Annual Report of a Foreign Private Issuer — Form 20-F
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 20-F Annual Report of a Foreign Private Issuer 287 1.54M
2: EX-4.15 Ex-4.15: Framework Transaction Agreement 182 740K
3: EX-4.16 Ex-4.16: Share Sale and Purchase Agreement 20 58K
4: EX-4.17 Ex-4.17: Unofficial Translation of Deed of Trust 47 178K
5: EX-4.18 Ex-4.18: Unofficial Translation of Deed of Trust 47 177K
6: EX-4.20 Ex-4.20: Amended and Restated Loan Agreement 76 248K
7: EX-4.21 Ex-4.21: Lease Agreement 59 146K
8: EX-4.22 Ex-4.22: Hotel Management Agreement 64 136K
9: EX-4.23 Ex-4.23: Amended and Restated Loan Agreement 72 223K
10: EX-4.24 Ex-4.24: Amended and Restated Loan Agreement 71 212K
11: EX-10.1 Ex-10.1: Consent of Brightman Almagor & Co. 1 9K
12: EX-10.2 Ex-10.2: Consent of Plaza Centers (Europe) B.V. 1 9K
13: EX-10.3 Ex-10.3: Consent of Bea Hotels N.V. 1 9K
14: EX-10.4 Ex-10.4: Consent of Gamida Cell Ltd. 1 8K
15: EX-11.1 Ex-11.1: Code of Ethics and Business Conduct 8 38K
16: EX-12.1 Ex-12.1: Certification 2± 11K
17: EX-13.1 Ex-13.1: Certification 1 9K
Exhibit 4.21
DATED JANUARY 6, 2003
EUSTON ROAD HOTEL LIMITED
-AND-
ACCOR UK BUSINESS AND LEISURE HOTELS LIMITED
-AND-
ACCOR SA
----------
LEASE
OF
The Shaw Park Plaza Hotel
100-110 Euston Road
London
NW1 2AJ
----------
Term: 25 years (with options to renew)
Commencing: The date hereof
Rent: L3,150,000 p.a. (subject to increase)
(STAMP)
JULIAN HOLY
EMPEROR'S GATE
114A CROMWELL ROAD
LONDON SW7 4ES
DX 44106 GLOUCESTER ROAD
TEL: 020 7370 5443
FAX: 020 7244 7371
INDEX
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CLAUSE PAGE
------ ----
Definitions.............................................................. 1
Definitions........................................................... 1
Construction and Interpretation....................................... 5
Any Superior Landlord or Mortgagee................................. 5
Entry to the Premises.............................................. 6
Indemnities........................................................ 6
Successors to original parties..................................... 7
Tenant's covenants................................................. 7
Joint and several obligations...................................... 7
Tenant's default................................................... 7
This Lease......................................................... 7
Statutes .......................................................... 7
Premises .......................................................... 8
Effect of the 1995 Act............................................. 8
Tenant's insurance obligations..................................... 8
Gender singular and plural......................................... 8
Particulars contents and headings.................................. 8
Demise And Rents......................................................... 8
Tenant's Covenants....................................................... 9
To pay rent........................................................... 9
To pay interest on overdue monies..................................... 9
To pay outgoings and supplies......................................... 10
Insurance Obligations................................................. 10
To repair............................................................. 12
To decorate exterior.................................................. 12
To decorate interior.................................................. 12
To clean and treat surfaces........................................... 12
To comply with notices to repair...................................... 13
To permit entry....................................................... 13
Not to introduce dangerous things or allow contamination.............. 13
Not to overload....................................................... 14
Not to harm drains.................................................... 14
User ................................................................. 14
Not to make alterations............................................... 15
Not to prejudice easements............................................ 16
Alienation............................................................ 17
Assignment............................................................ 17
Underletting.......................................................... 21
To give details of underleases........................................ 24
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Registration.......................................................... 24
To pay Landlord's costs............................................... 25
To observe statutory requirements..................................... 25
Planning ............................................................. 26
To inform Landlord of notices......................................... 27
To inform Landlord of contaminants and defects........................ 27
Indemnities........................................................... 27
Applications for consent.............................................. 28
To remedy breaches by undertenants.................................... 28
Yielding up........................................................... 28
To pay VAT............................................................ 29
Reimbursement of VAT.................................................. 29
Substitution of surety................................................ 30
Superior title restrictions........................................... 30
Surety's Covenants....................................................... 30
Landlord's Covenants..................................................... 30
Quiet enjoyment....................................................... 30
Insurance............................................................. 31
Provisos ................................................................ 32
Forfeiture............................................................ 32
Abatement of Rent..................................................... 33
Determination......................................................... 33
No implied easements.................................................. 34
Rights of light and air............................................... 34
No restrictions on adjoining property................................. 34
Acceptance of rent.................................................... 35
Arbitration........................................................... 36
No compensation....................................................... 36
Notices .............................................................. 36
Representation........................................................ 36
Effect on waiver...................................................... 36
Release on Assignment of Reversion.................................... 36
Severance............................................................. 37
Due dates............................................................. 37
Rent Increase............................................................ 37
Tenant's Right Of First Refusal.......................................... 37
Latent Defects........................................................... 38
Tenant's Option To Renew................................................. 41
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The Chattels............................................................. 42
Applicable Law........................................................... 42
Third Party Rights....................................................... 42
Agreement For Lease...................................................... 42
Schedule 1............................................................... 43
Schedule 2............................................................... 44
Schedule 3............................................................... 46
Schedule 4............................................................... 48
Schedule 5............................................................... 51
PARTICULARS
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Date January 6, 2003
1. the Landlord EUSTON ROAD HOTEL LIMITED (company number 62798
Jersey) whose registered office is at Lord
Coutanche House 66-68 Esplanade St. Helier Jersey
JE2 3QB
2. the Tenant ACCOR UK BUSINESS AND LEISURE HOTELS LIMITED
(company number 1016187) whose registered office
is at 1 Shortlands Hammersmith London W6 8DR
3. the Surety ACCOR SA (company number B602036444) whose
registered office is at EVRY (91000) 2 Rue de la
Mare Neuve France
4. the Premises The Shaw Park Plaza Hotel 100-110 Euston Road
London NW1 2AJ more particularly described in
Schedule 1
5. Contractual Term 25 YEARS from and including the Term Commencement
Date
6. Term Commencement Date The date hereof
7. Rents The various rents reserved by Clause 2
8. Rent Start Date The Term Commencement Date
9. Permitted Use As an hotel with ancillary uses to include:-
(i) retail outlets not exceeding 5 in number and
not accommodating more than 2,000 square feet
of net usable area in the aggregate;
(ii) the use of the existing theatre for all
purposes ordinarily associated with a
theatre;
(iii) the holding of conferences for all purposes;
(iv) the holding of educational gatherings for all
purposes;
(v) the holding of social leisure and religious
functions;
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(vi) restaurants and other facilities for the sale
of food and beverages of all descriptions to
both guests within the hotel and the public
at large;
(vii) such other uses as may from time to time be
reasonably considered to be commensurate with
the principal use of the Premises as a high
class hotel.
THIS LEASE is made on the date stated at the head of the Particulars and between
the parties specified therein
1 DEFINITIONS
1.1 DEFINITIONS
In this Lease the expressions in the first column of the Particulars
have the meanings given in the second column and the following words
and expressions have the following meanings:
1.1.1 ASSOCIATED COMPANY means any company which is (in relation to
another company) its parent undertaking or its subsidiary
undertaking or a subsidiary undertaking of its parent undertaking
or any other person controlled by or under the same control
direct or indirect and PARENT UNDERTAKING and SUBSIDIARY
UNDERTAKING shall have the meanings given in Sections 258 and 259
of the Companies Act 1985
1.1.2 CHATTELS means all of the chattels, equipment, fittings and
other things (not being in the nature of landlord's fixtures and
fittings) presently within the Premises and used or capable of
being used for the purposes of carrying on therefrom the business
of a modern high class 4 Star (or equivalent) hotel in accordance
with all aspects of the Permitted Use as the same are specified
in the Inventory of Chattels annexed hereto
1.1.3 CONDUITS means all sewers drains pipes gulleys gutters ducts
flues watercourses channels subways wires cables and other
conducting media of whatsoever nature
1.1.4 FULL COST OF REINSTATEMENT shall mean the reasonable and proper
costs (including the cost of shoring up demolition and site
clearance architects' surveyors' and other professional fees and
incidental expenses with VAT thereon in each case) which would be
likely to be incurred in or as a result of rebuilding or
reinstating the Premises in accordance with the requirements of
this Lease at the time when such rebuilding or reinstatement is
likely to take place having regard to all relevant factors
including any increases in building costs expected or anticipated
to
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take place at any time up to the date upon which the Premises
shall be fully rebuilt or reinstated
1.1.5 GROUP COMPANY means any company which falls within the same
group as another company or its holding company, including
(without limitation) any of the following:
(a) all subsidiaries of such company or its holding company
(b) any holding company
(c) any company which is another subsidiary of any holding
company
in each case within the meaning of Sections 736 and 736A of the
Companies Act 1985
1.1.6 INFERIOR LEASE means the sublease brief details of which are set
out in Part 4 of Schedule 3
1.1.7 INITIAL RENT means THREE MILLION ONE HUNDRED AND FIFTY THOUSAND
POUNDS per annum (L3,150,000 p.a.) (exclusive of VAT)
1.1.8 INSURED RISKS means risks in respect of loss, damage or
destruction by fire, storm, lightning, earthquake, explosion,
riot, civil commotion, strikes, labour and political disturbances
and malicious damage, terrorism, aircraft and other aerial
devices or articles dropped therefrom, tempest, flood, bursting
or overflowing of water tanks, apparatus or pipes and impact by
road vehicles, subsidence, ground slip and heave (to the extent
that insurance against such risks may ordinarily be arranged in
the United Kingdom insurance market) and also against third party
risks and property owner's liability and such other risks
(whether or not of a like kind) or insurance (not being those
against which the Tenant shall also have insured in accordance
with its obligations in that regard contained in this Lease) as
the Landlord may from time to time deem to
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be desirable but subject in every case to such normal excesses
exclusions and limitations from time to time imposed by the
Insurers
1.1.9 INSURERS means the insurance office or underwriters with whom
the insurance cover referred to in Clause 5.2 is effected
1.1.10 LANDLORD shall include the person for the time being entitled
to the reversion immediately expectant on the determination of
the Term
1.1.11 LANDLORD'S SURVEYOR means an associate or fellow of the Royal
Institution of Chartered Surveyors who is a partner or director
in a firm or company (as the case may be) of chartered surveyors
experienced in all aspects of property in the nature and in the
location of the Premises or alternatively a surveyor in the
employ of the Landlord with equivalent professional and practical
qualifications who shall in all matters act as an independent
expert and owe a duty as such to both the Landlord and the Tenant
and has adequate professional indemnity cover (including run-off
cover)
1.1.12 this LEASE means this lease and any document which is
supplemental hereto or which is collateral herewith or which is
entered into pursuant to or in accordance with the terms of this
Lease
1.1.13 LOCAL AUTHORITY means a county council a district council a
London borough council a parish or community council a county
