 entering into such reasonable covenants as the
Landlord may reasonably require as to the
execution and reinstatement of the alternations
5.4.3 Not to make any structural alterations to the Building
or the Premises without the consent of the Landlord
5.4.4 To remove any additional buildings additions alterations
or improvement made to the Premises at the expiration of
the Term if so requested by the Landlord in writing and
to make good any part or parts of the Premises which may
be damaged by such removal PROVIDED THAT the Landlord
shall not require removal and reinstatement and making
good if he intends to demolish or reconstruct the
Premises within 12 months after such determination
9
<PAGE> 10
5.4.5 Not to make connection with the Pipes that serve the
Premises otherwise than in accordance with plans and
specifications approved by the Landlord subject to
consent to make such connection having previously been
obtained from the competent statutory authority or
undertaker
5.5 AERIALS SIGNS AND ADVERTISEMENTS
5.5.1 Not to erect any pole mast or wire (whether in
connection with telegraphic telephone radio or
television communication or otherwise) upon the Premises
5.5.2 Not to affix to or exhibit on the outside of the
Building or to or through any window of the Building nor
display anywhere on the Premises any placard sign notice
fascia board or advertisement except any sign permitted
by virtue of any consent given by the Landlord pursuant
to a covenant contained in this Lease such consent not
to be unreasonably withheld
5.6 INSURANCE
To effect Occupiers Liability Insurance and Employers Liability
Insurance and to produce to the Landlord not more than once in
any one year evidence of such insurance and the receipt for the
last premium paid if required
5.7 STATUTORY OBLIGATIONS
5.7.1 At the Tenant's own expense to execute all works and
provide and maintain all arrangements upon or in respect
of the Premises or the use to which the Premises are
being put that are required in order to comply with the
requirements of any statute (already or in the future to
be passed) or any government department local authority
other public or competent authority or court of
competent jurisdiction regardless of whether such
requirements are imposed on the lessor the lessee or the
occupier
5.7.2 Not to do in the Premises any act or thing by reason of
which the Landlord may under statute incur have imposed
upon it or become liable to pay any penalty damages
compensation costs charges or expenses
5.7.3 Without prejudice to the generality of the above to
comply in all respects with the provisions of any
statutes and any other obligations imposed by
10
<PAGE> 11
law or by any byelaws applicable to the Premises or in
regard to carrying on the trade or business for the time
being carried on the Premises
5.8 ACCESS OF LANDLORD AND NOTICE TO REPAIR
5.8.1 To permit the Landlord upon prior appointment
5.8.1.1 to enter upon the Premises for the purpose of
ascertaining that the covenants and conditions
of this Lease have been observed and performed
5.8.1.2 to view the state of repair and condition of the
Premises and
5.8.1.3 to give to the Tenant at the Premises or such
other address as the Tenant shall notify the
Landlord of in writing a notice specifying any
repairs cleaning maintenance and painting for
which the Tenant is liable hereunder and that
the Tenant has failed to execute in breach of
the terms of this Lease and to request the
Tenant immediately to execute the same
5.8.2 To repair cleanse maintain and paint the Premises as
required by such notice within a reasonable time after
receipt thereof
5.8.3 If within three months of the service of such notice the
Tenant shall not have commenced and be proceeding
diligently with the execution of the work referred to in
the notice or shall fail to complete the work within a
reasonable time thereafter to permit the Landlord to
enter the Premises to execute such work as may be
necessary to comply with the notice and to pay to the
Landlord the proper cost of so doing and all expenses
incurred by the Landlord (including reasonable legal
costs and surveyor's fees) within 14 days of a written
demand
5.8.4 The Landlord is exercising such rights as aforesaid
shall give the Tenant reasonable prior written notice of
the Landlord's desire to exercise such right of access
and cause as little damage and disturbance as possible
to the occupiers of the Premises and shall make good any
damage thereby occasioned
11
<PAGE> 12
5.9 ALIENATION
5.9.1 (Save pursuant to a transaction permitted by and
affected in accordance with the provisions of this
Lease) not to part with possession of the whole or any
part of the Premises or permit another to occupy the
whole or any part of the Premises
5.9.2 Not to assign or charge part of the Premises
5.9.3 Not to assign or charge the whole of the Premises
without the prior consent of the Landlord but subject to
the operation of the following provisions of this clause
5.9.3 such consent shall not be unreasonably withheld
5.9.3.1 The Landlord may withhold its consent to the
application by the Tenant for licence to assign
this Lease if any of the conditions and criteria
set out in this Clause 5.9.3.1 are not met,
that:
(a) at the time of the assignment there are
not arrears of rents or other
ascertained moneys due to the Landlord
and
(b) the Tenant gives to the Landlord a
guarantee in the form in the Eighth
Schedule and
(c) the Tenant is able to demonstrate to the
satisfaction of the Landlord (acting
reasonably) that the proposed assignee
is responsible and respectable and will
be able to pay the rents and meet the
other outgoings and liabilities arising
under the Lease and
(d) any proposed assignee covenants by Deed
with the Landlord to pay the rents
reserved by this Lease and to observe
and perform all the covenants on the
part of the Lease and conditions in this
Lease during the Term until released by
virtue of the Landlord & Tenant
(Covenants) Act 1995 and
(e) that if reasonably required the proposed
Assignee shall provide a reasonably
acceptable guarantor or guarantors
12
<PAGE> 13
who shall enter into a guarantee in the
form in the Eighth Schedule
5.9.3.2 The conditions and criteria set out in Clause
5.9.3.1 are specified for the purposes of
Section 19 (1A) of the Landlord and Tenant Act
1927
5.9.4 Not to underlet the whole of the Premises or underlet a
Permitted Part of the Premises without the consent of
the Landlord (such consent not to be unreasonably
withheld)
5.9.5 That each and every permitted underlease shall be
granted without receiving any fine or premium at a rent
not less than the full market rent of the Premises
underlet or in the case of an Underlease of the whole of
the Premises at a rent equal to the Rent payable under
this Lease such rent being payable in advance on the
days on which Rent is payable under this Lease and shall
contain provisions consistent with those herein
contained:
5.9.5.1 prohibiting the undertenant from doing or
allowing any act or thing in relation to the
underlet premises inconsistent with or in breach
of the provisions of this Lease
5.9.5.2 for re-entry by the underlandlord on breach of
any covenant by the undertenant
5.9.5.3 imposing an absolute prohibition against all
dispositions of or other dealings whatever with
the Premises other than an assignment or charge
of the whole of the premises comprised in the
underletting
5.9.5.4 prohibiting any assignment or charge of the
whole of the premises comprised in the
underletting without the prior consent of the
Landlord under this Lease (such consent not to
be unreasonably withheld or delayed)
5.9.5.5 prohibiting the undertenant from permitting
another to occupy the whole or any part of the
Premises
5.9.5.6 imposing in relating to any permitted assignment
underletting or charge the same obligations for
registration with the Landlord as
13
<PAGE> 14
are contained in this Lease in relation to
dispositions by the Tenant and
5.9.5.7 imposing in relation to any permitted
underletting the same obligations as contained
in this clause 5.9.5 and in clauses 5.9.6 5.9.7
and 5.9.8
5.9.6 Any Underlease of a Permitted Part must also contain
covenants by the Underleassee to pay a fair proportion
of:
5.9.6.1 the sums payable by the Tenant under clauses
4.1 and 4.2
5.9.6.2 the costs and expenses incurred by the Tenant
in maintaining repairing decorating and
renewing the Premises
5.9.7 Prior to any permitted underletting to procure that the
undertenant enters into direct covenants with the
Landlord to the like effect as those contained in
clauses 5.9.5 5.9.6 5.9.7 and 5.9.8
5.9.8 To use reasonable endeavors to enforce the performance
and observance by every such undertenant of the
provisions of the underlease and not at any time without
the consent of the Landlord expressly to waive any
breach of the covenants or conditions on the part of any
undertenant or assignee of any underlease nor (without
the consent of the Landlord such consent not to be
unreasonably withheld or delayed) vary the terms of any
permitted underlease
5.9.9 Within 28 days of any assignment charge underlease or
subunderlease or any transmission or other devolution
relating to the Premises to produce for registration
with the Landlord's solicitor such deed or document or a
certified copy of it and to pay the Landlord's
solicitors for the registration of every such document a
charge of (pound)20 (Twenty Pounds)
5.10 NUISANCE ETC AND RESIDENTIAL RESTRICTIONS
5.10.1 Not to do nor knowingly allow to remain upon the
Premises anything which may be or become or cause a
nuisance injury or damage to the Landlord or its tenants
or the owners or occupiers of adjacent or neighbouring
premises
14
<PAGE> 15
5.10.2 Not to use the Premises for a sale by auction or for any
dangerous noxious noisy or offensive trade business
manufacture or occupation nor for any illegal or immoral
act or purpose
5.10.3 Not to use the Premises as sleeping accommodation
(except in case of emergency) or for residential
purposes nor keep any animal fish reptile or bird
anywhere on the Premises
5.11 LANDLORD'S COSTS
To pay to the Landlord all reasonable and proper costs fees
charges disbursements and expenses (including without prejudice
to the generality of the above those payable to counsel
solicitors and surveyors) incurred by the Landlord in relation
to or incidental to:
5.11.1 every application made by the Tenant for a consent or
licence required by the provisions of this Lease whether
such consent or licence is granted or refused or
proffered subject to any lawful qualification or
condition or whether the application is withdrawn unless
such refusal qualification or condition is unlawful
whether because it is unreasonable or otherwise.
