Exhibit 10.8
DATED ▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LIMITED
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GRAND METROPOLITAN INFORMATION SERVICES LIMITED
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AIRSPAN COMMUNICATIONS LIMITED
AGREEMENT FOR UNDERLEASE
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Oxford and Cambridge Houses, Uxbridge
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Tel No: ▇▇▇▇-▇▇▇ ▇▇▇▇.
Fax No: ▇▇▇▇-▇▇▇ ▇▇▇▇
DX: 41 LONDON
THIS AGREEMENT FOR UNDERLEASE is made on 1998
BETWEEN
(1) GRAND METROPOLITAN ESTATES LIMITED (Company Number: 367551) whose
registered office is situate at ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("GME");
(2) GRAND METROPOLITAN INFORMATION SERVICES LIMITED (Company Number: 1064476)
whose registered office is at ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("GMI");
and
(3) AIRSPAN COMMUNICATIONS LIMITED (Company Number: 03501881)whose registered
office is at ▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (▇▇▇ "Tenant").
AGREED TERMS
1. Interpretation
1.1 In this Agreement the following words and expressions shall where the
context admits have the following meanings:
"Building Contract" means the building contract to be entered into between
the Tenant and the Project Managers pursuant to .clause 2 in respect of the
Works together with any further contract or contracts from time to time
entered into by the Tenant and the Project Managers supplemental thereto;
"Cambridge House Bank Guarantee" means the deed of guarantee to be issued
by Lloyds Bank plc in the form annexed in schedule 1;
"Cambridge House Deed of Indemnity" means a deed of indemnity to be made
between GMI (1) and the Tenant (2) in the form annexed in schedule 2;
"Cambridge House Premises" means all those premises as are more
particularly defined in the Cambridge House Underlease;
"Cambridge House Underlease" means an underlease of the Cambridge House
Premises to be made between GMI (1) and the `Tenant (2) in the form annexed
in schedule 3;
"Certificate of Practical Completion" means the certificate of practical
completion to be issued by the Project Managers pursuant to the Building
Contract certifying practical completion of the Works in accordance with
the terms of this Agreement and the expression "Practical Completion" shall
be construed accordingly;
"Completion Date" means ten Working Days after the latest of:
(a) the issue of the Certificate of Practical Completion;
(b) completion of the Works in accordance with the terms of this Agreement;
and
(c) the issue of the Qualified Notice of Satisfaction;
"Contribution" means a payment or payments to be made by GME on behalf of
GME and GMI to the Tenant as its contribution to the cost of the
Dilapidation Works in an aggregate sum of THREE HUNDRED AND FIFTY THOUSAND
POUNDS ((Pounds)350,000.00) exclusive of Value Added Tax;
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"Defects Liability Period" means the period of 12 :months commencing upon
the issue of the Certificate of Practical Completion;
"Dilapidation Works" means the works more particularly described in a fax
dated 6 November 1998 from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of Diageo plc a copy of which
is annexed in schedule 4;
"Force Majeure" means:
(a) fire storm tempest and other extreme adverse weather conditions war
hostilities rebellion revolution insurrection military or usurped
power civil war labour lock-outs strike and other industrial disputes
riot commotion disorder decree of government non-availability of
material or equipment or utilities (save if and to the extent that
non-availability could have been avoided by the exercise of
reasonable foresight); or
(b) any other cause or circumstance provided that each and every such
cause or circumstance:
(i) adversely affects the performance ,of the terms and provisions of
this Agreement; and/or
(ii) cannot reasonably be avoided or provided against; and/or
(iii) is not due to the willful or deliberate act default or negligent act
or omission of the Tenant or the Project Managers,
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PROVIDED ALWAYS that only a cause or circumstance which may entitle the
Project Managers to an extension of time under the Building Contract shall
be a circumstance of force majeure;
"GM's Representative" means ▇▇▇ ▇▇▇▇ of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Partners,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ or such other
firm of surveyors as may be appointed by GME and/or GMI from time; to time
to monitor the carrying out of the Works;
"GM's Solicitors" means the firm of solicitors acting for both GME and GMI
which firm shall be ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ of Carmelite ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (Ref: JDW) or such other firm of
solicitors from time to time appointed by GME and/or GMI and of whose
appointment the Tenant shall be notified in writing by GME and/or GMI;
"Insolvency Event" means in relation to the Tenant if any one or more of
the following events has occurred:
(a) a voluntary arrangement is made under Part I of the Insolvency ▇▇▇
▇▇▇▇ (hereinafter referred to as the "Act"); or
(b) a petition is presented for an Administration Order or an