borough council or any joint or unitary authority and any other
body falling within the definition of local authority in Section
336 of the Town and Country Planning Act 1990 (as amended from
time to time)
1.1.14 LOSS OF RENT means the loss of the Yearly Rent for 36 calendar
months
1.1.15 PLANNING ACTS means Town and Country Planning Act 1990 Planning
(Listed Buildings and Conservation Areas) Act 1990 Planning
(Hazardous Substances)
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Act 1990 and Planning (Consequential Provisions) Act 1990
1.1.16 PREMISES means the land and premises described in Schedule 1
and each and every part thereof together with the appurtenances
thereto belonging and together also with any buildings and
erections and each and every part thereof now or hereafter
erected or in the course of erection thereon or on any part
thereof together with all additions alterations and improvements
thereto which may be carried out during the Term and shall also
include all landlord's fixtures and fittings from time to time in
and about the same and the Chattels
1.1.17 PRESCRIBED RATE means a rate of interest being 3% above the
Base Rate from time to time of Barclays Bank Plc or over such
other rate as may from time to time replace the same or over such
other rate as the Landlord may from time to time reasonably
require
1.1.18 QUARTER DAY means each of 25th March 24th June 29th September
and 25th December in each year and references to QUARTER DAYS and
USUAL QUARTER DAYS shall be construed accordingly
1.1.19 SUPERIOR LANDLORD means any person who at any time holds an
interest in reversion (whether or not immediate) to any lease
under which the Landlord may at any time hold its interest in the
Premises and SUPERIOR LEASES shall be construed accordingly
1.1.20 SURETY means any person for the time being guaranteeing the
obligations of the Tenant and in the case of an individual shall
include his personal representatives
1.1.21 TENANT shall include its successors in title and in the case of
an individual shall include his personal representatives
1.1.22 TERM means the Contractual Term together with any continuation
thereof or of the tenancy (whether under an Act of Parliament or
by the Tenant holding over
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or for any other reason) arising therefrom but in respect of such
period of continuation or holding over to apply only to those
obligations of the Tenant in occupation at such time including
for the avoidance of doubt any extension under the terms of this
Lease
1.1.23 VAT means value added tax as provided for in the Value Added
Tax Act 1994 and legislation (delegated or otherwise)
supplemental thereto and any similar tax replacing or introduced
in addition to the same
1.1.24 WORKING DAY means any day (except Saturday or Sunday) when the
United Kingdom clearing banks are open for business in the City
of London
1.1.25 YEARLY RENT means the Initial Rent or the rent payable from
time to time in accordance with the provisions of Clause 7 and
Schedule 2
1.1.26 1927 ACT means the Landlord and Tenant Act 1927
1.1.27 1954 ACT means the Landlord and Tenant Act 1954 (as amended)
1.1.28 1995 ACT means the Landlord and Tenant (Covenants) Act 1995
1.2 CONSTRUCTION AND INTERPRETATION
The following rules of construction and interpretation apply to each
and every part of this Lease:
1.2.1 ANY SUPERIOR LANDLORD OR MORTGAGEE
In the following cases references to "the Landlord" are to be
construed as extending to any Superior Landlord and to any
mortgagee of the Landlord or of any Superior Landlord:
(a) where there are rights easements exceptions and reservations
in favour of or exercisable by the Landlord
(b) where there is an obligation to obtain the
5
approval or consent of the Landlord or to give notice to the
Landlord (but nothing in this Lease is to be construed as
implying that consent or approval of any Superior Landlord
or mortgagee will not be unreasonably withheld)
(c) where there is provision for repayment of any expenses to
the Landlord
(d) where there are any indemnities in favour of the Landlord
1.2.2 ENTRY TO THE PREMISES
(a) Any right granted to or reserved by the Landlord to enter
the Premises is to be construed as extending to all persons
authorised by the Landlord and by any Superior Landlord and
by any mortgagee of either of them and as a right to enter
with or without workmen equipment and materials
(b) Authority given by the Tenant to enter the Premises after a
reasonable or other specified period of notice extends (if
justified by the circumstances) to entry after a shorter
period of notice or to entry without any notice
1.2.3 INDEMNITIES
Any indemnities given by the Tenant are to be construed as
obligations to keep the specified persons indemnified against
legal liability in respect of all proceedings damages penalties
costs expenses claims and demands arising directly as a result of
a relevant act omission or default of the Tenant
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1.2.4 SUCCESSORS TO ORIGINAL PARTIES
References to "the Landlord" include the person for the time
being entitled to the reversion immediately expectant on the
determination of the Term (or where such person or the Landlord
is an individual his personal representatives) and to "the
Tenant" include the successors in title and assigns of the Tenant
(or where the Tenant is an individual his personal
representatives) and to "the Surety" (if any) include the
personal representatives of any such person (if an individual)
1.2.5 TENANT'S COVENANTS
Any covenant by the Tenant not to do any act or thing is where
appropriate to be construed additionally as a covenant by the
Tenant not to permit or suffer such act or thing to be done by
any other person being an agent servant invitee or licensee
1.2.6 JOINT AND SEVERAL OBLIGATIONS
Where the Landlord or the Tenant or the Surety (if any) at any
time consists of more than one person obligations expressed or
implied on the part of such party are joint and several
obligations
1.2.7 TENANT'S DEFAULT
Unless the context otherwise requires where in this Lease there
is reference to the consequences of the Tenant's acts omissions
and defaults all references to "the Tenant" include references to
the Tenant's undertenants or their respective agents servants
invitees or licensees and to anyone at the Premises with the
express or implied authority of the Tenant or its undertenants
1.2.8 THIS LEASE
This Lease is to be construed and interpreted as incorporating
any variation addition or qualification which is expressed to
relate to it contained in any deed made between the Landlord and
the Tenant whether or not any person who is the Surety is a party
and including but not limited to all licences granted by the
Landlord to the Tenant but not so as to impose upon any person
liability under this Lease which would be precluded by s.18 of
the Landlord and Tenant (Covenants) Act 1995
1.2.9 STATUTES
Except for any references to the Town and Country Planning (Use
Classes) Order 1987 (if any) any reference to any statute
includes any modification extension or re-enactment of such
statute for the time being in force and any instruments
regulations directions orders or permissions made under it
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1.2.10 PREMISES
References to the Premises (except Clauses 3.18, 3.19 and 3.20)
shall be construed as extending to any part of the Premises
1.2.11 EFFECT OF THE 1995 ACT
Wherever and to the extent that any provision of this Lease would
or might contravene the provisions of s.25 of the 1995 Act then:
(a) such provision is to take effect only in so far as it may do
so without contravening s.25 of the 1995 Act and
(b) where such provision is incapable of having any effect
without contravening s.25 of the 1995 Act this Lease is to
be construed and interpreted as if such provision were
deleted and
(c) the legality validity and enforceability of any of the
remaining provisions of this Lease is not in any way to be
affected or impaired as a result
1.2.12 TENANT'S INSURANCE OBLIGATIONS
Any insurance policy shall be deemed to have been "voided" if it
has been rendered void or vitiated or if payment of any policy
monies has been refused in whole or part by reason of any act
omission neglect or default of the Tenant its undertenants or
their respective agents servants invitees or licensees
1.2.13 GENDER SINGULAR AND PLURAL
Words importing one gender include other genders and words
importing the singular include the plural and vice versa
1.2.14 PARTICULARS CONTENTS AND HEADINGS
The particulars form part of this Lease but the clause paragraph
and schedule headings and any table of contents are not to be
taken into account in the construction and interpretation of this
Lease
2 DEMISE AND RENTS
In consideration of the rents reserved by and the Tenant's covenants and
conditions contained in this Lease the Landlord DEMISES the Premises to the
Tenant TOGETHER
8
WITH the easements and other rights (in common with the Landlord and all
other persons having its express or implied authority and all other persons
having like rights) specified in Part 1 of Schedule 3 EXCEPTING AND
RESERVING to the Landlord (and all other persons authorised by the Landlord
from time to time during the Term) the easements and other rights specified
in Part 2 of Schedule 3 TO HOLD the Premises unto the Tenant from and
including the Term Commencement Date for the Term SUBJECT (a) to all rights
easements quasi-easements and privileges to which the Premises are or may
be subject and (b) the matters set out in Part 3 of Schedule 3 AND SUBJECT
to and with the benefit of the Inferior Lease YIELDING AND PAYING to the
Landlord as rent:
2.1 FIRSTLY throughout the Term (and proportionately for any part of a
year) the Yearly Rent (increasing in accordance with the provisions of
Clause 7 and Schedule 2) to be paid in advance by equal quarterly
instalments on the usual Quarter Days the first instalment or a
proportion thereof (calculated on a daily basis) in respect of the
period beginning on the Rent Start Date and ending on the day
immediately preceding the next Quarter Day to be paid on the date of
this Lease
2.2 SECONDLY by way of additional rent on receipt of a written demand
therefor the cost to the Landlord of insuring the Premises against the
Insured Risks and of effecting the Loss of Rent insurance and the
reasonable and proper cost of valuing the Premises for insurance
purposes from time to time (but not more than once in any twelve month
period)
2.3 THIRDLY by way of additional rent on demand the moneys referred to in
Clause 3.2
2.4 FOURTHLY by way of additional rent all VAT for which the Landlord is
or may become liable on the supply by the Landlord to the Tenant under
or in connection with this Lease of the interest created by it and of
any other supplies (whether of goods or services) including (but not
limited to) all rents and other sums payable under this Lease such VAT
to be paid at the same time as the sums to which it relates
3 TENANT'S COVENANTS
The Tenant HEREBY COVENANTS with the Landlord as follows:
3.1 TO PAY RENT
To pay the Rents reserved by this Lease at the times and in the manner
set out in this Lease without any deduction set-off or counterclaim
(save as required by law)
3.2 TO PAY INTEREST ON OVERDUE MONIES
That without prejudice to any other right remedy or power contained in
this Lease or otherwise available to the Landlord if any Yearly Rent
shall not be received on the due date or any other Rents shall not be
received within 14 days of the due date for payment thereof then in
any such case to pay on receipt of written demand to the Landlord
interest thereon at the Prescribed Rate (to be
9
compounded on the usual Quarter Days) from the date when the same
became due until payment thereof is received (as well after as before
any judgment)
3.3 TO PAY OUTGOINGS AND SUPPLIES
3.3.1 To bear pay and discharge all existing and future rates taxes
duties charges assessments impositions and outgoings whatsoever
(whether parliamentary parochial local or otherwise and whether
or not of a capital or non-recurring nature) which now are or may
at any time hereafter during the Term be charged levied assessed
or imposed upon or properly apportioned by the Landlord's
Surveyor (acting properly) to the Premises or upon the owner or
occupier in respect thereof PROVIDED ALWAYS that the foregoing
shall not extend to payment of any tax payable only as a direct
result of any dealing by the Landlord with its reversionary
interest in the Premises
3.3.2 Where a separate supply is provided to the Premises to pay the
supplier and to indemnify the Landlord against all charges for
electricity gas water sewage telecommunications data and other
supplies consumed on the Premises and to pay all equipment rents
3.4 INSURANCE OBLIGATIONS
3.4.1 Not to do or omit or suffer to be done or omitted anything which
may make void or voidable any policy of insurance of the Premises
Provided that the Landlord shall have first provided the Tenant
with a copy of the relevant current policy of such insurance
3.4.2 To comply with the reasonable and proper requirements and
recommendations from time to time of the Insurers
3.4.3 To notify the Insurers and the Landlord forthwith on the
occurrence of any damage occasioned by any Insured Risk at the
Premises
3.4.4 To notify the Landlord of any new landlord's fixtures and
fittings installed from time to time in the Premises by the
10
Tenant or any undertenant which may affect any insurances
3.4.5 In the event of the Premises or any part thereof being damaged
or destroyed by any of the Insured Risks at any time during the
Term and the insurance money under any policy of insurance
effected thereon being wholly or partially voided then and in
every such case the Tenant will forthwith pay to the Landlord the
whole or (as the case may require) the voided proportion of the
cost of rebuilding and reinstating the same
3.4.6 To insure and at all times keep insured the Premises against all
Tenant's third party public and occupiers liability risks for a
sum to be first approved by the Landlord being not less than Five
million pounds (L5,000,000) for any one occurrence and to effect
such insurance in some reputable insurance office and upon every
request by the Landlord (such request not to be made more than
once in any 12 month period) forthwith to produce particulars of
the policy of such insurance and the receipt for every premium
for the then current year payable in respect of such policy
PROVIDED ALWAYS THAT if and whenever default shall be made in
