Dated
2016
(1)
THE SECRETARY OF STATE FOR ENVIRONMENT FOOD AND RURAL
AFFAIRS
(2)
[NAME OF TENANT]
(3)
[NAME OF TENANT'S GUARANTOR]
Lease
relating to premises known as Retail Unit within Grizedale Visitor Centre
[
]
Eversheds LLP
1 Callaghan Square
Cardiff
CF10 5BT
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Tel 0845 497 9797
Fax 0845 498 7333
Int +44 29 2047 1147
DX 33016 Cardiff
www.eversheds.com
CONTENTS
Lease Particulars
Clause
1
2
3
4
5
Page
INTERPRETATION ...................................................................................... 1
1.1
Defined terms ................................................................................ 1
1.2
Construction .................................................................................. 4
1.3
Particulars ..................................................................................... 5
1.4
Contracts (Rights of Third Parties) Act 1999 ...................................... 5
1.5
Landlord and Tenant (Covenants) Act 1995 ....................................... 5
LETTING, TERM AND TERMINATION ............................................................. 5
2.1
Creation of the Term ...................................................................... 5
2.2
Quiet enjoyment ............................................................................ 6
2.3
Right of re-entry to end this Lease ................................................... 6
2.4
Contracting out .............................................................................. 6
2.5
Break right .................................................................................... 6
2.6
Effect of the Lease coming to an end ................................................ 7
RIGHTS AND RESERVATIONS ...................................................................... 7
3.1
Rights granted ............................................................................... 7
3.2
Rights reserved .............................................................................. 8
3.3
Exercise of rights reserved ............................................................. 10
3.4
‘Title matters ................................................................................ 10
3.5
‘Title indemnity ............................................................................. 10
3.6
Third party rights .......................................................................... 10
3.7
Exclusion of implied rights .............................................................. 10
3.8
Creation and loss of easements ....................................................... 10
3.9
Compliance with Landlord’s requirements ......................................... 11
3.10
Preservation of rights to light and air ............................................... 11
3.11
Exclusion of liability ....................................................................... 11
RENTS PAYABLE ....................................................................................... 11
4.1
Obligation to pay rent .................................................................... 11
4.2
Initial payment of rents .................................................................. 11
4.3
Direct payment of principal rent ...................................................... 11
4.4
Value Added Tax ........................................................................... 11
4.5
Interest on late payment ................................................................ 11
RENT REVIEW .......................................................................................... 12
5.1
Basis of review ............................................................................. 12
5.2
Rental value ................................................................................. 12
5.3
Hypothetical lease ......................................................................... 12
5.4
Assumptions ................................................................................. 12
5.5
Disregards.................................................................................... 13
5.6
Agreement or determination of the revised rent ................................ 14
5.7
Agreement or determination before the relevant review date .............. 14
5.8
Payment of rent pending agreement or determination ....................... 14
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6
7
8
9
10
5.9
Payment of rent following agreement or determination ...................... 14
5.10
Interest on late payment of revised rent .......................................... 14
5.11
Rent review memorandum ............................................................. 14
5.12
Restrictions on increases ................................................................ 15
5.13
Time not of the essence ................................................................. 15
INSURANCE ............................................................................................. 15
6.1
Landlord to insure ......................................................................... 15
6.2
Insured risks and level of cover....................................................... 15
6.3
Policy exclusions and excesses ........................................................ 15
6.4
Provision of information ................................................................. 16
6.5
Insurance rent .............................................................................. 16
6.6
Reinstatement .............................................................................. 16
6.7
Means of reinstatement.................................................................. 16
6.8
Reinstatement of tenant’s alterations ............................................... 17
6.9
‘Termination following damage to or destruction of the Premises ......... 17
6.10
Ownership of insurance proceeds if reinstatement impossible ............. 17
6.11
Suspension of rent ........................................................................ 17
6.12
Tenant’s insurance obligations ........................................................ 17
6.13
References to ‘fit for occupation and use’ ......................................... 18
COSTS AND OUTGOINGS ........................................................................... 18
7.1
Payment of outgoings .................................................................... 18
7.2
(Utilities provided by the Landlord ................................................... 18
7.3
Common facilities .......................................................................... 18
7.4
Business rates indemnity ............................................................... 19
7.5
Landlord’s costs ............................................................................ 19
7.6
Tenant’s indemnity ........................................................................ 19
REPAIRS, MAINTENANCE AND ALTERATIONS ............................................... 19
8.1
Upkeep of the Premises ................................................................. 19
8.2
Upkeep following Insured Damage .................................................. 20
8.3
Compliance with notices to repair .................................................... 20
8.4
Landlord’s right to enter and repair ................................................. 20
8.5
Defective Premises Act 1972........................................................... 20
8.6
Restriction on alterations................................................................ 20
8.7
Non-structural alterations ............................................................... 20
8/8
Standard of works ......................................................................... 21
8.9
Colour schemes on redecoration ..................................................... 21
8.10
Removal of unauthorised alterations ................................................ 21
8.11
Reinstatement of alterations ........................................................... 21
USE OF THE PREMISES .............................................................................. 21
9.6
Prohibited uses ............................................................................. 22
9.7
Restrictions on use ........................................................................ 22
9.9
Management regulations ................................................................ 23
9.10
Lawful use .................................................................................... 23
ASSIGNMENT, UNDERLETTING AND CHARGING ........................................... 23
10.1
Restrictions on alienation ............................................................... 23
10.2
Right to assign whole ..................................................................... 23
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11
12
13
10.3
Pre-conditions to assignment .......................................................... 23
10.4
Circumstances where assignment is prohibited ................................. 24
10.5
Restrictions on charges .................................................................. 25
10.6
Notification of dispositions .............................................................. 25
10.7
Notification of rights of occupation .................................................. 25
LEGISLATION AND PLANNING .................................................................... 25
11.1
Compliance with legislation ............................................................ 25
11.2
Fire precautions ............................................................................ 25
11.3
Notices ........................................................................................ 25
11.4
Planning applications ..................................................................... 26
11.5
Completion of works ...................................................................... 26
11.6
Planning agreements ..................................................................... 26
ENVIRONMENTAL LAW .............................................................................. 26
12.1
Compliance with environmental law ................................................. 26
12.2
Compliance with notices ................................................................. 26
12.3
Prevention of contamination ........................................................... 26
12.4
‘Environmental surveys .................................................................. 26
12.5
Provision of an EPC........................................................................ 27
12.6
Obtaining an EPC for the Premises .................................................. 27
12.7
Production of EPCs ........................................................................ 27
12.8
Duty to co-operate ........................................................................ 27
END OF THE TERM .................................................................................... 27
13.1
Return of the Premises................................................................... 27
13.2
Tenant’s goods left in the Premises ................................................. 27
13.3
Exclusion of right to compensation .................................................. 28
13.4
Return of the Lease ....................................................................... 28
14
(TENANT’S GUARANTOR ............................................................................ 28
15
GUARANTORS .......................................................................................... 28
16
17
18
15.1
Terms of the guarantee.................................................................. 28
15.2
Obligations of the guarantor ........................................................... 28
15.3
Right to direct claim against the guarantor ....................................... 28
15.4
No right of set-off.......................................................................... 28
15.5
Continuation of the guarantee ......................................................... 28
15.6
New lease following disclaimer ........................................................ 29
15.7
(Contracting out for the new lease .................................................. 29
SERVICES ................................................................................................ 29
16.1
Provision of services ...................................................................... 29
16.2
Employment of agents and contractors ............................................ 29
16.3
Limitation of liability ...................................................................... 30
16.4
Minimising interruptions to services ................................................. 30
DETERMINATION OF DISPUTES .................................................................. 30
17.1
Appointment of independent person ................................................ 30
17.3
Provisions applying to arbitrators .................................................... 30
17.4
Responsibility for costs .................................................................. 30
17.5
Date of the determination or award ................................................. 30
ENFORCEMENT ......................................................................................... 31
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19
18.1
Applicable law ............................................................................... 31
18.2
Service of notices .......................................................................... 31
18.3
Jurisdiction ................................................................................... 31
18.4
(Address for service....................................................................... 31
EXECUTION ............................................................................................. 31
Schedules
1
Additional Service Costs ............................................................................ 32
2
Turnover Rent .......................................................................................... 33
Error! Reference source not found.
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Trade Licences .................................................. 38
PARTICULARS
PART 1: LAND REGISTRY PARTICULARS
LR1.
Date of lease
LR2.
Title number(s)
LR2.1
Landlord's title number(s)
CU218092
LR2.2
Other title numbers
None
LR3.
Parties to this lease
Landlord
The Secretary of State for Environment
Food and Rural Affairs of Whitehall Place
West London c/o Forestry Commission
620 Bristol Business Park Coldharbour
Lane Bristol BS16 1EJ.
Tenant
LR4
Tenant’s Guarantor
[NAME OF GUARANTOR] [(registered
number [COMPANY NUMBER]) whose
registered office is at][of] [ADDRESS].
Property
In the case of a conflict between this
clause and the remainder of this
lease then, for the purposes of
registration,
this
clause
shall
prevail.
The premises (referred to in this Lease
as “the Premises”) known as Retail Unit
within Grizedale Visitor Centre Cumbria
shown edged red on the Plan
(a)
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including:
(i)
all
alterations,
improvements
and
additions made to
those premises during
the Term;
(ii)
landlord’s fixtures and
conduits serving only
those premises at any
time during the Term;
(iii)
all internal surfaces of
the walls , ceilings and
floor slabs;
(b)
LR5.
Prescribed statements etc
LR5.1
Statements prescribed under
rules 179 (dispositions in
favour of a charity), 180
(dispositions by a charity) or
196 (leases under the
Leasehold Reform, Housing
and Urban Development Act
1993) of the Land Registration
Rules 2003
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(iv)
the whole of any nonstructural or non-load
bearing
walls
and
columns wholly within
the premises;
(v)
the inner half, severed
vertically, of any nonstructural or non-load
bearing
walls
and
columns dividing the
premises from any
other parts of the
Building; and
(vi)
all windows and doors
and the glass within
them; but
excluding:
(i)
the
foundation,
structure, loadbearing
walls,
beams
and
columns, ceiling and
floor slabs and the
roof of the Building;
(ii)
the window frames
and door frames;
(iii)
any landlord’s fixtures
and conduits serving
both those premises
and other parts of the
Building; and
(iv)
the airspace between
the ceiling slabs and
the
suspended
ceilings and the floor
slab and the raised
floors.
Not applicable.
LR5.2
This lease is made under, or by
reference to, provisions of:
Not applicable.
LR6.
Term for which the Property is
leased
The date of this Lease] (referred to in
this Lease as “the Term Commencement
Date”)
To and including [
].
LR7.
Premium
None
LR8.
Prohibitions or restrictions on
disposing of this lease
This Lease contains a provision that
prohibits or restricts dispositions.
LR9.
Rights of acquisition etc
LR9.1
Tenant's contractual rights to
renew this lease, to acquire
the reversion or another lease
of the Property, or to acquire
an interest in other land
None
LR9.2
Tenant's covenant to (or offer
to) surrender this lease
None
LR9.3
Landlord's contractual rights
to acquire this lease
None
LR10.
Restrictive covenants given in
this lease by the Landlord in
respect of land other than the
Property
None
LR11.
Easements
LR11.1
Easements granted by this
lease for the benefit of the
Property
The rights specified in clause 3.1.
LR11.2
Easements granted or
reserved by this lease over the
Property for the benefit of
other property
The rights specified in clause 3.2.