Administration Order is made under Part II of the Act; or
(c) a receiver or manager is appointed whether under Part III of the Act
(including an administrative receiver) or otherwise; or
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(d) a petition is presented or an order is made for its winding up or it
goes into liquidation as defined in Section 247(2) of the Act (other
than a voluntary winding up solely for the purpose of amalgamation or
reconstruction while solvent); or
(e) a provisional liquidator is appointed under Section 135 of the Act;
"Interim Valuation Statement" means a monthly' statement prepared by the
Project Managers setting out in respect of the period to which the
statement relates:
(a) the value of all interim certificates issued under the Building
Contract less retentions held;
(b) the value of all properly submitted fee invoices received from the
Project Managers;
(c) the value of any retentions released under the Building Contract or
fee invoices;
"Landlord" means Louisville Investments (Uxbridge) Limited whose registered
office is situate at Nations House, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ and
includes its successors in title and assigns;
"Leases" means together the Oxford House Underlease and the Cambridge House
Underlease;
"Licenses for Alterations" means together the licenses for alterations
pursuant to the Cambridge House Underlease and the Oxford House Underlease
to be made between the Landlord (1) GME or GMI (as appropriate) (2) and the
Tenant (3) in the form of licenses annexed in schedule 5;
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"National Conditions" means the National Conditions of Sale (Twentieth
Edition);
"Necessary Consents" means all planning consents and all other permissions
licenses and approvals under the Town and Country Planning Acts the Public
Health Acts and all other statutes and regulations building regulation
consents bye law approvals and all other authorization certificates
consents approval.,; and licenses of whatsoever nature from whomsoever the
same may be required which may be applicable to or requisite for the
carrying out and completion of the Works and which expression shall include
all amendments and variations made thereto from time to time;
"Notice of Completion of Making Good Defects" the notice issued by GM s
Representative at the expiry of the Defects Liability Period pursuant to
the provisions of this Agreement;
"Oxford House Bank Guarantee" means the deed of guarantee to be issued by
Lloyds Bank plc in the form annexed in schedule 6;
"Oxford House Premises" means all those premises as are more particularly
defined in the Oxford House Underlease;
"Oxford House Underlease" means an underlease of the Oxford House Premises
to be made between GME (1) and the Tenant (2) in the form annexed in
schedule 7;
"Parking Spaces" means the parking spaces edged blue on the plan annexed in
schedule 8;
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"Plans" the plans sections elevations specifications and descriptions of
the works to be carried out annexed in schedule 9 and shall include any
plans elevations specifications or descriptions of the works to be carried
out which are approved prior to clause 2.9;
"Planning Permission" means the planning permission to be granted pursuant
to an application to be made by the Tenant on the basis of plan number Aair
10/00/DT 08/B -27.09.98 which is annexed in schedule 9;
"Premises" means together the Cambridge House Premises and the Oxford House
Premises;
"Prescribed Rate" means 4% above the base rate from time to time of
National Westminster Bank Plc;
"Project Managers" means ▇▇▇▇▇▇ ▇▇▇▇▇▇ of ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇;
"Qualified Notice of Satisfaction" a notice to be issued by GM's
Representative confirming that the Works have been completed in accordance
with this Agreement subject to the matters mentioned in such notice;
"Rent Commencement Date" means ____________________ 1998;
"Retention" means the sum of SEVENTEEN THOUSAND FIVE HUNDRED POUNDS
((Pounds)17,500) together with value added tax :thereon;
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"Site" means all that piece or parcel of land (and buildings and
constructions thereon) known as Oxford and Cambridge Houses Oxford Road
Uxbridge as the same is for the purpose of identification only shown edged
red on the plans annexed to the Cambridge House Underlease and the Oxford
House Underlease and the Parking Spaces;
"Target Date" means a date which is six months after the date of this
Agreement;
"Tenant's Solicitors" means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ of ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ HEE (Ref: ▇▇▇▇▇ ▇▇▇▇▇▇▇) or such other firm of solicitors-from
time to time appointed by the Tenant and of whose appointment GM's
Solicitors shall be notified in writing by the Tenant;
"Title Documents" means the title deeds and documents supplied by GM's
Solicitors to the Tenant's Solicitors;
"Working Day" means any day except Saturday Sunday and bank or other,
public holidays in England; and
"Works" means the works set out in the Plans which for the avoidance of
doubt includes the Dilapidation Works.