making and keeping on foot such insurance as aforesaid or in
producing in the manner aforesaid such evidence or policy or
receipt as aforesaid the Landlord may effect and maintain such
insurance and the Tenant shall repay all monies paid by the
Landlord for that purpose to the Landlord within 14 days of
demand and the cost thereof shall be a debt due from the Tenant
to the Landlord and be forthwith recoverable by action PROVIDED
ALWAYS THAT for so long only as this Lease is vested in Accor UK
Business and Leisure Hotels Limited or any Group Company thereof
then the aforesaid obligations of the Tenant to adduce evidence
of the existence of insurance shall be deemed discharged by the
unconditional written confirmation by the Tenant that the terms
of this Clause 3.4.6 are being complied with
11
3.4.7 Other than in accordance with Clause 3.4.6 not to effect any
insurance policy to cover the Insured Risks but if in breach of
this covenant to pay to the Landlord all monies received under
such policy in connection with the Landlord's obligations under
Clause 5.2 of this Lease
3.5 TO REPAIR
At all times during the Term to keep the Premises in good and
substantial repair and condition and to maintain renew and replace
(where uneconomical to repair) the same damage or destruction by any
of the Insured Risks excepted (unless and to the extent that the
relevant insurance policy has been voided) PROVIDED THAT nothing
herein shall require the Tenant to keep the Premises in a better state
of repair than the same are now in as is evidenced by the Schedule of
Condition and Inventory of Chattels annexed hereto
3.6 TO DECORATE EXTERIOR
As often as shall reasonably be necessary during the Term (having
regard to the proposed use of the Premises as a high class hotel) to
properly prepare and thereafter to paint in a good and workmanlike
manner with two coats at least of good quality paint of a colour which
if different from the present colour shall be previously approved in
writing by the Landlord's Surveyors (such approval not to be
unreasonably withheld) all the exterior parts of the Premises as are
usually or ought to be painted
3.7 TO DECORATE INTERIOR
As often as shall reasonably be necessary during the Term (having
regard to the proposed use of the Premises as a high class hotel) to
properly prepare and thereafter to paint with two coats at least of
good quality paint and to treat varnish decorate paper and plaster all
the interior parts of the Premises as are usually or ought to be
painted treated varnished papered or plastered and generally to
redecorate throughout restoring and making good the Premises and to
carry out all the works required by this Clause 3.7 in a good and
workmanlike manner and in the last year of the Term (howsoever
determined save where the same is extended pursuant to clause 10) such
paintings and decorations to be executed in such colours and materials
as the Landlord's Surveyors may reasonably require
3.8 TO CLEAN AND TREAT SURFACES
As often as may be reasonably necessary to clean treat and wash in an
appropriate manner all materials surfaces and finishes of the Premises
which ought normally to be so cleaned treated and washed
3.9 TO KEEP PREMISES CLEAN AND TIDY
3.9.1 To keep the Premises in a clean and tidy condition
3.9.2 To keep all refuse waste and rubbish in a
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suitable container or containers on the Premises or where the
Landlord directs acting reasonably
3.10 TO COMPLY WITH NOTICES TO REPAIR
Well and substantially to repair and make good all defects and wants
of reparation repair or renewal of which notice in writing shall be
given to or left on the Premises for the Tenant by the Landlord and
for which the Tenant is liable hereunder and to commence the same
within three calendar months after the receipt or leaving of such
notice (or sooner if necessary) and if the Tenant shall fail to comply
with any such notice within a reasonable time for so doing it shall be
lawful (but not obligatory) for the Landlord (without prejudice to the
right of re-entry hereinafter contained) to enter upon the Premises to
make good the same at the cost of the Tenant which cost together with
all Solicitors' and Surveyors' charges and other reasonable and proper
expenses and losses which may be incurred by the Landlord in
connection therewith shall be repaid by the Tenant to the Landlord on
demand
3.11 TO PERMIT ENTRY
To permit the Landlord and its agents and all persons authorised by
them at all reasonable times with or without workmen on giving
reasonable notice (except in emergency) to the Tenant to enter upon
the Premises for the purpose of ascertaining that the covenants and
conditions of this Lease have been observed and performed and to view
the state of repair and condition thereof and to take a schedule of
the Landlord's fixtures and of any dilapidations and to exercise the
rights excepted and reserved by this Lease
3.12 NOT TO INTRODUCE DANGEROUS THINGS OR ALLOW CONTAMINATION
3.12.1 Not to bring into the Premises or to place or store or permit
to remain in or about the Premises any article or thing which is
or may become dangerous offensive combustible inflammable
radioactive explosive harmful polluting or contaminating other
than items which are used normally in connection with the
Permitted Use
3.12.2 To ensure that the Premises are not contaminated during the
Term and to carry out or cause to be carried out all works and
actions necessary to remove any such contamination and restore
the Premises to a condition as though such contamination had not
taken place and not to do anything on or relating to the Premises
which does or might cause any pollution or contamination of any
other premises or the environment
13
3.12.3 To obtain any authorisation licence consent or permission
required under any legislation relating to pollution or
contamination of the environment with respect to any use of or
action or activity on the Premises before such use action or
activity commences or occurs but not to implement any such
authorisation licence consent or permission until it and any
conditions attaching to it have been approved by the Landlord
3.13 NOT TO OVERLOAD
Not to place in the Premises or to place or to carry in the lifts (if
any) in the building any articles in such position or in such quantity
or weight or otherwise in such manner howsoever as to overload or
cause damage to the Premises or the lifts and not to overload the
electrical wiring or installation or other Conduits in the Premises
3.14 NOT TO HARM DRAINS
Not to allow to pass into the Conduits serving the Premises any
noxious or deleterious effluent or other substance which might cause
any obstruction in or harm to the Conduits
3.15 USER
3.15.1 Not to carry on or use the Premises for any noisy noisome
offensive or dangerous trade manufacture business or occupation
nor for any illegal or immoral purpose
3.15.2 Not to use the Premises otherwise than for the Permitted Use
without the prior written consent of the Landlord which consent
shall not be unreasonably withheld or delayed
3.15.3 The Tenant hereby acknowledges and admits that notwithstanding
the foregoing provisions the Landlord does not thereby or in any
other way give or make nor has given or made at any other time
any representation or warranty that any such use is or will be or
will remain a permitted use within the provisions of the Planning
Acts nor shall any consent in writing which the Landlord may
hereafter give to any change of use be taken as including any
such representation or warranty and that notwithstanding that any
such use as aforesaid is not a permitted use within
14
such provisions as aforesaid the Tenant shall remain fully bound
and liable to the Landlord in respect of the obligations
undertaken by the Tenant by virtue of this Lease without any
compensation recompense or relief of any kind whatsoever
3.16 NOT TO MAKE ALTERATIONS
3.16.1 Not to make any alterations or additions whatsoever in or to
the Premises (save for signage and minor internal non structural
alterations) or to the Conduits exclusively serving the Premises
without the previous consent in writing of the Landlord (not to
be unreasonably withheld)
3.16.2 When applying for the consent of the Landlord hereunder to
supply to the Landlord four copies of plans and specifications
showing the nature and extent of the alterations or additions
which the Tenant wishes to carry out and to pay the Landlord in
respect of all reasonable costs and expenses which the Landlord
may incur whether by way of surveyors' or legal expenses in
connection with the consideration approval and supervision of the
alterations and additions and to carry out the said alterations
or additions only in accordance with the plans and specifications
approved in writing by the Landlord (such approval not be
unreasonably withheld or delayed) and in accordance with all
statutory and local authority and Insurers' requirements and
recommendations
3.16.3 In the event of the Tenant failing to observe this covenant it
shall be lawful for the Landlord and its agents or surveyors with
or without workmen and others and all persons authorised by the
Landlord with all necessary materials and appliances to enter
upon the Premises on reasonable prior notice (save in emergency)
and remove any alterations or additions and execute such works as
may be necessary to restore the Premises to their former state
and the costs and expenses thereof together with all solicitors'
and surveyors' charges and other expenses and losses of a
15
direct nature which may be incurred by the Landlord in connection
therewith shall be repaid by the Tenant to the Landlord on demand
3.17 NOT TO PREJUDICE EASEMENTS
3.17.1 Not by building or otherwise to stop up or darken any window or
light in the Premises nor to stop up or obstruct any access of
light enjoyed by the Premises to any adjoining or neighbouring
premises nor permit any new wayleave easement right privilege or
encroachment to be made or acquired into against or upon the
Premises and in case any such easement right privilege or
encroachment shall be made or attempted to be made to give
immediate notice thereof to the Landlord and to permit the
Landlord and its agents to enter upon the Premises for the
purpose of ascertaining the nature of any such easement right
privilege or encroachment and at the request of the Landlord but
at the cost of the Tenant to adopt such means as may be
reasonably required or deemed proper for preventing any such
encroachment or the acquisition of any such easement right
privilege or encroachment
3.17.2 Not to give to any third party any acknowledgement that the
Tenant enjoys the access of light to any of the windows or
openings in the Premises by the consent of such third party nor
to pay to such third party any sum of money nor to enter into any
agreement with such third party for the purpose of inducing or
binding such third party to abstain from obstructing the access
of light to any windows or openings and in the event of any of
the owners or occupiers of adjacent land or buildings doing or
threatening to do anything which obstructs the access of light to
any of the said windows or openings to notify the same forthwith
to the Landlord and to permit the Landlord to bring such
proceedings as it may think fit in the name of and at the cost of
the Tenant against any of the owners and/or occupiers of the
adjacent land in respect of the obstruction of the access of
light to any of the
16
windows or openings in the Premises
3.18 ALIENATION
3.18.1 Not (save as hereinafter permitted) to assign transfer mortgage
charge underlet part with or share possession or occupation of
the whole or any part of the Premises
3.18.2 Not to part with or share possession of the whole or any part
of the Premises or permit any company or person to have
occupation or possession of the whole or any part of the Premises
except by way of:
(a) an assignment or transfer of the whole of the Premises in
accordance with the provisions of Clause 3.19 or
(b) an underlease in accordance with the provisions of Clause
3.20
3.18.3 Not to permit the Premises or any part of them to be held on
trust for or by any person body or corporation
3.19 ASSIGNMENT
3.19.1 Not to assign any part or parts of the Premises (as opposed to
the whole)
3.19.2 Not to assign the whole of the Premises unless the
circumstances and conditions set out in this Clause 3.19.2 (which
the parties accept within the contemplation of Section 19(1A) of
the 1927 Act) have been complied with and satisfied, namely:
(a) that all arrears of Rents and other monetary payments
properly due under the terms of this Lease have been paid
prior to the completion of the intended assignment
(b) that all other material breaches of the Tenant's covenants
and conditions in this Lease have been
17
remedied to the reasonable satisfaction of the Landlord
(c) that the Tenant has produced to the Landlord an undertaking
from its solicitors in such form as may be reasonable in the
circumstances to pay all fair and reasonable costs and
disbursements (including irrecoverable VAT) which may be
reasonably and properly incurred by the Landlord in
connection with the application for consent including
without prejudice to the generality of the foregoing its
solicitors' costs, surveyors' costs and the costs of any
accountants (in each case to be reasonable and proper)
employed to advise on whether the intended assignee
satisfies any financial criteria specified in this Lease or
is a person of such financial standing that it is reasonable
for the Landlord to grant licence for the assignment of this
Lease to it
(d) that the assignee (or any party guaranteeing the assignee in
the terms of Schedule 4) has continuously for a period of
three years immediately preceding the intended date of
completion of the proposed assignment held a credit rating
as described in Clause 3.19.3 or that the assignee (or any
party guaranteeing the assignee in the terms of Schedule 4)
is able to show to the reasonable satisfaction of the
Landlord that it would
18
have satisfied the criteria necessary to acquire and hold
such a credit rating throughout the said period of three
years if an application had been made to obtain such credit
rating
(e) that the Tenant (and any then current surety of the Tenant)
delivers to the Landlord a deed (being an authorised
guarantee agreement within Section 16 of the 1995 Act) in
substantially the form set out in Schedule 5 but subject to
such amendments as may be necessary to comply with Section
16 of the 1995 Act and/or reasonably required by the
Landlord.