5.11.2 the preparation and service of a notice under the Law of
Property Act 1925 Section 146 or incurred by or in
contemplation of proceedings under Sections 146 or 147
of that Act notwithstanding that forfeiture is avoided
otherwise than by relief granted by the Court
5.11.3 the recovery or attempted recovery of arrears of rent or
other sums due from the Tenant and
5.11.4 any reasonable steps taken in contemplation of or in
connection with the preparation and service of a
schedule of dilapidations during or after the expiration
of the Term
5.11.5 this Lease and its counterpart (not exceeding(pound)900
plus VAT and disbursements)
5.12 THE PLANNING ACTS
5.12.1 Not to commit any breach of planning control (such term
to be construed as it is used in the Planning Acts) and
to comply (so far as the same are valid and binding on
the Tenant) with the provisions and requirements of
15
<PAGE> 16
the Planning Act that affect the Premises whether as to
the Permitted Use or otherwise and to indemnify (both
during or following the expiration of the Term) and keep
the Landlord indemnified against all liability
whatsoever including costs and expenses in respect of
any contravention arising during the Term
5.12.2 Save with respect to any alteration to the Premises to
which the Landlord has granted its consent not without
the consent in writing of the Landlord (which shall not
unreasonably withheld or delayed) to apply for planning
permission to carry out any development in or upon the
Premises and at the expense of the Tenant to supply the
Landlord with a copy of any application for planning
permission together with such plans and other documents
as the Landlord may reasonably require and to supply
prior to the commencement of any development a copy of
any planning permission granted to the Tenant
5.12.3 To pay and satisfy any charge that may be imposed upon
any breach by the Tenant of planning control or
otherwise under the Planning Acts
5.12.4 Notwithstanding any consent which may be granted by the
Landlord under this Lease not to carry out or make any
alteration or addition to the Premises or any change of
use until:
5.12.4.1 all necessary notices under the Planning Acts
have been served and copies produced the
Landlord
5.12.4.2 all necessary permission under the Planning
Acts have been obtained and produced to the
Landlord and
5.12.4.3 the Landlords has acknowledged that every
necessary planning permission is acceptable to
it the Landlord being entitled to refuse to
acknowledge its acceptance of a planning
permission only on the grounds that any
condition contained in it or anything omitted
from it or the period referred to in it would
be in the reasonable opinion of the Surveyor be
(or likely to be) prejudicial to the Landlord's
interest in the Premises whether during or
following the expiration of the Term
16
<PAGE> 17
5.12.5 Unless the Landlord shall otherwise direct to carry out
and complete before the expiration of the Term:
5.12.5.1 any works stipulated to be carried out to the
Premises by a date subsequent to such
expiration as a condition of any planning
permission granted for any Development begun
before the expiration of the term and
5.12.5.2 any Development begun upon the Premises in
respect of which the Landlord shall or may be
or become liable for any change or levy under
the Planning Acts
5.12.6 In any case where a planning permission is granted
subject to conditions and if the Landlords so requires
(which it shall not do during the Tenant's occupation)
to provide security for the compliance with such
conditions and not to implement the planning permission
until security has been provided
5.13 INDEMNITIES
To be responsible for and to keep the landlord fully indemnified against
all damage damages losses costs expenses actions demands proceedings
claims and liabilities made against or suffered by the Landlord arising
out of:
5.13.1 any act omission or negligence of the Tenant or any
persons at the Premises expressly or impliedly with the
Tenant's authority or
5.13.2 any breach or non-observance by the Tenant of the
covenants conditions or other provisions of this Lease
on the part of the Tenant to be observed and performed
or any of the matters to which this demise is subject
5.14 RELETTING BOARDS
To permit the Landlord at any time during the last 4 months of
the Contractual Term and at anytime thereafter to enter upon the
Premises and affix and retain upon the Premises in a position
that will not interfere with the Tenant's enjoyment of the
Premises a notice for reletting the Premises and during such
period upon prior appointment to permit persons with the written
authority of the Landlord or its agent at reasonable times of the
day to view the Premises
17
<PAGE> 18
5.15 ENCROACHMENTS
5.15.1 Not to stop up darken or obstruct any windows or light
belonging to the Building
5.15.2 So far as is reasonably practicable to take all steps to
prevent any new window light opening doorway path
passage pipe or other encroachment or easement being
made or acquired in against out of or upon the Premises
and as soon as the same may come to the Tenant's notice
to notify the Landlord immediately if any such
encroachment or easement shall be made or acquired or
attempted to be made or acquired and at the request and
cost of the Landlord to give to the Landlord all such
assistance as it may reasonably require to enable the
Landlord to adopt such means as shall reasonably be
required to prevent such encroachment or the
acquisitions of any such easement.