2. Works
2.1 The Tenant will not enter into the Building Contract without:
(a) the prior written consent of GME and GMI (such consent not to be
unreasonably withheld or delayed); and
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(b) first producing evidence to GME and GMI that the Project Managers has
in force insurance at a level acceptable to GME and GMI in respect of
death of or injury or illness or disease to third parties and/or loss
of or damage to third party property obstruction loss of amenities
trespass nuisance or any like cause.
2.2 The Tenant will supply to GME and GMI a certified copy of the
completed Building Contract within 7 Working Days of completion of
such Building Contract.
2.3 To the extent that the Building Contract has not been completed prior
to the date of this Agreement the Tenant undertakes to enter into the
Building Contract as soon as practicable and in any event before the
Completion Date and to supply the original or a certified copy (as
appropriate) of the Building Contract to GME and GMI within 7 Working
Days of completion of the same.
2.4 The Tenant shall indemnify and keep indemnified GME and GMI against
any breach non-observance or non-performance by the Tenant and/or
the Project Managers of all obligations on the part of the Tenant and
the Project: Managers contained in the Building Contract.
2.5 The Tenant shall not appoint new Project Managers in connection with
the Works unless such new appointment has first been approved in
writing by GME and GMI; and
2.6 The Tenant shall within one month of the issue of the Qualified Notice
of Satisfaction supply to GME and GMI two complete sets of maintenance
manuals and plans and specifications relating to the Works as
constructed by the Tenant.
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2.7 GME GMI and the Tenant hereby acknowledge that the Landlord has not
yet given its consent to the Plans.
2.8 Notwithstanding clause 2.7 GME and GMI will allow the Tenant into
occupation pursuant to clause 7.1 but subject always to the terms of
this Agreement.
2.9 GME and GMI shall continue to use reasonable endeavours to obtain the
consent of the Landlord to the Plans but if the Landlord shall
properly refuse consent to any matter contained or referred to in the
Plans the Plans shall be amended and resubmitted to GME and GMI in
duplicate for approval in writing by GME GMI and the Landlord and this
process shall be repeated as often as may be necessary until such
Plans are so approved in writing.
2.10 To the extent that any part or parts of the Works have been carried
out pursuant to the Plans to which the Landlord has properly refused
consent such part or parts of the Works shall be reinstated by the
Tenant to the satisfaction of the Landlord GME and GMI and carried out
by the Tenant in accordance with the amended Plans approved by GME GMI
and the Landlord prior to clause 2.9.
2.11 The Tenant shall indemnify GME GMI and the Landlord from and against
all damages losses expenses liability and costs in respect of actions
suits claims and demands whatsoever by reason of or arising in any way
directly or indirectly out of the execution of any part or parts of
the Works to which the Landlord shall properly refuse consent, any
failure of the Tenant to reinstate and to carry out the Works pursuant
to clause 2.10 in accordance with the amended Plans approved by
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GME GMI and the Landlord pursuant to clause 2.9 or any other breach of
the terms of this Agreement.
