Dated 2019 - s3-eu-west-1.amazonaws.com · 1.1.4 “Act” means the Townbeand CountryoutPlanning...
Transcript of Dated 2019 - s3-eu-west-1.amazonaws.com · 1.1.4 “Act” means the Townbeand CountryoutPlanning...
LEGAL_EU # 25512489.2
Dated 2019
INDUSTRIAL NORTH WEST LLP
(IN ADMINISTRATION)
and
ARRON SIMON KENDALL AND SIMON ROBERT THOMAS AS JOINT
ADMINISTRATORS OF INDUSTRIAL NORTH WEST LLP (IN
ADMINISTRATION)
and
MOVIANTO UK LIMITED
and
OWENS & MINOR INTERNATIONAL LIMITED
AGREEMENT FOR LEASE
Building 1, Haydock Green,
Penny Lane, Haydock
LEGAL_EU # 25512489.2
2
LEGAL_EU # 25512489.2
1
CONTENTS
THIS AGREEMENT is made the day of 2019
B E T W E E N:
(1) INDUSTRIAL NORTH WEST LLP (in Administration) (LLP
registration number OC421273) of Chapel House, New Street, Altrincham
Cheshire WA15 2QS c/o Arron Simon Kendall and Simon Robert
Thomas (in their capacities as joint administrators) Moorfields Advisory
Limited, 88 Wood Street, London EC2V 7QF (“the Landlord”)
(2) ARRON SIMON KENDALL and SIMON ROBERT THOMAS as
joint administrators of Industrial North West LLP both of Moorfields
Advisory Limited of 15th Floor, 88 Wood Street, London EC2V 7QF
(hereinafter called the "Administrators")
(3) MOVIANTO UK LIMITED (company registration number 01243938)
whose registered office is 1 Progress Park, Elstow, Bedford, MK42
9XE(“the Tenant”)
(4) OWENS & MINOR INTERNATIONAL LIMITED (registered in the
Republic of Ireland with company number 554496) whose registered
office is ArcRoyal, Virginia Road, Kells, Co Meath (the “Guarantor”)
BACKGROUND
A. The Administrators were appointed joint administrators of the
Landlord by a notice of appointment on 24 May 2019 by The Governor
and Company of the Bank or Ireland under paragraph 14 of Schedule B1
to the Insolvency Act 1986.
B. The Administrators have entered into this Agreement solely for the
purpose of obtaining the benefit of the provisions in their favour and shall
LEGAL_EU # 25512489.2
2
incur no personal liability of any kind under or in connection with this
Agreement.
C. It is acknowledged that this Agreement shall replace the Previous
Agreements (as defined below).
1. DEFINITIONS
1.1 In this Agreement the following terms shall have the following meanings
1.1.1 “Access Certificate” means the certificate to be issued by the Landlord’s
Representative in accordance with clause 8 certifying that the Access
Conditions have been satisfied
1.1.2 “Access Conditions” means the following conditions:
(a) the Building Works have been completed to a stage sufficient to
enable the Tenant to enter onto the Demised Premises with the
permission of the Building Contractor to carry out the Tenant’s
Works having regard to the need for the Landlord to carry out the
remaining Building Works without any material interruption or
delay to the Building Works being caused by the carrying out of the
Tenant’s Works;
(b) the Tenant and its contractors will have reasonable vehicular and
pedestrian access to the Demised Premises during normal working
hours for workmen and the delivery of plant, equipment and
materials;
(c) all drainage to the Demised Premises is available for connection to
the public sewer;
(d) electricity and water services are available to the Demised Premises
either through temporary supplies to be provided by the Landlord or
to mains supplies subject in either case to the Tenant making or
arranging with the utility suppliers for connection to these services;
(e) the Demised Premises are wind and watertight and secure or capable
of being made secure where any part of the physical enclosure of the
Building is to form part of the Tenant’s Works; and
(f) the floor slabs of the Demised Premises have cured
LEGAL_EU # 25512489.2
3
1.1.3 “Access Date” means the date of Practical Completion or, if earlier, the
date on which the Landlord issues the Access Certificate in accordance
with clause 8
1.1.4 “Act” means the Town and Country Planning Act 1990.
1.1.5 “Actual Completion” means actual completion of the grant of the Lease
and “Date of Actual Completion” is to be interpreted accordingly
1.1.6 “Administration Expense” means all such costs, debts, liabilities,
remuneration and expenses (including but not limited to the
Administrators’ own fees and legal fees, VAT, disbursements and other
expenses) as would be payable out of the Assets according to the
provisions of Paragraphs 99(3), 99(4) and 99(5) of Schedule B1 and
paragraph 13 of Schedule 1 to the Insolvency Act 1986 and Rule 3.51 of
the Insolvency Rules 2016”;
1.1.7 “Appointments” the deeds of appointment to be entered into with
members of the Professional Team in accordance with clause 4.1 and 4.2
using one of the forms of appointment annexed at Schedule 4 of this
Agreement. Any amendments to the forms of appointment shall be
subject to the prior approval of the Tenant (such approval to not be
unreasonably withheld)
1.1.8 “Approvals” means all approvals consents and permissions under the
1990 Act (including the approval of any matter reserved by any such
matters) building regulations and any other statute bye law or regulation
of any competent authority from time to time necessary for the Landlord
to undertake and complete the Building Works in accordance with the
provisions of this Agreement and the Building Contract
1.1.9 “Architect” means Martin Spencer Design Architecture LLP of 3 Hibbert
Street, Lees, Oldham, Greater Manchester OL4 3JZ or such architect or
firm of architects as the Building Contractor may from time to time
appoint in connection with the Building Works and notify to the Tenant in
writing
1.1.10 “Assets” means all of the assets of the Landlord from time to time.
1.1.11 "Building Contract" means the building contract relating to the Building
Works incorporating any amendments agreed between the Landlord and
the Building Contractor dated on or around the date of this Agreement.
LEGAL_EU # 25512489.2
4
The form of the Building Contract is appended at Schedule 4 of this
Agreement any amendment to it shall be subject to the prior approval of
the Tenant (such approval not to be unreasonably withheld)
1.1.12 “Building Long Stop” means 12th July 2019 subject to the provisions of
clauses 6.5, 7.9 and 9.7
1.1.13 “Break Dates” means the 10th anniversary of the Term Commencement
Date
1.1.14 “Building” means the building to be constructed on the Demised Premises
as part of the Building Works
1.1.15 "Building Contractor" means Barnfield Construction Limited of 8 Kenyon
Road, Brierfield, Nelson, Lancashire, BB9 5SP or such other experienced
and reputable firm or company of building contractors appointed by the
Landlord to carry out the Building Works
1.1.16 “Building Works” means the works to be carried out by or on behalf of
the Landlord for the construction of the Demised Premises as set out in
the Specification;
1.1.17 “CDM Regulations” means the Construction (Design & Management)
Regulations 2015
1.1.18 “Certificate of Making Good Defects” means the certificate issued by the
Architect pursuant to the Building Contract certifying that the defects
notified to the Building Contractor during the Defects Liability Period
have been made good in accordance with the Building Contract
1.1.19 "Certificate of Practical Completion" means the Certificate of Practical
Completion to be issued by the Architect in accordance with the Building
Contract certifying that Practical Completion has taken place
1.1.20 “Code” means the RICS Code of Measurement Practice (6th Edition)
1.1.21 “Completion Date” means ten Working days after the later of: (a) of the
Date of Practical Completion; and (b) the delivery of the engrossment of
the counterpart lease to the Tenant’s Solicitors; and (c) the date on which
the Gross Internal Area is agreed or determined in accordance with clause
16
1.1.22 "Date of Practical Completion" means the date certified in the Certificate
of Practical Completion as the date on which the Building Works have
LEGAL_EU # 25512489.2
5
been practically completed in accordance with the terms of the Building
Contract
1.1.23 “Defects Liability Period” means the defects liability period under the
Building Contract
1.1.24 “Demised Premises” means the premises known as Building 1, Haydock
Green, Penny Lane, Haydock more particularly described in Part I of the
First Schedule of the Lease
1.1.25 “Employer’s Agent” means C4 Consulting, The Chapel, Old Cherry Lane,
Haydock, WA13 0TA or any such agent as the Landlord may appoint
from time to time
1.1.26 “Estimated Access Date” means [new dates to be added]
1.1.27 “Estimated Date of Practical Completion” means [new dates to be added]
1.1.28 “Excluded Materials” means substances materials building practices or
techniques not in conformity with any relevant British standards or codes
of practice or which are generally known having regard to the guidance
“Good Practice in Selection of Construction Materials” dated 16th May
1997 sponsored by the British Property Federation and British Council
Offices
1.1.29 “Further Building Works” means those works as set out at [Schedule 1] of
the Specification;
1.1.30 “Green Land” means that part of the Demised Premises shown edged
green on the Plan;
1.1.31 “Green Land Rent” means the rent calculated in accordance with
clause 16.7;
1.1.32 “Gross Internal Area” means the gross internal area of the Building
measured in square feet in accordance with the Code
1.1.33 “Incumbrances” means:
(i) the matters contained or referred to in the property, proprietorship
and charges registers of the registered title to the Demised Premises;
(ii) anything in the nature of an incumbrance disclosed in writing by the
Landlord’s Solicitors to the Tenant’s Solicitors
1.1.34 “Landlord’s Contribution” means the sum of five hundred thousand
pounds (£500,000);
LEGAL_EU # 25512489.2
6
1.1.35 “Landlord’s Solicitors” means Paul Hastings (Europe) LLP, 10 Bishops
Square, London, E1 6EG (Ref - Miles Flynn)
1.1.36 “Lease” means the Lease to be granted by the Landlord to the Tenant for a
term of 15 years from the Completion Date pursuant to this Agreement in
the form of the draft Lease annexed hereto as Annexure 1 incorporating
the details to be included under clause 19.2 and the expression “Lease”
shall wherever the context so admits or requires include the form of draft
and any variations or modifications thereto formally agreed between the
parties in writing specifically as “agreed variations”
1.1.37 “Licence for Alterations” means a licence for alterations in the form
attached at Annexure 4 to be entered into in relation to the Tenant’s
Works
1.1.38 “Main Rent” means the rent calculated in accordance with clause 16.5
1.1.39 “Mechanical and Electrical Engineer” means KGA Partnership Limited of
Trinity Chambers, 10 Ivy Street, Birkenhead, Merseyside CH41 5EF or
such other chartered engineer appointed by the Landlord or the Building
Contractor in accordance with clause 4.2
1.1.40 “1990 Act” means the Town & Country Planning Act 1990 and all other
statutes containing provisions relating to town and country planning
and/or development and construction works
1.1.41 “Opinion Letter” means a letter relating to the Guarantor in the form
annexed as Annexure 2
1.1.42 “Option Land” means the land edged red on the plan annexed as
Annexure 3 and is to be transferred pursuant to the terms of the option
agreement dated 19 October 2010 between Catherine Susan Wood, David
Harry Wood, Jane, Beatrice Yan-Man-Shing and Stephen John Wood (1)
and the Landlord (2)
1.1.43 “Practical Completion” means practical completion of the whole of the
Building Works in accordance with the provisions of the Building
Contract and as certified under the Certificate of Practical Completion
1.1.44 “Planning Agreement” means any planning obligation entered into or
proposed to be entered into under Section 106 of the Act.