5.16 YIELD UP
At the expiration of the Term:
5.16.1 to yield up the Premises in a state of repair and
otherwise in accordance with the terms of this Lease
5.16.2 to give up all keys of the Premises to the Landlord and
5.16.3 to remove all signs erected by the Tenant in or upon the
Premises and immediately to make good any damage caused
by such removal
5.17 INTEREST ON ARREARS
5.17.1 If the Tenant shall fail to pay the rents or any other
sum due under this Lease within 28 days of the date due
whether formally demanded or not the Tenant shall pay to
the Landlord Interest on the rents or other sum from the
date when they were due to the date on which they are
paid
5.17.2 Nothing in the preceding sub-clause 5.17.1 shall entitle
the Tenant to withhold or delay any payment of the rents
or any other sum due under this Lease after the date
upon which they fall due or in any way prejudice affect
or derogate from the rights of the Landlord in relation
to such non-payment including (but without prejudice to
the generality of the above) under the proviso for
re-entry contained in this Lease
18
<PAGE> 19
5.18 STATUTORY NOTICE ETC
To give full particulars to the Landlord of a notice direction
order or proposal for the Premises made given or issued to the
Tenant by any local or public authority within 14 days of
receipt and if so required by the Landlord to produce it to the
Landlord and to the extent that the Tenant is legally bound
thereby without delay to take all steps reasonably necessary to
comply with the notice direction or orders in so far as such
compliance is otherwise within the obligation of the Tenant
under this Lease and at the request and cost of the Landlord to
make or join with the Landlord in making such objection or
representation against or in respect of any notice direction
order or proposals as the Landlord shall reasonably require
5.19 KEYHOLDERS
To ensure that at all times the Landlord has and the local
police force has written notice of the name home address and
home telephone number of at least 2 keyholders of the Premises
5.20 SALE OF REVERSION ETC
To permit upon reasonable written notice (being at last 48
hours) at reasonable times during the Term prospective purchase
of or agents instructed in connection with the sale of the
Landlord's reversion or of any interest superior to the Term to
view the Premises without interruption provided they are
authorised in writing by the Landlord or its agents
5.21 DEFECTIVE PREMISES
To give notice to the Landlord or any defect in the Premises
coming to the Tenant's attention which might give rise to an
obligation on the Landlord to do or refrain from doing any act
or thing in order to comply with the provisions of this Lease or
the duty of care imposed on the Landlord pursuant to the
Defective Premises Act 1972 or otherwise and at all times to
display and maintain all notices which they Landlord may from
time to time require to be displayed at the Premises for such
purposes
19
<PAGE> 20
5.22 NEW GUARANTOR
Within 14 days of the death during the Term of any Guarantor or
of such person becoming bankrupt or having a receiving order
made against him or having a receiver appointment under the
Mental Health Act 1983 or being a company passing a resolution
to wind up or entering into liquidation or having a receiver
appointed to give notice of this to the Landlord and if so
required by the Landlord at the expense of the Tenant within 28
days to procure some other person reasonably acceptable to the
Landlord to execute a guarantee in respect of the Tenant's
obligations contained in this Lease in the form of the
guarantor's covenants contained in the Eighth Schedule of this
Lease
5.23 LANDLORD'S RIGHTS
To permit the Landlord at all times during the Term to exercise
without interruption or interference any of the rights granted
to it by virtue or the provision of this Lease
5.24 THE OFFICE COVENANTS
To observe and perform the Office Covenants
6. THE LANDLORD'S COVENANT
The Landlord covenants with the Tenant to permit the Tenant peaceably
and quietly to hold and enjoy the Premises without any interruption or
disturbance from or by the Landlord or any person whomsoever
7. SERVICE CHARGE AND INSURANCE COVENANTS
The provisions of the Fifth and Sixth Schedules shall have effect and
the parties covenants with each other to observe with each other to
observe and perform their respective obligations set out in those
schedules
8. PROVISOS
8.1 RE-ENTRY
If and whenever during the Term:
20
<PAGE> 21
8.1.1 the rents (or any of them or any part of them) under
this Lease are outstanding for 21 days after becoming
due whether formally demanded or not or
8.1.2 there is a breach by the Tenant of any covenant or other
term of this Lease or any document properly executed by
the Landlord and the Tenant and expressed to be
supplemented to this Lease or
8.1.3 an individual Tenant becomes bankrupt or
8.1.4 a company Tenant
8.1.4.1 enters into liquidation whether compulsory or
voluntary (but not if the liquidation is for
amalgamation or reconstruction of a solvent
company) or
8.1.4.2 has a receiver appointment or
8.1.5 the Tenant enters into an arrangement for the benefit of
is creditors or
8.1.6 the tenant has any distress or execution levied on its
goods the Landlord may re-enter the Premises (or any
part of them in the name of the whole) at any time
(and even if any previous right of re-entry has been
waived) and then the Term will absolutely cease but
without prejudice to any rights or remedies which may
have accrued to the Landlord against the Term or the
Guarantor in respect of any breach of covenant or
other term of this Lease (including the breach in
respect of which the re-entry is made)
8.2 COVENANTS RELATING TO ADJOINING PREMISES
Nothing contained in or implied in this Lease shall give the
Tenant the benefit of or the right to enforce or to prevent the
release or modification of any covenant agreement or condition
entered into by any tenant of the Landlord in respect of any
property not comprised in this Lease
8.3 DISPUTES WITH ADJOINING OCCUPIERS
If any dispute arises between the Tenant and the tenants or
occupiers of other parts of the Building or the adjoining
Property as to any easement right or privilege in connection
with the use of the Premises and any other part of the building
or the adjoining Property or as to the boundary structures
separating the Premises from any other property it shall be
decided by the Landlord
21
<PAGE> 22
8.4 EFFECT OF WAIVER
Each of the Tenant's covenants shall remain in full force both
at law and in equity notwithstanding that the Landlord shall
have waived or released temporarily any such covenant or waived
or released temporarily or permanently revocably or irrevocably
a similar covenant or similar covenants affecting any other part
of the Building or the adjoining Property
8.5 RIGHTS, EASEMENTS ETC
The operation of the Law of Property Act 1925 Section 62 shall
be excluded from this Lease and the only rights granted to the
Tenant are those expressly set out in this Lease and such
further ancillary rights that arise under the general law or by
necessary implication and the Tenant shall not during the term
acquire or become entitled by any means whatever to any easement
from or over or affecting any other land or premises now or at
any time after the date of this Lease belonging to the Landlord
and not comprised in this Lease
8.6 ACCIDENTS
The Landlord shall not be responsible to the Tenant or to anyone
at the Premises or the Building or the adjoining property with
the Tenant's authority for any accident happening or injury
suffered or for any damage to or loss of any chattel sustained
in the Premises or the Building except in circumstances where
the Landlord or its servant or agent is negligent
8.7 PERPETUITY PERIOD
The perpetuity period applicable to this Lease shall be 80 years
from the commencement of the Contractual Term and whenever in
this Lease either party is granted a future interest in the
property there shall be deemed to be included in respect to
every such grant a provision requiring that future interest to
vest within the stated period and for it to be void for
remoteness if it shall not have so vested
8.8 EXCLUSION OF USE WARRANTY
Nothing in this Lease or in any consent granted to the Landlord
under this Lease shall imply or warrant that the Premises may
lawfully be used under the Planning Acts for the purpose
authorised in this Lease (or any purpose subsequently
authorised)
22
<PAGE> 23
8.9 ENTIRE UNDERSTANDING
This Lease embodies the entire understanding of the parties
relating to the Premises and to all the matters dealt with by
any of the provisions of this Lease
8.10 REPRESENTATIONS
The Tenant acknowledges that this Lease has not been entered
into in reliance wholly or partly on any statement or
representation made by or on behalf of the Landlord except any
such statement or representation that is expressly set out in
this Lease
8.11 LICENCE ETC UNDER HAND
Whilst the Landlord is limited company or other corporation all
licences consents approvals and notices required to be given by
the Landlord shall be sufficiently given under the hand of a
director or Secretary or other duly authorised officer of the
