Exhibit 10.9
LEASE
DATED [ ]
DECEMBER, 2005
STEELS (UK) QRS 16-58,
INC.
(as Landlord)
to
MURRAY INTERNATIONAL METALS
LIMITED
(as Tenant)
Land and 3 buildings located
at
NEWBRIDGE INDUSTRIAL
ESTATE
NEWBRIDGE
MIDLOTHIAN
CONTENTS
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Page
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1.
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Lease Of The Premises
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1
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2.
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Definitions
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1
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3.
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Interpretation
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6
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4.
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The Grant; Rent
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6
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5.
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Lease Term
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7
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6.
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Condition; Single Lease Transaction
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7
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7.
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Insurance
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7
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7.2
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Reinstatement
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9
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7.3
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Landlord’s insurance
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10
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8.
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Tenant’s Obligations
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10
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8.1
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Rent
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10
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8.2
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Repair and Replacement
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10
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8.3
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Alterations and additions
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11
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8.4
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Signs and reletting notices
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12
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8.5
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Use; Occupancy
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12
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8.6
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Not to overload
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12
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8.7
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Entry
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12
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8.8
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Compliance with Law
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13
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8.9
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Outgoings, costs and fees
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14
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8.10
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Taxes
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14
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8.11
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General requirements concerning use
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14
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8.12
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Indemnity
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15
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8.13
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Corporate and Financial Covenants
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15
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8.14
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Environmental requirements
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15
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8.15
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Post-Closing Obligations
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16
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8.16
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The Construction (Design and Management)
Regulations 1994
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17
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8.17
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Compulsory Acquisition
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18
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8.18
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Restoration
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19
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9.
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Landlord’s Obligations
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20
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10.
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Determination of Value
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21
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11.
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Procedures upon Purchase
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22
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12.
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Alienation
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22
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13.
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Breach Events
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25
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14.
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Breach/Irritancy
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27
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15.
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General Provisions
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28
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15.1
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Service of notices
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28
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15.2
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No liability in damages
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29
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15.3
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Failure to perform obligations
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29
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15.4
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Waiver of right to forfeit
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29
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15.5
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Tenant’s goods left in
Premises
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29
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15.6
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Covenants relating to adjoining
premises
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30
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15.7
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Entire understanding; Schedules
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30
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15.8
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Severance
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30
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15.9
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Intentionally Deleted
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30
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15.10
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Non-recourse
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30
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15.11
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Option to Purchase
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30
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15.12
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Amendments
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31
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15.13
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Successors and Assignees
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31
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15.14
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Governing Laws
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31
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15.15
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Consent Standard
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31
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15.16
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OFAC Representation
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32
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15.18
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Consent to Registration
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32
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Schedule
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1.
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Land
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34
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2.
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Title Conditions
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35
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3.
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Reserved Rights
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36
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4.
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Provisions for Rent Review
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37
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5.
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Corporate and Financial Covenants
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39
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6.
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Option to Purchase
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40
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7.
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Percentage Allocation of Basic Rent
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41
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8.
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Tenant’s Post Closing
Obligations
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42
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9.
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Particulars
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43
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10.
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Guarantee
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44
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THIS LEASE is made
BETWEEN:
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(1)
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STEELS (UK)
QRS 16-58, INC. , a
company incorporated under the laws of the State of Delaware
(United States) with its address at a/o W.P. Carey & Co.
LLC, 50 Rockefeller Plaza, Second Floor, New York, New York, 10020,
USA, Attn: Director, Asset Management (the Landlord);
and
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(2)
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MURRAY
INTERNATIONAL METALS LIMITED, incorporated under the Companies Acts with
company number 1241058 with its address at 95 High Street, Edgware,
Middlesex HAS 7BD (the Tenant).
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IT IS AGREED AS
FOLLOWS:
Landlord hereby lets to Tenant, and
Tenant hereby takes and leases from Landlord the Premises for the
Term and upon the provisions hereinafter provided.
In this lease agreement the
following expressions have the following meanings:
Additional Rent
means any and all sums whatsoever
(other than the Basic Rent) payable by the Tenant to the Landlord
under the provisions of this Lease together with all VAT payable on
such sums;
Additional Rights
means all wayleaves, servitudes,
rights-of-way, rights, parts, privileges and pertinents, in and to
the Land, including wayleaves and servitudes over other lands
formally constituted by any express agreement;
Affected Premises
means the Affected Premises as
defined in clause 8.17.4;
Alteration or
Additions means all
alterations and additions made to any part of the Premises
including without limitation additions or alterations to the Plant,
changes to the existing design or appearance of the Premises or any
alteration in or extension to the electrical installations located
in the Premises or the erection of any new building;
Basic Rent
means £1,198,650 per annum
from the Commencement Date as increased in accordance with the
provisions of Part 4 of the Schedule;
Breach Event means any of the events set out in clause
13;
Buildings means the 11,114 square foot, two-storey office
building constructed on the Land described in section (A) of
Part 1 of the Schedule which is part of the Office Premises; the
145,620 square foot manufacturing building constructed on the Land
described in section (B) of Part 1 of the Schedule which is
part of the Manufacturing 1 Premises; and the approximately 56,660
square foot manufacturing facility constructed on the Land
described in section (C) of Part I of the Schedule which is
part of the Manufacturing 2 Premises;
CA Termination Date
means the CA Termination Date as
defined in clause 8.17.4.
Cash Security Deposit
means Cash Security Deposit as
defined in. clause 8.15.3;
Casualty means any damage to, or destruction of, any
Related Premises;
1
Commencement Date
means [ ]
December, 2005;
Competent Authority
means any national or local
governmental agency, body or other entity having enforcement or
regulatory powers in Scotland in respect of any Environmental
Law;
Compulsory Acquisition
means any expropriation or taking of
all or a portion of any Related Premises (1) in or by
compulsory purchase, vesting order or any other Acts or proceedings
of Parliament, the Scottish Parliament, the European Community, any
local or governmental authority and any court or agency pursuant to
any Law, general or special, or (ii) by reason of any
agreement with any of the foregoing bodies in settlement of or
under threat of any such proceedings, or (iii) by any other
means. The Compulsory Acquisitions shall be considered to have
taken place as of the later of the date actual physical possession
is taken by the acquirer, or the date on which the right to
compensation and damages accrues under the law applicable to the
Premises;
Compulsory Acquisition
Notice means notice or
actual knowledge of the institution of or intention to institute
any proceeding for Compulsory Acquisition;
Credit Entity
means any Person that immediately
following such assignation or subletting and having given effect
thereto will have a publicly traded unsecured senior debt rating of
“Baa2” or. better from Moody’s Investor Services,
Inc. or a rating of “BBB” or better from
Standard & Poor’s Corporation (or, if such Person
does not then have rated debt, a determination that by either of
such rating agencies its unsecured senior debt would be so rated by
such agency and will not be on “Negative Credit
Watch”), and in the event both such rating agencies cease to
furnish such ratings, then a comparable rating by any rating agency
acceptable to Landlord.