LEGAL_EU # 25512489.2
7
1.1.45 “Planning Appeal” means an appeal to the Secretary of State under
section 78 of the Act or an application to the planning authority under
section 73 (as the case may be).
1.1.46 “Planning Permission” means planning permission for the construction of
the Demised Premises as detailed on the specification
1.1.47 “Planning Refusal” means any refusal to grant a Planning Permission
(including a deemed refusal under section 78 of the Act)
1.1.48 “Previous Agreements” means:
(a) agreement for lease dated 17 April 2018 between (1) Oliver Dean
Morley (2) Movianto UK Limited and (3) Owens & Minor
International Limited relation to Building 1, Haydock Green,
Penny lane, Haydock; and
(b) the supplemental agreement dated 3 June 2019 between the parties
to this Agreement also in relation to Building 1, Haydock Green,
Penny lane, Haydock
1.1.49 “Professional Team” means the following professionals:
(a) the Architect;
(b) the Mechanical and Electrical Engineer;
(c) the Quantity Surveyor;
(d) the Structural Engineer; and
(e) the Principal Designer
1.1.50 “Principal Designer” means C4 Consulting Limited of The Chapel Old
Cherry Lane, Lymm, Warrington, Cheshire WA13 0SZ or such other
reputable and suitably qualified person appointment by the Landlord as
the principal designer for the Building Works in accordance with
regulation 5 of the CDM Regulations
1.1.51 “Quantity Surveyor” means C4 Consulting Limited of The Chapel Old
Cherry Lane, Lymm, Warrington, Cheshire WA13 0SZ or such other
quantity surveyor appointed by the Landlord or the Building Contractor in
accordance with clause 4.2
1.1.52 “Registered Title” means the Official Copy of the register of title for Title
Number MS91660 as at [ ] such
1.1.53 “Rent Commencement Date” means [ ];
LEGAL_EU # 25512489.2
8
1.1.54 “Restriction Letters” means the relevant written consents required by the
Tenant to enable registration of the Lease at the Land Registry required
pursuant to:
(i) the 2017 Transfer as noted at entry B2 of the Proprietorship
Register of the Registered Title;
(ii) entry B5 of the Proprietorship Register of the Registered Title;
and
(iii) [entry B6 of the Proprietorship Register of the Registered Title]
[Drafting note – this may be removed by the time of lease completion –
further update to follow once PH have spoken with the Land Registry];
1.1.55 “Restrictions” means all matters affecting the Demised Premises or their
use registered or capable of registration as local land charges and all
notices, charges, orders, resolutions, demands, proposals, requirements,
regulations, restrictions, agreements, directions or other matters affecting
the Demised Premises or their use or affecting the Building Works served
or made by any local or other competent authority or otherwise arising
under statute or any regulation or order made thereunder
1.1.56 “Review Dates” means every 5th anniversary of the Term Commencement
Date
1.1.57 “Specialist” has the meaning given to it in paragraph 1 of Schedule 3
1.1.58 "Specification" means the drawings and specification detailing the
Building Works annexed to this Agreement as Annexure 5 and includes
any changes to it made under the terms of this Agreement or otherwise
agreed in writing between the Landlord and the Tenant
1.1.59 “Structural Engineer” means Edge Structural Design Limited of Chambers
Business Centre, Chapel Road, Oldham OL8 4QQ or such other chartered
engineer appointed by the Landlord or the Building Contractor in
accordance with clause 4.2
1.1.60 “Supplemental Documents” means the Licence for Alterations;
1.1.61 “Target Area” means 373,000 square feet of Gross Internal Area.
1.1.62 “Tenant’s Representative” means Knight Frank of One Marsden Street,
Manchester, M2 1HW or such other member of the Royal Institution of
Chartered Surveyors appointed by the Tenant to supervise the carrying out
LEGAL_EU # 25512489.2
9
of the Tenant’s Works and written notice of whose appointment has been
given in writing to the Landlord
1.1.63 “Tenant’s Solicitors” means Eversheds Sutherland of Kett House, Station
Road, Cambridge CB1 2JY
1.1.64 “Tenant’s Variations” means any variations to the Building Works
requested by the Tenant in accordance with clause 6
1.1.65 “Tenant’s Works” means works to which the Landlord gives its consent
pursuant to clause 7 and shall include the Further Building Works
1.1.66 “Term Commencement Date” means the earlier of the Date of Actual
Completion or the Date of Practical Completion
1.1.67 “2017 Transfer” means a transfer of the property registered under title
number MS91660 dated 10th May 2017 between (1) Kevin Patrick
Morgan, Michael Anthony Morgan, Andrew Lawrence Morgan, Helen
Maria Whitlow, Gabrielle Davies and Geraldine Koskinas and (2) the
Landlord
1.1.68 “Working Days” means any day on which clearing banks in the City of
London are (or would be but for any strike lock-out or other stoppage
affecting such banks generally) open during banking hours and “Working
Days” shall be construed accordingly
1.2 Paragraph headings are to be ignored for the purposes of interpretation
1.3 “Standard Condition” means the Standard Commercial Property
Conditions (Second Edition)
1.4 “Unconditional Date” has the meaning given to it in paragraph 1.3 of Part
1 of Schedule 1.
2. CONDITION OF THE DEMISED PREMISES
Before the date of this Contract the Landlord gave the Tenant permission
and the opportunity, which the Tenant agrees were sufficient for its
purposes to inspect, survey and investigate the condition of the ground
upon which the Demised Premises are located. The Tenant is treated as
having formed its own view of the condition of such ground and its
suitability for the Tenant’s purposes and acknowledges that:
LEGAL_EU # 25512489.2
10
2.1 it has not entered into this agreement on reliance upon any representations
made by or on behalf of the Landlord or the Administrators;
2.2 the exclusions and limitations of liability contained in this agreement are
fair and reasonable in the circumstances of the administration of the
Landlord; and
2.3 neither the Landlord nor the Administrators give any warranties as to the
title to the Demised Premises for any purpose and any liability in this
respect is expressly excluded.
3. CONDITIONAL AGREEMENT
3.1 This Agreement has effect subject to the conditions set out in Schedule 1
and:
3.1.1 the Landlord and the Tenant are to comply with their respective
obligations in that Schedule; and
3.1.2 the provisions of clauses 4 to 16 will not have effect until the
Unconditional Date.
3.2 The Landlord agrees to grant with vacant possession and the Tenant
agrees to accept the grant of the Lease and the Supplemental Documents
on the Completion Date. The parties hereto will comply with their
respective obligations in Schedule 1.
4. BUILDING OBLIGATIONS
4.1 The Landlord is to be responsible for the appointment of the Building
Contractor and shall use reasonable endeavours to ensure that the Building
Contractor:
4.1.1 complies with its obligations in the Building Contract;
4.1.2 enforces the obligations of the members of the Professional Team under
their Appointments;
LEGAL_EU # 25512489.2
11
4.1.3 enforces the obligations of any sub-contractors under their sub-contracts;
and
4.1.4 enter into a collateral warranty with the Tenant (in the form appended to
the Building Contract)
4.2 Unless their appointment is the responsibility of the Building Contractor
under the terms of the Building Contract, the Landlord is to be responsible
for the appointment of the members of the Professional Team.
4.3 The Appointments are to be executed as deeds in one of the forms
included at Schedule 4 of this Agreement and are to include obligations on
each member of the Professional Team:
4.3.1 not to use or specify the use of Excluded Materials in the Building Works;
and
4.3.2 enter into a collateral warranty with the Tenant (in the form appended to
the relevant appointment).
4.4 The Landlord shall use reasonable endeavours to procure that the Building
Contractor proceeds diligently with and carries out the Building Works:-
4.4.1 in a good and workmanlike manner with sound materials of their
respective kinds
4.4.2 to a Gross Internal Area equal to the Target Area plus or minus 5%
4.4.3 in accordance with:
4.4.3.1 the terms of all Approvals and any Restrictions;
4.4.3.2 the terms of this Agreement;
4.4.3.3 the terms of the Building Contract;
4.4.3.4 the Specification.
LEGAL_EU # 25512489.2
12
4.4.4 in compliance with all statutes orders and regulations made under or
deriving validity from them and any requirements and codes of practice of
local authorities and competent authorities affecting the Building Works
4.4.5 exercising reasonable skill and care to ensure that no Excluded Materials
are specified for use
4.4.6 being the client for the purposes of the CDM Regulations and fully and
properly comply with its obligations as client pursuant to them.
4.5 The Landlord will keep the Tenant informed of the progress of the
Building Works and any material problems or delays affecting them and
will ensure that a copy of every variation to the Building Contract is
supplied to the Tenant as soon as reasonably practicable
4.6 The Landlord is to use reasonable endeavours to mitigate the effect of any
actual or anticipated delays in the carrying out of the Building Works.
4.7 The Landlord is to use reasonable endeavours to ensure that:
4.7.1 the Tenant is able to have access to the Demised Premises to begin the
Tenant’s Works by the Estimated Access Date; and
4.7.2 the whole of the Building Works are carried out and completed by the
Estimated Date of Practical Completion.
5. LANDLORD’S VARIATIONS OF BUILDING WORKS
5.1 The Landlord shall be entitled to make modifications and variations to the
Specification that:
5.1.1 are required to comply with the terms of the Planning Permission, any
Approvals or Restrictions without the consent of the Tenant;
5.1.2 the Landlord or the Professional Team reasonably and properly certifies
are necessary to preserve the structural integrity of the Premises without
the consent of the Tenant; or
LEGAL_EU # 25512489.2
13
5.1.3 have first been approved in writing by the Tenant, such approval not to be
unreasonably withheld or delayed where the proposed changes are not
material changes and to be deemed given if the Tenant does not respond
to a request for approval within 5 working days of receiving such request.