Landlord
8.12 TENANT'S PROPERTY
If after Tenant has vacated the Premises on the expiry of the
Term any property of the Tenant remains in or on the Premises
and the Tenant fails to remove it within 21 days after being
requested in writing by the Landlord to do so or if after using
its best endeavours the Landlord is unable to make such a
request to the Tenant within 28 days from the first attempt so
made by the Landlord:
8.12.1 the Landlord may as the agent of the Tenant sell such
property and the Tenant will indemnify the Landlord
against any liability incurred by it to any third party
whose property shall have been sold by the Landlord in
the mistaken belief held in good faith (which shall be
presumed unless the contrary be proved) that such
property belonged to the Tenant
8.12.2 if the Landlord having made reasonable efforts is unable
to locate the Tenant the Landlord shall be entitled to
retain such proceeds of sale absolutely unless the
Tenant shall claim them within 9 months of the date upon
which the Tenant vacated the Premises and
8.12.3 the Tenant shall indemnify the Landlord against any
damage occasioned to the Premises and any actions claims
proceedings costs expenses and
23
<PAGE> 24
demands made against the Landlord caused by or related
to the presence of the property in or on the Premises
8.13 PARTY WALLS
The internal non-load bearing walls that divide the Premises
from the adjoining Property shall be deemed to be party walls
within the meaning of the Law of Property Act 1925 Section 38
and shall be maintained at the equally shared expense of the
Tenant and the other respective estate owners
8.14 SERVICE OF NOTICES
8.14.1 The provisions of the Law of Property Act 1925 Section
196 as amended by the Recorded Delivery Services Act
1962 shall apply to the giving and service of all
notices and documents under or in connection with this
Lease except that Section 196 shall be deemed to be
amended as follows:
8.14.1.1 The final words of Section 196(4)... "and that
service...be delivered" shall be deleted and
there shall be substituted "...and that service
shall be deemed to be made on the third working
day after the registered letter has been posed
"working day" meaning any day from Monday and
Friday (inclusive) other than Christmas Day
Good Friday and any statutory bank or public
holiday"
8.14.1.2 any notice or documents shall also be
sufficiently served if sent by telex telephonic
facsimile transmission or any other means of
electronic transmission to the party to be
served and that service shall be deemed to be
made on the day of transmission if transmitted
before 2:00 p.m. on a working day but otherwise
on the next following working day (as defined
above) and in this clause "party" includes the
Guarantor
8.14.2 Any notice required to be given or served by law or
hereunder and not herein otherwise provided for shall be
sufficiently served on the Tenant by being forwarded by
registered or recorded delivery post to the Premises or
such other address as the Tenant may notify in writing
to the Landlord and shall be sufficiently served on the
Landlord if addressed to the Landlord
24
<PAGE> 25
and left at or sent by registered or recorded delivery
post to the registered office of the Landlord and a
notice so sent by post shall be deemed to be given at
the time when it ought in due course of post to be
delivered at the address to which it is sent
9. The Guarantor covenants with the Landlord to perform the obligations
contained in the 8th Schedule
10. CERTIFICATE
It is certified that there is no agreement to which this Lease give
effect
11. COVENANT STATUS OF THIS LEASE
This Lease is a new tenancy within the meaning of Section 1 of the
Landlord and Tenant (Covenants) Act 1995
12. By an Order dated 28th July 2000 of the Great Derby County Court it is
agreed that this Lease shall be (and is) hereby contracted out of the
Security of Tenure provision of the Landlord and Tenant Act 1954 Part
and in particular that Sections 24-28 thereof shall be excluded by
virtue of Section 38
IN WITNESS whereof the parties hereto have hereunto caused their
respective Common Seals to be hereunto affixed the day and year first
before written
FIRST SCHEDULE
THE PREMISES
"the Premises" means that part of the Building referred to in clause 3.2
shown for the purpose of identification only edged red on the Plans A
and B containing 4,054 square feet and including:
1. The paint paper and other decorative finishes applied to the
interior of the external walls of the Building but not any other
part of the external walls
25
<PAGE> 26
2. The floor finishes so that the lower limit of the Premises
includes such finishes but does not extend to anything below
them
3. The ceiling finishes so that the upper limit of the Premises
includes such finishes but does not extend to anything above
them
4. The entirety of any non-load bearing internal walls wholly
within the Premises
5. The inner half severed medically of the internal
non-load-bearing walls dividing the Premises from the other
parts of the Building
6. The doors and windows and the door and window frames (excluding
the external surfaces of the doors and windows and the door and
window frames)
7. All additions and improvements to the Premises
8. All the Landlord's fixtures and fittings and fixtures of every
kind which shall from time to time be in or upon the Premises
whether originally affixed or fastened to or upon the Premises
or otherwise including those set out in the Seventh Schedule but
excluding any such fixture installed by or at the expense of the
Tenant
9. Any Pipes which are within and that exclusively serve the
Premises
SECOND SCHEDULE
RIGHTS GRANTED
1. COMMON PARTS
The right for the Tenant and all persons expressly or by implication
authorised by it at all times (in common with the Landlord and all other
persons having a like right) to use the Common Parts for all proper
purposes in connection with the use and enjoyment of the Premises
2. PIPES
The right to the free passage and running (subject to temporary
interruption for repair alteration or replacement) of water sewage gas
electricity telephone and other services or supplies to and from the
Premises in and through the Pipes that serve the Premises ( in common
with the Landlord and any other persons having a like right)
26
<PAGE> 27
3. SUPPORT
The right of support and protection for the benefit of the Premises from
all other parts of the Building
THIRD SCHEDULE
RIGHTS RESERVED
1. CONSTRUCTION OF PIPES
The right to construct renew and maintain in on under or over the
Premises at any time during the Term any Pipes for the benefit of any
other part of the Building the person exercising this right making good
all damage thereby caused to the reasonable satisfaction of the Tenant
2. ACCESS
2.1 The right at any time during the Term at reasonable
times and upon written notice except in cases of
emergency to enter (or in cases of emergency to break
into and enter) the Premises:
2.1.1 to inspect cleanse connect to repair remove
replace with others in connection with the Pipes
easements or service referred to in paragraph 1
of this Schedule
2.1.2 to view the state and condition of and repair
and maintain the Building the Adjoining Property
and (if any) the Other Buildings where such
viewing or work would not otherwise be
reasonable practicable
2.1.3 to carry out work or do anything whatever
comprised within the Landlord's obligations in
this Lease
2.1.4 take schedules or inventories of fixtures and
other items to be yielded up on the expiry of
the Term and
2.1.5 to exercise any of the rights granted to the
Landlord by this Lease
2.1.6 to inspect the condition and state of repair of
the Premises
27
<PAGE> 28
3. SCAFFOLDING
The right to erect scaffolding for the purpose of inspecting repairing or
cleaning the Building and the Adjoining Property
4. SUPPORT ETC
The rights of support and protection from the Premises to all parts of the
Building not hereby demised
FOURTH SCHEDULE
THE OFFICE COVENANTS
1. USER
1.1 Not to use the Premises for any purpose other than the User
1.2 Not to leave the Premises continuously unoccupied for more than
one month without:
1.2.1 notifying the Landlord and
1.2.2 providing such caretaking or security arrangements as
the Landlord shall reasonably require and the insurers
shall reasonably require in order to protect the
Premises from vandalism theft damage or unlawful
occupation
1.3 Not to play or use in the Premises any musical instrument
loudspeaker tape recorder gramophone radio or other equipment or
apparatus that produces sound that may be heard in nearby
premises or outside the Premises if the Landlord shall in its
absolute discretion consider such sound to be undesirable and
shall give written notice to the Tenant to that effect
2. POLLUTION
Not to permit to be discharged into the Pipes serving the Building any oil or
grease or any deleterious objectionable dangerous poisonous or explosive matter
or substance and to take all reasonable measures to ensure that any effluent so
discharged into the Pipes will not be corrosive or otherwise harmful to the
Pipes or cause obstruction or deposit in them
28
<PAGE> 29
3. CEILING AND FLOOR LOADING