Dangerous Substances means any substance (whether in the
form of a solid, liquid, gas or vapour) the generation, keeping,
transportation, storage, treatment, use or disposal of which gives
rise to a risk of causing harm to man or to any other living
organism or causing damage to the environment and includes (but
without limitation) any controlled special, hazardous, toxic,
radioactive or dangerous waste;
Environmental Law
means any and all laws (including
common law) or regulations existing, adopted, made, commenced,
introduced or otherwise brought into force in Scotland prior to or
after the date of this Lease and byelaws, judgments, notices,
orders, directions, instructions or awards of any Competent
Authority and which have as purpose or effect the protection of the
environment and/or the prevention of harm or damage to the
environment, to human health or to the health of any other living
organism or to property;
Environmental Permits
means any and all consents, permits
or authorisations required under Environmental Law in connection
with the Tenant’s use and occupation of the
Premises;
Fair Market Value
means the fair market value of each
of the Related Premises as of the date of the Option Exercise
Notice and assuming that each Related Premises is (i) in the
condition required by this Lease and (ii) encumbered by this
Lease and assuming the Term has been extended for all extension
periods provided herein as described in clause 10. For all purposes
of this Lease, Fair Market Value shall be determined in accordance
with the procedure specified in clause 10;
Fair Market Value Date
means the date when the Fair Market
Value is determined in accordance with clause 10;
GAAP means generally accepted accounting principles,
standards and practices in the United Kingdom consistently
applied;
Guarantee means each of (i) the Guarantee of even
date granted by the Guarantor to Landlord
2
and (ii) the Guarantee to be
granted by Murray International Metals PTE Limited, incorporated
under the Singapore Companies Acts with company number 2002201097M
with its registered address at 438 Alexandra Road #04-01, Alexandra
Point, Singapore 119958, to Landlord in the form annexed
hereto as Part 10 of the Schedule as provided in the provisions of
clause 8.15.2;
Guarantor means, jointly and severally, (i) the
Guarantor defined in Part 9 of the Schedule and (ii) subject
to clause 8.15.2, Murray International Metals PTE Limited,
incorporated under the Singapore Companies Acts with company number
2002201097M with its registered address at 438 Alexandra Road
#04-01, Alexandra Point, Singapore 119958;
Holding Company
has the meaning given to it in
sections 736 of the Companies Act of 1985 (as amended);
Initial Term
means Initial Term as defined in
Part 9 of the Schedule and in clause 5.1;
Insurance Premiums
means all sums payable by the Tenant
pursuant to clause 7;
Insured Risks
means the risks insured to be
against under clause 7.1.1;
Interest means interest at the Interest Rate payable from
the date of demand by the Landlord (or if earlier the date at which
monies become due or at which the Landlord expends monies in
respect of which interest is required under this Lease) until the
date of payment to the Landlord compounded on an annual basis, to
the extent permitted by Law;
Interest Rate
means Interest Rate as defined in
Part 9 of the Schedule;
Invoice means any invoice issued by Landlord to Tenant
for the payment of Additional Rent or other amounts (except for
Basic Rent) to be paid by Tenant to Landlord under the terms of
this Lease;
Land means the land described in Part 1 of the
Schedule;
Landlord means the Person first named herein as Landlord
and its successors and assignees;
Law includes any constitution, decree, judgment,
legislation, order, ordinance, regulation, statute, statutory
instrument, treaty or other legislative measure having effect in
Scotland and any present or future directive, regulation,
guideline, practice, concession, request or requirement issued by
any Scottish or non-Scottish government body, agency or department
or any central bank or other fiscal, monetary, regulatory, self
regulatory or other authority or agency which has authority in
Scotland;
Lease means this Lease;
Lease
Year means, with respect to the first
Lease Year, the period commencing on the Commencement Date and
ending at midnight on the last day of the twelfth (12
th
) full
consecutive calendar month following the month in which the
Commencement Date occurred, and each succeeding twelve
(12) month period during the Term;
Lender means any Person (and its respective successors
and assignees) which may, on or after the date hereof, make a Loan
to the Landlord;
Letter of Credit
means Letter of Credit as defined in
clause 8.15.3;
Loan means any loan made by Lender to the
Landlord;
Net Award means the entire award payable to the Landlord
by reason of a Compulsory
3
Acquisition or insurance proceeds
payable by reason of a Casualty whether pursuant to a judgment or
by agreement or otherwise, less any expenses incurred by the
Landlord in collecting such award or proceeds;
OFAC means the Office of Foreign Asset Control of the
Department of the Treasury of the United States of America,
codified at 31 C.F.R. Part 500 (including those named on
OFAC’s Specially Designated and Blocked Persons list) or
under any statute, executive order (including the
September 24, 2001, Executive Order Blocking Property and
Prohibiting Transactions with Persons Who Commit, Threaten to
Commit, or Support Terrorism);
Offer Amount
means the sum of the Fair Market
Value of the Premises and the applicable Prepayment Premium which
the Landlord will be required to pay in prepaying any Loan with
proceeds of the Offer Amount;
Option means Option as defined in Part 6 of the
Schedule;
Option Exercise Notice
means Option Exercise Notice as
defined in Part 6 of the Schedule; Outgoings means Outgoings as
defined in clause 8.9.1;
Partial Compulsory
Acquisition means any
Compulsory Acquisition of a Related Premises which is, in the
reasonable opinion of the Landlord, of non-material part(s) of such
Related Premises;
Permitted Use
means Permitted Use as defined in
Part 9 of the Schedule;
Person means an individual, legal person or other
entity having no legal personality under the Law;
Planning Acts
means the Town and Country Planning
(Scotland) Act 1997, the Planning (Hazardous Substances) (Scotland)
Act 1997, the Planning (Listed Buildings and Conservation Areas)
(Scotland) Act 1997 and the Planning (Consequential Provisions)
(Scotland) Act 1997 or any statutory modifications or re-enactments
thereof for the time being in force and any rules, regulations or
others made thereunder or otherwise relating to the development or
use of properties;
Plant means all plant and machinery now in or serving
the Premises including (but without limitation) all window cleaning
plant and machinery, all electrical systems, all fire detection and
fire prevention systems, all cranes and all related control or
monitoring systems and installations and dock loading bays and
together also with all plant and machinery which may from time to
time be installed to replace any item of the foregoing and provided
that all items comprising Tenant’s fittings, plant and
machinery used in the operation of its business (exclusive of any
cranes at the Premises on the Commencement Date) shall not be
included in this definition of Plant;
Post Closing
Obligations shall mean
those obligations of Tenant specified in Part 8 of the
Schedule.
Preapproved Assignee
shall mean a Credit Entity or any
Person that is and continues for the balance of the Term to be a
member of Tenant’s Group.