3.19.3 The credit rating above referred to shall (subject to Clauses
3.19.4 and 3.19.5) be a credit rating equal to or better than
that held by Accor SA at the date of the proposed assignment as
determined by Standard & Poor's Ratings Group a division of
McGraw Hill Inc ("S&P") or Moodys Investors Service ("Moody's")
in respect of the senior unsecured and unguaranteed long-term
debt obligations of Accor SA
3.19.4 The credit ratings referred to in Clause 3.19.3 shall be
determined in accordance with the rating criteria, mechanism and
procedure adopted by S&P or Moody's (as appropriate) as at the
date of this Lease PROVIDED THAT:
(a) if for any reason during the Term S&P or Moody's cease to
exist the relevant credit ratings for the purposes of Clause
3.19.3 shall be substituted with the equivalent credit
rating (determined by applying substantially similar rating
criteria, mechanism and
19
procedure as those employed at the date of this Lease by S&P
or (as the case may be) Moody's) assigned by such
alternative body or bodies as the Landlord shall in its
reasonable opinion determine as being reasonably equivalent
to S&P and/or Moody's (as the case may be) and which shall
be notified to the Tenant on application to the Landlord or
(b) if for any reason during the Term S&P or Moody's adopt a
rating criteria, mechanism or procedure which is materially
different to that in operation at the date of this Lease the
relevant credit rating for the purposes of Clause 3.19.3
shall be substituted with a credit rating equivalent to the
formerly designated rating (determined by applying
substantially similar rating criteria, mechanism and
procedure to those adopted at the date of this Lease by S&P
or (as the case may be) Moody's for determining such
formerly designated rating)
3.19.5 Any dispute or question between the parties hereto concerning
the rating criteria, mechanism or procedure that is adopted by
S&P or Moody's (as the case may be) at the date of this Lease
shall be referred at the request of either party for
determination by a single arbitrator to be appointed either by
agreement between the parties or in the absence of agreement to
be appointed on the application of either party to the President
for the time being of the Institute of Chartered Accountants in
England and Wales and shall be
20
determined in accordance with the Arbitration Act 1996 who shall
have full power to determine what would have been the rating
criteria mechanism and procedure had S&P or Moody's continued to
provide the credit rating service that exists at the date of this
Lease
3.19.6 Subject as aforesaid the Tenant shall be permitted to assign
the whole of the Premises with the prior written consent of the
Landlord which shall not be unreasonably withheld or delayed
3.20 UNDERLETTING
3.20.1 Not to underlet or agree to underlet the whole or any part or
parts only of the Premises otherwise than as provided in this
Clause 3.20
3.20.2 Not to underlet or agree to underlet the whole or any part of
the Premises or permit any person to occupy or share occupation
of the whole or any part of the Premises at a fine or premium nor
at a rent which is less than the open market rent for the
underlet premises nor to permit (by whatever means) the reduction
of rent paid or payable by any undertenant
3.20.3 Not to underlet or agree to underlet the whole or any part of
the Premises without first procuring:
(a) that any intended undertenant shall covenant with the
Landlord as from the date of the underlease to observe and
perform the covenants and conditions contained in this Lease
(excluding the covenant to pay the Rents) and not to
underlet share or part with possession or occupation of the
underlet premises and not without the prior written consent
of the Landlord to assign the underlet premises and that
such covenants are included in the underlease
21
so far as they are applicable to the underlet premises
(b) that in any permitted underlease the rent shall be payable
no more than one quarter in advance and shall be subject to
open market review in an upward direction only at intervals
of not more than five years
(c) if reasonably required by the Landlord in the case of a
letting to a private limited company there is provided a
guarantor(s) reasonably acceptable to the Landlord for such
company who prior to such letting but with effect therefrom
(jointly and severally if more than one) shall enter into:
(i) surety covenants with the Tenant in a similar form to
those set out in Schedule 4 and
(ii) a covenant with the Landlord to observe and perform
such surety covenants
3.20.4 Not to underlet or agree to underlet or permit any undertenant
to underlet any part (as opposed to the whole) of the Premises
without first procuring that additionally:
22
(a) the provisions of sections 24 to 28 (inclusive) of the 1954
Act are excluded from the underletting pursuant to a prior
Order of a Court of competent jurisdiction and
(b) following the grant of such underlease the total number of
lettings of the Premises (including this Lease but excluding
franchises granted in accordance with clause 3.20.8 hereof)
then extant is no more than 6
(c) any such underlease shall contain provisions enabling the
Tenant (as lessor) to recover from the undertenant a due
proportion of the cost of insuring repairing decorating and
operating the Premises
3.20.5 Subject as aforesaid the Tenant shall be permitted to underlet
the Premises as a whole or in part with the prior written consent
of the Landlord which shall not be unreasonably withheld or
delayed
3.20.6 In relation to any underlease not without the prior written
consent of the Landlord (which shall not be unreasonably withheld
or delayed) to:
(a) waive or vary any provisions of an underlease
(b) accept a surrender of part only of any underlet premises
3.20.7 Nothing in this Lease shall prevent the Tenant from sharing the
use or occupation of the Premises or any part of the Premises
with any Associated Company or Group Company of the Tenant
PROVIDED THAT:
23
(a) no relationship of landlord and tenant giving rise to
security of tenure is created at any time
(b) the Tenant shall give to the Landlord not less than one
month's prior written notice of such proposed occupation and
the cessation thereof and
(c) any such occupation of the Premises or any part thereof
shall cease upon the Associated or Group Company in
occupation ceasing to be an Associated or Group Company
whereupon such company shall forthwith vacate the Premises
or such part thereof of which it is in occupation
3.20.8 Nothing in this Lease shall prevent the Tenant from using the
Premises for the Permitted Use or from granting franchises (not
being tenancies or otherwise affording security of tenure) in
respect of any retail accommodation lawfully within the Premises
from time to time or from concluding operating agreements (not
being tenancies or otherwise affording security of tenure) for
the use of the theatre within the Premises
3.21 TO GIVE DETAILS OF UNDERLEASES
Whenever reasonably requested (but not more than twice in any calendar
year) by the Landlord to supply a schedule of underleases or
franchises granted in respect of the Premises (however remote) to
include details of (i) the date (ii) the premises let (iii) the term
(iv) the parties and (v) the rent
3.22 REGISTRATION
Within one month after the date of any assignment transfer or any
underlease of the Premises or the execution of any mortgage or charge
affecting this Lease as aforesaid or any assignment or transfer of any
such mortgage or charge or underlease as aforesaid whether by deed
assent or operation of law or otherwise to give written notice and to
deliver a certified copy to the Landlord's solicitors (or as the
Landlord may from time to time direct) of such assignment transfer
underlease assignment of underlease mortgage charge transfer of
mortgage or
24
charge or devolution as aforesaid and to pay or cause to be paid to
the Landlord's solicitors or as the Landlord may from time to time
direct a reasonable fee not being less than Twenty-five pounds for the
registration thereof
3.23 TO PAY LANDLORD'S COSTS
To pay to the Landlord on receipt of written demand all reasonable and
proper direct costs charges expenses damages and losses (including but
without prejudice to the generality of the foregoing solicitors' costs
counsels' architects' and surveyors' and other professional fees and
commissions payable to a bailiff) incurred by the Landlord:
3.23.1 incidental to the preparation and service of a notice under
Section 146 of the Law of Property Act 1925 and/or in or in
contemplation of any proceedings under Section 146 or 147 of the
said Act (whether or not any right of re-entry or forfeiture has
been waived by the Landlord or a notice served under the said
Section 146 is complied with by the Tenant or the Tenant has been
relieved under the provisions of the said Act and notwithstanding
forfeiture is avoided otherwise than by relief granted by the
court)
3.23.2 incidental to the preparation and service of a Schedule of
Dilapidations at any time during or within 6 calendar months
after the expiration or earlier determination of the Term
relating to wants of repair for which the Tenant was responsible
and which arose during the Term
3.23.3 in connection with or procuring the remedying of any breach of
covenant on the part of the Tenant or any person deriving title
under the Tenant contained in this Lease
3.24 TO OBSERVE STATUTORY REQUIREMENTS
At all times and from time to time and at its own expense to execute
all works as are or may under or in pursuance of any current Act of
Parliament or European Community Law Regulation or Directive already
or hereafter to be passed be directed or required to be done or
executed upon or in respect of the Premises or the user thereof
whether by the owner and/or the Landlord and/or the Tenant thereof or
any person deriving title thereunder and to comply with all notices
which may be served by the public local or statutory authority and not
to do on the Premises any act or thing whereby the Landlord may become
liable to pay any penalty imposed or to bear the whole or any part of
any expenses incurred under any such Act as aforesaid
25
3.25 PLANNING
In relation to the Planning Acts:
3.25.1 At all times during the Term to comply in all respects with the
Planning Acts and to keep the Landlord indemnified in respect
thereof
3.25.2 Save in the case of signage or where permission has already
been granted to alterations pursuant to clause 3.16 not to apply
for any planning permission or other planning consent in respect
of the Premises unless the application permission or other
consent shall have been approved in writing by the Landlord such
consent not to be unreasonably withheld or delayed
3.25.3 Unless the Landlord shall otherwise direct to carry out before
the expiration or determination of the Term (howsoever the same
may be determined) any works stipulated to be carried out to the
Premises by a date subsequent to such expiration or sooner
determination as a condition of any planning permission which the
Tenant has implemented or partially implemented
3.25.4 Forthwith after receiving notice of the same to give full
particulars to the Landlord of any order notice certificate
designation direction or other such matter or any proposal
therefor made given or issued to the Tenant by any competent