LR12.
Estate rentcharge burdening
the Property
None.
LR13.
Application for standard form
of restriction
None.
LR14.
Declaration of trust where
there is more than one person
comprising the Tenant
[Not applicable]
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OR
The Tenant is more than one person.
They are to hold the Property on trust for
themselves as joint tenants.
OR
The Tenant is more than one person.
They are to hold the Property on trust for
themselves as tenants in common in
equal shares.
OR
The Tenant is more than one person.
They are to hold the Property on trust
[COMPLETE AS REQUIRED]
PART 2: OTHER PARTICULARS
Authorised Use
The use of the Premises as a retail outlet for the sale of
outdoor accessories and gift shop or other such use as
the Landlord may consent to, such consent to be at the
Landlord’s absolute discretion
Break Date
The [
] anniversary of the term Commencement
Date or any date thereafter.
Building
The Landlord’s building known as Grizedale Visitor
Centre Cumbria shown for identification edged blue on
the attached plan [numbered [NUMBER]] and includes
all alterations, additions and improvements to it during
the Term and all landlord’s fixtures forming part of the
building at any time during the Term.
“Landlord’s EPC”
Principal Rent
£[
] ([
] pounds) per annum
subject to review in accordance with clause 5.
Quarter Days
25 March, 24 June, 29 September and 25 December in
each year
Rent Commencement Date
The Term Commencement Date.
Review Dates
The [
] anniversary of the Term Commencement
Date and any additional review date nominated by the
Landlord in accordance with clause 5.12.
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THIS LEASE is made on the date set out in clause LR1 of the Land Registry Particulars
BETWEEN
(1)
the Landlord; and
(2)
the Tenant[; and
(3)
the Tenant’s Guarantor].
OPERATIVE PROVISIONS
1.
INTERPRETATION
1.1
Defined terms
In this Lease, the following words and expressions have the following meanings:
“Accounting Date”
31 March in each year of the Term.
“Accounting Period”
Each period of twelve months ending on and
including an Accounting Date but:
(a)
In respect of the first Accounting Period
means the period from and including
the Rent Commencement Date to and
including the First Accounting Date
which is more than three months after
that date;
(b)
In respect of the final Accounting Period
means the period from but not
including the last Accounting Date
before the end of the Term to and
including the date on which the Term
ends.
“Access Road”
Means the track or road that part of the
Landlord’s on adjoining land shown coloured
[blue] on the Plan.
“Additional Service Costs”
the service costs set out in Schedule 1
“Communal Areas”
the means of pedestrian and vehicular access
and circulation within the Building and the
toilets, porch and refuse disposal areas and
other common circulation areas within the
Building designated or provided by the Landlord
during the Term for the common use and
enjoyment of the tenants and other occupiers of
or visitors to the Building
“Common Parts”
those parts of the Building which are not let to
tenants or designed to be let to tenants and
includes the Communal Areas and the
foundation, structure, loadbearing walls, beams
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1
and columns, ceiling and floor slabs and the roof
of the Building
“Contracted-out Tenancy”
a tenancy:
(a)
that contains an agreement between
the landlord and the tenant excluding
the operation of sections 24 to 28
Landlord and Tenant Act 1954 in
relation to it; and
(b)
in respect of which the landlord and the
tenant have taken all steps required
under Part II of the Landlord and
Tenant Act 1954 and The Regulatory
Reform (Business Tenancies) (England
and Wales) Order 2003 before the
grant of the tenancy or, if earlier, the
exchange of any contract to grant the
tenancy, to ensure that the agreement
referred to in paragraph (a) is not void
“Environmental Law”
all statutes, regulations and subordinate
legislation, European laws, treaties and
common law which at any time relate to the
pollution or protection of the environment or
harm to or the protection of human health and
safety or the health of animals and plants
“EPC”
an
energy
performance
certificate
and
recommendation report, as defined in the
Energy Performance of Buildings (Certificates
and
Inspections)
(England
and
Wales)
Regulations 2007
“Hazardous Material”
any substance, whether in solid, liquid or
gaseous form, which is capable of causing harm
to human health or to the environment whether
on its own or in combination with any other
substance
“Insured Damage”
subject to clause 6.8, damage to or destruction
of the whole or any part of the Building by any
of the Insured Risks which does not fall within a
Policy Exclusion and in respect of which the
Landlord is otherwise entitled to receive
payment under the insurance policy or policies
maintained under clause 6.1 or would be so
entitled but for any default by the Landlord
under this Lease
“Insured Risks”
the risks set out in clause 6.2.1
“Interest Rate”
the base lending rate from time to time of
Barclays Bank PLC or such other clearing bank
nominated by the Landlord at any time or, if the
clearing banks cease at any time to publish a
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base lending rate, such comparable rate of
interest as the Landlord may reasonably
determine
“Opening Hours”
[Between 31 March and 31 October – 10.00
a.m. to 5.00 p.m. daily and between 10.00 a.m.
and 4.30 p.m. at all other times on each day of
the Term (excluding Christmas Day and Boxing
Day)]
“Policy Exclusions”
any of the following so far as they form part of
the Landlord’s policy or policies of insurance
maintained in respect of the Building:
(a)
the
non-availability
of
insurance
against one or more of the Insured
Risks through reputable and substantial
insurers at normal commercial rates;
(b)
any conditions, excess, exclusion and
limitation clauses which may be
imposed; and
(c)
any exclusions for damage caused by
acts of terrorism
“Premises Licence”
Any licence required under the Licensing Act
2003 for the use of the Premises for the
Authorised Use.
“Rents”
the rents
clause 4.1
“Services”
the services set out in clause 16.1
“Term”
the Contractual Term
“Trade Licences”
Any licence certificates permits undertakings or
other consents or permissions required under
any legislation relating to the Authorised Use
including the Premises Licence, Justices
Licences for the sale of alcohol
“Turnover Percentage”
[
“Turnover Records”
All accounts and other written or computer
records or documents which are, or in the
reasonable opinion of the landlord ought to be,
maintained for the purpose of recording and
verifying the Gross Turnover and includes:
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reserved
and
payable
under
]
(a)
all VAT and other tax returns and
records;
(b)
bank records and statements;
3
(c)
sales ledgers
information recorded by tills (including for case,
credit or direct debit sales) used on the
Premises)
“Turnover Rent”
A x B where:
A = the Turnover Percentage
B = the Gross Turnover
“Waste”
1.2
any discarded, unwanted or surplus substance
irrespective of whether it is capable of being
recycled or recovered or has any value
Construction
In this Lease:
1.2.1
unless otherwise indicated, references to clauses and Schedules are to
clauses of and Schedules to this Lease;
1.2.2
except in relation to the Town and Country Planning (Use Classes) Order
1987, references to any statute or other legislation include references to
any subsequent statute or legislation directly or indirectly amending,
consolidating, extending, replacing or re-enacting that statute or
legislation and to all orders, by-laws, directions and notices made or
served under them;
1.2.3
references to the Landlord, the Tenant or any Guarantor include their
respective successors in title and, in the case of individuals, include their
personal representatives;
1.2.4
the Landlord’s obligations in this Lease do not bind the Landlord named
in the Particulars after it has disposed of its interest in the Premises and
it will not be liable for any breach of the Landlord’s obligations in this
Lease arising after the date of that disposal;
1.2.5
references to the Premises, the Building, the Common Parts and the
Communal Areas include any part of them unless specific reference is
made to the whole of them;
1.2.6
references to adjoining premises include any premises adjoining or near
to the Building and references to adjoining premises owned by the
Landlord include any adjoining premises owned by the Landlord at any
time during the Term;
1.2.7
references to this Lease include any deed or document which is
supplemental to, varies or is ancillary to this Lease from time to time;
1.2.8
references to the end of the Term include the determination of the Term
before the end of the Contractual Term;
1.2.9
“including” means “including, without limitation”;
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1.3
1.2.10
“indemnify” means to indemnify against all actions, claims, demands
and proceedings taken or made against the Landlord and all costs,
damages, expenses, liabilities and losses incurred by the Landlord;
1.2.11
references to the Tenant include, and the Tenant’s covenants bind, any
undertenant or other person in occupation of the Premises or deriving
title under the Landlord, their successors in title, and any other person
under the Tenant’s or their control including employees, agents,
workmen and invitees;
1.2.12
references to the consent or approval of the Landlord include references
to the consent or approval of any mortgagee or superior landlord of the
landlord but without implying any obligation on their part that they will
not unreasonably withhold their consent or approval;
1.2.13
any covenant by the Tenant not to do any act or thing includes a
covenant not to permit or allow the doing of that act or thing;
1.2.14
where the consent of the Landlord is required for any assignment,
underletting, change of use or alterations, that consent may be given
only by the completion of a licence executed as a deed containing the
terms of the consent agreed between the parties unless the Landlord
elects in writing to waive this requirement;
1.2.15
where two or more people form a party to this Lease, the obligations
they undertake may be enforced against them all jointly or against each
of them individually; and
1.2.16
if any provision is held to be illegal, invalid or unenforceable, the legality,
validity and enforceability of the remainder of this Lease is to be
unaffected.
Particulars
The Particulars form part of this Lease and words and expressions set out in the
Particulars are to be treated as defined terms in this Lease.
1.4
Contracts (Rights of Third Parties) Act 1999
The parties to this Lease do not intend that any of its terms will be enforceable by
virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party
to it.
1.5
Landlord and Tenant (Covenants) Act 1995
This Lease is a “new tenancy” for the purposes of section 1 Landlord and Tenant
(Covenants) Act 1995.
2.
LETTING, TERM AND TERMINATION
2.1
Creation of the Term
The Landlord lets the Premises to the Tenant for the Contractual Term reserving
the Rents.
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2.2
Quiet enjoyment
The Tenant may quietly enjoy the Premises throughout the Term without any
interruption by the Landlord or anyone lawfully claiming under or in trust for the
Landlord.
2.3
Right of re-entry to end this Lease
The Landlord may enter onto the whole or any part of the Premises and by so
doing end this Lease if:
2.4
2.3.1
the whole or any part of the Rents or any other sums due under this
Lease remain unpaid more than fourteen days after the due date for
payment, whether or not formally demanded;
2.3.2
the Tenant breaches any of its obligations in this Lease;
2.3.3
the Tenant or any guarantor of the Tenant is unable to pay its debts
within the meaning of the Insolvency Act 1986, goes into liquidation or
bankruptcy, has an administrator appointed, has a receiver or
administrative receiver appointed over the whole or any part of its
assets, enters into any scheme of arrangement with its creditors in
satisfaction or composition of its debt under the Insolvency Act 1986 or
a winding-up order is made under Part IV of the Insolvency Act 1986,
unless for the purpose of a solvent amalgamation or reconstruction of
the company; or
2.3.4
this Lease is disclaimed by the Crown or by a liquidator or trustee in
bankruptcy of the Tenant.
Contracting out
The Landlord and the Tenant agree to exclude the provisions of sections 24 to 28
Landlord and Tenant Act 1954 in relation to the tenancy created by this Lease.
The Tenant confirms that before the date of this Lease:
2.5
2.4.1
the Landlord served on the Tenant a notice (“the Notice”) dated [DATE]
in relation to the tenancy created by this Lease in a form complying with
the requirements of Schedule 1 to The Regulatory Reform (Business
Tenancies) (England and Wales) Order 2003;
2.4.2
the Tenant, or a person duly authorised by the Tenant, in relation to the
Notice made a statutory declaration (“the Declaration”) dated [DATE] in
a form complying with the requirements of Schedule 2 to The Regulatory
Reform (Business Tenancies) (England and Wales) Order 2003;
2.4.3
where the Declaration was made by a person other than the Tenant, the
declarant was duly authorised by the Tenant to make the Declaration on
the Tenant’s behalf; and
2.4.4
it was not contractually bound to enter into the tenancy created by this
Lease.