Premises means the Office Premises, the Manufacturing 1
Premises and the Manufacturing 2 Premises, which shall include the
portions of the following items now or hereafter located thereon or
therein and appertaining thereto: (i) the Additional Rights,
(ii) the Buildings, and (iii) the Plant;
Prepayment Premium
means any payment required to be
made by the Landlord to a Lender
4
under a Loan solely by reason of any
prepayment by the Landlord of any principal due under a
Loan;
Quarter days
means the Scottish Quarter Days,
namely Candlemas (28 February), Whitsunday (28 May), Lammas (28
August) and Martinmas (28 November) in each year;
Related Premises
means all or any one of the Office
Premises, Manufacturing I Premises and Manufacturing 2
Premises;
Relevant Person
means Relevant Person as defined in
clause 12.11;
Remaining Premises
mean the Related Premises which are
not Affected Premises; Renewal Term means Renewal Term as defined
in clause 5.2;
Rent means Basic Rent and Additional Rent;
Rent Payment Date
means (a) with respect to each
payment of Basic Rent each Quarter day during the Term and
(b) with respect to any payment of Additional Rent which is to
be made to Landlord (as opposed to a third Person) within five
(5) days following receipt of an Invoice;
Rent Review
means an adjustment of Rent in
accordance with the provisions of Part 3 of the
Schedule;
Rent Review Date(s)
are as described in Part 4 of the
Schedule;
Requisite Notice
means a notice to the Tenant forty
eight (48) hours before any entry is made on any Related
Premises provided that in the case of an emergency no notice will
be required;
Schedules means the schedule in ten (10) parts
annexed and signed as relative hereto, which Schedule shall be
treated as forming part of this Lease;
Scottish RICS
means the Scottish Branch of The
Royal Institution of Chartered Surveyors; Secured Creditor means
Secured Creditor as defined in clause 13.1.2;
Security Deposit
means Security Deposit as defined in
clause 8.15.2;
Standard Security
means any document which secures the
Landlord’s obligation repay a Loan;
Subsidiar(y)(ies)
has the meaning given to it in
sections 736 of the Companies Act 1985 (as amended);
Surviving Obligations
means any obligations of Tenant
under this Lease, actual or contingent, which arise on or prior to
the expiration or prior termination of this Lease or which survive
such expiration or termination by their own terms.
Tenant shall mean the said Murray International Metals
Limited and successors in title which are permitted by the terms of
this Lease subject always to the provisions of clause
12.2;
Tenant’s Group
means the Tenant and all its
subsidiaries, from time to time, any Holding Company of the Tenant,
from time to time, and all subsidiaries of any such Holding
Company, from time to time;
Term means the Initial Term and any effective Renewal
Term;
Termination Date
means the date of expiration or
sooner determination of the Term;
5
Termination Event
means a Termination Event as defined
in clause 8.17.4.
Termination Notice
means a three (3) month notice
from the Tenant to the Landlord under clause 8.17.4 that the Tenant
is electing to terminate the Lease as permitted
thereunder;
Title Condition
means a real burden, title
condition, reservation, wayleave, condition, servitude or provision
or restriction contained in the title to the Premises or applicable
at common law or by statute affecting the Premises; and
VAT means Value Added Tax as defined in the Value
Added Tax Act 1983 and shall include any tax of a similar nature
imposed in substitution for on in addition to that tax.
In this Lease:
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3.1
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Where any act
is prohibited the Tenant will not allow or suffer such act to be
done by someone under the Tenant’s direction or control
(which shall include any sub tenant or assignee).
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3.2
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The clause
headings (except for the definitions) are for ease of reference and
are not to be used for the purposes of construing this
Lease.
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3.3
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References to
clause numbers or schedules or paragraphs in schedules mean the
clauses of or schedules to or paragraphs in schedules to this
Lease.
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3.4
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Words importing
persons include farms, companies and corporations and vice
versa.
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3.5
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Words importing
one gender will be construed as importing any other
gender.
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3.6
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Words importing
the singular will be construed as importing the plural and vice
versa.
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The Landlord LETS to the Tenant ALL
and WHOLE the Premises EXCEPTING AND RESERVING to the Landlord the
reserved rights specified in Part 2 of the Schedule from and
including the Commencement Date for the Term SUBJECT to all title
conditions, rights, servitudes, easements privileges restrictions,
burdens and stipulations of whatever nature affecting the Premises
and FURTHER SUBJECT to the obligations and other matters contained
in or referred to in the Part 2 of the Schedule FOR WHICH CAUSES
the tenant undertakes to pay to the Landlord:
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4.1
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The Basic Rent during the Term
annually and from and including the Commencement Date. Basic Rent
shall be paid quarterly, i.e., for the next three (3) calendar
months, in each case to be paid by quarterly payments in advance on
each Rent Payment Date in every Lease Year, the first (1
st
) such payment
to be made on the Commencement Date and to be in respect of the
period from and including the Commencement Date to and including
the day immediately preceding the next following Quarter day. For
avoidance of doubt, the Basic Rent is a net amount and each
instalment will therefore be increased by the applicable VAT. Basic
Rent shall be deemed allocated among the Premises in the
percentages specified in Part 6 of the Schedule.
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4.2
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From and
including the Commencement Date the Tenant shall pay Additional
Rent, including all Outgoings, interest, VAT on all such Additional
Rent and Outgoings and any and all other taxes or sums whatsoever
as become payable or refundable by the Tenant to the Landlord or
any other Person under the provisions of this Lease.
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4.3
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If required by the Landlord the
Tenant shall pay the Basic Rent reserved by clause 4.1 and
VAT
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6
by cleared funds transfer or
banker’s standing order to one (1) bank account in the
United Kingdom which the Landlord has notified in writing to the
Tenant from time to time.
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5.1
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The initial
term of this Lease shall be for a period of twenty-five
(25) years (the Initial Term), commencing on the Commencement
Date.
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5.2
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The Initial
Term will automatically be extended for two further terms of ten
(10) years each (each such period, a Renewal Term) unless the
Tenant gives written notice to the Landlord not less than twelve
(12) months prior to the end of the Initial Term with respect
to the first extension and twelve (12) months prior to the end
of the first Renewal Term with respect to the second extension that
it does not wish to extend the term, and the terms and conditions
in this Lease shall apply to any such extension (except that the
Tenant shall not be entitled to any additional extensions). For the
sake of clarity, each extension of the Initial Term shall be
confirmed in writing by the Tenant and the Landlord not later than
one (1) month following the beginning of such Renewal
Term.
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6.