authority under or by virtue of the Planning Acts affecting or
capable of affecting the Premises and if so required by the
Landlord to produce such matter or proposal therefor to the
Landlord
3.25.5 At the request of the Landlord to make or join with the
Landlord in making such objection or representation against or in
respect of any proposal referred to in the previous sub-clause as
the Landlord shall deem expedient
3.25.6 If called upon so to do to produce to the Landlord all plans
documents and other evidence as the Landlord may reasonably
require in order to satisfy itself that the provisions of this
sub-clause have been
26
complied with (but in any event not more than 4 copies)
3.25.7 Not without the consent of the Landlord to enter into any
planning obligation under Section 106 of the Town and Country
Planning Act 1990
3.25.8 Not without the consent of the Landlord to serve any notice
under Part VI of the Town and Country Planning Act 1990
3.26 TO INFORM LANDLORD OF NOTICES
When the Tenant becomes aware of the happening of any occurrence or
upon the receipt of any notice order requisition direction or other
thing which may be capable of adversely affecting the Landlord's
interest in the Premises the Tenant shall forthwith at its own expense
deliver full particulars or a copy thereof to the Landlord
3.27 TO INFORM LANDLORD OF CONTAMINANTS AND DEFECTS
As soon as the Tenant becomes aware of the same to inform the Landlord
immediately in writing of the existence of any contaminant or
pollutant on or any defect in the Premises which might give rise to a
duty imposed by common law or statute on the Landlord
3.28 INDEMNITIES
To indemnify the Landlord in respect of all actions proceedings costs
claims and demands and any liability arising in any way directly out
of:
3.28.1 any act omission or negligence of the Tenant its undertenants
or any persons at the Premises expressly or impliedly with the
authority of the Tenant or its undertenants
3.28.2 the use or occupation of the Premises
3.28.3 any defect in the Premises caused by the execution of any
alterations additions or repairs to the Premises by the Tenant
its undertenants or any persons at the Premises expressly or
impliedly with the authority of the Tenant or its undertenants
3.28.4 third party claims which ought to have been covered by
insurance effected by the Tenant pursuant to Clause 3.4.6
3.28.5 anything now or during the Term attached to or brought onto the
Premises by the
27
Tenant its undertenants or any persons at the Premises expressly
or impliedly with the authority of the Tenant or its undertenants
3.28.6 any breach or non-observance (however remote) of any covenant
on the part of the Tenant contained in this Lease
3.29 APPLICATIONS FOR CONSENT
Upon making an application for any consent or approval which is
required under this Lease the Tenant shall disclose to the Landlord
such information as the Landlord may reasonably require and shall pay
on demand all reasonable and proper costs charges and expenses
(including without limitation legal costs surveyors' fees
disbursements and stamp duty) incurred by the Landlord resulting from
all such applications by the Tenant whether such consent or approval
is granted refused or offered subject to any qualifications or is
withdrawn
3.30 TO REMEDY BREACHES BY UNDERTENANTS
In the event of a breach non-performance or non-observance of any of
the covenants conditions agreements and provisions contained or
referred to in this Lease by any undertenant or other person holding
the Premises as undertenant of the Tenant forthwith upon discovering
the same to take and institute at its own expense all necessary steps
and proceedings to remedy such breach non-performance or
non-observance
3.31 YIELDING UP
3.31.1 Immediately prior to the expiration or sooner determination of
the Term at the cost of the Tenant:
(a) to replace any of the Landlord's fixtures and fittings which
shall be missing broken damaged or destroyed with others of
a similar character and of equal value
(b) to remove every moulding sign writing or painting of the
name or business of the Tenant or other occupiers from the
Premises and to remove all tenant's fixtures and fittings
furniture and effects from the Premises making good to the
reasonable satisfaction of the Landlord all damage
28
caused by any such removal
(c) if so requested by the Landlord to remove and make good all
alterations or additions made to the Premises at any time
during the Term and well and substantially to reinstate the
Premises in such manner as the Landlord shall reasonably
direct
3.31.2 At the expiration or sooner determination of the Term
(howsoever the same be determined but subject to the provisions
of Clause 9) to yield up to the Landlord the Premises as an
operational modern high class 4 Star (or equivalent) hotel in
accordance with all aspects of the Permitted Use in such good and
substantial repair and condition as shall be in accordance with
the covenants on the part of the Tenant contained in this Lease
together with all fixtures fittings improvements and additions
which now are or may at any time hereafter be in or about the
Premises (but excepting tenant's fixtures and fittings)
3.32 TO PAY VAT
To pay to the Landlord by way of additional rent on receipt of a valid
VAT invoice any VAT at the rate for the time being in force that may
be chargeable in respect of any rent or other payment made or other
consideration or supply provided by the Tenant under the terms of or
in connection with this Lease and in every case where an amount of
money is payable or consideration is provided under this Lease such
amount or consideration shall be regarded as being exclusive of all
VAT which may from time to time be legally payable thereon and such
VAT shall be payable on the due date for the payment of such amount or
the provision of such consideration
3.33 REIMBURSEMENT OF VAT
In every case where the Tenant has agreed to reimburse the Landlord in
respect of any payment made by the Landlord under the terms of or in
connection with this Lease that the Tenant shall also reimburse any
VAT paid by the Landlord on such payment unless the VAT is recoverable
by the Landlord
29
3.34 SUBSTITUTION OF SURETY
To notify the Landlord within 28 days of any of the following events:
3.34.1 If any surety being an individual (or if individuals any one of
them) shall become bankrupt or make any assignment for the
benefit of or enter into any arrangement with his creditors
either by composition or otherwise or have a receiver appointed
under the Mental Health Act 1983
3.34.2 If any surety being an individual (or if individuals any one of
them) shall die
3.34.3 If any surety being a company (or if companies any one of them)
shall be wound up either voluntarily (save for the purpose of
amalgamation or reconstruction) or compulsorily or shall have a
receiver or an administrative receiver appointed or shall for any
reason be removed from the Register of Companies
and within 56 days of any such requirement by the Landlord to procure
that some other person or company reasonably acceptable to the
Landlord shall execute a guarantee in the form set out in Schedule 4
3.35 SUPERIOR TITLE RESTRICTIONS
To observe and perform the covenants and other matters contained or
referred to in the entries on the Register of the freehold title out
of which this Lease is granted so far as the same affect the Premises
and are still subsisting and capable of taking effect
4 SURETY'S COVENANTS
The Surety HEREBY COVENANTS with the Landlord in the manner set out in
Schedule 4
5 LANDLORD'S COVENANTS
The Landlord HEREBY COVENANTS with the Tenant as follows:
5.1 QUIET ENJOYMENT
That the Tenant paying the rents hereby reserved and performing and
observing the covenants and agreements on the part of the Tenant
contained in this Lease shall and may peaceably hold and enjoy the
Premises during the Term without any interruption by the Landlord or
any person rightfully claiming through under or in trust for it
30
5.2 INSURANCE
5.2.1 At all times during the Term (save to the extent that such
insurance shall be voided and subject to such exclusions and
qualifications as the Insurers shall require) to insure and keep
insured the Premises in some reputable insurance office on normal
market terms against loss or damage by the Insured Risks in the
Full Cost of Reinstatement and also against the Loss of Rent and
whenever reasonably required (but not more frequently than once
in every calendar year) to produce to the Tenant relevant details
of such insurance and evidence of the payment for the last
premium for the same and to ensure that the Tenant's interest is
noted on the policy
5.2.2 In the event the Premises or any part thereof shall be damaged
or destroyed by any of the Insured Risks (and so long as such
insurance shall not have been voided) as soon as practicable
after the necessary labour and materials and any necessary
permissions shall have been obtained (and having used reasonable
endeavours to obtain such permissions) to cause all monies
received in respect of such insurance (other than for the Loss of
Rent) to be laid out in reinstating the Premises or the relevant
part thereof (the Landlord making up any shortfall from its own
resources) PROVIDED ALWAYS THAT:
(a) the Landlord shall not be under any obligation to insure any
fixtures or fittings installed by the Tenant which have
become part of the Premises unless the Tenant shall have
previously notified the Landlord in writing of such
installation together with the reinstatement value for
insurance purposes of such fixtures or fittings and the
Landlord has agreed in writing with the Tenant to effect
such insurance at the cost of the Tenant
31
(b) the covenant by the Landlord as to reinstatement shall be
satisfied if the Landlord provides in the premises so
reinstated accommodation as convenient and commodious as is
practicable but not necessarily identical to the Premises as
the same existed prior to such damage or destruction and
(c) if any competent authority shall refuse permission for or
otherwise lawfully prevent any rebuilding or reinstatement
of the Premises or any rebuilding or reinstatement shall be
otherwise impossible impracticable or frustrated all
relevant insurance monies (so far as not laid out as
aforesaid) shall as between the Landlord and the Tenant be
receivable by the Landlord for its own use and benefit
absolutely
5.2.3 The Landlord will at all times liaise with the Tenant in respect
of all aspects of the insurances effected pursuant to the terms
of this clause 5 though on the clear understanding that the
Landlord retains an absolute discretion at all times as to the
amount terms conditions and locus of any cover that may be put in
place
6 PROVISOS
6.1 FORFEITURE
Without prejudice to any other remedies and powers contained in this
Lease or otherwise available to the Landlord:
6.1.1 If the Rents or any part thereof shall at any time be in arrear
for twenty one days after the same shall have become due (whether
formally demanded or not) or
6.1.2 If there shall be any material breach non-
32
performance or non-observance of any of the covenants and
conditions on the part of the Tenant contained in this Lease or
6.1.3 If a Bankruptcy Order or an Administration Order is made in
respect of the Tenant or
6.1.4 If a resolution is passed or an Order is made for the winding-up