Break right
Either the Landlord or the Tenant may end this Lease on any Break Date by serving
written notice on the other not more than twelve and not less than six months
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6
before the Break Date. In the case of a notice served by the Tenant, this Lease
will end only if:
2.5.1
the Tenant has paid all of the Rents under this Lease in full on or before
the Break Date so far as they have been demanded or are otherwise
payable before the Break Date;
2.5.2
there are no outstanding breaches of the Tenant’s covenants in this
Lease on the Break Date;
unless and to the extent that the Landlord, in its absolute discretion, elects in
writing on or before the Break Date to waive compliance with all or any of these
conditions or to allow the Tenant to comply with all or any of them after the Break
Date. The right of the Tenant to end this Lease under this clause 2.5 is personal
to the Tenant named in the Particulars and will end on the date of the first deed
of assignment or transfer of this Lease.
2.6
Effect of the Lease coming to an end
When this Lease ends it will be without prejudice to any outstanding claims
between the Landlord and the Tenant or any Guarantor of the Tenant.
3.
RIGHTS AND RESERVATIONS
3.1
Rights granted
The Premises are let together with the following rights for the benefit of the
Tenant, so far as the Landlord is able to grant them, to be enjoyed in common
with the Landlord and any others entitled to use them:
3.1.1
to use the means of pedestrian access and circulation on the Communal
Areas for access to and from the Premises and, in case of emergency
only, all fire escape routes through the Building, whether or not forming
part of the Communal Areas;
3.1.2
to use the Access Road with vehicles to gain access to and egress from
the rear of the Premises for the purposes of loading and unloading goods
for the Authorised Use;
3.1.3
to use the means of pedestrian access along the roads and tracks shown
coloured green for access to and from the Premises for the Authorised
Use;
3.1.4
to use the toilets in the Communal Areas and the refuse disposal
facilities, if any, in the Communal Areas provided by the Landlord and
designated for the use of the Tenant for the disposal only of normal nontoxic rubbish;
3.1.5
to use the conduits serving the Premises for the passage or transmission
of utilities to and from the Premises;
3.1.6
support and protection for the Premises from the remainder of the
Building;
3.1.7
to park no more than three (3) private motor vehicles in the parking
spaces shown for identification edged yellow on the attached plan or an
equivalent number of parking spaces in any location within or adjoining
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the Building reasonably nominated by the Landlord and notified in
writing to the Tenant; and
3.2
3.1.8
to display the name of the Tenant and the nature of the Tenant’s
business on the exterior of the Premises and on any signboard provided
by the Landlord the main entrance to the Building in such form, shape
and size as the Landlord may permit, such permission not to be
unreasonably withheld or delayed
3.1.9
to enter upon so much as is necessary of the adjoining premises for the
purposes of accessing fuse , inspecting, maintaining, repairing or
replacing the water heaters serving the Premises.
Rights reserved
The following rights are reserved out of the letting for the benefit of the Landlord
and any other person having express or implied authority from the Landlord to
benefit from them:
3.2.1
to enter and remain upon so much as is necessary of the Premises on
not less than 48 hours’ prior notice (except in case of emergency) with
or without workmen, plant and equipment:
3.2.1.1
to ascertain whether the Tenant has complied with the
Tenant’s obligations under this Lease;
3.2.1.2
to provide the Services and any additional services included
within the Additional Service Costs;
3.2.1.3
to estimate the current value of the Premises or the Building
for insurance or any other purposes;
3.2.1.4
to inspect and measure the Premises for any purpose
connected with the review of the Principal Rent or the
renewal of this Lease;
3.2.1.5
to inspect the state of repair and condition of the Premises
and prepare any Schedule of condition or dilapidations;
3.2.1.6
to carry out any repairs, remove and make good any
unauthorised alterations or carry out any works which the
Tenant should have carried out in accordance with the
Tenant’s obligations under this Lease;
3.2.1.7
to take schedules or inventories of landlord’s fixtures and
other items to be returned to the Landlord at the end of the
Term;
3.2.1.8
to show the Premises to prospective buyers of the Building
or, during the last six months of the Term, to prospective
tenants of the Premises;
3.2.1.9
to affix a for sale or, during the last six months of the Term,
a letting notice to the exterior of the Premises, but not so
as materially to interrupt the access of light and air to the
Premises;
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3.2.1.10
to carry out or permit the repair, maintenance, decoration,
replacement, renewal and cleaning of any adjoining
premises or any building or engineering works upon
them; and
3.2.1.11
to enable the production of an EPC for the Premises or the
Building whether or not the Landlord is under a statutory
duty to produce an EPC;
3.2.2
the right to build on, alter, add to, redevelop or extend in any way any
adjoining premises owned by the Landlord or to permit the owner of any
adjoining premises to do so in relation to their property even though the
access of light and air to the Premises may be affected and without being
liable to pay any compensation to the Tenant. This clause constitutes a
consent for the purposes of section 3 Prescription Act 1832;
3.2.3
to erect scaffolding outside the Premises in connection with:
3.2.3.1
the rights reserved in clause 3.2 and any works to be
carried out pursuant to those rights;
3.2.3.2
the repair, maintenance, decoration, replacement, renewal
and cleaning of the Building or the carrying out of any of
the other Services or any additional services included within
the Additional Service Costs
subject to the Landlord ensuring that the scaffolding does not materially
prevent access to the Building or the Premises nor, so far as reasonably
practicable having regard to the nature of scaffolding, materially
interfere with the Tenant’s use and enjoyment of the Premises;
3.2.4
to use all fire escape routes running through the Premises in case of
emergency only;
3.2.5
the right for the Landlord and members of the public to pass through the
Premises during Opening Hours to gain access to and egress from the
Landlord’s adjoining premises [as shown on the Plan].
3.2.6
the right to connect to and use any conduits within or passing through
the Premises for the passage or transmission of utilities to and from any
adjoining premises;
3.2.7
the right to install new conduits within the Premises and connect to them
for the passage or transmission of utilities to and from the remainder of
the Building and any adjoining premises; and
3.2.8
support and protection from the Premises for the remainder of the
Building.
3.2.9
The right to close the access track serving the Premises in the event of
adverse weather conditions or (upon giving reasonably prior notice or in
the event of emergency at any time) for forestry operations;
3.2.10
To enter onto the Premises at all times to gain access to and operate,
inspect, maintain, replace and renew the alarm system serving the
Premises and any adjoining premises.
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3.2.11
3.3
To enter onto so much of the Premises as is necessary at any time during
the Opening Hours, or at any time in case of emergency, to gain access
to any boiler, heating system, electricity and water meters on the
Premises and for the purpose of inspecting repairing replacing or
renewing the same or taking meter readings.
Exercise of rights reserved
The Tenant is to permit the exercise of the rights reserved in clause 3.2 and is
not to obstruct or prevent these rights being exercised in accordance with the
terms of this Lease.
3.4
Title matters
The letting is made subject to and with the benefit of the following title matters:
3.5
3.4.1
the rights granted and reserved by [and the covenants and other
matters contained in] a conveyance dated [DATE] made between
[PARTIES]; and
3.4.2
the rights granted and reserved by [and the covenants and other
matters contained in] [the deeds referred to in] the entries numbered
[DESCRIPTION] on title number [NUMBER] shown on the official copy
entries attached to this Lease.
Title indemnity
So far as they are still subsisting, capable of taking effect and affect the Premises,
the Tenant is to comply with the title matters set out in clause 3.4 and is to
indemnify the Landlord against any breach of them.
3.6
Third party rights
The letting is made subject to all rights of light and air and all other legal or
equitable easements and rights belonging to or enjoyed by any other property.
3.7
Exclusion of implied rights
This Lease does not confer upon the Tenant any rights or privileges over any other
property except as expressly set out in this Lease and any rights implied by
section 62 Law of Property Act 1925 or the rule in Wheeldon v Burrows are
expressly excluded.
3.8
Creation and loss of easements
The Tenant is not to do or omit to do anything which results or might result in:
3.8.1
the creation of new rights or easements over the Building;
3.8.2
the loss of any rights or easements benefiting the Building; or
3.8.3
the Landlord being unable to claim rights benefiting the Building whether
under the Prescription Act 1832, the doctrine of lost modern grant or
otherwise.
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3.9
Compliance with Landlord’s requirements
The Tenant is to comply, at its own cost, with any reasonable requirements of the
Landlord to prevent any breach of the Tenant’s obligations in clause 3.8.
3.10
Preservation of rights to light and air
The Tenant is not to block up, whether on a permanent or a temporary basis, any
of the doors, windows or other apertures within the Building through which there
is access to light and air.
3.11
Exclusion of liability
The Landlord will not be liable to the Tenant for any failure by the Tenant to
register any rights granted or reserved by this Lease at the Land Registry.
4.
RENTS PAYABLE
4.1
Obligation to pay rent
The Tenant is to pay the following Rents to the Landlord during the Term without
making any legal or equitable set-off, counterclaim or deduction unless required
to do so by law:
4.2
4.1.1
the Principal Rent, from and including the Rent Commencement Date, to
be paid by equal monthly payments in advance on the Quarter Days;
4.1.2
insurance rent in accordance with clause 6.5, from and including the
date of this Lease or if earlier the Term Commencement Date, to be paid
at the times set out in clause 6.5; and
4.1.3
any other sums reserved as rent under this Lease, to be paid on demand.
Initial payment of rents
The first payment of the Rents is to be made on the date of this Lease calculated
on a daily basis for the periods for which the Rents are payable.
4.3
Direct payment of principal rent
If requested to do so in writing by the Landlord, the Tenant is to pay the Principal
Rent by standing order to an account nominated by the Landlord.
4.4
Value Added Tax
The Rents and any other sums payable under this Lease are exclusive of VAT.
Where, under the terms of this Lease, a supply is made that is subject to VAT, the
person receiving the supply is to pay the VAT to the person making the supply and
a valid VAT invoice is to be issued by the person making the supply.
4.5
Interest on late payment
If the Tenant does not pay the Principal Rent on the due date for payment or any
of the other Rents or sums due to the Landlord under this Lease, whether or not
reserved as rent, within fourteen days of the due date for payment the Tenant is
to pay interest on those sums, both after as well as before judgment, at 4% per
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annum above the Interest Rate for the period from and including the due date for
payment to and including the date of actual payment.
5.
RENT REVIEW
5.1
Basis of review
On each Review Date the Principal Rent is to be reviewed to the higher of the
Principal Rent reserved immediately before the relevant Review Date and the
Rental Value, as defined in clause 5.2. The reviewed Principal Rent will be
payable from and including the relevant Review Date.
5.2
Rental value
The Rental Value is the annual rent at which the Premises might reasonably be
expected to be let in the open market on the relevant Review Date on the terms
of the Hypothetical Lease applying the Assumptions and the Disregards, these
terms being defined in clauses 5.3 to 5.5.