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CONDITION;
SINGLE LEASE TRANSACTION
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6.1
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The Tenant
acknowledges that the Premises are in good and substantial
condition and repair at the inception of this Lease and in all
respects fit for the purpose for which they are let. THE LANDLORD
LEASES AND WILL LEASE AND THE TENANT TAKES AND WILL TAKE THE
PREMISES AS IS AND WITH ALL FAULTS. THE TENANT ACKNOWLEDGES THAT
THE LANDLORD (WHETHER ACTING AS THE LANDLORD HEREUNDER OR IN ANY
OTHER CAPACITY) HAS NOT MADE AND WILL NOT MAKE, NOR SHALL THE
LANDLORD BE DEEMED TO HAVE MADE, ANY WARRANTY OR REPRESENTATION,
EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF THE PREMISES. THE TENANT
ACKNOWLEDGES THAT THE PREMISES ARE OF ITS SELECTION AND TO ITS
SPECIFICATIONS AND THAT THE PREMISES HAVE BEEN INSPECTED BY TEE
TENANT AND ARE SATISFACTORY TO IT. IN THE EVENT OF ANY D SECT OR
DEFICIENCY IN ANY OF TEE PREMISES OF ANY NATURE, WHETHER LATENT OR
PATENT, THE LANDLORD SHALL NOT HAVE ANY RESPONSIBILITY OR LIABILITY
WITH RESPECT THERETO OR FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES
(INCLUDING STRICT LIABILITY IN DELICT). THE PROVISIONS OF THIS
CLAUSE 6.1 HAVE BEEN NEGOTIATED, AND ARE INTENDED TO BE A COMPLETE
EXCLUSION AND NEGATION OF ANY WARRANTIES BY THE LANDLORD, EXPRESS
OR IMPLIED, WITH RESPECT TO ANY OF THE PREMISES.
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6.2
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THE LANDLORD
AND THE TENANT AGREE THAT IT IS THEIR MUTUAL INTENT TO CREATE, AND
THAT THIS LEASE CONSTITUTES, A SINGLE LEASE WITH RESPECT TO EACH
AND EVERY PARCEL OF LAND, IMPROVEMENTS INCLUDED IN ANY AND ALL OF
THE PREMISES (WHEREVER LOCATED), THAT THIS LEASE IS NOT INTENDED
AND SHALL NOT BE CONSTRUED TO BE SEPARATE LEASES AND THAT ALL THE
TERMS AND CONDITIONS HEREOF SHALL GOVERN THE RIGHTS AND OBLIGATIONS
OF THE LANDLORD AND TEE TENANT WITH RESPECT THERETO. ANY BREACH
EVENT HEREUNDER IN CONNECTION WITH ANY RELATED PREMISES SHALL BE
DEEMED TO BE A BREACH EVENT WITH RESPECT TO THE ENTIRE PREMISES
(WHEREVER LOCATED). THE FOREGOING AGREEMENTS AND WAIVERS BY THE
TENANT IN THIS CLAUSE 6.2 ARE MADE AS A MATERIAL INDUCEMENT TO THE
LANDLORD TO ENTER INTO THE TRANSACTION CONTEMPLATED BY THIS LEASE
AND THAT, BUT FOR TEE FOREGOING AGREEMENTS AND WAIVERS BY THE
TENANT, THE LANDLORD WOULD NOT CONSUMMATE THIS LEASE
TRANSACTION.
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7
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7.1.1
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insure the
Premises, pay the Insurance Premiums and maintain the following
insurance in the joint names of the Landlord and the Tenant and if
reasonably requested by the Landlord with cover also being in the
joint names of any Lender or with the interest of any Lender being
noted on the policy (and with the Lender being loss payee), for
their full reinstatement value, including the costs of demolition
and site clearance, temporary works, compliance with local
authority requirements in connection with any works of repair or
reinstatement, architects’, surveyors’ and other
professional fees and other incidental expenses, and in each case
with due allowance for inflation and VAT, against;
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(i)
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loss or damage
by fire, explosion, storm, tempest (including lightning), flood,
earthquake, burst pipes, impact, heave, subsidence and (in
peacetime) aircraft and articles dropped therefrom, riot,
terrorism, civil commotion and malicious damage impact by road
vehicles and such other risks against which the Landlord may from
time to time deem necessary to insure (or the Tenant may from time
to time request in writing) acting reasonably;
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(ii)
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the loss of
rent payable under this Lease from time to time (having regard to
the review of Basic Rent which may become due under this Lease) for
three (3) years or for such longer period as the Landlord and
the Tenant may from time to time agree to in writing as being
sufficient or for the purposes of planning and carrying out any
reinstatement of the Premises following a Casualty or a Partial
Compulsory Acquisition;
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(iii)
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civil liability
in the joint names of the Landlord and the Tenant arising out of or
in connection with any matters involving or relating to the
Premises in an amount satisfactory to the Landlord, acting
reasonably; and
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(iv)
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such other
insurance coverage as the Landlord shall reasonably
request.
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7.1.2
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at least one
(1) month prior to modifying or replacing any insurance
required under clause 7.1, provide the Landlord with full details
of the proposed insurance for the Landlord’s approval
including, but not limited to, details of the insurer, the form of
policy, any excesses and deductible exclusions and limitations
under the policy, details of the full reinstatement value including
all professional fees, and details of all other amounts insured
under the policy provided that in the absence of the Tenant
receiving an objection in writing from the Landlord prohibiting the
same, nothing shall prohibit the Tenant from renewing, modifying or
replacing any insurance required under clause 7.1.1 as
proposed;
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7.1.3
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at all times
that all insurance policies contain
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(i)
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a clause
whereby such insurance policy will not be vitiated or avoided as
against a Lender or a security holder in the event or as a result
of any misrepresentation, act or neglect or failure to make
disclosure on the part of the insured party or any circumstances
beyond the control of any insured party; and
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(ii)
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terms
prohibiting the insurer from vitiating or avoiding any insurance
policy as against a Lender or a security holder in the event of any
misrepresentation, act or neglect or failure to make full
disclosure on the part of the Landlord, the Tenant or other insured
party and a waiver of all rights of subrogation in favour of
Landlord and Lender.
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7.1.4
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notify the
Landlord of any material changes in the risks covered and the terms
of the insurance policy from time to time and also, subject to the
time period set out in 7.1.2 above, at any time at the request of
the Landlord, produce details to the Landlord of the terms of the
current insurance policy and evidence of the payment of the current
premium;
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7.1.5
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pay within ten
(10) days of demand the reasonable costs incurred or payable
by the Landlord in connection with the Landlord obtaining any
valuation of the Premises for insurance purposes, as long as such
valuation is made at least three (3) years after any previous
such valuation;
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8
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7.1.6
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comply with the
reasonable requirements of the insurers relating to the
Premises;
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7.1.7
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promptly, but
in any event within three (3) days of the occurrence, give the
Landlord written notice of any damage to or destruction of the
Premises;
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7.1.8
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pay the
Landlord within ten (10) days of demand the reasonable costs
incurred by the Landlord in connection with any insurance claim
relating to the Premises arising from any insurance taken out by
the Landlord pursuant to clause 7.3;
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7.1.9
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provide to
Landlord certificates and certified copies of policies and receipts
with respect to the payment of premium within thirty (30) days
following issue of certificates and policies; and
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7.1.10
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ensure that the
Lender is entitled to the right of subrogation under the
policies.