of the Tenant otherwise than a member's voluntary winding-up of a
solvent company for the purpose of amalgamation or reconstruction
previously approved by the Landlord (such approval not to be
unreasonably withheld) or
6.1.5 If a receiver or administrative receiver is appointed over the
whole or any part of the property assets or undertaking of the
Tenant or
6.1.6 If the Tenant is struck off the Register of Companies or is
dissolved or (being a corporation or company incorporated outside
Great Britain) is dissolved or ceases to exist under the laws of
the country or state of its incorporation
THEN and in any such case it shall be lawful for the Landlord at any
time thereafter (and notwithstanding the waiver of any previous right
of re-entry) to re-enter into and upon the Premises or any part
thereof in the name of the whole whereupon this Lease shall absolutely
cease and determine but without prejudice to any rights or remedies of
the Landlord in respect of any antecedent breach of any of the
covenants or conditions contained in this Lease
6.2 ABATEMENT OF RENT
If the Premises or any part thereof or access thereto or services
benefiting the same shall be destroyed or damaged by any of the
Insured Risks against which the Landlord covenants to maintain
insurance so as to be unfit for occupation and use (and provided that
the policy or policies of insurance effected by the Landlord in
respect of the Loss of Rent and/or the cost of reinstatement shall not
have been voided) the Yearly Rent (or a fair proportion thereof
according to the nature and extent of the damage sustained) shall be
suspended from the date of the damage or destruction until the
Premises shall have again been rendered fit for occupation and use and
in the event of there being some disagreement as to the proportion or
period of such abatement the same shall be referred to arbitration as
hereinafter provided
6.3 DETERMINATION
If (save where any policy or policies of insurance effected by the
Landlord in
33
respect of the cost of reinstatement shall have been voided) the
Premises or any part thereof or access thereto or services benefiting
the same shall be destroyed or damaged by any of the Insured Risks
against which the Landlord covenants to maintain insurance so as to be
unfit for occupation and use and the same shall not have been rendered
fit for occupation and use within five years thereafter then (without
prejudice to all other rights then available to the parties) either
the Landlord or the Tenant shall be entitled by notice in writing
served upon the other of them at any time thereafter (but before the
Premises shall have again been rendered fit for occupation and use) to
determine this Lease absolutely
6.4 NO IMPLIED EASEMENTS
6.4.1 The operation of Section 62 of the Law of Property Act 1925 and
the rule in Wheeldon v. Burrows shall be excluded from this Lease
and the only rights granted to the Tenant are those expressly set
out in this Lease
6.4.2 Neither the granting of this Lease nor anything contained in
this Lease shall by implication of law or otherwise operate or be
deemed to confer upon the Tenant (nor shall the Tenant during the
Term acquire or become entitled by any means whatsoever to) any
easement right or privilege whatsoever from over against or
affecting any other land or premises now or at any time hereafter
belonging to the Landlord and not comprised in this Lease or any
adjoining or neighbouring premises
6.5 RIGHTS OF LIGHT AND AIR
Any light or air at any time enjoyed shall be deemed to be enjoyed by
consent and not as of right
6.6 NO RESTRICTIONS ON ADJOINING PROPERTY
Neither the granting of this Lease nor anything contained in this
Lease or implied shall:
6.6.1 impose or be deemed to impose any restriction on the use of any
land or building not comprised in this Lease or give the Tenant
the benefit of or the right to enforce or to have enforced or to
prevent the release or modification of any covenant agreement or
condition entered into by any purchaser from or by any lessee or
occupier of the Landlord in
34
respect of property not comprised in this Lease or
6.6.2 prevent or restrict in any way the development of any land not
comprised in this Lease and the Landlord shall have the right at
any time to make such alterations to or to pull down and rebuild
or redevelop any adjoining or neighbouring premises or to permit
the same as it may deem fit without obtaining any consent from or
making any compensation to the Tenant Provided always that the
provisions of this Clause 6.6.2 shall not substantially interfere
with the quiet enjoyment and full beneficial use of the Premises
by the Tenant
6.7 ACCEPTANCE OF RENT
6.7.1 No demand for or acceptance of or receipt of the Rents or the
grant of any licence or approval or the registration of any
document by the Landlord after knowledge or notice received by
the Landlord or its agents of any breach of any of the Tenant's
covenants hereunder shall be or operate as a waiver wholly or
partially of any such breach but any such breach shall for all
purposes of this Lease be a continuing breach of covenant so long
as such breach shall be subsisting and no person taking any
estate or interest under the Tenant shall be entitled to set up
any such demand or acceptance of or receipt for the Rents by the
Landlord as a defence in any action or proceeding by the Landlord
6.7.2 If the Landlord shall properly and reasonably refrain from
demanding or accepting the Rents or any other monies due under
this Lease in circumstances in which the Landlord has reasonable
grounds to believe either that the Tenant is in breach of any of
the provisions of this Lease or that the Tenant might acquire
against the Landlord any rights or entitlement then
notwithstanding such restraint interest at the Prescribed Rate
shall be payable as specified in Clause 3.2 from the due date
until the Landlord shall accept the Rents from the Tenant
35
6.8 ARBITRATION
Any dispute or difference arising between the Landlord and the Tenant
for the settlement of which provision is made in this Lease for
arbitration (save where otherwise provided for) shall be referred to
the decision of a sole arbitrator to be agreed upon by the Landlord
and by the Tenant or in default of agreement to an arbitrator to be
appointed at the written request of either the Landlord or the Tenant
by or on behalf of the then President of the Royal Institution of
Chartered Surveyors (or his nominee) such arbitrator to act in
accordance with the Arbitration Act 1996 and his fees shall be within
his award
6.9 NO COMPENSATION
Except where any Act of Parliament prohibits or modifies the right to
compensation being excluded or reduced by agreement neither the Tenant
nor any undertenant (whether immediate or derivative) shall be
entitled on quitting the Premises or any part thereof to claim any
compensation from the Landlord under the 1954 Act or any other Act of
Parliament whether enacted before or after the date of this Lease
6.10 NOTICES
The provisions of Section 196 of the Law of Property Act 1925 as
amended by the Recorded Delivery Service Act 1962 shall apply to the
giving and service of all notices and documents under or in connection
with this Lease except that Section 196 shall be deemed to be amended
so that the final words of Section 196(4) "... and that service... be
delivered" shall be deleted and there shall be substituted: "... and
that service shall be deemed to be made on the third Working Day after
the registered letter has been posted. "Working Day" meaning any day
from Monday to Friday (inclusive) other than Christmas Day Good Friday
and any statutory bank holiday in England"
6.11 REPRESENTATION
The Tenant acknowledges that this Lease has not been entered into in
reliance wholly or partly on any statement or representation made by
or on behalf of the Landlord except any such statement or
representation that is expressly set out in this Lease
6.12 EFFECT ON WAIVER
Each of the Tenant's covenants shall remain in force notwithstanding
the Landlord may have waived or temporarily released that covenant or
waived or released a similar covenant or condition entered into by any
tenant of any adjoining or neighbouring premises
6.13 RELEASE ON ASSIGNMENT OF REVERSION
The Landlord shall automatically be released from all liability under
the covenants and conditions on the part of the Landlord contained in
this Lease upon the assignment or transfer of its reversionary
interest in the Premises and at the Landlord's request at any time
after such assignment or transfer the Tenant shall enter into a deed
in such form as the Landlord may reasonably require and supply
36
to evidence such release
6.14 SEVERANCE
6.14.1 Any provision in this Lease which is void pursuant to Section
25 of the 1995 Act shall be severed from all remaining provisions
and such remaining provisions shall be preserved
6.14.2 To the extent that any provision in this Lease extends beyond
the limitations set by the said Section 25 but if it did not so
extend it would remain unaffected by the said Section 25 the
provisions shall be deemed to be varied so as not to extend
beyond the said limitations
6.15 DUE DATES
In the event of the Landlord (at the request of the Tenant) granting
any written concession as a result of which the Tenant is entitled to
defer the payment of any monies due then for all purposes in
connection with this Lease (and in particular in relation to Section
17 of the 1995 Act) such monies shall be deemed to fall due on the
subsequent date agreed between the Landlord and Tenant pursuant to the
concession in lieu of the earlier date
7 RENT INCREASE
The amount of the Yearly Rent is to be increased on each anniversary of the
Term Commencement Date to the amount set out in Schedule 2
8 TENANT'S RIGHT OF FIRST REFUSAL
8.1 In the event that the Landlord shall at any time during the
Contractual Term following the expiry of the first five years thereof
wish to sell the Premises then the Landlord shall firstly offer in
writing to sell the same to the Tenant ("the Offer")
8.2 For the purposes of this clause 8 "sell" shall mean the sale of the
freehold of the Premises or the grant of a lease thereof for a term in
reversion to this term in consideration of the payment of a premium
8.3 The Offer shall contain such particularity as to the terms upon which
the Landlord is prepared to sell the Property which would be
sufficient to satisfy the requirements of Section 2 of the Law of
Property (Miscellaneous Provisions) Act 1989 (and shall specifically
include the then current edition of the conditions of sale applicable
to the sale of commercial premises recommended by the Law Society or
the equivalent thereof)
8.4.1 The tenant shall be entitled within 21 days
37
of service of the Offer by notice in writing served upon the
Landlord ("the Counter-notice") to accept or reject the same
8.4.2 In the event that the Tenant shall fail to serve a
Counter-notice within the aforesaid period of 21 days or shall
purport to accept the Offer conditionally then the Tenant shall
in either such case be deemed to have rejected the same.
8.5 In the event of the Tenant rejecting or being deemed to reject an
Offer then the Landlord shall be entitled at any time within six
calendar months thereafter to sell the Premises to any other party
upon the terms of the Offer free from the effect of this clause 8.