A material change is a change to the Specification that would:
5.1.3.1 have a material adverse effect on the Tenant’s use and occupation of the
Demised Premises;
5.1.3.2 have a material adverse effect on the cost of the Tenant’s Works, the
materials to be used within them, the method by which they are carried
out, the date on which they can be begun or the time that it will take to
carry them out;
5.1.3.3 increase the Gross Internal Area of the Building by more than 5%;
5.1.3.4 change the height of the Building or the slab to slab height between floors
within the Building by more than 5%;
5.1.3.5 materially adversely alter the floor loading of any of the floors within the
Demised Premises;
5.1.3.6 materially adversely limit the position, type, layout or number of vehicular
access points to the Demised Premises; or
5.1.3.7 Provided always that the Landlord shall be entitled to make modifications
and/or variations which do not materially adversely affect the external
elevation of the Demised Premises or the design capacity or standard of
construction of the same or otherwise materially adversely affect the
proposed use of the Demised Premises by the Tenant without consent.
5.2 If any of the materials originally specified as being necessary to carry out
the Building Works shall not be obtainable within a reasonable time or at
a reasonable cost the Landlord shall be at liberty to substitute therefor
such materials of comparable quality and cost as are so obtainable and are
appropriate and which shall have been certified by the Landlord’s
Representative as being so comparable obtainable and appropriate and in
the case of materials affecting the external appearance of the Demised
LEGAL_EU # 25512489.2
14
Premises, the alternative materials shall first be approved in writing by the
Tenant, such approval not to be unreasonably withheld or delayed.
5.3 The Landlord is to notify the Tenant in writing of any variations to the
Building Works made under this clause 5.
6. TENANT’S VARIATIONS OF BUILDING WORKS
6.1 The Tenant may request that the Landlord incorporates variations into the
Building Works. The Landlord may withhold consent in its absolute
discretion to requests for material variations but, otherwise, the Landlord
will not unreasonably withhold or delay consent. Material variations are
variations that:
6.1.1 cannot be incorporated in the Building Works without undue
inconvenience or would cause substantial delay in their completion or
would result, in the Landlord’s reasonable opinion, in the Estimated Date
of Practical Completion not being achieved;
6.1.2 would require a variation to an Approval or the obtaining of a new
Approval or consent of any other nature
6.1.3 would involve to an unreasonable extent the dismantling, undoing,
removal, alteration or demolition of any Building Works already in course
of construction or completed;
6.1.4 would reduce or increase the Gross Internal Area of the Building below or
above the Target Area;
6.1.5 would have a material adverse effect on the value of the Landlord’s
interest in the Demised Premises or the estate of which the Demised
Premises forms part.
6.2 The Tenant is to notify the Landlord in writing about a variation that it
seeks pursuant to clause 6.1.
6.3 After receiving a notice under clause 6.2, the Landlord shall as soon as
reasonably practicable establish whether and at what cost the Tenant’s
LEGAL_EU # 25512489.2
15
Variations could be incorporated into the Landlord’s Works and how
much time it would take to do so and :
6.3.1 after considering such timing and costs estimates, the Landlord may still
withhold consent to the Tenant’s Variations under clause 6.1
6.3.2 if the Landlord consents to the Tenant’s Variations, specifications, timing
and costs estimates are to be provided to the Tenant who will then notify
the Landlord in writing whether or not it wishes to proceed with the
Tenant’s Variations;
6.3.3 if the Tenant confirms in writing that it wishes to proceed with the
Tenant’s Variations, they will be incorporated into and form part of the
Landlord’s Works; and
6.3.4 if the Tenant does not confirm in writing that it wishes to proceed with the
Tenant’s Variations within 10 working days of the date on which the
Tenant is given the details required under clause 6.3.2 time being of the
essence, the Tenant will be deemed to have elected not to proceed with the
Tenant’s Variations.
6.4 The Tenant shall pay the Landlord within 10 working days of demand the
following:
6.4.1 the proper and reasonable costs incurred in preparing and calculating time
and costs estimates under clause 6.3
6.4.2 the costs calculated under the relevant provisions in the Building Contract
and the Professional Team appointments incurred in incorporating the
Tenant’s Variations.
6.5 If the Tenant’s Variations are incorporated in the Building Works:
6.5.1 the Building Long Stop Date shall be extended by the period certified by
the Employer’s agent;
6.5.2 the Rent Commencement Date is not altered by reason of any delay to the
Access Date or the Date of Practical Completion; and
LEGAL_EU # 25512489.2
16
6.5.3 the effect on the Main Rent under the lease is to be as follows:
6.5.3.1 to the extent that the Tenant’s Variation diminishes the rental value of the
Demised Premises; the Demised Premises are to be treated as having been
constructed in accordance with the Specification without the Tenant’s
Variations incorporated;
6.5.3.2 to the extent that the Tenant’s Variations increase the rental value of the
Demised Premises, they are to be disregarded; and
6.5.3.3 the Landlord shall instruct the Landlord’s Solicitors to modify the rent
review provisions in the Lease as necessary, to take account of , or as the
case may be to disregard, the Tenant’s Variations.
7. TENANT’S WORKS
7.1 As soon as reasonably practicable following the date hereof the Tenant
shall give the Landlord proposed plans and specifications of the Tenant’s
Works to obtain the Landlord’s approval (not to be unreasonably withheld
or delayed).
7.2 The Tenant shall obtain all necessary consents for the Tenant’s Works and
give the Landlord copies. If any element of the Tenant’s Works is to be
certified by an ‘approved inspector’ (defined in section 49(1) of the
Building Act 1984), the Tenant shall appoint the same approved inspector
(if any) as the Landlord appoints in respect of the Building Works.
7.3 The Tenant shall maintain public liability insurance in an appropriate form
and sum in respect of the Tenant’s Works
7.4 The Tenant shall not start the Tenant’s Works until after:
7.4.1 the Access Date; and
7.4.2 the Tenant has given where applicable, an executed Licence for
Alterations, containing the approved plans and specifications to the
Landlord’s Solicitors;
7.4.3 it has complied with its obligations in clause 7.1, 7.2 and 7.3;
LEGAL_EU # 25512489.2
17
7.5 These provisions apply to the Tenant’s Works (in addition to the Licence):
7.5.1 the Tenant shall not itself, and shall procure that its agents, employees or
contractors do not, impede the Building Works, the Landlord’s or any
owner or occupier of any other demised premises use of any of the
Landlord’s adjoining property;
7.5.2 If the Tenant enters onto the Demised Premises to carry out the Tenant’s
Works before the Date of Practical Completion the Tenant, its contractors,
employees, agents or any other party at the Demised Premises with the
actual or implied authority of the Tenant will:
7.5.2.1 co-operate with the Landlord and the Building Contractor to ensure that
any remaining Building Works, including making good defects, and the
Tenant’s Works can be carried out simultaneously;
7.5.2.2 comply with the reasonable directions of the Building Contractor and/or
the Landlord;
7.5.2.3 ensure that no material interruption or delay in the completion of the
Building Works is caused by the carrying out of the Tenant’s Works; and
7.5.2.4 indemnify the Landlord in respect of any material interruption or delay in
the Building Works arising from any breach of the Tenant’s obligations in
this clause 7.5.2
1.4.1 the Tenant shall not do or allow anything that may be or become or cause
a nuisance, damage or annoyance to the Landlord or any owner or
occupier of any other demised premises on any of the Landlord’s
adjoining property;
1.4.2 the Tenant shall comply with the regulations the Employer’s Agent or the
Architect make about the Tenant’s Works or the use of the Landlord’s
adjoining property;
7.5.3 the Tenant shall provide any information the Landlord or the Employer’s
Agent reasonably require about the Tenant’s Works;
LEGAL_EU # 25512489.2
18
7.5.4 if the Landlord allows the Tenant to use any part of any of the Landlord’s
adjoining property, it does so on a licence terminable at will;
7.5.5 the Tenant shall cause as little damage and disturbance as reasonably
practicable to the Landlord’s adjoining property and shall on the
Landlord’s request remove anything the Tenant stores or has put there;
and
7.5.6 the indemnity in clause 8 of the Licence extends to both a claim arising
out of and a breach of the requirements of this clause.
7.6 The Tenant shall do the Tenant’s Works so as to comply with the Tenant’s
obligations in the Lease and the Licence as if they had been granted.
7.7 The Landlord may terminate the Tenant’s licence to use the Demised
Premises for the Tenant’s Works on immediate notice if the Tenant
breaches the terms of its use under this Agreement or the terms of the
Lease or Licence.
7.8 For the avoidance of doubt the licence ends automatically if this
Agreement is terminated.
7.9 If the Employer’s Agent certifies in writing that the Tenant’s Works or the
manner in which the Tenant’s Works were carried out has caused a delay
in Practical Completion:
7.9.1 the Building Long Stop Date shall be extended by such period of time as
the Employer’s Agent shall certify in writing as being attributable to the
Tenant’s Works; and
7.9.2 neither the Rent Commencement Date or Term Commencement Date
shall be altered by reasons of any delay to Practical Completion caused by
the Tenant’s Works.
8. ACCESS DATE
8.1 If the Access Date is to be certified before the Date of Practical
Completion, the Landlord is to ensure that the Employer’s Agent inspects
the Building Works with a view to issuing the Access Certificate. The
LEGAL_EU # 25512489.2
19
Landlord is to give the Tenant prior written notice of the date and time,
being a working day during the hours of daylight, when the Employer’s
Agent will do so. Where reasonably practicable not less than three
working days’ notice will be given.
8.2 The Tenant and the Tenant’s Representative will be entitled to accompany
the Employer’s Agent on the inspection of the Building Works and to
make representations on the proposal to issue the Access Certificate. The
Employer’s Agent will have due regard to any representations made by
the Tenant or the Tenant’s Representative but will not be bound by them.
8.3 If the Employer’s Agent does not reasonably believe that access to the
Demised Premises can be given to the Tenant before the Date of Practical
Completion or the Access Conditions are not satisfied, the Landlord may
repeat the procedure in this clause 8 as often as necessary before the Date
of Practical Completion.
8.4 If the Employer’s Agent believes that access to the Demised Premises can
be given to the Tenant before the Date of Practical Completion and the
Building Contractor consents to access being given, the Landlord is to
serve an Access Certificate on the Tenant and the Tenant’s Representative
as soon as reasonably practicable after the date of the inspection of the
Building Works to certify the Access Date.