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7.2.1
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If any part of
any Related Premises is damaged by any of the Insured Risks then
subject to:
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(ii)
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the Landlord
receiving the Net Award;
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(iii)
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the Tenant
paying the difference, if any, between the cost of reinstatement
and the Net Award to the extent necessary in order to complete
reinstatement of such Related Premises;
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(iv)
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the Tenant not
being in arrears with the Rent; and
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(v)
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there are no
administrative, technical or legal grounds that would render a
reinstatement impossible.
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upon receipt of any Net Award the
Landlord will in accordance with clause 8.18 make the Net Award
available to the Tenant (except those amounts relating to fees and
loss of Rent) for the Tenant to apply in reinstating the damaged
Related Premises. The Tenant will pay to the Landlord within
fifteen (15) days of demand the amount equivalent to any
policy excess which may be applicable to such insurance.
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7.2.2
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If the payment
of any insurance monies is refused for any reason, the Tenant will
pay to the Landlord within fourteen (14) days of demand the
amount so refused.
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7.2.3
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The Landlord
will not be obliged to comply with the obligations under clause
7.2.1 if payment of the insurance monies has been refused in whole
or in part by reason of any act or default of the Tenant or anyone
under its control and the Tenant has not complied with its
obligations in clauses 7.2.1 and 7.2.2.
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7.2.4
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For the
avoidance of doubt, nothing in this Lease imposes an obligation on
the Landlord at any time, for any reason, to reinstate the damaged
Related Premises.
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7.2.5
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This lease
shall not terminate as a result of a Casualty but shall,
notwithstanding any Casualty, damage or destruction and any rule of
law to the contrary, remain in full force and effect and the Tenant
shall not be entitled to terminate it. In addition, the Tenant
shall, as soon as possible, be obliged to arrange for the
performance of construction work aimed at reinstating the Premises.
The detailed scope and the schedule for the works, as well as the
selection of a contractor, will be subject to the Landlord’s
approval. The Tenant shall ensure that such contractor grants a
construction quality guarantee (as to the performed reinstatement
works) for the joint benefit of the Landlord and the
Tenant.
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9
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7.3.1
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If the Tenant
fails to produce satisfactory evidence that it is complying with
clause 7.1, or the Landlord otherwise has reasonable grounds for
believing that the Tenant is or may be in breach of its obligations
in clause 7.1 or as may be required by a Lender, then the Landlord
may effect and maintain insurance of the Premises against any of
the Insured Risks at its discretion and the Tenant shall pay to the
Landlord within five (5) days of demand the cost to the
Landlord of effecting such insurance.
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7.3.2
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Immediately
upon the Landlord giving notice to the Tenant that the Landlord has
insured the Premises against any of the Insured Risks, the Tenant
shall not maintain or take oat any insurance of the Premises for
such risks in its own name.
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7.3.3
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All insurance
monies payable under any insurance taken out by the Landlord shall
belong to the Landlord; provided, however, that any Net Award shall
be made available by the Landlord to the Tenant for the restoration
of the Premises pursuant to and in accordance with the provisions
of clauses 8.18.1 and 8.18.2, as applicable
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7.4
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If any part of
the Premises is damaged by any of the Insured Risks and becomes
unfit for occupation or use and the policy or policies of insurance
shall not have been vitiated or payment refused in whole or in part
as a result of some act or default of the Tenant or anyone under
its control and the Landlord has received the monies in respect of
loss of rent referred to in clause 7.1.1 from the insurers
then,
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(i)
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in the case of
a total loss, the Tenant’s obligation to pay Rent;
and
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(ii)
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in the case of
a partial loss, the Tenant’s obligation to pay a fair
proportion of the Rent,
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will be suspended until the earlier
of the date on which Premises are fit for occupation or the date on
which the monies received by the Landlord in respect of loss of
rent insurance have been exhausted.
In relation to calculating the fair
proportion, the Basic Rent that shall be payable shall be based
upon the proportion of the usable portion of the damaged Related
Premises. Any dispute regarding the amount of said suspension of
Basic Rent shall be referred to the award of a single arbiter to be
appointed in default of agreement upon the application of either
party by the Chairman (or other Senior Office Holder) for the time
being of the Scottish RIGS in accordance with the provisions of the
Arbitration Acts but further providing that under no circumstances
shall the amount of Basic Rent which ceases to be payable under
this Lease exceed the amount received by the Landlord in respect of
loss of rent referred to in clause 7.1.1.
The Tenant undertakes to the
Landlord:
To pay the Rent and other amounts
reserved by this Lease in accordance with the Lease without
deduction or set-off and if the Basic Rent first reserved under
this Lease is not paid on the applicable Rent Payment Date or the
Additional Rent under this Lease is not paid within four
(4) days of the applicable Rent Payment Date or any other sums
due under this Lease are unpaid for more than seven (7) days
after the due date or if any sums due under this Lease are refused
as a result of any breach or any anticipated breach of obligation
by the Tenant to pay interest at the Interest Rate.
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8.2
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Repair and
Replacement
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10
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8.2.1
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At all times to
repair or if necessary (in the opinion of a surveyor from a
nationally recognised firm of chartered surveyors as chosen by the
Landlord) to replace (including roof structure mechanical and
electrical installations and equipments) and to keep the Premises
(including any part unbuilt upon) in good and substantial repair
and condition irrespective of the cause of disrepair, damage and/or
destruction and whether arising as a result of any defect, whether
patent, latent and/or inherent or otherwise, and to yield up the
same at the Termination Date in accordance with the obligations by
the Tenant contained in this Lease.
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8.2.2
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To keep the
Premises in a clean and tidy condition and properly cleansed and
free from obstruction.
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8.2.3
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To comply with
the terms of all warranties, guarantees or similar documents which
apply to all or any part of the Premises.
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8.2.4
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To repair or
replace forthwith by articles of similar kind and quality and at
its own expense any Plant (other than the Tenant’s or trade
fixtures and fittings) in the Premises which shall become in need
of repair or replacement.
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8.2.5
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To keep any
part of the Premises which may not be built upon adequately
surfaced in good condition swept clean and all landscaped areas
properly cultivated and free from weeds and to ensure all grassed
areas are mown and all parking spaces adequately stripped and
surfaced and free from ice and snow as and when necessary so that
the same shall have a neat and tidy appearance at all
times.
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8.3
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Alterations
and additions
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8.3.1
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Not to make any
Alterations or Additions to any part of the Premises without (in
all cases) obtaining the written prior consent of the Landlord if
the effect of such Alterations or Additions is reasonably likely to
adversely affect the market value of the Premises or any part
thereof and, in any event, the Landlord may require the security or
guarantee referred to in clause 8.3.3(ii) in respect of
reinstatement.