5.3
Hypothetical lease
For the purpose of calculating the Rental Value, the Hypothetical Lease is a lease
of the whole of the Premises assumed to be granted on the relevant Review Date:
5.4
5.3.1
on the same terms as this Lease, including this clause 5, except for the
amount of Principal Rent payable immediately before the relevant
Review Date and any rent free period, rent concession or any other
inducement received by the Tenant in relation to the grant of this Lease;
5.3.2
by a willing landlord to a willing tenant without any premium payable by
the willing tenant;
5.3.3
with vacant possession, the Tenant having complied with clause 13.1
before the relevant Review Date;
5.3.4
for a term equal to the residue of the Contractual Term at the relevant
Review Date or, if longer, three years but commencing on the relevant
Review Date instead of the Term Commencement Date; and
5.3.5
with rent review dates on the third anniversary of the relevant Review
Date and every three years after this date;
Assumptions
The Assumptions are:
5.4.1
that if the Premises, the Building, the means of access to them or any
conduits serving them have been damaged or destroyed, they have been
reinstated before the relevant Review Date;
5.4.2
that the Premises are fit for immediate occupation and use by the willing
tenant for the use permitted by this Lease;
5.4.3
that the Tenant’s and the Landlord’s obligations in this Lease have been
complied with;
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5.5
5.4.4
that the Premises may be occupied and used lawfully throughout the
term of the Hypothetical Lease by any person for the use permitted by
this Lease and that this use complies with the provisions of all legislation;
5.4.5
that the willing tenant has the benefit of any statutory and third party
licences, consents and approvals which are required for the use
permitted by this Lease and that they will remain in force throughout
the term of the Hypothetical Lease for the benefit of the willing tenant
and its successors in title;
5.4.6
that the Rental Value is the rent that would become payable after the
willing tenant has received the benefit of a rent free period, rent
concession or any other inducement of such length or amount that
reflects the period of time it takes to fit out the Premises. Such period
is to be calculated by reference to the time it would take a willing tenant
to fit out the Premises having carried out such preliminary investigations
and preparations as would be common for premises of the nature of the
Premises before the relevant Review Date.
Disregards
The Disregards are:
5.5.1
any effect on the Rental Value of the fact that the Tenant, any permitted
undertenant or its or their predecessors in title have been in occupation
of the Premises and any goodwill attached to the Premises by reason of
the occupation and use of the Premises by those persons;
5.5.2
any effect on the Rental Value of any special bid that the Tenant or any
other party with a special interest in the Premises might make (or be
perceived to make) by reason of its occupation of any adjoining
premises;
5.5.3
any reduction in the Rental Value attributable to works which have been
carried out to the Premises by the Tenant, any undertenant or other
occupier of the Premises or its or their predecessors in title whether
before or during the Term;
5.5.4
any increase in the Rental Value attributable to:
5.5.4.1
any tenant’s or trade fixtures installed in the Premises by
the Tenant, any permitted undertenant or its or their
predecessors in title; and
5.5.4.2
any improvements to the Premises carried out and
completed at the cost of the Tenant, any permitted
undertenant or its or their predecessors in title in each case
with the consent, where required, of the Landlord and
carried out otherwise than pursuant to an obligation to the
Landlord or its predecessors in title;
5.5.5
any statutory prohibition or limitation on the right to review the rent
payable under this Lease or to recover any increase following a rent
review; and
5.5.6
any effect on the Rental Value of any obligation to reinstate the
Premises.
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5.6
Agreement or determination of the revised rent
The Landlord and the Tenant are to seek to agree the Rental Value in respect of
each relevant Review Date. If, for any reason, the Rental Value has not been
agreed by the relevant Review Date, either the Landlord or the Tenant may refer
the determination of the Rental Value to an independent chartered surveyor
experienced in the review of rents in respect of premises similar to and in the
same locality as the Premises who will be appointed in accordance with clause 17
and act as an arbitrator in accordance with the Arbitration Act 1996
5.7
Agreement or determination before the relevant review date
If the Rental Value has been agreed or determined on or before the relevant
Review Date but the relevant Review Date is not a Quarter Day, then the Tenant
is to pay to the Landlord on the relevant Review Date as additional rent any uplift
in the Principal Rent for the period from and including the relevant Review Date to
but excluding the Quarter Day following the relevant Review Date.
5.8
Payment of rent pending agreement or determination
If the Rental Value has not been agreed or determined on or before the relevant
Review Date the Tenant is to continue to pay the Principal Rent at the rate payable
immediately before the relevant Review Date until the Rental Value has been
agreed or determined.
5.9
Payment of rent following agreement or determination
Within fourteen days of the Rental Value being agreed in writing or determined
and notified to the Tenant, the Tenant is to pay to the Landlord as additional rent:
5.10
5.9.1
any uplift in the Principal Rent for the period from and including the
relevant Review Date to but excluding the Quarter Day following the
date on which the Rental Value was agreed or determined; and
5.9.2
interest on each instalment of that uplift calculated at 2% per annum
above the Interest Rate for the period or periods from and including the
date on which each instalment of that uplift would have been payable if
the Rental Value had been agreed or determined prior to the relevant
Review Date to and including the date on which the Revised Rent is
agreed in writing or determined and notified to the Tenant.
Interest on late payment of revised rent
If the Tenant does not pay the amounts due under clause 5.9 to the Landlord
within fourteen days of the Rental Value being agreed in writing or determined
and notified to the Tenant, the Tenant is to pay as additional rent interest on the
total amount due under clause 5.9 both after as well as before judgment, at 4%
per annum above the Interest Rate for the period from and including the date on
which the Rental Value was agreed in writing or determined and notified to the
Tenant to and including the date of actual payment.
5.11
Rent review memorandum
Following the agreement or determination of the Rental Value, the Landlord, the
Tenant and, but only if required by the Landlord, any guarantor of the Tenant will
sign a memorandum in duplicate recording the amount of the Principal Rent from
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and including the relevant Review Date and the parties will each pay their own
costs in respect of this.
5.12
Restrictions on increases
If at any Review Date there is any statutory restriction or prohibition on the right
to review the rent payable under this Lease or to recover the whole or any part of
any increase in the Principal Rent following a rent review:
5.13
5.12.1
the Landlord may elect that this clause 5 will not operate and the
Principal Rent will not be reviewed on that Review Date; and
5.12.2
if the Landlord makes an election under this clause 5.12, when the
statutory restriction or prohibition is removed or modified, the Landlord
may serve written notice on the Tenant nominating an additional date
before the next Review Date as an additional Review Date for the
purposes of this Lease and the Principal Rent will be reviewed on the
nominated date as though this date were a Review Date in accordance
with this clause 5.
Time not of the essence
Time is not to be of the essence in relation to this clause 5.
6.
INSURANCE
6.1
Landlord to insure
At the Landlord’s absolute discretion the Landlord may choose to insure the
Building with substantial and reputable insurers or through underwriters at Lloyd’s
against the risks and for the cover stated in clause 6.2 and may separately insure
against public and employer’s liability in respect of the Building. In the event that
the Landlord opts to self insure the Building then the obligations contained in this
clause 6 will apply to the Landlord as if the Building was insured.
6.2
Insured risks and level of cover
Subject to Policy Exclusions, the Landlord’s insurance will:
6.3
6.2.1
be against the risks of fire, lightning, explosion, earthquake, landslip,
subsidence, riot, civil commotion, aircraft, aerial devices, storm, flood,
water, theft, impact by vehicles, malicious damage and third party
liability and any other risks reasonably required by the Landlord; and
6.2.2
cover full rebuilding, site clearance, professional fees, VAT and three
years’ loss of rent taking into account cover for the effects of inflation,
escalation of costs and fees, and rent reviews.
Policy exclusions and excesses
The Landlord:
6.3.1
may, but will not be obliged to, obtain a waiver of any exclusion in
respect of terrorism; and
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6.3.2
6.4
will seek to ensure that any Policy Exclusions and excesses fall within
normal commercial practice in the United Kingdom insurance market for
properties similar to the Building and in the same area as the Building.
Provision of information
On reasonable written request the Landlord is to give to the Tenant a written
summary of the Landlord’s insurance policies taken out in accordance with
clause 6.1 and evidence that they are in force.
6.5
Insurance rent
Throughout the Term the Tenant is to pay to the Landlord on demand as additional
rent:
6.6
6.5.1
a fair proportion, to be determined by the Landlord acting reasonably,
of the amount payable by way of premium by the Landlord for the
Landlord’s insurance policies taken out in accordance with clause 6.1;
6.5.2
any additional premium or loading on the policy of insurance for the
Building or any insurance policy for adjoining premises owned by the
Landlord payable as a result of anything done or omitted to be done by
the Tenant or as a result of the use of the Premises by the Tenant;
6.5.3
a fair proportion, to be determined by the Landlord acting reasonably,
of any expense which the Landlord may incur in obtaining an insurance
valuation of the Building but not more than once every year;
6.5.4
a fair proportion, to be determined by the Landlord acting reasonably,
of any amount which may be deducted or disallowed by the insurers
pursuant to any excess provision in the insurance policy upon settlement
of any claim by the Landlord; and
6.5.5
the costs of rebuilding the Building, site clearance, professional fees and
VAT where and to the extent that the insurance moneys are withheld by
the insurers or are irrecoverable due in either case to the act or default
of the Tenant.
Reinstatement
The Landlord may at his absolute discretion obtain any consents required to
reinstate Insured Damage. Subject to those consents being obtained and
remaining unrevoked, the Landlord may at his own discretion choose to apply the
insurance proceeds received under the buildings insurance in reinstating Insured
Damage as soon as reasonably practicable after the date of the Insured Damage,
the Landlord making good any shortfall in the proceeds of insurance from its own
moneys where the shortfall arises from the act or default of the Landlord or may
terminate this Lease in accordance with clause 6.9.
6.7
Means of reinstatement
When reinstating Insured Damage, the Landlord may make changes in the design,
layout and specification of the Building and may use materials of a different
quality, specification or type to those used in the original Building so long as the
area of the Premises is not materially altered and the means of access to them
and the services provided to the Premises are not materially less convenient to
the Tenant.
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6.8
Reinstatement of tenant’s alterations
Nothing in this clause 6 is to require the Landlord to insure or to reinstate any
tenant’s fitting-out works or any other alterations or additions to the Premises
made by the Tenant or any undertenant or other occupier of the Premises unless
and until the Landlord has expressly agreed to insure them and the Landlord has
received written notice of their reinstatement value from the Tenant. Except to
the extent that they are insured by the Landlord, damage to or destruction of them
will not be Insured Damage.
6.9
Termination following damage to or destruction of the Premises
If, following damage or destruction of the Premises by any of the Insured Risks,
the whole or substantially the whole of the Premises are unfit for occupation and
use or are inaccessible, either the Landlord or the Tenant may end this Lease by
serving written notice on the other if they have not been made fit for occupation
and use and accessible within three years of the date of the damage or destruction.
The Tenant may not serve notice under this clause 6.9 if the insurance moneys
have been withheld in whole or in part due to the act or default of the Tenant.
6.10
Ownership of insurance proceeds if reinstatement impossible
If it is not possible to reinstate Insured Damage due to reasons beyond the control
of the Landlord or if this Lease ends under clause 6.9, the Landlord will not be
obliged to comply with its obligations in clause 6.6 and the insurance monies
received by the Landlord will belong to the Landlord absolutely. Any dispute about
this clause 6.10 is to be referred at the request of either the Landlord or the
Tenant to a single arbitrator under the Arbitration Act 1996 in accordance with
clause 17.