3.1 Not to bring or permit to remain on the Premises any safes
machinery goods or other articles which will strain or damage
the Building or any part of it
3.2 Not without the consent of the Landlord to suspend anything from
the walls or ceilings of the Premises other than lights pictures
notice boards and other things normally fixed to the walls or
ceilings or use the same for storage of goods or place weight on
them
3.3 on any application by the Tenant for the Landlord's consent
under paragraph 3.2 the Landlord may consult and obtain the
advice of an engineer or other appropriate person in relation to
the loading proposed by the Tenant and the Tenant shall repay to
the Landlord on demand the reasonable and proper fees of such
engineer or other person
3.4 Provided that no normal office machinery or equipment shall be
prohibited by virtue of this provision
4. COMMON PARTS
4.1 Not to cause the Common Parts or any other land roads or
pavements adjoining the Building to become untidy or in a dirty
condition but at all times to keep the Common Parts and other
land roads or pavements free from deposits of the Tenant's
materials and refuse
4.2 Not to stand place deposit or expose outside any part of the
Premises any goods materials articles or things whatsoever for
display or sale or for any other purpose nor cause any
obstruction of the Common Parts
5. MACHINERY
Not to install or use in or upon the Premises any machinery or
apparatus so as to cause noise or vibration which can be heard or felt
in nearby premises or outside the Premises or so as to cause structural
damage
29
<PAGE> 30
6. UNLOADING
Not to load or unload any goods or materials onto or from
vehicles and convey the same from and into the Building and the
Premises except through the entrances designated for that
purpose and by means of any lift designated for such purpose
7. HEATING COOLING AND VENTILATION
7.1 Not to do anything which interferes with the heating
cooling or ventilation of the Common Parts or which
imposes an additional load on any heating cooling or
ventilation plan and equipment in the Building
7.2 Not to operate the ventilation equipment in the Premises
otherwise than in accordance with the reasonable
regulations for such purpose made by the Landlord from
time to time
8. SECURITY
To comply with the reasonable regulations made by the Landlord relating
to the security of the Building and to ensure that when the rear access
door is used by the Tenant or its licensees that the rear access door is
locked after use
9. REGULATIONS
To comply with all reasonable regulations made by the Landlord from time
to time for the better management of the Building
10. NAMEPLATES OR SIGNS
Not to erect any signs or notices on the Premises without prior written
consent of the Landlord
11. BLINDS
To use only vertical blinds to the windows such blinds to be a colour
and specification previously approved by the Landlord such approval not
to be unreasonably withheld or delayed
30
<PAGE> 31
FIFTH SCHEDULE
SERVICE CHARGE
PART A
DEFINITIONS
1. "Service" means the services facilities and amenities specified
in Part C of this Schedule
2. "Computing Date" means such date as the Landlord may from time
to time nominate and "Computing Dates" shall be construed
accordingly
3. "Financial Year" means the period:
3.1 from the commencement of the Term to and including the
first Computing Date and subsequently
3.2 between two consecutive Computing Dates (excluding the
First Computing Date from but including the second
Computing Date in the period)
4. "Gross Annual Expenditure" means in relation to any Financial
Year the aggregate of:
4.1 all costs expenses and outgoings whatever incurred by
the Landlord during that Financial Year in or
incidentally to providing all or any of the Services and
any VAT payable
4.2 all costs incurred by the Landlord during that Financial
Year in relation to the matters specified in Part D of
this Schedule ("Additional Items") and any VAT payable
but "Gross Annual Expenditure" shall not include any expenditure
in respect of the maintenance or repair of any part of the
Building or of any thing in the Building whose maintenance or
repair is the exclusive responsibility of the Tenant or any
other tenant in the Building or the Adjoining Property
5. "Annual Expenditure" means in relation to any Financial Year the
Gross Annual Expenditure for that Financial Year less the
aggregate of:
5.1 if the Financial Year in question or in any previous
Financial Year the Landlord has incurred any costs or
expenses in or incidentally to making
31
<PAGE> 32
good any loss or damage covered by any policy of
insurance maintained by the Landlord pursuant to its
obligations in this Lease all (if any) amounts recovered
by the Landlord in the Financial Year in question
pursuant to such policy of insurance and
5.2 if in the Financial Year in question or in any previous
Financial Year the Landlord has incurred any costs or
expenses in or incidentally to providing any of the
Services or in relation to any of the Additional Items
which are recoverable (in whole or in part) from any
person other than the Tenant or any other tenant in the
Building all (if any) amounts recoverable by the
Landlord in the Financial Year in question from any such
person (whether or not actually recovered)
6. "Service Charge" means the Service Charge Percentage of the
Annual Expenditure for the relevant Financial Year
7. "Lettable Area" means all parts of the Building not comprising
Common Parts which from time to time are either occupied by the
Landlord for the purposes of its business or by a tenant or
tenants for office purposes or are so constructed or adapted as
to be capable of being so occupied
8. "Retained Parts" means all parts of the Building (including the
Common Parts) other than the Premises and the other Lettable
Areas
9. "Structure" means:
9.1 the entirety of the roofs and foundations of the
Building
9.2 the entirety of all floors and ceilings of the Building
(but excluding the floor and ceiling finishes)
9.3 the entirety of all external walls of the Building (but
excluding the paint paper and other decorative finishes
applied to the internal faces of such walls within a
Lettable Area)
9.4 the entirety of all load-bearing walls pillars and other
structures of the Building (but excluding the paint
paper and other decorative finishes applied to the faces
of such walls pillars and other structures within a
Lettable Area) and
32
<PAGE> 33
9.5 all other parts of the structure of the building not
referred to in the preceding paragraphs 9.1 to 9.4
9.6 the entirety of the car park adjacent to the Building
10. "Plants" means all apparatus plant machinery and equipment
within the Building from time to time including (without
prejudice to the generality of the above) lifts lift-shafts
stand-by generators and boilers and items relating to mechanical
ventilation heating cooling public address and closed circuit
television systems
PART B
PERFORMANCE OF THE SERVICES AND PAYMENT OF THE SERVICE CHARGE
11. PERFORMANCE OF THE SERVICES
Subject to the Tenant paying to the Landlord the Service Charge and
complying with the covenants and other terms of this Lease the Landlord
shall perform the Services throughout the Term provided that the
Landlord shall not be liable to the Tenant in respect of any failure or
interruption in any of the Services by reason of necessary repair
replacement maintenance or any installations or apparatus or their
damage or destruction or by reason of mechanical or other defect or
breakdown or frost or other inclement conditions or shortage of fuel
materials water or labour or any other cause beyond the Landlord's
control and not arising from the Landlord's default hereunder PROVIDED
THAT the Landlord shall restore the same as soon as reasonably
practicable
12. PAYMENT OF THE SERVICE CHARGE
12.1 The Landlord shall as soon as reasonably practicable
after each Computing Date prepare an account showing the
Gross Annual Expenditure and the Annual Expenditure for
the Financial Year ending on that Computing Date and
containing a schedule together with such receipts
vouchers and other evidence of payment as the Tenant may
reasonably require of the expenditure referred to in it
and upon such account being certified by the Accountant
it shall be conclusive evidence for the purposes of this
Lease of all matters of fact referred to in the account
except in the case of manifest error
33
<PAGE> 34
12.2 The Tenant shall pay for the period from the Rent
Commencement Date to the Computing Date next following
the date of this Lease the Initial Provisional Service
Charge the first payment being a proportionate sum in
respect of the period from and including the Rent
Commencement Date to and including the day before the
next quarter day to be paid on the date of this Lease
and subsequent payments to be made in advance on the
relevant quarter days in respect of the relevant
quarters
12.3 The Tenant shall pay for the next and each subsequent
Financial Year a provisional sum calculated upon a
reasonable and proper estimate by the Surveyor acting as
an expert and not as an arbitrator of what the Annual
Expenditure is likely to be for that Financial Year by