9. TENANT’S OCCUPATION
9.1 The Tenant may take occupation of the Demised Premises on the Access
Date (Tenant’s Occupation). The Tenant shall indemnify the Landlord
and the Administrators against all actions proceedings claims demands
losses costs expenses damages and liability (including liability for any
injury to any person or damage to any land or other property) arising
directly or indirectly from any breach of any obligation relation to the
Tenant’s Occupation or the state and condition or any use of the Demised
Premises or any act or omission of the Tenant or its servants agents or
licensees including any loss suffered as a result of any works of alteration
or addition to the Demised Premises undertaken by the Tenant.
LEGAL_EU # 25512489.2
20
9.2 These provisions apply to the Tenant’s Occupation:
9.2.1 The Tenant shall be permitted to carry out the Tenant’s Works but the
Tenant will not begin the Tenant’s Works until plans detailing the same
have been approved in accordance with the terms of this Agreement.
9.2.2 The Tenant shall not itself and shall procure that its agents, employees or
contractors do not impede the Building Works, the Landlord or any owner
or occupier of any other demised premises use of any adjoining land
owned by the Landlord;
9.2.3 The Tenant shall not do or allow anything that may be or become or cause
a nuisance, damage or annoyance to the Landlord or any owner or
occupier of any other demise on any adjoining land owned by the
Landlord;
9.2.4 The Tenant shall comply with all regulations the Landlord, and the
Administrators, or the Employer’s Agent reasonably require about the
Tenant’s Occupation or use of any adjoining land owned by the Landlord;
9.2.5 The Tenant shall provide any information the Landlord, and the
Administrators, or the Architect reasonably require about the Tenant’s
Occupation;
9.2.6 If the Landlord allows the Tenant to use any part of any adjoining land
owned by the Landlord it does so on a licence terminable at will;
9.2.7 The Tenant shall cause as little damage and disturbance as reasonably
practicable to any adjoining land owned by the Landlord;
9.3 During the Tenant’s Occupation the Tenant shall comply with the
Tenant’s obligations in the Lease as if it had been granted.
9.4 The Landlord may terminate the Tenant’s Tenants Occupation licence on
immediate notice if the Tenant breaches the terms of its use under this
Agreement or the terms of the Lease.
9.5 For the avoidance of doubt this Tenant’s Occupation licence ends
automatically if this Agreement is terminated.
LEGAL_EU # 25512489.2
21
9.6 Following the Access Date the Landlord and the Administrators and their
employees working on site shall have all access to the Demised Premises
as is required in order to complete the Building Works.
9.7 If the Employer’s Agent certifies in writing that the Tenant’s Occupation
has caused a delay in Practical Completion:
9.7.1 the Building Long Stop Date shall be extended by such period of time as
the Employer’s Agent shall certify in writing as being attributable to the
Tenant’s Occupation;
9.7.2 neither the Rent Commencement Date or the Term Commencement Date
shall be altered by reason of any delay to Practical Completion caused by
the Tenant’s Occupation.
10. TENANT’S INSPECTION RIGHTS
10.1 During the carrying out of the Building Works, The Tenant may enter the
Demised Premises to inspect the progress of the Building Works and the
workmanship and the materials used:
10.1.1 at reasonable times during normal working hours;
10.1.2 by appointment with the Building Contractor;
10.1.3 accompanied by the Employer’s Agent;
10.2 The Tenant shall ensure that:
10.2.1 inspections do not delay or disrupt the Building Works;
10.2.2 anyone inspecting the Building Works on its behalf complies with the
Landlord’s and the Building Contractor’s requirements
10.3 The Tenant cannot require the Building Works to be opened up or tested
11. CERTIFICATE OF PRACTICAL COMPLETION
11.1 The Landlord shall give the Tenant at least 5 Working Days’ notice before
the Architect intends to inspect the Building Works, being a working day
LEGAL_EU # 25512489.2
22
during the hours of daylight, with a view to issuing the Certificate of
Practical Completion and the Tenant may:
11.1.1 attend the inspection;
11.1.2 make representation to the Landlord about:
11.1.2.1 the state of the Building Works; and
11.1.2.2 the proposal to issue the Certificate of Practical Completion
11.2 The Landlord shall use reasonable endeavours to ensure that the Architect
pays due regard to any representations made under clause 11.1.2 but this
does not fetter the Employer’s Agent in issuing the Certificate of Practical
Completion
11.3 If the Certificate of Practical Completion is not issued after the first
inspection the procedure under clause 11.1 will be repeated as often as
necessary until the Certificate of Practical Completion is issued except
that only one days’ notice is required
11.4 The Employer’s Agent shall not be prevented from issuing the Certificate
of Practical Completion by reason of:
11.4.1 any outstanding works or minor defects that it would be usual to include
in a snagging list;
11.4.2 the planting or seeding of landscaped areas that are part of the Building
Works not being completed;
11.4.3 commissioning of the plant or machinery comprised in the Building
Works which are to connect to or combine with plant or machinery
comprised in any fitting out works which are to be carried out by the
Tenant.
11.5 The Employer’s Agent’s decision to issue the Certificate of Practical
Completion is final and conclusive
LEGAL_EU # 25512489.2
23
11.6 The Landlord shall serve on the Tenant a copy of the Certificate of
Practical Completion within 7 days of the issue thereof
11.7 The Landlord is to procure that all appropriate plant and machinery
installed as part of the Building Works is tested and commissioned and
provide commissioning reports, test certificates and all operating manuals
for such plant and machinery to the Tenant. The Landlord is to:
11.7.1 give the Tenant not less than five working days’ written notice of the date
on which the commissioning and testing will take place; and
11.7.2 permit the Tenant to attend and to make representations on the proposal to
issue the commissioning reports and test certificates.
11.8 The Landlord is, as soon as reasonably practicable after Practical
Completion.
11.8.1 prepare and provide the Tenant with copies of:
11.8.1.1 the commissioning reports, test certificates and operating manuals for all
plant and machinery installed as part of the Building Works;
11.8.1.2 a copy of any Health and Safety File prepared under regulation 12(5) of
the CDM Regulations;
11.8.1.3 a three complete sets of the as-built plans, drawings and specifications of
the Building Works;
11.8.1.4 any guarantees, indemnities or warranties relating to the Building Works.
11.8.1.5 leave the Demised Premises in a good and clean condition, cleared of all
unused building materials, plant and equipment used in the carrying out of
the Building Works and temporary structures.
12. WARRANTIES
12.1 The Landlord shall procure at its own expense and deliver to the Tenant
prior to completion of the Lease or as soon as reasonably practicable
thereafter duly signed collateral warranties by the Building Contractor (in
LEGAL_EU # 25512489.2
24
the form appended to the Building Contract) and the Professional Team
(in the form appended to the respective Appointment).
13. DEFECTS
13.1 Until the issue of the Certificate of Making Good Defects under the
Building Contract but not further or otherwise the Landlord will enforce
the provisions in the Building Contract in respect of the Building Works
for which the Certificate of Practical Completion shall have been issued
relating to the making good of defects and the carrying out of outstanding
works and for which the Building Contractor is liable under the Building
Contract:-
13.1.1 of which the Tenant has given written notice to the Landlord prior to the
expiration of the Defects Liability Period under the Building Contract (of
which time shall be of the essence) in relation to such of the Building
Works and/or
13.1.2 which have been identified at the inspection for the purpose of issuing the
Certificate of Practical Completion and/or
13.1.3 which are identified during the Defects Liability Period for the issuing of
the Certificate of Making Good Defects in relation to such Building
Works
13.2 Notwithstanding the fact that the Practical Completion Date has occurred
the Tenant will afford to the Landlord and to the Building Contractor with
or without workmen, plant and materials access to the Demised Premises
to make good any defects and any outstanding works and otherwise to
comply with the obligations of the Landlord under this Agreement
13.3 The Landlord will use its reasonable endeavours to procure the access
under this provision will cause as little inconvenience, disturbance and
damage, to the Tenant as is reasonably practicable and as little damage to
the Demised Premises as is commensurate with the works which need to
be carried out and that any damage caused to the Demised Premises or the
LEGAL_EU # 25512489.2
25
Tenant’s fixtures by such access shall be made good as soon as reasonably
practicable
13.4 The Landlord will under no circumstances be liable to the Tenant or any
other persons for consequential loss which the Tenant or any other person
may incur as a result of any defects appearing in any Building Works at
any time after the issue of the Certificate of Practical Completion
13.5 For the avoidance of doubt:
13.5.1 the Landlord shall instruct the Employer’s Agent to give 10 Working
Days’ notice to the Tenant of his intention to inspect the Building Works
for the purpose of issuing a Certificate of Making Good Defects to enable
the Tenant or its representative to accompany the Architect on such
inspection and where necessary to give at least two Working Days’ notice
of any subsequent re-inspection
13.5.2 the Employer’s Agent shall take proper account of any representations
made by the Tenant or its representative as to whether or not to issue the
Certificate of Making Good Defects but the Employer’s Agent shall not
be bound by such representations
13.5.3 for the avoidance of doubt the Landlord shall only be obliged to make
good in accordance with the Defects Liability Provisions in the Building
Contract any defects or other faults in the Building Works which are due
to materials or workmanship not in accordance with the Building Contract
or to frost occurring before the Practical Completion Date or other failure
of the Building Contractor to comply with its obligations under the
Building Contract and then only in respect of the same which shall appear
within the Defects Liability Period (as to which time shall be of the
essence) and shall have been promptly notified in writing by the Tenant to
the Landlord
14. LANDLORD’S RELEASE
Following later of the issue of the Certificate of Making Good Defects and
the date on which all of the warranties to be granted to the Tenant under
LEGAL_EU # 25512489.2
26
clause 12, the Landlord will have no further liability whatsoever to the
Tenant in connection with the construction of the Building Works save in
respect of disputes or breaches of this Agreement, if any, notified in
writing to the Landlord on or before the date of issue of the Certificate of
Making Good Defects.
15. INSURANCE
15.1 During the carrying out the Building Works, the Landlord is to ensure that
they are insured by the Building Contractor in accordance with the terms
of the Building Contract.
15.2 From and including the Date of Practical Completion or if earlier the
Access Date the Landlord is to keep the Demised Premises insured in
accordance with the provisions of clause 4.2 in the Lease as if the Lease
had been granted on that date and the Tenant will pay the cost of the
premium on written demand from the Landlord.
15.3 The Landlord will, on reasonable request, provide to the Tenant written
evidence of the policies of insurance maintained under this clause 15 and
the payment of any premiums in respect of those insurance policies.
16. MEASUREMENT OF THE GROSS INTERNAL AREA
16.1 The Landlord and the Tenant are to co-operate to ensure that the Premises
are measured for the purposes of agreeing the Gross Internal Area as soon
as the Gross Internal Area can be accurately determined, whether before,
on or after the Date of Practical Completion.