6.11
Suspension of rent
If the Premises are unfit for occupation and use or inaccessible following Insured
Damage, the Principal Rent will be suspended to the extent that the Premises have
been damaged or destroyed until they have been made fit for occupation and use
and accessible or, if earlier, to the date three years after the date of the Insured
Damage. Any dispute about the application of this clause 6.11 is to be
determined at the request of either party by a single arbitrator under the
Arbitration Act 1996 in accordance with clause 17.
6.12
Tenant’s insurance obligations
The Tenant is:
6.12.1
not to do anything which causes the Landlord’s insurance to become void
or voidable or which may increase the premium payable in respect of
that insurance;
6.12.2
to comply with the requirements and reasonable recommendations of
the insurers of the Building so far as they have been notified in writing
to the Tenant and apply to the Premises or the rights granted by this
Lease;
6.12.3
subject to clause 6.12.4, not to put in place insurance cover for the
Premises against the Insured Risks;
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6.13
6.12.4
to insure any alterations and additions to the Premises against the
Insured Risks in their full reinstatement value unless the Landlord has
expressly agreed to be responsible for their insurance;
6.12.5
to provide to the Landlord on reasonable request a written summary of
the Tenant’s insurance policies taken out in accordance with
clause 6.12.4 and evidence that they are in force; and
6.12.6
to notify the Landlord immediately in writing of any damage to or
destruction of the Premises by any of the Insured Risks of which the
Tenant becomes aware.
References to “fit for occupation and use”
Except to the extent that the Landlord is obliged to reinstate tenant’s fitting-out
works, in this clause 6 references to “fit for occupation and use” mean ready to
receive tenant’s fitting-out works.
7.
COSTS AND OUTGOINGS
7.1
Payment of outgoings
The Tenant is to pay all outgoings of whatever nature in relation to the Premises
including business rates and utilities costs (including standing charges and taxes
payable on utility costs) and a fair proportion, to be determined by the Landlord
acting reasonably, of any which relate to the Building as a whole or to the Building
and any adjoining premises. This obligation does not require the Tenant to pay
any such costs arising from any dealing by the Landlord with its interest in the
Building or to income or corporation tax payable by the Landlord on the Rents or
any other sums due under this Lease.
7.2
Utilities provided by the Landlord
7.2.1
7.3
Where the Landlord is responsible for the supply of water and electricity
to the Premises, the Tenant is to pay to the Landlord at such times and
in such instalments as the Landlord may reasonably require:
7.2.1.1
the standing charges, meter rents (for the avoidance of
doubt the cost of heating will be apportioned according to
user) and the costs of metered units and all other costs and
taxes payable in respect of the supply of energy to the
Premises;
7.2.1.2
the Landlord’s reasonable and proper administrative costs
in connection with the supply of the energy to the Premises;
and
7.2.1.3
a contribution according to user of the cost of supplying
maintaining repairing and renewing the Additional Service
Costs in Schedule 1
Common facilities
The Tenant is to pay to the Landlord on demand as additional rent a fair proportion,
to be determined by the Landlord acting reasonably, of the costs and expenses of
maintaining, inspecting, cleaning, repairing, servicing altering, renewing,
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rebuilding or replacing any party walls, conduits and other party structures or
means of access used in common between the Premises and any other property.
7.4
Business rates indemnity
The Tenant is to indemnify the Landlord against any period during which the
Landlord cannot claim reduced or zero business rates after the end of the Term as
a result of the Tenant having received those benefits before the end of the Term.
7.5
Landlord’s costs
The Tenant is to pay to the Landlord as additional rent on demand the proper costs
and expenses of the Landlord’s solicitors, surveyors and other professional
advisors and bailiff’s fees and commissions including any irrecoverable VAT arising
from:
7.6
7.5.1
the preparation and service of any notice and the taking of any
proceedings by or on behalf of the Landlord under sections 146 or 147
Law of Property Act 1925 or under the Leasehold Property (Repairs)
Act 1938, whether or not forfeiture is avoided by an order of the court;
7.5.2
any application made by the Tenant for the Landlord’s consent for or
approval of any matter under this Lease whether or not consent or
approval is given (unless the court determines that the Landlord has
unreasonably withheld that consent or approval) or the application is
withdrawn;
7.5.3
the preparation and service of any notice or Schedule of dilapidations
during or within six months after the end of the Term;
7.5.4
verifying, where reasonable, compliance with and enforcing or making
good any breach of the Tenant’s obligations under this Lease, including
the recovery of arrears of the Rents or any other sums due to the
Landlord under this Lease, whether by distress or any other means; and
7.5.5
the preparation and service by the Landlord of any notice under section
6 Law of Distress Amendment Act 1908 or section 17 Landlord and
Tenant (Covenants) Act 1995.
Tenant’s indemnity
To the extent that they are not covered by any policy of insurance maintained by
the Landlord under this Lease, the Tenant is to indemnify the Landlord in respect
of any damage to or destruction of the Premises or the Building, any injury to or
death of any person, damage to any property or the infringement, disturbance or
destruction of any rights or easements or other matters arising from the state of
repair and condition of the Premises or the Common Parts resulting from the act,
default or negligence of the Tenant.
8.
REPAIRS, MAINTENANCE AND ALTERATIONS
8.1
Upkeep of the Premises
The Tenant is to:
8.1.1
keep the Premises and all tenant’s and trade fixtures in good and
substantial repair and condition but the Tenant is not obliged to put the
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Premises into any better condition than that evidenced by the attached
photographic Schedule of condition. The Tenant is also to keep the
Premises regularly and properly cleaned internally with the surfaces of
all windows being cleaned at least once a month;
8.2
8.1.2
renew and replace any landlord’s fixtures and conduits forming part of
the Premises which become incapable of repair or cease to operate
correctly with fixtures and conduits of equivalent modern specification
and quality as those which they replace; and
8.1.3
redecorate the interior of the Premises within six months before the end
of the Term.
Upkeep following Insured Damage
Clause 8.1 will not apply in respect of Insured Damage.
8.3
Compliance with notices to repair
Following the service of any notice, whether by the Landlord or any public
authority, the Tenant is to carry out any repairs or other works to the Premises
required by that notice within the period specified in the notice or, if no period is
specified, within a reasonable period after the receipt of the notice. The Landlord
may serve notice under this clause 8.3 only to specify repairs or other works that
are required to remedy any breach by the Tenant of its obligations under this
Lease.
8.4
Landlord’s right to enter and repair
If the Tenant does not comply with clause 8.3, the Tenant is to permit the
Landlord to enter and remain upon the Premises with or without workmen, plant
and materials to carry out the repairs or other works required. The costs incurred
by the Landlord in carrying out the repairs or other works are to be paid by the
Tenant to the Landlord on demand as a debt and not as rent together with interest
on those costs at 4% per annum above the Interest Rate calculated from and
including the date on which the Landlord incurred them to and including the date
on which they are paid.
8.5
Defective Premises Act 1972
The Tenant is to take any action that the Landlord may properly and reasonably
require in respect of any defects in the Premises which might give rise to a duty
or liability on the part of the Landlord under the Defective Premises Act 1972, any
other statutory provision or at common law.
8.6
Restriction on alterations
The Tenant is not to carry out any alterations or additions to the Premises unless
expressly permitted to do so by this clause 8.
8.7
Non-structural alterations
The Tenant may carry out internal non-structural alterations to the Premises with
the prior written consent of the Landlord, such consent not to be unreasonably
withheld or delayed.
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8.8
Standard of works
The Tenant is to carry out any repairs, decoration and alterations in a good and
workmanlike manner to the reasonable satisfaction of the Landlord, with good and
proper materials, in accordance with good building practice and in accordance with
the requirements of all legislation affecting the works or the means by which they
are carried out.
8.9
Colour schemes on redecoration
The final internal redecoration of the Premises is to be in a colour scheme approved
by the Landlord, such approval not to be unreasonably withheld or delayed.
8.10
Removal of unauthorised alterations
If the Tenant carries out any alterations or additions to the Premises in breach of
its obligations in this Lease, the Landlord may, at the Tenant’s cost, enter and
remain upon the Premises with or without workmen, plant and materials and
remove the alterations or additions made to the Premises and restore the Premises
to the configuration in which they were before the alterations or conditions were
carried out. The costs incurred by the Landlord in doing so are to be paid by the
Tenant to the Landlord on demand as a debt and not as rent together with interest
on those costs at 4% per annum above the Interest Rate calculated from and
including the date on which the Landlord incurred them to and including the date
on which they are paid.
8.11
Reinstatement of alterations
Unless and to the extent that the Landlord notifies the Tenant in writing not to do
so, the Tenant is to reinstate all alterations and additions to the Premises before
the end of the Term, including any fitting-out works carried out by the Tenant
before the Term, and return the Premises to the configuration in which the Tenant
first received them.
9.
USE OF THE PREMISES
9.1
The Tenant is to use the Premises only for the Authorised Use.
9.2
The Tenant is to operate the business on the Premises mindful of the Landlord’s
policies and objectives (including a high standard of amenities and appearance
within the Building and neighbouring premises) and to use its best endeavours to
develop and maintain the business and to meet quarterly with representatives of
the Landlord to review the operation management and development of the
business.
9.3
The Tenant must open the Premises and to keep them open and available for the
use of members of the public during the Opening Hours or such other times as
shall from time to time be approved by the Landlord.
9.4
The Tenant will display at the Premises and sell on behalf of the Landlord all
literature, brochures, maps, guides, discovery passes, tickets and similar items as
may be required from time to time by the Landlord.
9.5
The Tenant is to obtain Trade Licences if required for the Authorised Use and
comply with the obligations contained in Schedule 3.
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9.6
Prohibited uses
The Tenant is not to use the Premises or, where applicable, any Communal Areas:
9.7
9.6.1
for any illegal or immoral purpose or any lewd, obscene or pornographic
nature or any activity which in the reasonable opinion of the Landlord is
of such nature;
9.6.2
as offices to which members of the public are admitted or for any public
meeting;
9.6.3
for any auction, for the manufacture, or consumption of alcohol;
9.6.4
for the preparation or cooking of food other than for staff catering
facilities ancillary to the Authorised Use;
9.6.5
as a club, amusement arcade or for any betting transaction within the
meaning of the Betting Gaming and Lotteries Act 1963;
9.6.6
for the sale of food for immediate consumption;
9.6.7
for the sale of hot food and beverages;
9.6.8
for the sale of Christmas trees;
9.6.9
in a manner which creates a legal nuisance, damage or annoyance to
the Landlord or any tenants or occupiers of the Building or any adjoining
premises;
9.6.10
for residential purposes or for any political or religious use; or
9.6.11
for the sale of membership on behalf of any third party organisation.
Restrictions on use
The Tenant is not to:
9.7.1
overload the floors, ceilings or walls of or enclosing the Premises or the
Common Parts or obstruct or misuse the Communal Areas or any
conduits within or serving the Premises or the Building;
9.7.2
allow any hazardous or contaminative materials to escape into the
ground or any watercourse whether or not they form part of the
Premises;
9.7.3
place, affix or display any sign, advertisement, notice, placard, poster,
flag, notification or display on the outside of the Premises or any other
part of the Building or on the inside of the Premises so as to be visible
from outside the Premises except as permitted under clause 3.1;
9.7.4
use any machinery on the Premises which is audible outside the
Premises or which causes significant vibration either within or outside
the Premises; or
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9.7.5
affix any awning, mast, flagpole, aerial, satellite dish or any other fixture
on the outside of the Premises or any other part of the Building.
9.8
The Landlord gives no warranty to the Tenant that the Authorised Use is or will
remain a lawful or Permitted Use under planning legislation.