3. Building Obligations and Necessary Consents
The Tenant hereby further AGREES AND UNDERTAKES with GME and GMI as
follows:
(a) to design or to procure that the designs contained in the Plans are
prepared with all reasonable skill and care in accordance with the
standards of appropriately qualified professional designers;
(b) following commencement of the Works to carry out or to procure that
the Project Managers carry out the Works with all due diligence and
expedition in a good and workmanlike manner with good quality
materials of the several kinds specified in the Plans and in
accordance with the terms of the Building Contract and the Tenant
further warrants to GME, and GMI that it will exercise all reasonable
Skill and care in the performance of its obligations under this
Agreement;
(c) to commence the Works as soon as reasonably practicable following the
date of this Agreement and to carry out and complete the same so that
the Target Date is achieved in accordance with and pursuant to the
terms of this Agreement and in accordance with the Plans the Planning
Permission and all conditions attaching thereto all Necessary Consents
and all statutes and any enforceable codes of practice of the local
authority which may affect the execution and completion of the Works;
(d) from and after the date of this Agreement until the earliest of:
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(i) the Completion Date; or
(ii) the date upon which GME or GMI terminates this Agreement, to pay
all rates taxes and outgoings duties charges and other
impositions whether Parliamentary or otherwise lawfully assessed
charged or payable in respect of the Site or the Works or part
thereof respectively or on or by the owner or occupier thereof;
(e) to obtain at its own cost and expense and comply with all Necessary
Consents necessary to comply with the obligations of `the Tenant
hereunder (including but without prejudice to the generality of the
foregoing consents under the building regulations) and to give all
necessary and usual notices under all relevant statutes regulations or
bye-laws including where necessary in the Tenant's reasonable
discretion or whenever GME or GMI reasonably so requires appealing
against the decision of any authority and pursuing such applications
or appeals and the Tenant shall send copies of' all Necessary Consents
to GME and GMI within five Working Days of receipt of the same;
(f) from the date of this Agreement up to and including the Completion
Date at all times to comply and to require the occupants of the Site
to comply with all Acts of Parliament statutory instruments
regulations bye-laws directions orders and notices and to comply with
the lawful requirements of all authorities affecting the Site or the
Works (including without: prejudice to the generality of the foregoing
all requirements in order to enable fire certificates to be granted)
or otherwise relating to the carrying out by the Tenant of its
obligations under this Agreement and to indemnify GME and GMI fully in
respect of any breach of this provision;
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(g) to use all reasonable endeavours to procure that all Necessary
Consents are preserved for the benefit of the Site and to procure that
so far as applicable such consents remain in full force and effect
during the course of the Works;
(h) prior to the commencement of any Works on the Site by the Tenant and
during the currency of such Works where reasonably necessary or where
reasonably required by GME and GMI to erect hoardings and canopies the
details of which shall be first approved by GME and GMI (such approval
not to be unreasonably withheld or delayed) and at all times to
maintain such hoardings and canopies in adequate condition to the
reasonable satisfaction of GME and GMI and/or any statutory
undertaking and generally to keep the Site adequately secure at all
times;
(i) to use all reasonable endeavours to procure that all works on the Site
are carried out in accordance with all requirements of the local
authority or any other statutory authority or body and in such a
manner as to cause no nuisance to any owners or occupiers of any
adjoining or neighbouring premises and to indemnify and keep
indemnified GME and GMI against any losses to GME and GMI occasioned
by any claims or proceedings brought by any party against GME and/or
GMI caused directly or indirectly by the Works;
(j) to indemnify GME and GMI in respect of any claim against GME and/or
GMI arising as a result of any obstruction to the use of any adjoining
roads or pavements caused during the course of the Works;
(k) as soon as practicable to rectify any defect in the Works notified to
it in writing by GME and/or GMI during the Defects Liability Period;
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(l) not to deposit or make up manufacture or permit to be deposited made
up or manufactured upon the Site any materials except such as shall be
required for the Works and regularly to remove all superfluous
materials rubbish and debris and to do all cleansing of adjoining
highways or roads resulting from the Works and as may be required by
GME and GMI and on the Completion Date (or earlier if GME and/or GMI
shall terminate, this Agreement for any reason) to remove from the
Site all unused materials and rubbish whatsoever;
(m) as from the date of this Agreement the Tenant shall indemnify GME and
GMI from and against all damages losses expenses liability and costs
in respect of actions suits claims and demands whatsoever by reason of
or arising in any way directly or indirectly out of the execution of