16.2 The Landlord is to give the Tenant prior written notice of the date and
time, being a working day during the hours of daylight, when the
Landlord’s Representative will measure the Premises for the purposes of
determining the Internal Area. Where reasonably practicable not less than
three working days’ notice will be given. The Tenant is to ensure that the
Tenant’s Representative attends and uses all reasonable endeavours to
agree the Gross Internal Area.
LEGAL_EU # 25512489.2
27
16.3 If the Landlord’s Representative and the Tenant’s Representative are
unable to agree the Gross Internal Area within five working days of the
measurement of the Demised Premises, either the Landlord or the Tenant
may apply for the matter to be determined in accordance with Schedule 3.
16.4 If the difference between Gross Internal Area as agreed or determined
under clause 16.2 and Target Area is less than 5% of the Target Area, the
Tenant may end this Agreement by serving written notice on the
Landlord.
16.5 The Main Rent shall be calculated by multiplying the Gross Internal Area
in square feet by the figure of £6.25 per square foot. Provided that the
Gross Internal Area shall not for the purposes of this calculation exceed
287,500 square feet.
16.6 In the event that the Gross Internal Area exceeds 373,000 square feet the
rent review clause in the Lease will contain an assumption that the Gross
Internal Area of the Demised Premises is 373,000 square feet.
16.7 The Green Land Rent shall be calculated by multiplying its area in square
feet by the figure of £6.25 per square foot.
17. TITLE
17.1 The Landlord has sent a copy of the Registered Title and the Option Land
to the Tenant and deduced title to part of the Demised Premises to the
Tenant and the Tenant is not entitled to raise any requisition or objection
to the title except in respect of:
17.1.1 any matters registered against the [Registered Title] that relate to matters
that the Landlord has not previously disclosed to the Tenant; and
17.1.2 any financial charges registered against the Registered Title. Save to the
extent that a consent to the Lease is provided by any party with the benefit
of such financial charge
17.2 [PH drafting note – this land is now registered under title number
MS659655]
LEGAL_EU # 25512489.2
28
17.3 The Landlord lets the Demised Premises with no title guarantee.
18. CONDITIONS OF AGREEMENT
18.1 The Standard Conditions shall apply to this Agreement save that they
shall be incorporated in so far only as is consistent with the provisions of
this Agreement and the grant of a lease rather than the sale of the Demised
Premises (“the Landlord hereunder being substituted for “the Seller” and
the Tenant hereunder being substituted for “the Buyer”) and the
transaction requiring to be completed being treated as a lease other than a
sale and save also where any of the Standard Conditions so adapted shall
be inconsistent with any of the expressed provisions of this Agreement in
which case the latter shall prevail
18.2 The Demised Premises are let with vacant possession on completion
subject to the Incumbrances
18.3 The Tenant takes the Lease with knowledge and notice of the matters
referred to in this clause 18 and in Standard Condition 3.1.2 and may not
raise any requisitions on them
18.4 Standard Conditions 2.2, 4, 5, 6.3.1, 6.4.2 and 11 do not apply to this
Agreement
18.5 In Commercial Condition 1.3, all references to service by e-mail are
deleted
18.6 Part 2 of the Standard Conditions do not form part of this Agreement.
19. FORM OF THE LEASE
19.1 The Landlord’s Solicitors shall prepare the Lease and its counterpart and
the Supplemental Documents and deliver an engrossment of the
counterpart Lease and the Supplemental Documents to the Tenant’s
Solicitors at least 10 working days before the Completion Date.
19.2 The following details are to be inserted in the Lease and its counterpart
when they are engrossed or, if this is not possible, inserted in manuscript
LEGAL_EU # 25512489.2
29
and initialled by or on behalf of the parties on the Date of Actual
Completion:
19.2.1 the Main Rent;
19.2.2 the Green Land Rent;
19.2.3 the Term Commencement Date;
19.2.4 the Rent Commencement Date;
19.2.5 the Review Dates;
19.2.6 the Break Dates; and
19.2.7 the title number allocated to the Option Land
20. COMPLETION
20.1 Immediately before and dated at Actual Completion the Tenant shall
supply to the Landlord:
20.1.1 an Opinion Letter from a firm of solicitors practicing in the Republic of
Ireland and the Landlord shall not be obliged to complete unless the
signed Opinion Letter is provided; and
20.1.2 The Restriction Letters.
20.2 The completion of the grant of the Lease shall take place on the
Completion Date at the offices of the Landlord's solicitors or elsewhere as
they may reasonably direct provided that the Tenant shall not be obliged
to complete unless the Landlord has made payment of the Landlord’s
Contribution to the Tenant’s solicitor.
20.3 The Landlord’s Contribution is made by way of a contribution to the
Further Building Works to be undertaken by the Tenant pursuant to the
Tenant obligations at clause 7.
20.4 The Landlord and the Tenant agree that, in reliance on HMRC Business
Brief 12/05, they consider that the Landlord’s Contribution is not
LEGAL_EU # 25512489.2
30
consideration for a supply by Tenant to Landlord, such that no VAT will
be payable on it provided that if HM Revenue & Customs determine that
the Landlord’s Contribution is or any part of it shall be subject to VAT
then the Tenant shall provide a valid VAT invoice addressed to the
Landlord and the Landlord shall pay to the Tenant as soon as reasonably
practicable upon receipt of the said VAT invoice the amount of VAT due
on the Landlord’s Contribution or any part of it.
20.5 It is acknowledged and accepted by the Tenant and the Guarantor that the
Landlord’s Contribution shall be applied to the Further Building Works
only, and strictly for no other purpose, and the Tenant shall provide
reasonable evidence of its expenditure on such items upon written request
by the Landlord or the Administrator. To the extent the Further Building
Works are completed without utilising the full extent of the Landlord’s
Contribution the balance of the Landlord’s Contribution shall be returned
to the Administrator (if their appointment is subsisting at the relevant
time) or after the expiry of such appointment, to the Landlord, within 15
working days of the completion of the Further Building Works.
20.6 From the Completion Date the Tenant is liable to observe and perform the
same obligations as are imposed by the covenants on its part and the
conditions contained in the Lease on its part insofar as they are not
inconsistent with this Agreement
20.7 The Landlord shall grant to the Tenant and the Tenant shall accept the
Lease on or before the Completion Date and each party shall execute and
deliver the original and the Counterpart one to the other
20.8 In consideration of the Landlord having entered into this Agreement at the
request of the Guarantor, the Guarantor shall execute and deliver the
Lease on the Completion Date
20.9 Notwithstanding the completion of the grant of the Lease this Agreement
shall remain in full force and effect in respect of anything remaining to be
done performed or observed hereunder
LEGAL_EU # 25512489.2
31
20.10 The benefit of this Agreement shall be personal to the Tenant and not
capable of assignment
21. NON-ASSIGNABILITY AND NO DEMISE
21.1 The Tenant shall not assign or underlet charge share part with or
otherwise in any way whatever (either directly or indirectly) deal with this
interest under this Agreement or any part thereof and the Landlord shall
not be obliged to grant the Lease to any person other than the Tenant
21.2 This Agreement shall not operate or be deemed to operate as a demise of
the Demised Premises nor shall the Tenant have or be entitled to any
estate right or interest in the Demised Premises pending the grant of the
Lease other than such interest as is created by this Agreement
22. GUARANTOR’S OBLIGATIONS
22.1 In consideration of the Landlord agreeing to let the Demised Premises to
the Tenant, the Guarantor is to comply with its obligations in Schedule 2.
23. TERMINATION
23.1 If the Tenant commits a substantial breach of the terms of this Agreement
for Lease or fails to pay any sums due to the Landlord under this
Agreement within 20 working days of the due date for payment:
23.1.1 the Landlord may serve written notice on the Tenant specifying the nature
of the breach;
23.1.2 if the breach is capable of remedy, the Landlord must specify in the notice
the action required by the Tenant to remedy that breach and the reasonable
period of time, being not less than 20 working days, in which the breach is
to be remedied;
23.1.3 if the breach is incapable of being remedied, this Agreement will end on
the date of the Landlord’s notice under this clause 23;
23.1.4 if the breach is capable of being remedied and the Tenant has not
remedied the breach within the period specified in the Landlord’s notice
LEGAL_EU # 25512489.2
32
under this clause 23 or within such longer period as the Landlord and the
Tenant may agree, the Landlord may serve a second notice on the Tenant
terminating this Agreement and on the service of this second notice, this
Agreement will end;
23.2 If the Practical Completion has not been achieved by the Building Long
Stop Date then either party may invoke termination provisions.
23.3 Where this agreement states that either party can invoke the termination
provisions then this shall mean:
23.3.1 The party seeking to terminate this agreement may serve notice on the
other stating that it wishes to terminate this agreement ten working days
from the service of that notice.
23.3.2 At the end of that notice period unless Practical Completion has been
achieved before the end of that notice period then this Agreement shall
determine Provided that such determination shall be without prejudice to
any antecedent claim for any breach of the provisions of this Agreement
Provided further that no such notice can be served once Practical
Completion has been achieved.
23.3.3 The party seeking to terminate this Agreement may only do so if it has
observed and performed its obligations herein in all material respects.
23.4 If this Agreement is terminated before the grant of the Lease under this
clause:
23.4.1 it will not prejudice the rights of the parties in respect of any breach of
this Agreement outstanding at the date this Agreement ends;
23.4.2 the Tenant forfeits its interest in the Demised Premises; and
23.4.3 if in occupation, the Tenant shall:
23.4.3.1 if so required by the Landlord, reinstate any Tenant’s Works to the state
and condition in which the Tenant received them and in default the
Landlord may reinstate itself and the Tenant shall reimburse the
Landlord’s reasonable expenditure of so doing on demand; and
LEGAL_EU # 25512489.2
33
23.4.3.2 immediately deliver up the vacant possession of the Demised Premises.
23.4.4 If the Tenant terminates this agreement the Tenant will immediately
procure to cancel all entries relating to this agreement registered against
the Landlords title to the Demised Premises.
23.5 The Landlord may terminate this Agreement if an event occurs that would
entitle the Landlord to re-enter the Demised Premises had the Lease been
granted.
23.6 Except in relation to this clause 23, neither the Landlord or the Tenant will
be under any future liability to the other under this Agreement and the
Tenant’s Guarantor will be released from any future liability under
Schedule 2.