four equal quarterly payments on the usual quarter days
12.4 If the Service Charge for any Financial Year shall:
12.4.1 exceed the provisional sum for that Financial
Year the excess shall be due to the Landlord on
demand or
12.4.2 be less than such provisional sum the
overpayment shall be credited to the Tenant
against the next quarterly payment of the Rent
and Service Charge and any balance refunded to
the Tenant at the expiry of the Term
13. VARIATIONS
13.1 The Landlord may withhold add to extend vary or make any
alteration in the rendering of the Services or any of
them from time to time provided that the same complies
with the principles of good estate management and is
reasonable in all the circumstances
13.2 If at any time during the Term the total property
enjoying or capable of enjoying the benefit of any of
the Services or the Additional Items is increased or
decreased on a permanent basis or the benefit of any of
the Services or the Additional Items is extended on a
like basis to any adjoining or neighbouring property or
if some other event occurs a result of which is that the
Service Charge Percentage is no longer appropriate to
the Premises the Service Charge Percentage shall be
varied with effect
34
<PAGE> 35
from the Computing Date following such event by
agreement between the parties or in default of agreement
shall be referred to arbitration except that nothing
contained in this Lease shall imply an obligation on the
part of the Landlord to provide the Services or the
Additional Items to any adjoining or neighbouring
property
PART C
THE SERVICES
14. MAINTAINING STRUCTURE AND RETAINED PARTS
14.1 Maintaining repairing rebuilding renewing and
reinstating the Structure except where the same results
from the occurrence of an Insured Risk where the
insurance monies have not been refused by reason of any
act or default of the Tenant
14.2 Maintaining and repairing the outer half served medially
of all internal non-load-bearing walls dividing the
Premises from other parts of the Building
14.3 Maintaining repairing amending altering rebuilding
renewing and reinstating and where appropriate treating
washing down painting and decorating to such standard as
the Landlord may from time to time reasonably consider
adequate the Common Parts including the entirety of all
walls floors and ceilings surrounding and all doors and
windows and door and window frames in the Common Parts
(but excluding any such items or parts of them the
maintenance of which is the exclusive responsibility of
the Tenant or any other tenant of the Adjoining
Property) except where the same results from the
occurrence of an Insured Risk where the insurance monies
have not been refused by reason of any act or default of
the Tenant
15. LIFT
Providing a lift service by the operation of the lift now installed in
the Building or by such substituted lift as the Landlord may from time
to time reasonably decide to install
35
<PAGE> 36
16. HOT AND COLD WATER
Maintaining at all times to the Building an adequate supply of hot and
cold water and supplying necessary washing and toilet requisites in the
toilet accommodation in the Retained Parts
17. CENTRAL HEATING
Supplying at all times during the months of October November December
January February March and April and such other times when necessary
central heating to the Premises and the Common Parts in order to
maintain a room temperature (with adequate natural ventilation) of 65
degrees Fahrenheit from 8:00 a.m. to 6:00 p.m. on every weekday
18. MAINTAINING ETC. PLANT
Inspecting servicing maintaining repairing (including renewal but not
replacement) amending overhauling and insuring (save in so far as
insured under other provisions of this Lease) all Plant which serves the
Premises (but excluding any items or parts of any items of such Plant
whose maintenance is the exclusive responsibility of the Tenant or is
attributable to any other lettable area) and all other Plant
19. MAINTAINING ETC. PIPES
Maintaining repairing cleansing emptying draining amending and renewing
all Pipes in on under or over the Building or the Adjoining Property
serving the Premises in common and other premises (but excluding any
Pipes or parts of them whose maintenance is the exclusive responsibility
of any tenant in the Adjoining Property)
20. MAINTAINING ETC. FIRE ALARMS ETC.
Maintaining and renewing any fire alarms fire prevention and fire
fighting equipment and ancillary apparatus in the Common Parts
21. CLEANING ETC. THE COMMON PARTS
Cleaning treating polishing heating and lighting the Common Parts
36
<PAGE> 37
22. GARDENS AND FLORAL DECORATIONS
Providing and maintaining to a reasonable standard plants shrubs trees
gardens or grassed areas and floral decorations in the Common Parts and
keeping the same planted free from weeds and properly attended and the
grass cut
23. FIXTURES FITTINGS ETC.
Supplying providing purchasing maintaining renewing replacing repairing
servicing overhauling and keeping in good and serviceable order and
condition all appurtenances fixtures fittings bins receptacles tools
appliances materials equipment and other things which the Landlord
reasonably may deem desirable or necessary for the maintenance
appearance upkeep or cleanliness of the Building and the adjacent car
park or any part of it
24. WINDOWS
Cleaning at monthly intervals the exterior of all windows and window
frames in the Building including those that form part of the Premises
and other lettable areas
25. REFUSE
Collecting and disposing of refuse from the Building and the provision
repair maintenance and renewal of plant and equipment for the collection
treatment packaging or disposal of refuse
26. INSURANCE
Insuring the Premises the Building the Common Parts and the Pipes in
accordance with the Sixth Schedule
27. OTHER SERVICES
Any other services relating to the Building or any part of it reasonably
provided by the Landlord in the interests of good estate management from
time to time during the Term and not expressly mentioned herein
37
<PAGE> 38
PART D
THE ADDITIONAL ITEMS
28. FEES
28.1 The reasonable and proper fees and disbursements (and
any VAT payable on them) of:
28.1.1 the Surveyor the Accountant and any other
individual firm or company employed or retained
by the Landlord for (or in connection with) such
surveying or accounting functions
28.1.2 the managing agents (whether or not the
Surveyor) for or in connection with:
28.1.2.1 the management of the Building
including but without prejudice to the
generality of the foregoing the
collection of the rents and all other
sums due to the Landlord from the
tenants of the Building
28.1.2.2 the performance of the Services and any
other duties in and about the Building
or any part of it relating to (without
prejudice to the generality of the
above) the general management
administration security maintenance
protection and cleanliness of the
Building
28.1.3 any individual firm or company provided
caretaking or security arrangements and services
to the Building
28.1.4 any other individual firm or company employed by
the Landlord to perform (or in connection with)
any of the Services or any of the functions or
duties referred to in this paragraph
28.2 The fees of the Landlord or a Group Company for any of
the Services or the other functions and duties referred
to in paragraph 28.1 above that shall be undertaken by
the Landlord or a Group Company and not by a third party
38
<PAGE> 39
29. CONTRACTS FOR SERVICE
The cost of entering into any contracts for the carrying out of all or
any of the Services and other functions and duties that the Landlord may
in its reasonable discretion deem desirable or necessary
30. OUTGOINGS
All rates taxes assessments duties charges impositions and outgoings
which are now or during the Term shall be charged assessed or imposed
on:
30.1 The whole of the Building where there is no separate
charge assessment or imposition on or in respect of an
individual unit
30.2 The whole of the Common Parts or any part of them
31. ELECTRICITY, GAS ETC.
The cost of the supply of electricity gas oil or other fuel for the
provision of the Services
32. ROAD ETC. CHARGES
The amount which the Landlord shall be called upon to pay and may
properly pay as a contribution towards the expense of making repairing
(including renewals but not rebuilding) maintaining and cleansing any
ways roads pavements or structures Pipes or anything which may belong to
or be used for the Building or any part of it exclusively or in common
with other neighbouring or adjoining premises
33. STATUTORY ETC. REQUIREMENTS
The cost of taking all steps deemed desirable or expedient by the
Landlord for complying with making representations against or otherwise
contesting the incidence of the provisions of any statute byelaw or
notice concerning town planning public health highways streets drainage
or other matters relating to or alleged to relate to the Building or any
part of it for which any tenant is not directly and exclusively liable
39
<PAGE> 40
34. NUISANCE
The cost to the Landlord of abating a nuisance in respect of the
Building or any part of it greater than a single lettable area in so far
as the same is not the liability of any individual tenant
35.