9.9
Management regulations
The Tenant is to comply with all proper and reasonable regulations made by the
Landlord for the use of the Communal Areas and the exercise of the rights granted
to the Tenant under clause 3.1 including without limitation:
9.10
9.9.1
the KPIs (as may be varied from time to time) which may be used by
the Landlord to monitor the Tenant’s performance.
9.9.2
The Management Regulations (including Branding Guidelines); and
9.9.3
The requirements of the Landlord’s ISO14001 accreditation and of any
national accreditation scheme entered into by the Landlord from time to
time.
Lawful use
The Landlord gives no warranty to the Tenant that the Authorised Use is or will
remain a lawful or permitted use for the Premises under planning legislation.
10.
ASSIGNMENT, UNDERLETTING AND CHARGING
10.1
Restrictions on alienation
The Tenant is not to assign, underlet, part with possession or share occupation of
the whole or any part of the Premises, hold the whole or any part of the Premises
on trust for any other person or enter into any agreement to do so except and to
the extent that it is expressly permitted to do so by the terms of this Lease.
10.2
Right to assign whole
The Tenant may assign the whole of the Premises if it obtains the prior written
consent of the Landlord which will not be unreasonably withheld or delayed:
10.3
Pre-conditions to assignment
For the purposes of section 19(1A) Landlord and Tenant Act 1927, the Landlord
may impose the following conditions before giving consent to any assignment of
this Lease:
10.3.1
that the proposed assignee enters into a direct covenant with the
Landlord to comply with the terms of this Lease whilst the proposed
assignee remains the tenant of the Lease;
10.3.2
that the Tenant gives to the Landlord an authorised guarantee
agreement under section 16 Landlord and Tenant (Covenants) Act 1995
on the terms of clause 15 guaranteeing the obligations of its proposed
assignee;
10.3.3
that any guarantor of the Tenant (not being a guarantor under an
existing authorised guarantee agreement) gives to the Landlord a
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guarantee on the terms of clause 15 guaranteeing the Tenant’s
authorised guarantee agreement given under clause 10.3.2; and
10.3.4
10.4
if reasonably requested to do so by the Landlord, that the proposed
assignee provides to the Landlord, at the Landlord’s option, either:
10.3.4.1
a guarantee of the proposed assignee’s obligations on the
terms of clause 15 by a company or companies
incorporated in or a person or persons resident in the United
Kingdom acceptable to the Landlord acting reasonably; or
10.3.4.2
a rent deposit, on terms reasonably required by the
Landlord, of not less than six months’ Principal Rent at the
amount reserved at the date of the deed of assignment of
this lease (or, where a Review Date has passed but the
revised rent has not been ascertained, at the Landlord’s
reasonable estimate of the revised Principal Rent) together
with a sum equal to VAT on that amount.
Circumstances where assignment is prohibited
For the purposes of section 19(1A) Landlord and Tenant Act 1927, the Landlord
may withhold consent to any assignment of this Lease where:
10.4.1
in the reasonable opinion of the Landlord, the proposed assignee’s
covenant strength is materially less than the Tenant’s covenant strength
both being assessed at the date of the application for consent to assign
taking into account any rent deposit, guarantee or other security offered
by the assignee but not taking into account any authorised guarantee
agreement to be given by the Tenant;
10.4.2
the accounts of the proposed assignee or its guarantor have not been
audited or, if they have been audited, relate to a period or periods the
most recent of which expired more than eleven months before the date
of the application for consent to assignment;
10.4.3
the proposed assignee or its guarantor is a company incorporated in or
an individual resident in a country outside the United Kingdom and there
is no treaty for the mutual enforcement of judgments between the
United Kingdom and that country unless, in relation to a company:
10.4.4
10.4.3.1
it carries on and maintains a business in the United
Kingdom;
10.4.3.2
it has a current bank account in the United Kingdom;
10.4.3.3
it has, in the reasonable opinion of the Landlord, sufficient
assets in the United Kingdom to enable it to meet its
liabilities under this Lease; and
10.4.3.4
it agrees to be bound by the jurisdiction of the English
courts;
the proposed assignee or its guarantor is a person who enjoys sovereign
or state immunity, unless a department, body or agency of the United
Kingdom Government; or
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10.4.5
10.5
the proposed assignee is a group company of the Tenant within the
meaning of section 42 Landlord and Tenant Act 1954 unless, in the
reasonable opinion of the Landlord, the covenant strength of the
proposed assignee is not materially less than the Tenant’s covenant
strength both being assessed at the date of the application for consent
to assign or, in the case of the Tenant, at the date of this Lease if the
Tenant’s covenant strength was materially stronger at this date.
Restrictions on charges
The Tenant is not to create any charge, whether legal or equitable, over the whole
or part only of the Premises. .
10.6
Notification of dispositions
Within one month after any assignment, charge or assent of the Premises and the
grant, assignment or charging of any underlease, however remote, the Tenant is
to give written notice to the Landlord of the disposition together with certified
copies of all the documents giving effect to it and is to pay to the Landlord a proper
and reasonable registration fee being not less than £40.
10.7
Notification of rights of occupation
In addition to the Tenant’s obligations under section 40 Landlord and Tenant
Act 1954, following a written request from the Landlord the Tenant is to supply
written details to the Landlord of the full names and addresses of anyone in
occupation of the Premises, including the Tenant, and whether they are in
occupation for the purpose of carrying on a business. In the case of any person
in occupation other than the Tenant, the Tenant is to give full details of the areas
occupied, the rents paid and the terms upon which they are in occupation.
11.
LEGISLATION AND PLANNING
11.1
Compliance with legislation
The Tenant is to comply with all statutes, other legislation and any notice, order,
proposal, requisition, direction or other communication from any public authority
in respect of the Premises, their use and occupation or the carrying out of any
works to the Premises and indemnify the Landlord against any breach of this
obligation.
11.2
Fire precautions
The Tenant is to comply with all requirements and reasonable recommendations
of any public authority the Landlord and the Landlord’s insurers relating to fire
prevention and fire precautions including the installation, maintenance and testing
of fire sprinklers, fire alarm systems, fire extinguishers and all other equipment or
systems for detecting and extinguishing fires. Where required to do so by the
Landlord, the Tenant is to ensure that the Tenant’s fire alarm and sprinkler
systems are connected to and compatible with any fire alarm and sprinkler
systems maintained by the Landlord in relation to the Building.
11.3
Notices
If the Tenant receives any notice, order, proposal, requisition, direction or other
communication from any public authority or third party affecting or likely to affect
the Premises, their use and occupation or the carrying out of any works to the
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Premises, the Tenant is at its own cost immediately to provide a copy to the
Landlord and at the request of the Landlord to make or join in with the Landlord
in making any representations or objections in respect of these matters as the
Landlord may reasonably require.
11.4
Planning applications
The Tenant is not to apply for planning permission under any legislation relating
to town and country planning or implement any planning permission without the
prior written consent of the Landlord.
11.5
Completion of works
If the Tenant has begun to implement a planning permission in respect of the
Premises, it is to carry out and complete before the end of the Term any works
permitted or required under that planning permission.
11.6
Planning agreements
The Tenant is not to enter into any planning agreement with the local authority or
any other person in relation to the Premises, their use or their development.
12.
ENVIRONMENTAL LAW
12.1
Compliance with environmental law
The Tenant is to comply with all requirements of Environmental Law and is not to
use the Premises for the production, storage, use, handling or disposal of any
Hazardous Material or Waste for which a permit, licence, consent, registration,
authorisation or exemption is required under Environmental Law.
12.2
Compliance with notices
The Tenant is at its own cost:
12.3
12.2.1
to supply the Landlord with copies of all notices, directions, reports or
correspondence concerning any contamination of the Premises or any
migration or other escape of Hazardous Materials or Waste which may
result in proceeding being taken or threatened under Environmental
Law; and
12.2.2
to take and complete promptly and diligently all actions or precautions
required by such notice, direction, report or correspondence.
Prevention of contamination
The Tenant is not to do or omit to do anything that would or may cause any
Hazardous Materials or Waste to escape, leak or be spilled or deposited on the
Premises or the Building, discharged from the Premises or the Building or migrate
to or from the Premises or the Building.
12.4
Environmental surveys
The Tenant is to permit the Landlord and its employees and agents at all
reasonable times after giving to the Tenant 48 hours written notice, except in an
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emergency, to enter the Premises to undertake investigations (including the taking
of samples) in, on or under the Premises or the Building to ascertain the condition
of the Premises or the Building and the nature, extent and mobility of Hazardous
Materials or Waste in, on or under the Premises or the Building.
12.5
Provision of an EPC
The Tenant acknowledges that it was provided with a copy of the Landlord’s EPC
before the date of this Lease.
12.6
Obtaining an EPC for the Premises
The Tenant is to notify the Landlord in writing before obtaining an EPC for the
Premises. As soon as reasonably practicable after receiving notice under this
clause 12.6, if the Landlord holds a valid EPC for the Premises, the Landlord is to
provide a copy of the EPC to the Tenant [on payment by the Tenant of a reasonable
fee, which may include a reasonable and proper proportion of the Landlord’s costs
of obtaining that EPC and the Landlord’s reasonable and proper copying charges.
If the Landlord does not hold a valid EPC for the Premises, the Tenant may obtain
an EPC for the Premises at the Tenant’s cost.
12.7
Production of EPCs
Either party will provide the other with a copy of any EPC obtained under this
clause 12 within five working days of the later of the receipt of the EPC and the
payment of any costs due under this clause 12.
12.8
Duty to co-operate
If the Landlord wishes to obtain an EPC for the Premises or any other parts of the
Building in circumstances where the Landlord is not under a statutory obligation
to do so, the Tenant will be under the same duty to co-operate with the Landlord
to facilitate the production of the EPC as if the Landlord were under a statutory
obligation to obtain the EPC.
13.
END OF THE TERM
13.1
Return of the Premises
At the end of the Term, the Tenant is to return the Premises to the Landlord with
vacant possession, cleaned and in the state of repair, condition and decoration
required by this Lease, and return all keys to the Premises to the Landlord.
13.2
Tenant’s goods left in the Premises
If the Tenant has not removed all of its property from the Premises within one
week after the end of the Term:
13.2.1
the Landlord may sell that property as the agent of the Tenant and the
Landlord is to pay or account to the Tenant on demand for the sale
proceeds after deducting the costs of transportation, storage and sale
reasonably incurred by the Landlord; and
13.2.2
the Tenant is to indemnify the Landlord against any liability of the
Landlord to any third party whose property is sold in the mistaken belief
held in good faith that the property belonged to the Tenant.
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13.3
Exclusion of right to compensation
Subject to the provisions of any legislation which prevents or restricts such an
agreement, the Tenant is not entitled to any compensation under statute or
otherwise at the end of the Term.
13.4
Return of the Lease
At the end of the Term, the Tenant is to return the original Lease to the Landlord
and use all reasonable endeavours to assist the Landlord in removing any notice
relating to the Lease and the rights granted and reserved by it from the title
number(s) referred to in clauses LR2.1 and LR2.2 of the Land Registry
Particulars.
14.
TENANT’S GUARANTOR
The Tenant’s Guarantor covenants with the Landlord as a guarantor on the terms
of clause 15.
15.
GUARANTORS
15.1
Terms of the guarantee
The terms of this clause 15 are to be incorporated into any guarantee to be given
to the Landlord under this Lease.