24. LANDLORD’S INDEMNITY
24.1 The Landlord covenants with the Tenant that it will comply with the
provisions of the 2017 Transfer so far as they are enforceable and affect
the reversionary interest in the Demised Premises and will indemnify the
Tenant against all actions, claims, demands and proceedings taken or
made against the Tenant and all costs, damages, expenses, liabilities and
losses incurred by the Tenant arising from the 2017 Transfer. Save to the
extent that any such action, claims, demands and proceedings result from
an act of the Tenant or any undertenant or occupier of the Demised
Premises.
24.2 Any indemnity claims by the Tenant under this clause shall be against the
Landlord only (and not against the Administrators). Such claims shall
rank as unsecured claims (not as Administration Expenses). The Tenant
acknowledges this clause 24.2 and waives any right to payment under this
clause as an Administration Expense.
25. PERSONAL OBLIGATIONS
25.1 Only the obligations to grant the Lease are landlord’s covenants which
will bind successors in title. All other landlord’s covenants are personal
to the landlord named herein.
LEGAL_EU # 25512489.2
34
25.2 A successor in title of the Landlord named in this Agreement may, by
notice in writing to the Tenant and the Guarantor, assume responsibility
for the performance of the Landlord’s obligations in this Agreement. If
notice is given under this clause 25.2, but not otherwise:
25.2.1 the Landlord’s successor in title is to perform the outstanding obligations
of the Landlord named in this Agreement at the date of giving such notice
and the notice will constitute a direct covenant with the Tenant and the
Guarantor that it will do so; and
25.2.2 the Tenant and the Guarantor are to accept the performance of the
outstanding obligations by the successor in title in place of performance
by the Landlord named in this Agreement and the Tenant and the
Guarantor will enter into the Lease and the Licence with such successor in
title and adhere to the obligations contained therein.
26. VAT
The Tenant shall pay any Value Added Tax imposed upon or added to the
licence fee payable hereunder and upon any other fee charge cost or
expense in respect of goods and services supplied by for or on behalf of
the Landlord where the Tenant is liable for the payment of such goods and
services pursuant to the provisions of this Agreement on receipt of a
Value Added Tax invoice in respect of any such Value Added Tax
properly addressed to the Tenant
27. ADMINISTRATORS' POSITION
27.1 The parties to this Agreement acknowledge that they have not entered into
this agreement in reliance upon any representations made by or on behalf
of the Landlord or the Administrators and that the Tenant and the
Guarantor have satisfied themselves as to the accuracy of any description
given or implied and has acknowledged that the exclusions and limitations
of liability contained in this agreement are fair and reasonable in the
circumstances of the administration of the Landlord. Neither the Landlord
nor the Administrators give any warranties as to the title of any assets
fitness for any purpose.
LEGAL_EU # 25512489.2
35
27.2 The parties to this Agreement acknowledge that the Administrators shall
incur no personal liability under, or by virtue of entering into this
Agreement notwithstanding that the Administrators have entered into this
Agreement and have acted in accordance with its terms as agent of the
Landlord save as provided for under clause 27.3 below, nor in relation to
any related matter or claim howsoever, whenever, and wherever arising.
Any acknowledgment covenant obligation or indemnity given to the
Landlord by the Tenant will be deemed to be given as a separate
acknowledgement covenant obligation or indemnity to each of the
Administrators.
27.3 The Administrators are the agents of the Landlord and shall incur no
personal liability under this Agreement from acting in that capacity of
agents nor shall the Administrators or their firm, members, partners or
employees incur any personal liability of any kind under, or by virtue of,
this Agreement, other than in respect of liabilities that would not have
arisen or would not constitute liabilities which the Landlord or the
Administrators were obliged to meet but for any gross negligence, wilful
default or fraud by the Administrators or their employees (excluding any
advisers, agents or employees of the Landlord). The Tenant by entering
into this Agreement acknowledges and agrees that the Administrators act
in the capacities described above, and that their actions in connection with
this Agreement reflect such rights, title and interest that the Landlord and
the Administrators may have with respect to this Agreement and all
representations, warranties, conditions and terms, express or implied are
expressly excluded.
27.4 The Administrators have entered into this Agreement in their personal
capacities solely for the purpose of obtaining the benefit of the provisions
in their favour.
27.5 Any acknowledgment covenant obligation or indemnity given to the
Landlord will be deemed to be given as a separate acknowledgement
covenant obligation or indemnity to each of the Administrators.
LEGAL_EU # 25512489.2
36
27.6 The exclusions of liability contained in this clause are in addition to and
not in substitution for any right of indemnity or relief or remedy otherwise
available and will continue after the termination of this Agreement
notwithstanding anything to the contrary herein.
28. NOTICES
28.1 Unless otherwise specifically provided any notices or other written
communications required to be served or sent under the terms of this
Agreement shall be deemed validly served (and shall be deemed received
on the second working day following posting unless service is by hand
within usual business hours in which case receipt shall be deemed to have
occurred on the day of service) if the same are sent by registered post or
by recorded delivery or delivered by hand to the address of the solicitors
for the relevant person stated in this Agreement.
28.2 The Tenant undertakes to the Landlord and the Administrators to keep the
Administrators reasonably informed in relation to all issues connected to
this Agreement for the duration of the Administrator’s appointment.
28.3 For the purposes of this Agreement where any notice or notification is
required to be provided or served upon the Tenant or the Guarantor by the
Landlord or the Administrator, in the event such notice was provided or
served pursuant to the Previous Agreements such notice shall also have be
deemed to have been validly served pursuant to the terms of this
Agreement and the Tenant and the Guarantor shall raise no objection to
the validity of such notice(s).
29. REPRESENTATIONS
29.1 The Tenant acknowledges this Agreement has not been entered into in
reliance wholly or partly on any statement or representation made by or on
behalf of the Landlord or the Administrators save in so far as such
statement or representation is expressly set out in this Agreement or set
out in written replies to written enquiries or other written correspondence
between the Landlord’s solicitors and the Tenant’s solicitors
LEGAL_EU # 25512489.2
37
29.2 This Agreement constitutes the entire contract between the parties
30. NON-MERGER
The provisions of this Agreement shall remain in full force and effect after
the grant of the Lease so far as they then remain to be observed and
performed
31. 1954 ACT PROCEDURE
The Tenant confirms that:
(a) the Landlord served a notice on the Tenant, as required by section
38A(4)(a) of the 1954 Act, before this agreement was entered into;
and
(b) [ ] who was duly authorised by the
Tenant to do so made a statutory declaration dated [ ]
in accordance with the requirements of section 38A(4)(b) of the
1954 Act
32. CONTRACT (RIGHTS OF THIRD PARTIES) ACT 1999
For the purposes of the contract (Rights of Third Parties) Act 1999 the
parties hereto agree that they do not intend any terms of this Agreement to
be enforceable by any Third Party who but for that Act would not have
been entitled to enforce such terms
33. ENFORCEMENT
33.1 This Agreement is to be governed by and interpreted in accordance with
English law.
34. CERTIFIED COPIES OF BUILDING CONTRACT AND
APPOINTMENTS
Within 14 days of the Building Contract or any of the Appointments being
entered into, the Landlord shall provide the Tenant with a certified copy
of the Building Contract and/or the respective Appointment.
LEGAL_EU # 25512489.2
38
35. PROFESSIONAL INDEMNITY INSURANCE OF CONTRACTOR
35.1 The Landlord shall ensure that the Building Contract shall require the
Building Contractor to maintain professional indemnity insurance of no
less than £10,000,000 for each and every claim for no less than 12 years
after the date of Practical Completion.
The courts of England are to have jurisdiction in relation to any disputes between the
parties arising out of or related to this Agreement.
AS WITNESS the hands of the parties or their duly authorised representatives the
day and year first before written
LEGAL_EU # 25512489.2
39
SCHEDULE 1
Conditions
Part 1 General
[PH Drafting note – is this schedule relevant now that we assume planning permission has been obtained and the Option Land has been acquired by the landlord on 19 April 2018 – should it therefore be deleted]?
1. DEFINED TERMS
1.1 In this Schedule the following words and expressions have the following meanings:
“Conditions” the conditions set out in paragraph 1.2 of Part 1 of
this Schedule 1
“End Date” [previously 17 October]
2018 (“Original End Date”) unless on that date
(a) Satisfactory Planning Permission has been
granted but a Third Party Application has
been commenced in which case the Original
End Date shall be extended to the date
which is ten (10) Working Days after the
date upon which such Third Party
Application has been fully disposed of and
(if applicable) any further decision required
to be made by any relevant authority
pursuant to Third Party Application has
been made;
(b) a Planning Appeal has been lodged by or on
behalf of the Landlord in accordance with
the terms of this Agreement or is otherwise
in progress but the written determination or
decision shall not have been issued in
which case the Original End Date shall be
LEGAL_EU # 25512489.2
40
extended to the date which is ten (10)
Working Days after the later of:
(i) the date upon which the Planning
Appeal has been finally disposed of
and (if applicable) any further
decision required to be made by any
relevant authority pursuant to such
Planning Appeal has been made; and
(ii) the date which is ten (10) Working
Days after the date when any Third
Party Application has been finally
disposed of and (if applicable) any
further decision required to be made
by any relevant authority pursuant to
such Third Party Application has been
made
(c) a dispute has arisen under this contract as to
whether or not Satisfactory Planning
Permission or an acceptable Planning
Agreement has been granted in which case
the Original End Date shall be extended to
the date which is ten (10) Working Days
after the date upon which the dispute has
been determined
(d) If a Planning Permission which but for the
expiry of the Challenge Period would be a
Satisfactory Planning Permission has been
granted but the Challenge Period has not
expired the Original End Date shall be
extended to the date which is 10 Working
Days after the Challenge Period has expired
without any person who is aggrieved
LEGAL_EU # 25512489.2
41
making or issuing any Third Party
Application or if a Third Party Application
is made or issued then the Original End
Date shall be extended to the date which is
ten (10) Working Days after the date when
any Third Party Application has been
finally disposed of an (if applicable) any
further decision required to be made by any
relevant authority pursuant to such Third
Party Application has been made.
Provided always that the End Date shall be no
later than [previously 17 April 2019]
in any event.