Thereafter the Landlord shall not sell the Premises without first
undertaking the foregoing procedure
8.6 In the event of the Tenant rejecting or being deemed to reject an
Offer and the Landlord selling the Premises to another party in
accordance with Clause 8.5 then the Tenant will forthwith thereafter
at its cost take such action as is required to vacate any entries that
the Tenant may hitherto have made against the title of the Landlord to
the Premises at H M Land Registry
8.7 Without prejudice to the terms of the foregoing the Landlord agrees to
afford the Tenant as much notice as possible of any proposals that the
Landlord may have from time to time within the first five years of the
Term to sell the Premises albeit on the understanding that nothing in
this clause 8.7 shall vest in the Tenant any further rights or
interests save that to receive information
9 LATENT DEFECTS
9.1 For the purposes of this Lease a latent defect shall be construed as a
material defect in the construction or design of the physical
structure or the substantial plant and machinery presently erected on
or in the Premises which are at any time hereafter the direct cause of
actual material damage thereto. A latent defect which does not have
this effect is to be disregarded for the purposes of this Clause 9
9.2 In the event that at any time within 10 years from the date hereof (a
period in respect of which time is of the essence of these
arrangements) any damage shall occur to the Premises by reason of an
alleged latent defect then the Tenant may within that period (but not
thereafter) so advise the Landlord in writing ("a Notification"). A
Notification shall only be of effect for the purposes of this Clause
9.2 if it is accompanied by a written report from a chartered building
surveyor fully particularising the damage sustained ("the Damage") and
latent defect alleged to be responsible for the same ("the Defect")
38
9.3 The Landlord may within 56 days of receipt of a Notification advise
the Tenant in writing ("a Counter-notice") whether or not and/or the
extent to which the Landlord accepts or rejects the existence of the
Defect and/or the Damage. If the Landlord fails to serve a
Counter-notice within such period of 56 days then the Landlord shall
be deemed to have served a Counter-notice rejecting the existence of
the Defect and the Damage in their entirety
9.4 For the purposes of enabling the Landlord to assess a Notification the
Tenant shall (without prejudice and in addition to all other rights
granted in this Lease to the Landlord) permit the Landlord to have as
free as possible access to the Premises with workmen advisers and
necessary equipment and to undertake therein such investigations
(including intrusive works which the Landlord shall promptly make
good) as the Landlord shall deem necessary
9.5.1 If the Landlord serves or is deemed to serve a Counter-notice
within the contemplation of Clause 9.3 to the effect that the
Landlord does not accept the Notification in its entirety then
the Tenant shall be entitled within 56 days thereafter to refer
the matter to the decision of an independent chartered building
surveyor ("the Surveyor") to be appointed (in default of
agreement between the parties as to appointment) by the President
or next available senior officer of the Royal Institution of
Chartered Surveyors ("the Institution") upon the application of
the Tenant. The Surveyor shall be an associate or fellow of the
Institution with at least 10 years relevant professional
experience and shall act and conduct his determination as an
arbitrator within the terms of the Arbitration Act 1996. The fees
of the Surveyor shall be paid by the Landlord or the Tenant
according to his discretion
9.5.2 If the Tenant fails to make reference to the Institution as
aforesaid within the period of 56 days above referred to then the
Tenant shall be deemed to have accepted the Counter-notice
9.6 In the event that the existence (in whole or part) of any Defect
and/or Damage is established (whether by agreement between the
Landlord and the Tenant or pursuant to arbitration according to Clause
9.5) then the Landlord and the Tenant shall thereafter use all
reasonable endeavours to agree upon the most cost-effective and
efficient (having regard, inter alia, to the desirability of
39
maintaining as far as possible the continuity of the business being
carried on by the Tenant from the Premises) costed program of works
necessary to make good the Damage ("the Program"). If the Program or
any aspect thereof shall not be agreed between the parties within 56
days of the existence of the Defect and/or Damage being established
then either the Landlord or the Tenant may refer the matter to
arbitration in accordance with Clause 9.5
9.7 The Tenant may within 84 days (but not thereafter) of the agreement or
determination (by whatever means) of the Program submit the same to an
open market competitive tender under the direction of an architect
(being a current member of the Royal Institute of British Architects)
("the Architect") appointed in writing for that purpose and the Tenant
shall accept whichever tender the Architect advises (having regard to
all criteria) is appropriate. The Tenant will thereafter let or
procure the letting of a building contract to the successful tenderer
and engage all necessary professional parties required to undertake
the Program. The Tenant shall procure that the appointed contractor
and the Architect and all of the aforesaid professionals shall within
6 calendar months following the commencement of the Program execute
and deliver to the Landlord (and any mortgagee(s) of the Landlord that
the Landlord may nominate) duties of care deeds of warranties (in the
then current market normal forms allowing for at least two
assignments) to each of which will be appended certified copies of the
building contract or relevant professional appointment (as the case
may be) and shall instruct those parties at all times to supply the
Landlord upon request with such up-to-date information and
documentation with regard to the Program as the Landlord may require
9.8 The Tenant shall be responsible for all of the costs incurred in
undertaking the Program and as soon as reasonably practical following
the completion thereof (being the issue of a final certificate or
equivalent pursuant to the building contract applicable thereto) the
Tenant shall procure that the Architect shall prepare and issue to the
Landlord and the Tenant a comprehensive final certificate as to the
total cost thereof (to include all professional fees and other
ancillary expenses) which the Tenant shall discharge ("the Cost")
9.9 The Landlord shall be entitled to reimburse the Tenant with the Cost
(or such part or parts thereof as the Landlord may determine) at any
time or times and if and when doing so shall pay interest on the
amount so reimbursed at 5% per annum calculated from the date that the
same is incurred until reimbursement
9.10 In the event of the Tenant being granted a New Lease in accordance
with Clause 10 then one-twenty-eighth part of the Cost (which shall
exclude VAT) or such part thereof as shall not previously have been
reimbursed pursuant to Clause 9.9 together with interest thereon at 5%
per annum calculated from the date that the same is incurred until
reimbursement shall be deducted
40
from each of the first 28 consecutive quarterly payments of the annual
rent payable throughout the term thereof
10 TENANT'S OPTION TO RENEW
10.1 If the Tenant (here meaning for the avoidance of doubt the Tenant in
whom this Lease is then lawfully vested and no other party) serves
notice on the Landlord not more than 12 months or less than 3 months
before the expiration of the last day of the Contractual Term ("the
Expiration Date") requesting the Landlord to grant to the Tenant a new
lease of the Premises THEN provided the Tenant has up to and including
the Expiration Date paid to the Landlord the Rents and all other sums
due and demanded under this Lease the Landlord will grant and the
Tenant will accept a new lease of the Premises ("the New Lease") for a
term of 15 years from and including the day immediately following the
last day of the Contractual Term ("the New Lease Commencement Date")
10.2 The New Lease shall otherwise be upon the same terms and conditions as
are contained in this Lease save that:
10.2.1 this Clause 10 shall provide that in the event of the Tenant
subsequently exercising its right to require the grant to it of a
further new lease of 15 years upon the expiry of the term thereby
granted (in 2043) then this Clause 10 shall be omitted from the
further new lease (with intent that the Contractual Term shall
not in any circumstances be capable of being extended beyond 55
years from the Term Commencement Date (until 2058))
10.2.2 this clause 10 shall provide that in the event of the Tenant
subsequently exercising its right to require the grant to it of a
further new lease of 15 years upon the expiry of the term thereby
granted (in 2043) then the Yearly Rent firstly payable in respect
of the further new lease shall be the product of the Yearly Rent
lastly payable pursuant to the New Lease (or such rent that would
have been payable but for any abatement pursuant to Clause 6.2)
and 1.025 and that the same will thereafter increase at annual
intervals on a compounded basis by 2.5% per annum in the same way
as the Yearly Rent reserved by the New Lease would hitherto have
increased and Schedule 2 to that further new lease shall so
provide
41
10.2.3 save for the effect thereon of the operation of Clause 9.10 the
Yearly Rent firstly reserved shall be (pound)7,416,531 and shall
thereafter increase at annual intervals on a compounded basis by
2.5% per annum (in the same way as the Yearly Rent is increased
from and after the fifth year of the Contractual Term in
accordance with the Schedule 2 to this Lease) and Schedule 2 to
the New Lease shall so provide
10.2.4 the words "... following the expiry of the first five years
thereof ..." shall be deleted from Clause 8.1
10.2.5 Clause 9 shall be excluded
11 THE CHATTELS
The Landlord warrants that it is the absolute unfettered proprietor of all
of the Chattels and that there are no impediments of any description to the
same being the subject matter of this Lease
12 APPLICABLE LAW
12.1 This Lease shall be governed by English law
12.2 The parties submit to the non-exclusive jurisdiction of the High Court
of Justice in England
12.3 The Surety irrevocably appoints Stephenson Harwood of 1 St Paul's
Churchyard London EC4M 8SH as its agent for the service of process in
England and Wales service upon whom shall be deemed completed whether
or not forwarded to or received by the Surety
13 THIRD PARTY RIGHTS
Except as permitted prior to the coming into force of the Contracts (Rights
of Third Parties) Act 1999 the parties to this deed do not intend that any
of its terms shall be enforceable by any third party
14 AGREEMENT FOR LEASE
This Lease has been completed in accordance with an Agreement dated 22
October 2002 between (1) the Landlord (2) the Tenant and (3) the Surety
IN WITNESS whereof this document has been executed as a Deed and was delivered
by the parties the day and year first before written
42
SCHEDULE 1
(PARTICULARS OF THE PREMISES)
All those self-contained hotel and theatre premises presently known as The
Bernard Shaw Park Plaza Hotel 100-110 Euston Road London NW1 2AJ as the title to
the freehold thereof comprises the whole of the land and premises presently
registered under title number NGL20662 as the same is edged red on the plan
attached hereto
43
SCHEDULE 2
(INCREASED RENTS)
[Download Table]
Amount of Rent Firstly
reserved to apply from
the relevant Anniversary
of the Term Commencement
Anniversary of the Term Commencement Date Date (L p.a.)