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8.3.2
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If the Tenant
makes any Alterations or Additions to the Premises in breach of
this clause 8.3 then, in addition to any other remedies and powers
available to the Landlord (and without prejudice to them) the
Landlord may remove and reinstate such Additions or Alterations and
the proper cost of carrying out such work will be repaid to the
Landlord by the Tenant within fourteen (14) days of
demand.
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8.3.3
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Unless the
Landlord directs the Tenant in writing to the contrary, to remove
no later than the Termination Date any Alterations, Additions or
improvements made to the Premises, remove any plant and machinery
installed by the Tenant at the Premises by the Tenant or any other
occupier and forthwith make good any damage caused by such removal
to the Landlord’s reasonable satisfaction provided
that:
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(i)
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The Tenant
shall irrespective of the foregoing provisions be entitled to
remove all the Tenant’s fixtures and fittings and all plant
and machinery at any time during the term provided that the Tenant
makes good forthwith all damage caused to the Premises by such
removal to the Landlord’s reasonable satisfaction.
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(ii)
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If the Landlord
requires the Tenant shall provide adequate security or guarantees
to fully secure the liability to reinstate any Alterations or
Additions or improvements in accordance with the tetras of this
clause such security or guarantee to be provided at the time of
obtaining the Landlord’s consent in accordance with clause
8.3.1.
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8.3.4
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If the Tenant makes any
Alterations or Additions to the Premises, Tenant shall
(i) notify the Landlord in writing prior to commencing any
work in relation thereto, (ii) furnish to the
Landlord
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11
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copies of all statutory or other
consents or approvals required, (iii) otherwise comply in full
with the provisions of this Lease in relation to the carrying out
of such work, and (iv) provide Landlord with any statutory
notice, if any (provided that prior written consent to such
Alterations or Additions shall only be required to the extent set
forth in clause 8.3.1).
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8.4
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Signs and
reletting notices
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At the end of the Term to remove any
signs at the Premises and make good any damage caused by that
removal to the reasonable satisfaction of the Landlord.
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8.5.1
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Not to use the
Premises except for any use falling within the Permitted
Use.
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8.5.2
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Not to vacate
or leave unoccupied the Premises, except as the Landlord may first
approve in writing, or abandon the Premises, provided, however,
Tenant may vacate the Premises so long as Tenant remains otherwise
in compliance with this Lease.
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Not to place or keep on in the
Premises any heavy articles or structures in such position or in
such quantity or weight or otherwise in such manner howsoever as to
overload or cause damage to or be likely to overload or cause
damage to the Premises.
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8.7.1
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To permit the
Landlord and all persons authorised by it at all reasonable times
upon Requisite Notice to enter and remain upon the Premises
together with work people plant and materials:
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(i)
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to examine
their condition and to take schedules of repairs and the like and
inventories of fixtures and fittings which are fixed to the
Premises;
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(ii)
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to execute any
works of construction repair decoration or of any other nature
within the Premises or the Plant pursuant to clause 8.7.2 and to
carry out any repairs, decorations or other work which the Landlord
must or may carry out under the provisions of this Lease upon or to
the Premises;
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(iii)
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to exercise
without interruption or interference any of the rights excepted or
reserved to the Landlord by this Lease;
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(iv)
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in the last
year before the Termination Date to affix a sign or signs
indicating that the Premises are to let or for sale unless the
Lease will automatically be renewed or the Tenant is actively
pursuing its right to renew the Lease; and
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(v)
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for any other
purpose connected with the interest of the Landlord in the Premises
including (but without ]imitation) for the purpose of valuing or
disposing of any interest of the Landlord.
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Landlord shall not unreasonably
interfere with Tenant’s business activities in connection
with any entry by Landlord upon the Premises (except in the case of
an emergency) and shall cause the least practicable inconvenience
and make good any damage caused by it or those for whom it is
responsible to the reasonable satisfaction of the
Tenant.
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8.7.2
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If as a result of an inspection
or otherwise the Landlord becomes aware of any breaches of the
Tenant’s obligations under this Lease the Landlord may give
notice in writing thereof to the Tenant and within a reasonable
period (given the nature of the breach) after such notice
or
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12
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immediately in respect of an
emergency notice, the Tenant will remedy such breach of obligation
in accordance with such notice and the obligations contained in
this Lease to the reasonable satisfaction of the Landlord and
(subject to all required consents having been obtained which the
Tenant shall make all reasonable attempts to ensure is done in a
timely manner) if the Tenant fails within thirty (30) days of
such notice or immediately-in case of emergency notice to commence
and diligently and expeditiously to continue to comply with such
notice or if the Tenant at any time makes default in the
performance of any of the obligations contained in this Lease for
or relating to the repair decoration or maintenance of the Premises
but such period shall not exceed one hundred twenty (120) days
from the giving of any such notice then (without prejudice to the
right of re-entry and irritancy contained in this Lease) the
Landlord may enter upon the Premises under clause 8.7.1 and carry
out or cause to be carried out, all or any of the works referred to
in such notice or remedy the default of the Tenant and in such
circumstances the Landlord will be under no liability to make good
any damage whatsoever and all proper costs of all such works and
all proper expenses incurred in remedying such defaults in each
case shall be paid by the Tenant to the Landlord within fourteen
(14) days of demand.
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8.8.1
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To comply with
all applicable Law including (but without limitation) any planning
legislation and regulation or the carrying out by the Tenant of any
operations on or use of the Premises.
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8.8.2
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At the
Tenant’s expense to obtain from the appropriate authorities
all licences, consents and permissions as may be required for the
carrying out by the Tenant of any operations on or use of any part
of the Premises.
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8.8.3
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Not at any time
during the Term to do or permit or suffer anything which shall be a
contravention of any applicable Law or of any licences, consents,
authorisations, permissions and conditions (if any) from time to
time granted or imposed under any applicable Law nor to permit
anything which would be a contravention thereof and to comply with
the same and to indemnify the Landlord in respect of such acts or
omissions.
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8.8.4
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Not to make any
application for planning permission without first producing a copy
of the same and obtaining the prior written consent of the Landlord
to such application which consent will not be unreasonably withheld
or delayed.
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8.8.5
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Unless the
Landlord directs otherwise in writing to carry out before the
Termination Date any works stipulated to be carried out to the
Premises as a condition of any planning permission which may have
been granted during the Terra and implemented by the Tenant or any
other person whether or not the date by which the planning
permission requires such works to be carried out falls within the
Term.
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8.8.6
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In any case
where a planning permission is granted subject to conditions and if
the Landlord reasonably so requires to provide security for the
compliance with such conditions and such planning permission shall
not be implemented until such security has been
provided.
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8.8.7
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Not at any time
during the Term to do permit or suffer on the Premises any act or
cause or permit to be present on the Premises any matter or thing
which may cause loss to the Landlord by reason of any Environmental
Law.