“Landlord’s Onerous
Condition”
has the meaning given to it in paragraph 1 of Part
3 of this Schedule 1
“Local Planning Authority” St Helens Borough Council
“Onerous Condition” a Landlord’s Onerous Condition or a Tenant’s
Onerous Condition
“Planning Act” Town and Country Planning Act 1990
“Planning Agreement” an agreement or undertaking in respect of and
affecting the Demised Premises (whether or not
also affecting other property) pursuant to:
(a) section 106 of the Planning Act;
(b) section 111 Local Government
Act 1972;
(c) sections 38 or 278 Highways Act 1980;
(d) section 33 Local Government
(Miscellaneous Provisions) Act 1982;
LEGAL_EU # 25512489.2
42
(e) section 104 Water Industry Act 1991 or
any other provision of similar intent,
within the meaning of the Water Act
1989, with an appropriate authority for
the supply of water or the drainage of
surface or foul water from the
Premises; or
(f) any agreement with an appropriate
authority or utility company relating to
the passage or transmission or gas,
water, electricity, foul or surface water
drainage or any of them
“Planning Appeal” any appeal against a refusal to grant Planning
Permission made or permitted under
paragraph 6.1 of Part 2 of this Schedule 1
“Satisfactory Planning
Permission”
a Planning Permission which satisfies the
conditions set out in paragraph 1.2 of Part 2 of
this Schedule 1
“Special Conditions” the grant of the following consents, licences,
permissions, approvals and authorisations and
entering into or completion of the following
agreements necessary to enable the Building
Works to be begun, carried out, maintained and
completed:
(a) the completion of the transfer of the
Option Land from (1) Catherine Susan
Wood, David Harry Wood, Jane Beatrice
Yan-Man-Shing and Stephen John Wood
to (2) the Landlord; and
(b) the Landlord’s application to the Land
LEGAL_EU # 25512489.2
43
Registry to register the above transfer
referred to at (a).
“Tenant’s Onerous Condition” has the meaning given to it in paragraph 2 of Part
3 of this Schedule 1
“Third Party Application” an application from a party other than the Tenant
or anyone acting on the Tenant’s behalf for
judicial review of the decision to grant a Planning
Permission including an application to a higher
court appealing against a judgment in respect of
such an application given in a lower court.
1.2 This Agreement is entered into subject to and conditional upon all of the
following conditions being satisfied or deemed to have been in accordance
with this Schedule 1:
1.2.1 the grant of Satisfactory Planning Permission;
1.2.2 the completion of any Planning Agreements required in order to
obtain Planning Permission or otherwise to commence the
Building Works; and
1.2.3 all of the Special Conditions being satisfied.
1.3 The Unconditional Date will be the date when all of the Conditions have
been satisfied or are deemed to have been satisfied in accordance with this
Schedule 1.
1.4 The parties to this Agreement are not to do or omit to do anything which
would reduce the prospects of the Conditions being fulfilled and are to use
reasonable endeavours to procure satisfaction of the conditions as soon as is
reasonably practicable following the date hereof.
1.5 If any of the Conditions have not been satisfied by the End Date, either the
Landlord or the Tenant may end this Agreement after the End Date but
before the Conditions have been satisfied or are deemed to have been
satisfied under the terms of this Schedule 1.
LEGAL_EU # 25512489.2
44
Part 2 Planning obligations
1. CONDITIONS FOR CARRYING OUT THE BUILDING WORKS
1.1 This Agreement is conditional on the grant of Satisfactory Planning
Permission.
1.2 If Planning Permission is granted, it will be treated as a Satisfactory Planning
Permission only when:
1.2.1 it has been approved by the Landlord and the Tenant in accordance
with paragraph 5 of this Part 2 of Schedule 1 or it is determined
that the Planning Permission does not contain Onerous Conditions
following any application made under paragraphs 5.3 or 5.4 of this
Part 2 of Schedule 1 and
1.2.2 the period of six weeks starting on the date printed or stamped on
the Planning Permission (“Challenge Period”) has expired without
a Third Party Application
1.2.3 if there is a Third Party Application commenced within the
Challenge Period, those proceedings are finally disposed of
leaving the Planning Permission in place.
1.3 If the Planning Permission does not contain Onerous Conditions, the
Landlord may waive the benefit of paragraphs 1.2.2 and 1.2.3 of this Part 2
of Schedule 1 by serving notice in writing on the Tenant and on the service
of a notice under this paragraph 1.3, the Planning Permission will be treated
as a Satisfactory Planning Permission.
2. OBTAINING PLANNING PERMISSION
2.1 The Landlord is to use reasonable endeavours to apply for and obtain
Planning Permission at its own cost and expense as soon as reasonably
practicable after the date of this Agreement.
2.2 The application for Planning Permission will be submitted in the sole name
of the Landlord who may:
LEGAL_EU # 25512489.2
45
2.2.1 amend any planning application made to the Local Planning
Authority or withdraw and submit a fresh planning application in
each case where it is reasonable to do so to obtain Planning
Permission;
2.2.2 agree with the Local Planning Authority any extension to the
statutory period for determining the planning application under
section 78(2) of the Planning Act but no extension exceeding two
months is to be agreed with the Local Planning Authority without
the prior written consent of the Tenant, such consent not to be
unreasonably withheld or delayed; and
2.2.3 enter into negotiations or discussions with the Local Planning
Authority to facilitate the grant of Planning Permission.
2.3 The Landlord is provide a copy of the planning application to the Tenant and
is to keep the Tenant informed at reasonable intervals, but not more
frequently than once each calendar month, of action taken under
paragraph 2.2 of this Part 2 of Schedule 1.
2.4 The Tenant is to co-operate with the Landlord and is to use all reasonable
endeavours to assist the Landlord to obtain Planning Permission but in doing
so, the Tenant is not to act independently of the Landlord.
2.5 The Tenant agrees that neither it nor any subsidiary, group, holding or
associated company of the Tenant will object or cause or permit any
objection to be made to the planning application made by or on behalf of the
Landlord under this Schedule 1 or take any other action it knows or
reasonably ought to know is or may become detrimental to the grant of a
Satisfactory Planning Permission.
3. PLANNING AGREEMENTS
3.1 The provisions of this paragraph 3 apply if the Landlord is required to enter
into a Planning Agreement as a precondition, condition or requirement of the
grant of Planning Permission or the commencement carrying out of the
Building Works.
LEGAL_EU # 25512489.2
46
3.2 The Tenant is, if requested to do so by the Landlord, to consent (such consent
not to be unreasonably withheld or delayed) to the terms of the Planning
Agreement and if necessary join in the Planning Agreement as a party to it
subject to the following conditions being satisfied:
3.2.1 the Landlord is to pay the proper and reasonable legal fees
incurred by the Tenant in approving the terms of and entering into
the Planning Agreement; and
3.2.2 the Planning Agreement does not contain terms which impose
liability on the Tenant for the payment of any costs of carrying out
the Building Works unless the Landlord agrees to indemnify the
Tenant in relation to the same.
3.3 To the extent that any Planning Agreement contains negative restrictions, the
grant of the Lease will take effect subject to those restrictions and the
Planning Agreement will form one of the Title Matters subject to which the
Lease is granted.
3.4 The Landlord will not be obliged to enter into a Planning Agreement which
contains Landlord’s Onerous Conditions and the Tenant will not be obliged
to enter into a Planning Agreement which contains Tenant’s Onerous
Conditions.
4. PLANNING DECISIONS
4.1 The Landlord is to notify the Tenant of each decision taken by the Local
Planning Authority or person hearing a Planning Appeal to grant or to refuse
the grant of Planning Permission as soon as is reasonably practicable after
receiving notice of the decision.
4.2 If Planning Permission is granted, whether by the Local Planning Authority
or following a Planning Appeal, the Landlord is to provide the Tenant with a
copy of the Planning Permission and any Planning Agreement which is
required as a condition of the grant of that Planning Permission as soon as
reasonably practicable after receiving them from the Local Planning
Authority or the person hearing the Planning Appeal.
LEGAL_EU # 25512489.2
47
5. ONEROUS CONDITIONS
5.1 Within ten working days of receipt of the copy Planning Permission and any
Planning Agreement the Landlord is to notify the Tenant in writing whether
it considers that they contain Landlord’s Onerous Conditions which are
unacceptable to the Landlord and:
5.1.1 if the Landlord does not do so, the Tenant may serve written notice
on the Landlord requiring the Landlord to comply with this
paragraph 5.1; and
5.1.2 if the Landlord does not respond within two weeks of a notice
served under paragraph 5.1.1, the Planning Permission and any
Planning Agreement, as the case may be, are to be treated as not
containing Landlord’s Onerous Conditions.
5.2 Within ten working days of receipt of the copy Planning Permission and any
Planning Agreement from the Landlord under paragraph 5.1, the Tenant is to
notify the Landlord in writing whether it considers that they contain Tenant’s
Onerous Conditions which are unacceptable to the Tenant and
5.2.1 if the Tenant does not do so, the Landlord may serve written notice
on the Tenant requiring the Tenant to comply with this
paragraph 5.2; and
5.2.2 if the Tenant does not respond within two weeks of a notice served
under paragraph 5.2.1, the Planning Permission and any Planning
Agreement, as the case may be, are to be treated as not containing
Tenant’s Onerous Conditions.
5.3 If the Landlord serves notice under paragraph 5.1 that the Planning
Permission or any Planning Agreement contains one or more Landlord’s
Onerous Conditions the Tenant may serve notice on the Landlord within two
weeks of the date of Landlord’s notice, time being of the essence, requiring
the question of whether the Planning Permission or the Planning Agreement,
as the case may be, contains Landlord’s Onerous Conditions to be
determined in accordance with Schedule 2.
LEGAL_EU # 25512489.2
48
5.4 If the Tenant serves notice under paragraph 5.2 that the Planning Permission
or any Planning Agreement contains one or more Tenant’s Onerous
Conditions the Landlord may serve notice on the Tenant within two weeks of
the date of Tenant’s notice, time being of the essence, requiring the question
of whether the Planning Permission contains Tenant’s Onerous Conditions to
be determined in accordance with Schedule 2.
5.5 The Landlord may waive its right to object to the terms of the Planning
Permission or any Planning Agreement because of the presence of a
Landlord’s Onerous Condition by serving written notice to this effect on the
Tenant and on the service of notice under this paragraph 5.5, the Landlord
will lose any right to object to the presence of Landlord’s Onerous
Conditions in that Planning Permission or Planning Agreement, as the case
may be.
5.6 The Tenant may waive its right to object to the terms of the Planning
Permission or any Planning Agreement because of the presence of a Tenant’s
Onerous Condition by serving written notice to this effect on the Landlord
and on the service of notice under this paragraph 5.6, the Tenant will lose
any right to object to the presence of Tenant’s Onerous Conditions in that
Planning Permission or Planning Agreement, as the case may be.
5.7 The Landlord and the Tenant agree that the Landlord may object only to
conditions which are Landlord’s Onerous Conditions and the Tenant may
object only to conditions which are Tenant’s Onerous Conditions.