35.1 Provided always that in relation to the calculation of
the Gross Annual Expenditure or the Service Charge the
Landlord shall not include the same sum more than once
nor shall the Landlord or any other person providing the
Services be paid more than once for any service so
provided
35.2 Notwithstanding the provisions of this Schedule the
Landlord shall not recover or seek to recover from the
Tenant any Service Charge or other payment in respect of
any costs incurred by the Landlord of or incidental to
the remedying of any defect in the structure of the
Premises or the Building which manifests itself at any
time during the Term or of any want of repair
attributable to such defect which manifests itself at
any time during the Term
SIXTH SCHEDLE
INSURANCE
1. DEFINITION
1.1 "Insurance Cost" means the sums that the Landlord shall
from time to time pay by way of premium:
1.1.1 for insuring the Building in accordance with
this Schedule or (where such insurance includes
other premises) the proportion reasonably
attributable to the Building of the sums that
the Landlord shall from time to time pay by way
of premium for insuring the Building and such
other premises (to be determined from time to
time by the Surveyor acting as an expert and not
as an arbitrator)
40
<PAGE> 41
1.1.2 for insuring in such amount and on such terms as
the Landlord shall consider appropriate against
all liability of the Landlord to third parties
arising out of or in connection with any matter
involving or relating to the Building
1.2 "Insured Risks" means fire lightning explosion aircraft
(including articles dropped from aircraft) riot civil
commotion malicious persons earthquake storm tempest
flood bursting and overflowing of water pipes tanks and
other apparatus and impact by road vehicles and such
other risks as the Landlord from time to time reasonably
may think fit to insure against
2. LANDLORD TO INSURE
The Landlord shall insure the Building unless such insurance shall be vitiated
by any act of the Tenant its agents or employees and keep the same insured
against all the Insured Risks at all times
3. DETAILS OF THE INSURANCE
Insurance shall be effected:
3.1 in such substantial and reputable insurance office or with such
underwriters and through such agency as the Landlord may from
time to time reasonably decide
3.2 for the following sums:
3.2.1 such sum as shall from time to time be the full cost
(including any Value Added Tax thereon) of rebuilding
and reinstating the Building including architects'
surveyors' and other professional fees payable upon any
applications for planning permission or other permits or
consents that may be required in relation to the
rebuilding or reinstatement of the Building the cost of
debris removal demolition site clearance any works that
may be required by statute and incidental expense and
3.2.2 the loss of Rent and Service Charge (including any Value
Added Tax thereon) payable under this Lease from time to
time (having regard to any review of rent which may
become due under this Lease) for three years or such
longer period as the Landlord may from time to time
reasonably
41
<PAGE> 42
deem to be necessary for the purposes of the planning
and carrying out the rebuilding or reinstatement or
(where such insurance includes this Lease and other
leases) such proportion attributed to this Lease from
time to time by the Surveyor acting as an expert and not
as an arbitrator
3.3 against damage or destruction by the Insured Risks to the extent
that such insurance may ordinarily be arranged for property such
as the Building with an insurer of repute and subject to such
excesses exclusions or limitations as are usual in the insurance
market from time to time
4. SUSPENSION OF RENT
4.1 If and whenever during the Term:
4.1.1 the Premises (which expression in this clause 4 and in
clauses 5 and 6 of this Schedule shall include the means
of access thereto) or any part of them or the Building or
any part of it or the Pipes or the Common Parts are
damaged or destroyed by way of the Insured Risks so that
the Premises or any part of them are unfit for occupation
or use and
4.1.2 to the extent that payment of the insurance money is not
refused by reason of any act or default of the Tenant its
agents or employees the provisions of paragraph 4.2 shall
have effect
4.2 When the circumstances contemplated in paragraph 4.1 arise the
Rent and the Service Charge or a fair proportion of it or them
according to the nature and the extent of the damage sustained
and the extent of the insurance monies not refused under
paragraph 4.1.2 of this Schedule shall cease to be payable until
the Premises or the Building or the affected parts aforesaid
shall have been rebuilt or reinstated so that the Premises or the
affected part are made fit for occupation or use (the amount of
such proportion to be determined by arbitration in accordance
with and subject to the provisions of the Arbitration Acts 1950
and 1979 and any statutory modification or re-enactment thereof
for the time being in force)
42
<PAGE> 43
5. REINSTATEMENT AND TERMINATION IF PREVENTED
5.1 If and whenever during the term the Premises or any part of them
or the Building or any part of it or the Pipes or the Common
Parts are damaged or destroyed by any of the Insured Risks and
subject to paragraph 6.6. of this Schedule the Landlord shall
use with due expedition its reasonable endeavours to obtain all
planning permissions and other permits and consents that may be
required under the Planning Acts or other statutes (if any) to
enable the Landlord to rebuild or reinstate the property so
damaged or destroyed ("Permissions")
5.2 Subject to the provisions of paragraphs 5.3 and 5.4 the Landlord
shall as soon as the Permissions have been obtained or
immediately where no Permissions are required apply all money
received in respect of such insurance (except sums in respect of
loss of Rent and Service Charge) in rebuilding or reinstating
the Premises or the Building so destroyed or damaged making up
any shortfalls out of its own resources
5.3 For the purposes of this paragraph the expression "Supervening
Events" means:
5.3.1 the Landlord has failed despite using its best
endeavours to obtain the Permissions
5.3.2 any of the Permissions have been granted subject to a
lawful condition with which in all the circumstances it
would be unreasonable to expect the Landlord to comply
5.3.3 some defect or deficiency in the site upon which the
rebuilding or reinstatement is to take place would mean
that the same could only be undertaken at a cost that
would be unreasonable in all the circumstances
5.3.4 the Landlord is unable for reason not within the
Landlord's control to obtain access to the site for the
purposes of rebuilding or reinstating
5.3.5 the rebuilding or reinstating is prevented by war act of
God Government actions strike lock-out
5.4 The Landlord shall not be liable to rebuild or reinstate the
Premises or the Building if and for so long as such rebuilding
or reinstating is prevented by Supervening Events
43
<PAGE> 44
5.5 If upon the expiry of a period of two years commencing on the
date of the damage or destruction the Landlord has not commenced
the rebuilding or reinstatement of the Premises or the Building
either party may by notice served at any time within 6 months of
the expiry of such period invoke the provisions of paragraph 5.6
5.6 Upon service of a notice in accordance with paragraph 5.5:
5.6.1 the Term will absolutely cease but without prejudice to
any rights or remedies that may have accrued to either
party against the other including (with prejudice to the
generality of the above) any right that the Tenant might
have against the Landlord for a breach of the Landlord's
covenants set out in paragraphs 5.1 and 5.2
5.6.2 all money received in respect of the insurance effected
by the Landlord pursuant to this clause shall belong to
the Landlord
6. TENANT'S INSURANCE COVENANTS
The Tenant agrees with the Landlord:
6.1 to comply with all the reasonable requirements and