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8.8.8
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Within seven
(7) days of the receipt to give full particulars to the
Landlord of any permission, notice, order or proposal relevant to
the Premises or to the use thereof given to the Tenant or the
occupier of the Premises (together with a copy of any notice,
permission, letter or document) under any applicable Law and
without delay to take all necessary steps to comply with such
notice insofar as it relates to the Tenant’s use and
occupation of the Premises and also at the reasonable request of
the Landlord to make or join with the Landlord in making such
objections and representations against or in respect of any such
notice, order or proposal as aforesaid as the Landlord reasonably
requires.
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13
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8.9
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Outgoings,
costs and fees
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8.9.1
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To pay and
discharge all existing and future rates, taxes, duties, charges,
assessments, impositions and outgoings whatsoever and whether or
not of a non-recurring nature (Outgoings) which now are or may be
charged, levied, assessed or imposed upon the Premises, the Basic
Rent or upon the Landlord or the owner or any occupier thereof,
however nothing herein shall place any obligation on the Tenant to
pay, discharge, contribute or reimburse the Landlord or the owner
or any occupier amounts which represents that Landlord’s,
owner’s or occupier’s general corporate and/or income
tax (and, for the avoidance of doubt, “general corporate
and/or income tax” shall not include any taxes under clause
4.2) and to pay, bear and discharge the proportion properly
attributable to the Premises or the Rent of any outgoings as may be
charged, levied, assessed or imposed upon any premises of which the
Premises or the Rent form part (such proportion to be properly
determined by the Landlord’s surveyor acting reasonably) and
in relation to either party making any claim for relief against
Outgoings payable in respect of the Premises, the parties agree to
liaise with a view to structuring such claims so as to try to
optimize the overall benefit to both parties of the
same.
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8.9.2
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In the absence
of direct assessment on the Premises, to repay to the Landlord the
proportion properly attributable to the Premises (such proportion
to be properly determined by the Landlord’s surveyor acting
reasonably) within fourteen (14) days of demand all charges in
respect of gas, electricity, steam, soil, water, telephone,
electrical impulses and other services supplied to or consumed in
the Premises to the extent that the Landlord has paid the
same.
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8.9.3
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To pay to the
Landlord all proper and reasonable costs, charges and expenses
(including professional advisers’ costs and fees and Sheriff
Officer’s fees) properly incurred by the Landlord:
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(i)
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in the
preparation and service of a schedule of dilapidations at any time
during or within six (6) months after the Term;
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(ii)
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in connection
with any breath of the Tenant’s obligations by or the
recovery of arrears of Basic Rent or Additional Rent due from the
Tenant under this Lease; and
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(iii)
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in respect of
any application for consent required by this Lease whether or not
such consent is granted or the application is withdrawn.
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8.9.4
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To pay on all
overdue amounts of Rent from the respective due dates therefore
(i) interest at the Interest Rate and (ii) the reasonable
costs, charges and expenses (including professional advisers’
costs and fees and Sheriff Officer’s fees) properly incurred
by the Landlord in connection with such failure to pay, to
reimburse Landlord for its cost and inconvenience incurred as a
result of Tenant’s failure, provided, however, that with
respect to the first late payment of all or any portion of any
instalment of Basic Rent in any Lease Year, the whereof payable as
aforesaid shall not be due and payable unless the Basic Rent has
not been paid within five (5) days’ following the due
date thereof
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To pay any and all VAT incurred or
imposed on any payment made by the Tenant under this Lease to and
to pay any Stamp Duty Land Tax or other fees assessed or assessable
on this Lease.
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8.11
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General
requirements concerning use
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8.11.1
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Not to use any
part of the Premises for any offensive trade or business nor for
any illegal or immoral act or purpose nor for gaming and not to
commit any nuisance or do anything which may cause damage or
disturbance to the Landlord or any other person.
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14
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8.11.2
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Except where
the Tenant has obtained and complies with all Environmental Permits
relating to the same, not to bring onto nor to permit to remain
upon the Premises any dangerous, hazardous, poisonous, specially
combustible or inflammable, explosive, noxious or offensive
substance and to take all necessary steps to ensure that any such
substance does not cause any injury or harm whatsoever and to
prevent the escape of such substances and to keep the Premises free
from any pollution whatsoever,
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8.11.3
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Not to use any
part of the Premises in such manner as to subject it to any strain
or interference which is in excess of that which the Premises were
designed or have been subsequently modified to bear and not to
install machinery on the Premises which shall cause noise or cause
vibration in excess of statutory limits.
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8.11.4
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Not to do
anything on the Premises which might reasonably be expected to
produce directly or indirectly corrosive fumes or vapors or
moisture or humidity in excess of that which the Premises were
designed or have subsequently been modified to bear.
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8.11.5
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Not to cause or
permit to exist a nuisance.
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The Tenant will fully pay, protect,
defend, indemnify and hold harmless the Landlord from and against
all actions, demands, proceedings, claims, damages, losses, costs,
expenses and liabilities arising directly or indirectly out of the
existence state of repair or use of the Premises any breach of the
Tenant’s obligations contained in this Lease or any failure
to comply with any applicable Law and against any liability for any
value added taxes, tax, stamp duty land tax or other fees
specifically imposed on the Landlord in connection with the
Premises or the Rent of whatsoever nature including penalties and
interest on such overdue or unpaid tax (and penalties for failure
to give appropriate notices and information under any applicable
Law) for which the Landlord shall be liable as a result of any
development carried out on the Premises by the Tenant or its
permitted sub-tenant and shall within fourteen (14) days of
demand pay to the Landlord the amount of any such sum.
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8.13
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Corporate
and Financial Covenants
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The Tenant undertakes and obliges
itself to the Landlord that the Tenant shall throughout the Term
comply with all the covenants and agreements on its part set out in
Part 5 of the Schedule.
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8.14
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Environmental requirements
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The Tenant undertakes and obliges
itself to the Landlord as follows:
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8.14.1
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to ensure at
all times throughout the Term that the Premises and Tenant are in
compliance in all respects with Environmental Law in its use and
occupation of the Premises and, in particular, but without
limitation, that the Tenant or any other occupier of the Premises
obtains and complies with all Environmental Permits required for
the storage, use or disposal of any Dangerous Substances at, on or
from the Premises;
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8.14.2
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not at any time
during the Term to cause or permit the deposit, spillage or release
onto the surface or into the sub-soil of the Premises of any
Dangerous Substances otherwise than in accordance with the terms of
an Environmental Permit;
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8.14.3
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not at any time
during the Term to do or permit to be done anything on the Premises
which could cause disturbance to the operation of or damage to the
fabric of any above ground or under ground storage tanks and
associated lines or pipe work at the Premises;
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8.14.4
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in the event of a breach of its
obligations contained in 8.14.1, 8.14.2 or 8.14.3 above, to notify
the Landlord immediately in writing of same and forthwith and with
all due speed and diligence to carry
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15
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out such works of investigation
and remediation as may be necessary to remedy the consequences of
the breach and to reinstate the Premises to their condition prior
to the occurrence of the breach (taking into account at all times
all proper requirements of the Landlord with regard to the nature
and scope of such works) provided that the Landlord shall have the
option at its sole discretion to assume conduct of any such works
in which case the Tenant shall reimburse the Landlord within seven
(7) days of a written demand in respect of all properly
incurred costs, fees, (including professional fees) and expenses
incurred in carrying out such works;
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8.14.5
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that it will
assume full responsibility for meeting all liabilities, claims,
costs and expenses arising or incurred during the Term in respect
of or in any way related to the presence in, on, over or under the
Premises of any Dangerous Substances (regardless of when such
Dangerous Substances first came to be present in, on, over or under
the Premises) including liability for and the costs of any works of
remediation (including on going monitoring) which may be required
in order to mitigate or prevent a liability under Environmental Law
or as may be requested by a Competent Authority at any time in the
future and that it will comply with all requirements of any
Competent Authority made at any time thereunder provided that the
Tenant shall have no responsibility or obligation where such
liabilities, claims, costs or expenses arose solely out of the
gross negligence or wilful misconduct of the Landlord, its
servants, employees, agents or independent contractors employed by
the Landlord.