----------------------------------------- ------------------------
First 3,150,000.00
Second 4,000,000.00
Third 4,308,000.00
Fourth 4,415,700.00
Fifth 4,526,093.00
Sixth 4,639,245.00
Seventh 4,755,226.00
Eighth 4,874,107.00
Ninth 4,995,960.00
Tenth 5,120,859.00
Eleventh 5,248,880.00
Twelfth 5,380,102.00
Thirteenth 5,514,605.00
Fourteenth 5,652,470.00
Fifteenth 5,793,782.00
Sixteenth 5,938,627.00
Seventeenth 6,087,093.00
Eighteenth 6,239,270.00
Nineteenth 6,395,252.00
Twentieth 6,555,133.00
Twenty-First 6,719,011.00
44
[Download Table]
Twenty-Second 6,886,986.00
Twenty-Third 7,059,161.00
Twenty-Fourth 7,235,640.00
45
SCHEDULE 3
PART 1
(RIGHTS GRANTED)
The following rights are granted to the Tenant and all other parties authorised
by the Tenant or otherwise entitled to such rights:-
1 the right to display such flags, canopies and other signage as is
appropriate for an hotel of this style and class;
2 the free and uninterrupted access along all passageways serving the
Premises including, for the avoidance of doubt, Weir's Passage;
3 the right to erect such aerials and other telecommunications equipment on
the roof of the Premises as may be necessary for the carrying out of the
Tenant's business at the Premises
PART 2
(RIGHTS RESERVED)
The following rights are reserved to the Landlord and all other persons
authorised by the Landlord or otherwise entitled to such rights:
1 The right to enter upon the Premises for all or any of the purposes
mentioned in this Lease
2 The free and uninterrupted passage and running of water soil gas
electricity and other services from and to all adjoining or neighbouring
premises through and along all the Conduits which are now or may during the
Term be in on over or under the Premises and the right to relay move
maintain and make connections with any of the Conduits and to lay move and
maintain new Conduits PROVIDED that the persons exercising such rights
shall cause as little disturbance and damage as reasonably practicable and
shall make good all physical damage to the Premises occasioned by the
exercise of this right
3 All rights of light or air now subsisting or which might (but for this
reservation) be acquired over any adjoining or neighbouring premises
4 Full rights of support shelter and protection from the elements either now
or intended to be enjoyed in connection with adjoining buildings or
structures erected or to be erected adjoining over or under the Premises
5 The right to demolish build alter and add to and thereafter to maintain
buildings structures and fixtures upon into or projecting over or under or
taking support from the Premises provided that such buildings structures
and fixtures shall not become nor form part of the Premises
6 The mines and minerals under and the airspace surrounding the Premises
46
7 All other easements or other rights in the nature of easements now enjoyed
by any adjoining or neighbouring premises
PART 3
(MATTERS TO WHICH THIS LEASE IS SUBJECT)
1 The matters mentioned in the Property and Charges Registers of Title Number
NGL20662 as at 18th September 2002 (save for Entries 5 and 6 in the Charges
Register)
2 An agreement of _______________ 2002 between (1) The Landlord and (2)
Vodafone Limited pertaining the installation of telecommunications
apparatus at the Premises
PART 4
(INFERIOR LEASE)
[Download Table]
DATE DESCRIPTION PARTIES
---- ----------- -------
05.05.1971 Electricity Sub-Station (1) Epic Commercial Properties Limited
(2) The London Electricity Board
47
SCHEDULE 4
(SURETY'S COVENANTS)
THE SURETY in consideration of this Lease having been granted at the request of
the Surety by way of full indemnity covenants with the Landlord:
1 GUARANTEE OF TENANT'S PERFORMANCE
That for the period during which the Tenant is bound by the tenant's
covenants of this Lease the Tenant will pay the rents and other sums
payable hereunder on the days and in manner aforesaid and will duly perform
and observe all the Tenant's covenants in this Lease and that in case of
default the Surety will pay and make good to the Landlord on demand all
loss damages costs and expenses thereby arising or incurred by the Landlord
2 FURTHER LEASE ON FORFEITURE OR DISCLAIMER
If this Lease is forfeited or disclaimed under any statutory or other power
to take from the Landlord if so required by notice to the Surety within
three months after such forfeiture or within three months after the
Landlord shall receive written notice of such disclaimer a new lease of the
Premises for the residue of the Term unexpired at the date of such
forfeiture or disclaimer and at the Rents then payable and subject to the
terms of this Lease in every respect and to execute and deliver to the
Landlord a counterpart thereof and pay to the Landlord the costs thereof
3 TO MAKE PAYMENTS FOLLOWING FORFEITURE OR DISCLAIMER
If this Lease shall be forfeited or disclaimed and for any reason the
Landlord does not require the Surety to accept a new lease of the Premises
in accordance with the preceding paragraph 2 the Surety shall pay to the
Landlord on demand an amount equal to the rents hereby reserved for the
period commencing upon the date of such forfeiture or disclaimer and ending
on whichever is the earlier of the following: (a) the date six months after
such forfeiture or disclaimer and (b) the date (if any) upon which the
Premises are re-let
4 DISCHARGE
The Surety shall as between the Surety and the Landlord and without
affecting the Tenant's obligations be liable as sole principal debtor as a
primary and separate obligation and not merely as surety or guarantor and
without prejudice to the generality of the foregoing shall not be
discharged from liability under this Lease notwithstanding:
4.1 Any time indulgence concession or waiver granted by the Landlord to
the Tenant or any neglect or forbearance of the Landlord in enforcing
the payment of the rents hereby reserved or the observance or
performance of the covenants or other terms of this Lease
4.2 Any refusal by the Landlord to accept rents tendered by or on behalf
of the Tenant at a time when the Landlord was entitled (or would after
the service of a notice have been entitled) to re-enter the Premises
4.3 The transfer of the Landlord's reversion or the release of any other
48
surety
4.4 (Save to the extent required by section 25 of the 1995 Act) the
assignment of the Lease
4.5 That the terms of this Lease may have been varied by agreement between
the Landlord and Tenant for the time being
4.6 That the Tenant shall have surrendered part of the Premises in which
event the liability of the Surety under this Lease shall continue in
respect of the part of the Premises not so surrendered after the
making of any necessary apportionments
4.7 The dissolution amalgamation reconstruction or reorganisation of the
Tenant or other change in its constitution structure or powers
4.8 The illegality invalidity or unenforceability of or any defect in any
provision of this Lease or any of the Tenant's obligations under it
4.9 Any other act or thing by which but for this provision the Surety
would have been released
5 SECURITY
So long as any sum is or may be owed by the Tenant under this Lease or it
is under any obligation hereunder any right of the Surety by reason of
performance of any of its obligations under this Lease to be indemnified by
the Tenant or to take the benefit of or to enforce any security or other
guarantee or indemnity will be exercised and enforced by the Surety only in
such manner and on such terms as the Landlord may require or approve
6 AVOIDANCE
If any payment received by the Landlord pursuant to the provisions of this
Lease is on the subsequent bankruptcy or insolvency of the Tenant avoided
under any laws relating to bankruptcy or insolvency such payment shall not
be considered as having discharged or diminished the liability of the
Surety and this guarantee will continue to apply as if such payment had at
all times remained owing by the Tenant
7 ADDITIONAL OBLIGATIONS
The Surety's obligations under this Lease are and will remain in full force
and effect by way of continuing security until no sum remains payable under
this Lease and the Tenant has satisfied and performed all its obligations
under this Lease so that the obligations of the Surety are additional to
and not in substitution for any security or other guarantee or indemnity at
any time existing in favour of any person whether from the Surety or
otherwise
8 WAIVER
The Surety waives any right it may have of first requiring the Landlord to
proceed against or enforce any other rights or security or claim payment
from the Tenant or any other person before claiming from the Surety under
this Lease
49
9 TRANSFER OF REVERSION
The Surety agrees that the benefit of the Surety's covenants contained in
this Lease shall pass automatically to the Landlord's successors in title
without the need for express assignment and without any consent being given
by the Surety
50
SCHEDULE 5
(AUTHORISED GUARANTEE AGREEMENT)
THIS AGREEMENT is made the __ day of _________________ 20**
PARTIES
(1) _________ [LIMITED] [PLC] (the "Landlord" ) [whose registered office is at]
[_____________] [________ and]
(2) __________ [LIMITED] [PLC] (the "Tenant") [whose registered office is at
__________ ]
RECITALS:
1 This Deed is supplemental to a Lease (the "Lease") dated the __ day of
__________ 2003 and made between (1) Euston Road Hotel Limited (2) Accor UK
Business and Leisure Hotels Limited and (3) Accor S.A. of the premises more
particularly therein described being the Shaw Park Plaza Hotel 100-110
Euston Road London NW1 2AJ
2 This Deed is entered into pursuant to Section 16 of the Landlord and Tenant
(Covenants) Act 1995
OPERATIVE PROVISIONS as follows:
1 In this Deed the following expressions shall have the following meanings:
1.1 "Assignee" means [_______________]
1.2 "Assignment" means the assignment to the Assignee authorised by the
Licence to Assign
1.3 "Landlord" includes (save where provided to the contrary) his her its
or their respective successors in title and assigns and where two or
more persons are included therein shall also include (as the case may
be) the survivor or the survivors of those persons and shall also
include the personal representatives of a sole individual or last
surviving individual Landlord
1.4 "Licence to Assign" means the consent for the Assignment referred to
in clause 3.19 of the Lease
2 The Tenant hereby irrevocably and unconditionally GUARANTEES to the
Landlord as a continuing guarantee the payment when due of all sums due
owing or outstanding from the Assignee to the Landlord under the Lease and
the due performance by the Assignee of the covenants on the part of the
Tenant under the Lease and agrees to indemnify the Landlord from and
against all losses damages costs and expenses which the Landlord may suffer
through or arising from any failure by the Assignee to perform any of the
covenants on the part of the tenant under the Lease or any failure by the
Assignee duly fully and punctually to pay any such sum or any other sum
required to be paid by it in relation to or otherwise
51
to perform its said obligations
3 The Tenant HEREBY FURTHER COVENANTS irrevocably and unconditionally with
the Landlord that if the Lease is disclaimed the Tenant will (if required
by the Landlord within six months of the Landlord learning of such
disclaimer) accept from and execute and deliver to the Landlord a
counterpart of a new lease of the Property for a term commencing on the
date of such disclaimer and continuing for the residue then remaining
unexpired of the Term the Tenant to be responsible for the proper and
reasonable costs of both parties in connection with such new lease
(together with any Value Added Tax payable thereon) and to reserve the same
rents and other sums as are then reserved and made payable by the Lease and
to be subject to the same covenants conditions and provisions (including
the provisions for the review of rent at the times and in the manner
contained in the Lease) as are contained in the Lease
4 All sums payable hereunder by the Tenant shall be paid immediately on
written demand to the Landlord in full without any deduction withholding
counterclaim or set off
5 Without prejudice to the Landlord's rights against the Assignee as between
the Landlord and the Tenant the Tenant shall be liable hereunder as if it
were solely and principally liable and not merely a surety and its
liability hereunder shall not be released discharged or diminished by:
5.1 any legal limitation lack of capacity or authorisation or defect in
the actions of the Assignee in relation to any invalidity or
unenforceability of any of the terms of the Lease the bankruptcy
insolvency or liquidation (or in the case of an individual Assignee
death or in the case of a corporate Assignee the Assignee ceasing to
exist) of the Assignee or any change in the Assignee's identity
constitution status or control; or
5.2 any forbearance neglect or delay in seeking performance of the
obligations of the Assignee or any granting of time indulgence or
other relief to the Assignee in relation to such performance; or
5.3 any other act or omission fact or circumstance which might otherwise
release discharge or diminish the liability of a guarantor (but
subject to section 17 of the Landlord & Tenant (Covenants) Act 1995)
6 This guarantee is given to the Landlord by the Tenant under seal and shall
enure for the avoidance of doubt not merely for the benefit of the Landlord
but for the benefit of any successor in title (however such title devolves)
of the Landlord
PROVIDED ALWAYS THAT nothing in this Deed shall impose on the Tenant any
liability restriction or other requirement (of whatever nature) in relation to
any time after the date on which the Assignee shall have lawfully assigned this
Lease
IN WITNESS whereof this document has been executed as a deed and delivered by
the parties hereto the day and year first above written
52
EXECUTED as a DEED by )
EUSTON ROAD HOTEL LIMITED )
acting by :
----------------------------------------
Director
----------------------------------------
Director
53
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘20-F’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 6/30/06 |
| For Period End: | | 12/31/05 | | | | | | | 6-K |
| | 1/6/03 | | 1 | | 5 |
| List all Filings |
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