recommendations of the insurers
6.2 not knowingly to do or omit anything that could cause any policy
of insurance on or in relation to the Premises to become void or
voidable wholly or in part nor (unless the Tenant shall have
previously notified the Landlord and have agreed to pay the
increased premium) anything by which additional insurance
premiums may become payable
6.3 not to store or bring onto the Premises any article substance or
liquid of a specifically combustible inflammable or explosive
nature and to comply with the reasonable requirements and
recommendations of the fire authority as to fire precautions
relating to the Premises
6.4 not to obstruct the access to any fire equipment or the means of
escape from the Premises nor to lock any fire door while the
Premises are occupied
6.5 to give notice to the Landlord as soon as reasonably practicable
upon the happening of any event which might affect any insurance
policy on or
44
<PAGE> 45
relating to the Premises or upon the happening of any event
against which the Landlord may have insured under this Lease of
which the Tenant its agents and employees have notice
6.6 if and whenever during the Term the Premises or any part of them
are damaged or destroyed by an Insured Risk and the insurance
money under the policy of insurance effected by the Landlord
pursuant to its obligations contained in this Lease is by reason
of any act or default of the Tenant its agents or employees
wholly or partially irrecoverable immediately in every such case
to pay to the Landlord on demand the amount of such insurance
money so irrevocable in which event the provisions of paragraphs
5 and 6 of this Schedule shall apply
7. LANDLORD'S INSURANCE COVENANTS
The Landlord agrees with the Tenant in relation to the policy of insurance
effected by the Landlord pursuant to its obligations in this Schedule
7.1 to produce to the Tenant on demand reasonable evidence of the
terms of the policy and the fact that the last premium has been
paid
7.2 to produce that the interest of the Tenant is noted or endorsed
on the policy
7.3 to notify the Tenant of any material change in the risks covered
by the policy from time to time
7.4 to produce to the Tenant on demand written confirmation from the
insurers that they have agreed to waive all rights of
subrogation against the Tenant
SEVENTH SCHEDULE
(LANDLORD'S FIXTURES AND FITTINGS)
The radiators window and door fittings light fittings electrical equipment and
carpeting (but excluding any electrical equipment which is brought onto the
Premises by the Tenant)
45
<PAGE> 46
EIGHTH SCHEDULE
1. GUARANTEE
1.1 The Guarantor(s) (jointly and severally) guarantee(s) to the
Landlord that the Tenant will pay the rents reserved by and
perform and observe all the Tenant's covenants in this Lease
throughout the Term and the Guarantor(s) will pay and make good
to the Landlord on demand any losses damages costs and expenses
suffered or incurred by the Landlord by reason of any failure of
the Tenant to do so
1.2 This guarantee is to take effect immediately on the assignment
of the Lease to the Tenant and is to remain in force for so long
as and to the extent that the Tenant is not released by law from
liability for the Tenant's covenants in the Lease
1.3 In the context of these guarantee provisions, reference to the
Tenant are to the assignee only (in its capacity as Tenant) with
respect to whom this guarantee is given
2. NO WAIVER OR RELEASE OF LIABILITY
The Guarantor(s) is not to be released from liability under these provisions by
reason of:
2.1 any forebearance the granting of any time or any other
indulgence on the part of the Landlord; or
2.2 any variation of this Lease, made with the consent of the
Guarantor(s), and the guarantee of the Guarantor(s) in paragraph
1 is to operate in relation to this Lease as it may be varied
from time to time
3. GUARANTOR(s) TO ACCEPT NEW LEASE UPON DISCLAIMER
3.1 If this Lease is determined by re-entry by the Landlord or is
effectively determined by disclaimer, the Guarantor(s) shall, if
the Landlord by notice in writing within three months after the
date of determination so requires take from the Landlord a lease
of the Premises
3.2 The Lease to be granted to the Guarantor(s) under paragraph 3.1
is to be on the following terms:
46
<PAGE> 47
3.2.1 the term is to commence on the date of termination of
this Lease and to be equal to the residue of the Term
which would have remained unexpired at the date of this
Lease had not then been terminated;
3.2.2 the yearly rent is to be the same as would have been
payable under this Lease if it had continued;
3.2.3 the Lease is otherwise to be on the same terms and
conditions as would have applied under this Lease if it
had been continued undetermined; and
3.2.4 the Guarantor(s) (is) (are) to succeed to the rights and
assume the liability of the Tenant under this Lease as
if the Lease had continued undetermined
4. SUBORDINATION OF RIGHTS OF THE GUARANTOR(s)
4.1 With respect to any sums paid by the Guarantor(s) under this
Schedule and to any other rights which may accrue to the
Guarantors(s) in respect of any sums so paid or liabilities
incurred under this guarantee or in the observance performance
or discharge of the obligations and covenants of the Tenant in
this Lease, the Guarantor(s) shall rank and be entitled to
enforce its rights only after all obligations and covenants
under this guarantee have been fully observed and performed, and
if they have not the Guarantor(s) shall not:
4.1.1 seek to recover from the Tenant, or any third party
whether directly or by way of set-off lien counterclaim
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 Guarantor(s) on
account of the failure by the Tenant to observe and
perform or discharge such obligations or covenants in
this Lease;
4.1.2 claim, prove or accept any payment in composition by way
of winding-up, liquidation, bankruptcy or other form of
insolvency of the Tenant in competition with the
Landlord for any amount whatsoever owing to the
Guarantor(s) by the Tenant; nor
4.1.3 exercise any right or remedy in respect of any amount
paid by the Guarantor(s) under this Lease or any
liability incurred by the Guarantor(s)
47
<PAGE> 48
in observing, performing or discharging the obligations
and covenants of the Tenant
4.2 The Guarantor(s) warrant(s) that it has not taken, and
undertakes with the Landlord that it will not without the
consent of the Landlord:
4.2.1 take any security from the Tenant in respect of this
guarantee and, if any such security is so taken
notwithstanding, it shall be held on trust for the
Landlord as security for the respective liabilities of
the Guarantor(s) and the Tenant; nor
4.2.2 be entitled to any right of proof in the bankruptcy,
liquidation or other form of insolvency of the Tenant or
exercise any other right of the Guarantor(s) discharging
his liability in respect of such obligation and
covenants
THE COMMON SEAL of Howtin Investments Limited
was hereunto affixed
in the presence of
Director /s/ (Illegible)
Secretary /s/ (Illegible)
THE COMMON SEAL of Udate.Com Limited
was hereunto affixed
it the presence of
Director
Secretary
48
<PAGE> 49
IN THE GREAT DERBY COUNTY COURT No of Matter DE002468
IN THE MATTER OF THE LANDLORD AND TENANT ACT 1954
AND
IN THE MATTER OF A PROPOSED LEASE OF PREMISES AT
NEW ENTERPRISE HOUSE, ST HELENS STREET, DERBY
BETWEEN
Howtin Investments Limited
First Applicant
and
Icebreaker Personal Network Limited
Second Applicant
Upon the application of the Solicitors for the First and Second Applicant and by
consent it is ordered that the First and Second Applicant shall be authorised to
include in a Lease (a draft copy of which annexed hereto) to be made between the
First Applicant as Landlord and the Second Applicant as Tenant of premises
situate at New Enterprise House, St Helens Street, Derby of a provision
excluding the provisions of Sections 24 to 28 (inclusive) of the Landlord and
Tenant Act 1954
Dated the 28th day of July 2000
---------- ----------
/s/ (Illegible)
District Judge
49
<PAGE> 50
50