6. APPEALS
6.1 If Planning Permission is refused or is granted subject to one or more
Landlord’s Onerous Conditions which are unacceptable to the Landlord or
one or more Tenant’s Onerous Conditions which are unacceptable to the
Tenant the Landlord may, but will not be obliged to make a Planning Appeal.
6.2 If the Landlord makes a Planning Appeal, the Landlord is diligently to
prosecute that appeal and keep the Tenant informed at reasonable intervals of
progress including the dates of any appeal hearings or of any public inquiry
as part of any appeal under sections 78 and 79 of the Planning Act.
LEGAL_EU # 25512489.2
49
7. TERMINATION
7.1 Either party may end this Agreement by serving written notice on the other if
the Conditions have not been satisfied by the End Date.
7.2 The party seeking to terminate this Agreement may serve notice on the other
stating that it wishes to terminate this Agreement ten working days from the
service of that notice.
7.3 At the end of that notice period unless the Conditions have been satisfied
before the end of that notice period then this Agreement shall determine
Provided that this such determination shall be without prejudice to any
antecedent claim for any breach of the provisions of this agreement Provided
further that no such notice can be served once the Conditions have been
satisfied.
7.4 The party seeking to terminate this Agreement may only do so if it has
observed and performed its obligations herein in all material aspects.
7.5 If this Agreement is terminated before the grant of the Lease under this
clause:
7.5.1 it will not prejudice the rights of the parties in respect of any
breach of this Agreement outstanding at the date this Agreement
ends;
7.5.2 the Tenant forfeits its interest in the Demised Premises and in any
works done under this Agreement or chattels at Demised Premises.
LEGAL_EU # 25512489.2
50
Part 3 Onerous Conditions
1. LANDLORD’S ONEROUS CONDITIONS
1.1 A Landlord’s Onerous Condition is a condition which obliges the Landlord
to make a payment materially adverse to the economic viability of the
development.
2. TENANT’S ONEROUS CONDITIONS
2.1 A Tenant’s Onerous Condition is a condition which:
2.1.1 makes the Planning Permission personal to the Landlord, the
Tenant or to any specific person or class of persons;
2.1.2 makes the Planning Permission limited in time save in relation to
the implementation of the same;
2.1.3 restricts or prohibits the use of the Premises 24 hours day every
day of the year;
2.1.4 restricts or prohibits deliveries and servicing 24 hours a day every
day of the year;
2.1.5 as to any car park on the Demised Premises:
2.1.5.1 imposes any requirement for the Landlord or the
Tenant to levy car-parking charges;
2.1.5.2 restricts in any other way its use or operation.
LEGAL_EU # 25512489.2
51
Part 4 Special Conditions
1. SATISFYING SPECIAL CONDITIONS
1.1 This Agreement is conditional upon each of the Special Conditions being
satisfied.
1.2 The Landlord is to:
1.2.1 take reasonable steps as soon as reasonably practicable to procure
satisfaction of the Special Conditions;
1.2.2 keep the Tenant informed of the progress being taken to satisfy the
Special Conditions; and
1.2.3 give the Tenant notice in writing as soon as each Special Condition
has been satisfied.
2. WAIVER OF SPECIAL CONDITIONS
The Tenant may by notice in writing to the Landlord elect to waive any of
the Special Conditions and if it does so that Special Condition will be
deemed to have been satisfied.
LEGAL_EU # 25512489.2
52
SCHEDULE 2
Guarantor’s Obligations
1. Obligations guaranteed
1.1 The Tenant’s Guarantor as primary obligor, and not only as guarantor,
guarantees to the Landlord and any successor in title that the Tenant will
comply with the terms of this Agreement.
1.2 As an independent obligation, the Tenant’s Guarantor agrees with the
Landlord and any successor in title to comply with the terms of this
Agreement if the Tenant does not do so and to indemnify the Landlord and
any successor in title against any breach of those terms, including without
prejudice to the generality of the foregoing to enter into the Lease on the
Completion Date if the Tenant does not do so and the Landlord or any
successor in title notifies the Guarantor that it requires the Guarantor to
accept the Lease in the Tenant’s place.
1.3 The Tenant’s Guarantor is to pay all sums due to the Landlord or any
successor in title under this guarantee and indemnity without any legal or
equitable set-off, counterclaim or deduction.
2. Continuation of the guarantee
2.1 The obligations of the Tenant’s Guarantor are not to be released by:
2.1.1 any delay or neglect by the Landlord in enforcing the terms of this
Agreement or any time allowed by the Landlord for their
performance;
2.1.2 the Landlord compromising, abandoning or waiving any rights or
claim against the Tenant;
2.1.3 any variation of the terms of this Agreement;
2.1.4 the Landlord or the Tenant giving consent to any matter under this
Agreement;
LEGAL_EU # 25512489.2
53
2.1.5 any legal limitation, immunity, disability, incapacity or other
circumstances relating to the Tenant, whether or not known to the
Landlord; or
2.1.6 any other act or thing which but for this provision the Guarantor
would be released, save for the release of the Guarantor’s
obligations by deed.
3. Completion documentation
The Tenant’s Guarantor is to be party to the Lease and the Supplemental
Documents and to give the guarantees to the Landlord contained in the them.
4. Liability
If there is more than one Tenant’s Guarantor, the obligations which they
undertake can be enforced against them all jointly or against each
individually.
LEGAL_EU # 25512489.2
54
SCHEDULE 3
Dispute Resolution
1. Appointment of Specialist
1.1 The Specialist is to be in relation to any dispute under this Agreement, an
independent chartered surveyor of not less than ten years’ qualification who
is experienced in the obtaining of planning permissions for developments of
a similar nature and size to the Building Works.
1.2 The Landlord and the Tenant will use all reasonable endeavours to agree the
identity of the Specialist to determine the dispute.
1.3 Unless the Landlord and the Tenant agree the identity of the Specialist within
two weeks of a request to do so, the Specialist is to be appointed at the
written request of the Landlord or the Tenant to the President or other most
senior available officer of the Royal Institution of Chartered Surveyors if the
Specialist is to be a surveyor or to the President or other most senior officer
of the Royal Institute of British Architects if the Specialist is an Architect.
1.4 The reference to a Specialist is to be made to him as an expert unless
paragraph 1.5 applies or the Landlord and the Tenant agree at the time of
his appointment that he should act as an arbitrator.
1.5 If any dispute raises or relates to the same or parallel issues as those which
have been or are being submitted to independent determination under the
Building Contract, the Landlord and the Tenant will endeavour to appoint the
same person acting in the same capacity as may be appointed to resolve the
dispute under the Building Contract and to have the dispute proceedings
under this Agreement and the Building Contract consolidated.
2. Conduct of the dispute
2.1 Where the Specialist is to act as an independent expert:
2.1.1 the Landlord and the Tenant may make written representations
within ten working days of his appointment and will copy the
written representations to the other party;
LEGAL_EU # 25512489.2
55
2.1.2 the Landlord and the Tenant are to have a further ten working days
to make written comments on each other’s representations and will
copy the written comments to the other party;
2.1.3 the Specialist is to be at liberty to call for such written evidence
from the parties and to seek such legal or other expert assistance as
he or she may reasonably require;
2.1.4 the Specialist is not to take oral representations from the Landlord
or the Tenant without giving both parties the opportunity to be
present and to give evidence and to cross-examine each other;
2.1.5 the Specialist is to have regard to all representations and evidence
before him or her when making his or her decision, which is to be
in writing, and will contain reasons for his decision;
2.1.6 the Specialist is to use all reasonable endeavours to publish his
decision within 30 working days of his appointment; and
2.1.7 the Specialist is to act impartially and in good faith between the
parties.
2.2 Where the Specialist is to act as an arbitrator:
2.2.1 all submissions made or evidence supplied to him are to be in
writing unless the parties agree within ten working days of his
appointment that this requirement does not apply;
2.2.2 the date of his award will be deemed to be the date on which he
serves a copy of the award on the Landlord and the Tenant or the
latest date if there is more than one;
2.2.3 he will not be entitled to order the rectification, setting aside or
cancellation of this Agreement or any other deed or document;
2.2.4 he will not be entitled to direct that the recoverable costs of the
arbitration, or any part of it, be limited to a specified amount; and
LEGAL_EU # 25512489.2
56
2.2.5 he will not be entitled to require that security be provided in
respect of the costs of the arbitration.
2.3 Responsibility for the costs of referring a dispute to a Specialist under this
Schedule 3, including costs connected with the appointment of the Specialist
and the Specialist’s own costs, but not the legal and other professional costs
of any party in relation to a dispute, will be decided by the Specialist.
LEGAL_EU # 25512489.2
Page 57
SCHEDULE 4
1. Non-Novated Consultant Appointment Template
2. Novated Consultant Appointment Template
3. Schedule of Amendments to Building Contract
4. Contractor’s Collateral Warranty
LEGAL_EU # 25512489.2
Page 58
ANNEXURE 1Lease
LEGAL_EU # 25512489.2
Page 59
ANNEXURE 2Opinion letter
LEGAL_EU # 25512489.2
Page 60
ANNEXURE 3Option land
LEGAL_EU # 25512489.2
Page 61
ANNEXURE 4Licence for Alterations
LEGAL_EU # 25512489.2
Page 62
ANNEXURE 5Specification
LEGAL_EU # 25512489.2
Page 63
EXECUTED as a deed by )
Executed as a deed by INDUSTRIAL NORTH WEST LLP (in administration) by ARRON SIMON KENDALL, its joint administrator, pursuant to powers conferred under the Insolvency Act 1986 in the presence of:
.......................................by its joint administrator
Witness signature ………………………...
Witness name(block capitals)
………………………...
Witness address
Witness occupation
………………………...………………………...…………………………
Executed as a deed by ARRON SIMON KENDALL for and on behalf of ARRON SIMON KENDALL and SIMON ROBERT THOMAS without personal liability and solely for the purpose of obtaining the benefit of the provisions of this Agreement in favour of the Landlord and the Administrators in the presence of:
Signature: ....................................... Joint Administrator
Name: ............................................. Name (Block Capitals)
Witness signature ………………………...Witness name(block capitals) ………………………...
Witness address
Witness occupation
………………………...………………………...…………………………
EXECUTED as a deed by )MOVIANTO UK LIMITED )by a Director in the presence ) …………………………of a witness: ) Director
LEGAL_EU # 25512489.2
Page 64
Witness Signature …………………………Name of Witness: …………………………Address: ……………………………………………………………………………………Occupation: …………………………………
EXECUTED as a deed by affixing )the common seal of OWENS AND )MINOR INTERNATIONAL )LIMITED in the presence of )
………………………………Director
……………………………….Director/Secretary