15.2
Obligations of the guarantor
The guarantor guarantees to the Landlord that the Tenant will pay the Rents and
comply with the Tenant’s covenants in this Lease until the Tenant is released from
its obligations to do so under the Landlord and Tenant (Covenants) Act 1995. This
guarantee:
15.3
15.2.1
is given by the guarantor as primary obligor; and
15.2.2
includes an independent obligation both to comply with the Tenant’s
covenants if they are breached and to indemnify the Landlord against
that breach.
Right to direct claim against the guarantor
The guarantor agrees that the Landlord may make a claim under this guarantee
and indemnity without first making a claim against the Tenant.
15.4
No right of set-off
The guarantor is to pay all sums due to the Landlord under this guarantee and
indemnity without any legal or equitable set-off, counterclaim or deduction except
as required by law.
15.5
Continuation of the guarantee
The obligations of the guarantor are not to be released by:
15.5.1
any delay or neglect by the Landlord in enforcing the Tenant’s covenants
or any time allowed by the Landlord for their performance;
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15.6
15.5.2
any refusal by the Landlord to accept the payment of the Rents under
this Lease in order to avoid waiving a breach of the Tenant’s covenants;
15.5.3
any variation of the terms of this Lease;
15.5.4
the surrender of any part of the Premises;
15.5.5
the disclaimer of this Lease by the Crown or by a liquidator or trustee in
bankruptcy of the Tenant;
15.5.6
the forfeiture of the Lease;
15.5.7
the Tenant being struck off the register of companies or otherwise
ceasing to exist or, in the case of an individual, dying;
15.5.8
any legal limitation, immunity, disability, incapacity or other
circumstances relating to the Tenant, whether or not known to the
Landlord; or
15.5.9
anything else which would have released the guarantor whether by the
variation of the Tenant’s covenants or by the conduct of the parties.
New lease following disclaimer
If the Landlord serves written notice on the guarantor within six months after
receiving notice of the disclaimer of this Lease, the guarantor is, at its own cost,
to enter into a new lease of the Premises on the same terms at this Lease for the
residue of the Contractual Term calculated from the date of disclaimer. The
guarantor is to pay the proper costs of the Landlord on the grant of the new lease.
15.7
Contracting out for the new lease
The Landlord and the Guarantor confirm that the requirements of paragraph (b)
of the definition of Contracted-out Tenancy have been complied with before the
date of this guarantee to ensure that the new lease referred to in clause 15.6 will
be a Contracted-out Tenancy.
16.
SERVICES
16.1
Provision of services
The Landlord is throughout the Term and for the benefit of the Building:
16.2
16.1.1
to maintain, clean and repair the Common Parts and landlord’s fixtures
and conduits serving the Building;
16.1.2
to use all reasonable endeavours to light the Communal Areas during
such hours as the Landlord deems necessary;
Employment of agents and contractors
In providing the Services, the Landlord may employ managing agents, contractors
or any other suitably qualified persons as the Landlord thinks fit.
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16.3
Limitation of liability
The Landlord will not be liable to the Tenant in respect of any loss or damage
caused by any failure, interruption or delay in the provision of the Services arising
either from any cause or circumstance beyond the control of the Landlord including
mechanical breakdown, failure, malfunction, shortages of fuel or materials or
labour disputes or from any necessary maintenance, repair, replacement, renewal,
servicing, inspection or testing of the systems used to provide the Services.
16.4
Minimising interruptions to services
The Landlord will use all reasonable endeavours to minimise the period of failure,
interruption or delay in the provision of the Services where the reason for the
failure, interruption or delay is under its control but the Landlord shall not be
responsible for the quality quantity or continuity of water supplied to the Premises.
17.
DETERMINATION OF DISPUTES
17.1
Appointment of independent person
Any person appointed under this Lease as an expert or an arbitrator is to be
appointed by agreement between the Landlord and the Tenant. In the absence of
agreement within two weeks of a request in writing from either party to the other
to agree an appointment, either party may refer the appointment to the president
or other most senior available officer of the Royal Institution of Chartered
Surveyors.
17.2
Provisions applying to arbitrators
Where any person acts as an arbitrator he will not be entitled to order the
rectification, setting aside or cancellation of this Lease or any other deed or
document.
17.3
Responsibility for costs
Responsibility for the costs of referring a dispute under this clause 17, including
costs connected with the appointment of the expert or arbitrator but not the legal
and other professional costs of any party in relation to a dispute, will be decided
by the person appointed and in the absence of a decision, they will be shared
equally between the parties. If the Tenant does not pay any part of the costs of
referring a dispute under this clause 17 and, as a result, the release of the
decision or award is delayed, the Landlord will be entitled to pay those unpaid
costs and the Tenant will reimburse those costs as additional rent to the Landlord
on written demand together with interest at 4% above the Interest Rate calculated
from and including the date on which the Landlord paid them to and including the
date on which the Tenant reimburses those costs to the Landlord.
17.4
Date of the determination or award
The date of decision or award of person appointed will be deemed to be the date
on which he serves a copy of the decision or award on the Landlord and the Tenant
or, if the decision or award is served on the Landlord and the Tenant on different
dates, on the later of these two dates.
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18.
ENFORCEMENT
18.1
Applicable law
This Lease is to be governed by and interpreted in accordance with English law.
18.2
Service of notices
Any notice under this Lease is to be served in writing in accordance with section
196 Law of Property Act 1925.
18.3
Jurisdiction
The courts of England are to have jurisdiction in relation to any disputes between
the parties arising out of or related to this Lease. This clause operates for the
benefit of the Landlord who retains the right to sue the Tenant and any Guarantor
and enforce any judgment against the Tenant or any Guarantor in the courts of
any competent jurisdiction.
18.4
[Address for service
The Tenant [and the Tenant’s Guarantor] appoint[s] [NAME] of [ADDRESS] as
[its][their] agent for the service of any notices or proceedings relating to this
Lease.]
19.
EXECUTION
The parties have executed this Lease as a deed and it is delivered on the date set
out in clause LR1 of the Land Registry Particulars.
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SCHEDULE 1
Additional Service Costs
1.
The costs of providing security for the Building including, alarm systems, closed
circuit television systems, fire detectors, alarms, fire prevention systems in the
Building.
2.
The costs of disposal of refuse from the Building including its collection and
compaction and the provision of receptacles and plant and equipment for these
purposes.
3.
The costs of complying with legislation and the recommendations and
requirements of any public authority or the insurers of the Building, or if the
Landlord so requires, making representations against legislation or the relevant
recommendations and requirements.
4.
Paying for utilities, including standing charges and meter rents, used in providing
the electricity and water, any additional services included within the Additional
Service Costs and running landlord’s fixtures.
5.
The costs of maintenance, inspection and insurance contracts for the repair and
maintenance of landlord’s fixtures and any other plant, equipment and machinery
in the Building and their insurance against sudden and unforeseen damage and
breakdown.
6.
The costs of providing and operating any other amenities which the Landlord
reasonable thinks necessary or desirable for the Building.
7.
Interest, commission, banking charges and fees in respect of any moneys
borrowed to finance the provision of any of the Services.
8.
The reasonable costs incurred at any time during the Term in obtaining one or
more EPCs for the whole or any part of the Building.
9.
The reasonable costs of implementing any of the recommendations in the
assessor’s report and recommendations forming part of the EPC where the cost of
implementing those recommendations is justifiable on the principles of good estate
management having regard to the reduced energy bills and maintenance costs
resulting from implementing those recommendations.
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SCHEDULE 2
Turnover Rent
1.
Definitions
In this Schedule, the following words and expressions have the following
meanings:
“Trading Day”
any day or part of a day on which the Premises
ought to be open for trading during an Accounting
Period
“Turnover Certificate”
the certificate to be produced by the Tenant
under paragraph 4.1 (Turnover Rent –
production of Turnover Certificate)
2.
Gross Turnover
2.1
Gross Turnover is the total of all moneys or other consideration received or
receivable by the Tenant for all goods and services leased, hired or performed by
or on behalf of the Tenant from all business carried out at or from the Premises
calculated in accordance with this paragraph 2 (Gross Turnover).
2.2
The following are to be included in the Gross Turnover:
2.2.1
all moneys received or receivable from any sales, contracts or orders
which are received or made at or from the Premises, including those
made or received by mail-order, telephone sales, internet sales or by
any other form of electronic or computerised ordering system, whether
delivery or performance is made in whole or in part at or from the
Premises or any place other than the Premises;
2.2.2
all moneys received or receivable from any sales, contracts or orders
concluded at any place other than the Premises by persons operating
from or reporting to the Premises;
2.2.3
the value of any goods and services in relation to any sales, contracts or
orders which are received or made at or from any place other than the
Premises by persons not operating from or reporting to the Premises in
circumstances where goods or services are provided from the Premises
to fulfil that sale, contract or order;
2.2.4
all moneys received or receivable from sales or services provided by
means of mechanical or vending devices on the Premises;
2.2.5
all bonuses, commissions, payments or discounts received or receivable
from third parties relating to any transactions or services concluded at
or from the Premises and includes those relating to insurance,
warranties and the delivery or installation of goods;
2.2.6
all moneys received or receivable from sales, contracts or orders which
the Tenant in the normal course of its business attributes to its business
from the Premises;
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2.3
2.2.7
all moneys received or receivable from sales, contracts or orders which
are received or made on the internet or any other form of electronic or
computerised ordering system maintained by the Landlord in respect of
the Centre which are fulfilled by the Tenant from the Premises or any
other premises; and
2.2.8
grants, subsidies and fees paid to the Tenant by any European, supranational, national or local government or authority, or any other public
or other competent authority in consideration of, or to defray in whole
or part, the cost of the supply of goods or services at or from the
Premises.
The following are not to be included in the Gross Turnover:
2.3.1
sums received or receivable in respect of VAT;
2.3.2
staff discounts allowed by the Tenant to its employees in respect of
goods or services sold or supplied to them at or from the Premises;
2.3.3
the amount reasonably and properly allowed on goods traded in by
customers in the ordinary course of business;
2.3.4
the amount of any cash refund or credit given to a customer when goods
are returned so long as:
2.3.5
2.3.6
2.3.7
2.4
2.3.4.1
the good were returned to the Premises; and
2.3.4.2
that the cash refund or credit does not exceed the sale price
of the goods included in the Gross Turnover;
the sale price of goods returned by customers for exchange so long as:
2.3.5.1
the sale price has previously been included in the Gross
Turnover; and
2.3.5.2
the sale price of the goods given in exchange is included in
the Gross Turnover;
allowances made for defective or unsatisfactory goods or services so
long as:
2.3.6.1
the sale price of the goods has previously been included in
the Gross Turnover; and
2.3.6.2
the allowances do not exceed the sale price of the goods or
the charge for the services included in the Gross
Turnover; and
the value of goods returned to shippers, wholesalers or manufacturers.
For the purposes of calculating the Gross Turnover:
2.4.1
every sale on credit terms or on an instalment basis is to be treated as
a sale for the full cash price at the date when the sale is made,
irrespective of the time or times at which payment is made;
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2.4.2
every hiring or leasing of goods with an option to purchase is to be
treated as a sale of the goods for the full cash price at the date when
the hiring or leasing is made, irrespective of the time or times at which
the payment is made; and
2.4.3
every deposit paid is to be included in the Gross Turnover at the time of
receipt but will be deducted from the Gross Turnover if and when repaid;
2.4.4
no deduction shall be made for bad or doubtful debts;
2.4.5
in the case of transactions paid by credit or debit cards, no deduction
shall be made for discounts or commissions payable to the provider of
credit;
2.4.6
no reduction in the Gross Turnover is to be made to represent the value
of goods transferred whether by exchange or otherwise from the
Premises to other premises of the Tenant or any Group Company of the
Tenant;
2.4.7
for the purposes of this paragraph 2, the Tenant means the Tenant,
any licensee, concessionaire or franchisee of the Tenant, any Group
Company of the Tenant and any other person in occupation of the whole
or any part of the Premises; and
2.4.8
moneys are to be treated as being received or receivable by the Tenant
notwithstanding that payment is made or is payable in whole or in part
to any person other than the Tenant.