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8.15
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Post-Closing
Obligations.
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8.15.1
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Pursuant to
that certain Phase I environmental audit report of the Premises
performed by ENVIRON UK Limited and dated October 20, 2005,
Tenant shall complete the Post Closing Obligations within the time
periods specified in Part 8 of the Schedule.
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8.15.2
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On the date
hereof, Pipe Acquisition Limited executed the Guarantee in favour
of Landlord. In consideration for the consummation for this Lease,
the Landlord and the Tenant have agreed that within forty
(45) days after the date of this Lease, Tenant shall use
reasonable endeavours (and, if permitted by law) to cause Murray
International Metals PTE Limited to execute a Guarantee in favour
of Landlord in the form annexed hereto as Part 10 of the Schedule.
If Tenant shall fail to deliver such Guarantee for any reason
whatsoever prior to the end of such forty-five (45) day
period, then the Tenant shall deliver to the Landlord a security
deposit (the Security Deposit) in the amount of £599,325 at
which time the Tenant shall have an additional period of forty-five
(45) days to use reasonable endeavours (and, if permitted by
law) to deliver the aforementioned Guarantee from Murray
International Metals PTE Limited and if the Tenant shall again fail
to deliver such Guarantee for any reason whatsoever prior to the
end of such additional forty five (45) day period, the
Security Deposit shall be increased so that the total amount of the
Security Deposit shall be equal to £1,198,650. For the
avoidance of doubt, the Tenant shall be entitled to provide such
Guarantee at any time after such additional forty-five
(45) day period and on the provision of such Guarantee the
Security Deposit shall be released in accordance with clause
8.15.5.
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8.15.3
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The Security Deposit shall be
in the form of an irrevocable letter of credit ( the Letter of
Credit ) and shall be issued by a bank reasonably acceptable to
the Landlord and having a long-term unsecured debt rating of not
less than “A” from Standard & Poor’s
Corporation and in form and substance reasonably satisfactory to
the Landlord. The Security Deposit shall remain in full force and
effect during the Term, subject to the provisions of clause 8.15.5,
as security for the payment by the Tenant of the Rent and all other
charges or payments to be paid hereunder and the performance of the
covenants and obligations contained herein, and the Letter of
Credit shall be renewed at least thirty (30) days prior to any
expiration thereof lithe Tenant fails to renew the Letter of Credit
by such date, time being of the essence, Landlord shall have the
right at any time after the thirtieth (30 th ) day before such
expiration date to draw on the Letter of Credit and to deposit the
proceeds of the Letter of Credit as a cash security deposit (the
Cash Security Deposit) in any account for the benefit of Landlord.
The Cash Security Deposit shall not be commingled with other funds
of Landlord or other Persons and no interest thereon shall be due
and payable to the Tenant.
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16
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8.15.4
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If at any time
a Breach Event shall have occurred and be continuing, the Landlord
shall be entitled, at its sole discretion, to draw on the Letter of
Credit or to withdraw the Cash Security Deposit from the
above-described account and to apply the proceeds in payment of
(i) any Rent or other charges for the payment of which the
Tenant shall be in default, (ii) prepaid Basic Rent,
(iii) any expense incurred by the Landlord in curing any
Breach Event of the Tenant, and/or (iv) any other sums due to
the Landlord in connection with any default or the curing thereof,
including, without limitation, any damages incurred by the Landlord
by reason of such Breach Event, including any rights of the
Landlord under clause 14 or to do any combination of the foregoing,
all in such order or priority as Landlord shall so determine in its
sole discretion and the Tenant acknowledges and agrees that such
proceeds properly applied in accordance with this Lease shall not
constitute assets or funds of the Tenant or its estate, or be
deemed to be held in trust for the Tenant, but shall be, for all
purposes, the property of the Landlord. Tenant further acknowledges
and agrees that (1) Landlord’s application of the
proceeds of the Letter of Credit or Cash Security Deposit towards
the payment of Rent or the reduction of any damages due the
Landlord in accordance with clause 14 of this Lease, constitutes a
fair and reasonable use of such proceeds, and (2) the
application of such proceeds by the Landlord towards the payment of
Rent or any other sums due under this Lease shall not constitute a
cure by the Tenant of the applicable Breach Event provided that a
Breach Event shall not exist if Tenant restores the Security
Deposit to its full amount within Eve (5) days and in
accordance with the requirements of this clause 8.15.3, so that the
original amount of the Security Deposit shall be again on deposit
with Landlord.
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8.15.5
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On the earlier
of (i) the expiration of the Term, (ii) after receipt by
the Landlord of the aforementioned Guarantee in clause 8.15.2, or
(iii) on the assignment of this Lease in accordance with
clause 12 to either (1) a Credit Entity, (2) an Asset
Credit Entity or (3) a Person whose obligations are guaranteed
by a Credit Entity or an Asset Credit Entity pursuant to a
Guarantee in the form annexed hereto as Part 10 of the Schedule,
the Letter of Credit or the Cash Security Deposit, as the case may
be, shall be promptly returned to the Tenant.
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8.16
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The
Construction (Design and Management) Regulations
1994
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8.16.1
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In this clause
Regulations means the Construction (Design and Management)
Regulations 1994 and File means the Health and Safety file for the
Premises and works carried out to them, required by the
Regulations.
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8.16.2
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In respect of
any works carried out by or on behalf of the Tenant or any
undertenant or other occupier of the Premises (including any works
of reinstatement which may be carried out after the end of the
Term) to which the Regulations apply, to:
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(a)
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comply in all
respects with the Regulations and procure that any person involved
in carrying out such works complies with the Regulations;
and
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(b)
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act as the
client in respect of those works and serve a declaration to that
effect on the Health and Safety Executive pursuant to Regulation 4
of the Regulations and give a copy of it to the
Landlord.
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(a)
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maintain and
make the File available t
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