3.
Turnover Records
3.1
The Tenant is to:
3.1.1
maintain the Turnover Records fully and accurately throughout the
Term;
3.1.2
retain on the Premises or in some other place where the Landlord can
reasonably inspect them Turnover Records for no fewer than the five
most recent consecutive Accounting Periods; and
3.1.3
allow the Landlord and its accountants and other authorised agents to
have access to and inspect the Turnover Records.
3.2
The Tenant acknowledges to the Landlord that it owes the Landlord a duty of the
utmost good faith to maintain full and accurate Turnover Records to enable the
Landlord properly and accurately to determine the Gross Turnover.
3.3
The Landlord may at any time require the Turnover Records to be audited by an
independent firm of chartered accountants. If such an audit shows that the Gross
Turnover for any Accounting Period has been understated by more than 2%, the
cost of the audit is to be paid by the Tenant to the Landlord on demand as
additional rent.
3.4
Within one month after each Quarter Day the Tenant is to give the Landlord a
written statement showing with reasonable accuracy the Gross Turnover for the
quarter ended on that Quarter Day. This statement is to be used for information
purposes only and is not to be used for calculating the Turnover Rent.
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3.5
The Landlord may link its computers to the Tenant’s tills for the purpose of
recording details of the Gross Turnover. If it does so, the Landlord will provided
the necessary equipment and cabling to do so.
4.
Turnover Rent
4.1
Within thirty days after the end of each Accounting Period, the Tenant is to deliver
a Turnover Certificate to the Landlord signed by a professionally qualified
independent accountant from a reputable firm of chartered accountants certifying
the amount of the Gross Turnover during such Accounting Period and the number
of Trading Days in that Accounting Period, if any, on which the Tenant did not
open for trade.
4.2
The Tenant warrants to the Landlord that each Turnover Certificate will state
accurately the amount of Gross Turnover during the relevant Accounting Period
and the Tenant acknowledges to the Landlord that it owes a duty of the utmost
good faith to the Landlord in this respect.
4.3
Subject to paragraph 5.1 (Failure to trade), if during any Accounting Period the
Premises are closed for trading on any Trading Day, for the purposes of calculating
the Gross Turnover for that Accounting Period it will be assumed that, on each
Trading Day on which the Premises were closed, the Tenant received Gross
Turnover equal to the average amount of the Gross Turnover for the Trading Days
on which the Tenant did open for trade during that Accounting Period.
4.4
Upon receipt of a Turnover Certificate, the Landlord is to calculate the Turnover
Rent payable for the relevant Accounting Period and is to serve a written demand
on the Tenant for the Turnover Rent or any balance of it found to be due taking
into account any payments on account made under paragraph 6 (Payments on
account).
4.5
The Tenant is to pay the amount of Turnover Rent demanded by the Landlord
within fourteen days after the service of the demand.
4.6
For the purposes of clause 4.6 (Interest on late payment), the due date for
payment of the Turnover Rent for each Accounting Period is to be the date on
which the Landlord serves the demand for it under paragraph 4.4 (Landlord’s
demand).
4.7
If it appears from any inspection or audit of the Turnover Records or from any
other circumstances whatsoever that any further Turnover Rent is payable for an
Accounting Period for which the Tenant has already paid the rent demanded under
paragraph 4.4 (Landlord’s demand), the Tenant is to pay such further Turnover
Rent to the Landlord within fourteen days of a written demand.
5.
Default provisions
5.1
If the Tenant does not open for trading on more than 50% of the total number of
Trading Days during an Accounting Period, the Turnover Rent for that Accounting
Period is to be an amount equal to the Turnover Rent payable for the preceding
Accounting Period.
5.2
If the Tenant does not deliver a Turnover Certificate within the period required by
paragraph 4.1 (Production of Turnover Certificate), the Tenant is to pay to the
Landlord on demand on account of its liability to pay Turnover Rent an amount
equal to the Turnover Rent payable for the preceding Accounting Period.
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5.3
If, on receipt of a Turnover Certificate for an Accounting Period outside the period
required under paragraph 4.1 (Production of Turnover Certificate), the amount
paid on account of the Turnover Rent under paragraph 5.2 (Failure to produce
Turnover Certificate) exceeds the Turnover Rent payable by reference to the
Turnover Certificate, the Landlord is to set the excess against the next payment
of Turnover Rent payable by the Tenant under this Lease or, at the end of the
Term or following an assignment of this Lease with the consent of the Landlord,
repay the amount of the excess to the Tenant without interest.
6.
Payments on Account
After the first Accounting Period, the Tenant is to pay to the Landlord in advance
on each Quarter Day on account of its liability for Turnover Rent an amount equal
to one quarter of the Turnover Rent for the previous Accounting Period.
7.
Confidentiality
The Landlord is not to disclose the Gross Turnover or any other information
obtained from an inspection or audit of the Turnover Records to anyone other than
its employees, agents and professional advisers except to the extent that it is
necessary to do so:
7.1.1
to the extent necessary in order to comply with the requirements of the
Stock Exchange;
7.1.2
to the extent necessary in order to comply with the requirements of HM
Revenue and Customs, HM Revenue and Customs or the local rating
authority;
7.1.3
to the extent necessary to comply with statutory obligations;
7.1.4
to the extent necessary for audit purposes;
7.1.5
to the extent ordered to do so by a court or any other competent
authority;
7.1.6
for the proper conduct of the Landlord’s business including any valuation
of the Premises or the Centre for rent review or any other purposes; or
7.1.7
for the sale of the Landlord’s interest in the Premises or the Centre.
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SCHEDULE 3
Trade Licences
1.
The Tenant is to ensure that all Trade Licences required for the Authorised Use
remain in force during the Term in the name of the Tenant or, where a Trade
Licence has to be held by an individual, in the name of the Tenant’s nominee.
2.
The Tenant is to apply for and use all reasonable endeavours to obtain renewals
of the Trade Licences at its own costs and expense as and when they fall to be
renewed.
3.
The Tenant is to comply with all undertakings given to the Licensing authorities in
respect of the Premises or the Trade Licences and with all conditions lawfully
imposed by or contained in the Trade Licences.
4.
The Tenant is to obtain the consent of the Licensing Authorities to any alterations
or improvements to the Premises.
5.
The Tenant is to give written notice of and provide copies to the Landlord as soon
as reasonably practicable of any:
5.1.1
undertakings given in respect of the Premises or the Trade Licences;
5.1.2
notices which may have an effect on the Trade Licences; and
5.1.3
complaints or warnings received by the Tenant in respect of the Premises
or the Authorised Use whether from the police, the Licensing Authorities
or any other person or body.
6.
The Tenant is not to apply to the Licensing Authorities for the grant or renewal of
a Trade Licence, the insertion of any conditions in any Trade Licences and is not
to or give any undertakings or assurances in connection with the grant or renewal
of any Trade Licences without the prior written consent of the Landlord, such
consent not to be unreasonably withheld or delayed. Consent will not be required
under this paragraph 6 for:
6.1.1
an application to the local authority for a Premises Licence to replace
any existing Trade Licences on the same terms and conditions as are
contained in those Trade Licences; or
6.1.2
the renewal of a Premises Licence where the renewal is solely required
to substitute a new designated premises supervisor in the Premises
Licence in place of an existing designated premises supervisor.
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7.
The Tenant is not to do or omit to do anything on the Premises or on any other
premises that:
7.1.1
would render the Tenant or any nominee holding a Trade Licence in
respect of the Premises liable for any offence which may have an adverse
effect on the Trade Licences or the use of the Premises for the Authorised
Use; or
7.1.2
may lead to any Trade Licence becoming void, forfeited, revoked, or
being imperilled or subject to any other restrictions.
8.
The Tenant is not to transfer, surrender or attempt or agree to transfer or
surrender any Trade Licences, allow them to lapse or attempt to remove them to
other premises in each case without the prior written consent of the Landlord, such
consent not to be unreasonably withheld or delayed.
9.
At the end of the Term is to use its best endeavours to transfer and hand over to
the Landlord or a nominee or nominees of the Landlord at the Landlord’s cost all
Trade Licences but only if a new lease of the whole of the Premises is not granted
to the Tenant and the Tenant:
9.1.1
agrees that if the Trade Licences are not so transferred and handed over,
they are to be considered as lost or wilfully or unlawfully withheld; and
9.1.2
is, if required by the Landlord, to attend any hearing or meeting of the
Licensing Authorities and do all other acts and things which may be
necessary either to transfer the Trade Licences in accordance with this
paragraph 9 or to obtain for the succeeding occupier of the Premises
any order or other authority to enable them to carry out the Authorised
Use from the Premises as soon as reasonably possible.
10.
The Tenant agrees that if the Licensing Authorities refuse to renew or transfer the
Trade Licences or if the Tenant refuses or neglects to renew them or, at the end
of the Term, to transfer them to the Landlord or its nominee in accordance with
paragraph 9, then the Landlord or its nominee may at the Landlord’s cost do all
things necessary to appeal against any refusal by the Licensing Authorities to
renew or transfer the Trade Licenses or to effect the renewal or transfer of them,
as the case may be, in the name of the Tenant and, where applicable, as the agent
of the Tenant.
11.
The Tenant is to ensure that all persons named as licensees on the Trade Licences
comply with the provisions of this Schedule 3.
12.
Where necessary, the Tenant is to make any application required under Schedule
8 Licensing Act 2003 required to replace any Trade Licences held by the Tenant or
its nominee with a Premises Licence. The Tenant is to notify the Landlord in writing
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of the making of an application under this paragraph 12, keep the Landlord
informed in writing at reasonable intervals of the progress of the application and
provide to the Landlord a copy of the Premises Licence issued by the local authority
as soon as reasonably practicable after its issue.
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ANNEXURE 1
Management Regulations
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ANNEXURE 2
Photographic Schedule of Condition
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THE CORPORATE SEAL OF THE
SECRETARY OF STATE FOR
ENVIRONMENT FOOD AND RURAL
AFFAIRS hereunto affixed is authenticated
By the signature of:
)
)
)
)
Authorised by the Secretary of State for
Environment Food and Rural Affairs
EXECUTED as a deed by affixing
the common seal of
[PARTY NAME]
in the presence of:
)
)
)
)
Director
Director / Secretary
SIGNED as a deed by
[PARTY NAME]
acting by a director and its secretary
or two directors
)
)
)
)
Director
Director / Secretary
SIGNED as a deed on behalf of
[PARTY NAME],
a company incorporated in [COUNTRY],
by [NAME OR NAMES], being
[a person][persons] who, in accordance
with the laws of that territory, [is][are]
acting under the authority of the company:
)
)
)
)
)
)
)
Authorised signatory
Authorised signatory
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SIGNED as a deed by
[PARTY NAME]
[acting by one director]
in the presence of:
)
)
)
)
Witness signature:
Name:
Address:
Occupation:
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