the Works;
(n) from and after the date of this Agreement to effect or cause to be
effected adequate third party and public liability insurance in
respect of the Works with an insurance fund or with underwriters of
repute approved by GME and GMI in a sum of not less than on any one
claim five million pounds ((Pounds)5,000,000) and shall produce a copy
of such policy to GME and GMI on demand together with evidence of
payment of the current premiums in respect thereof;
(o) not to do or suffer or knowingly suffer to be done anything which may
render the policy or policies of insurance effected by GME and GMI in
respect of the Works or the Site void or voidable or without GME and
GMI's prior written approval cause the premium for such policy or
policies to be increased;
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(p) if any delay in Commencing or completing any part of the Works shall
arise from Force Majeure to give written notice to GME and GMI of the
cause of the delay as soon as possible and then the Target Date shall
be revised by agreement between GME GMI and the Tenant and failing
agreement the revised Target Date shall be determined by the
Independent Person (as hereinafter defined) pursuant to clause 15 who
shall have regard to such extension of time for the completion of the
Works as shall be fair and reasonable having regard to the
circumstances;
(q) If the Works are construction work covered by the Construction (Design
and Management) Regulations (the "CDM Regulations") the Tenant shall:
(i) comply with its duties under the CDM Regulations;
(ii) ensure that any person owing duties under the CDM Regulations
complies with the same;
(iii) prior to commencement of the Works make a declaration to the
Health and Safety Executive in accordance with Regulation 4 of
the CDM Regulations stating that it shall be the only client in
respect of such work;
(iv) at any time make the health and safety file available for
inspection and forthwith upon receipt of a request from GME
and/or GMI produce a copy of the same; and
(v) produce to GME and/or GMI on demand such information as GME
and/or GMI shall reasonably require to:
(A) demonstrate compliance ▇▇▇▇ the CDM Regulations; and
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(B) enable GME and/or GMI to update the health and safety file
relating to the Oxford House Premises and/or the Cambridge
House Premises;
(r) to carry out the Works in accordance with all requirements of the
Landlord;
(s) not to carry out any part of the Works requiring Planning Permission
until the Planning Permission has been obtained and a copy has been
delivered to GME GMI and GM's Representative.
4. Insurance of the Site and the Works
GME GMI and the Tenant hereby respectively agree as follows:
(a) from commencement of the execution of the Works until the earliest of:
(i) the date of issue of the Certificate of Practical Completion; or
(ii) the date upon which GME and GMI shall terminate this Agreement,
the Tenant shall insure or procure that the Works are insured and kept
insured with an insurance fund or with underwriters of repute approved
by GME and GMI with the interest of GME and GMI noted on the policy in
a sum which in the opinion of GME and GMI is sufficient to cover the
cost of completely reinstating the Works in the event of total
destruction together with all fees and other expenses incidental
thereto against loss or damage by fire storm flood tempest (including
lightning) impact from vehicles explosion aircraft in peacetime and
articles dropped therefrom riot malicious damage war hostilities
rebellion revolution civil commotion and earthquake (fire and shock)
terrorism (so long as terrorism cover is available) and such other
risks as GME and GMI shall
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reasonably require and the Tenant shall pay or cause to be paid all
premiums and other money necessary for that purpose and to procure the
production to GME and GMI on request of a copy of the policy or
policies for such insurance or the appropriate extracts therefrom and
evidence of payment of the current premiums;
(b) from the date of this Agreement GME and GMI (as appropriate) shall
comply with their respective obligations as landlord in clauses 7 of
the Leases;
(c) in the event of damage or destruction of the Works arising out of the
occurrence of any insured risk mentioned in clause 4(a) above'
(i) the amount owed by GME and GMI to the Tenant in respect of the
Contribution as at the date of such destruction or damage shall
be deemed to have been reduced by an amount equivalent to the
value of that element of the Works which has been destroyed or
damaged as certified by all Interim Valuation Certificates issued
prior to the date of such destruction or damage and as approved
by GM's Representative pursuant to clause 17; and
(ii) the Tenant shall forthwith (subject to receipt of all Necessary
Consents) lay out all insurance monies received in respect of
such destruction or damage in reinstatement of the Works (making
up any shortfall out of its own pocket).
5. Works Progress Reports and Interim Valuation Statements
The Tenant hereby further AGREES with GME and GMI as follows:
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(a) to provide to GM's Representative such evidence as it shall reasonably
require concerning the progress of the Works and to supply GM's
Representative with copies of the following documents if and when the
same shall be issued:
(i) monthly progress reports;
(ii) minutes of meetings between the Project Managers and the
Tenant;
(iii) at least 5 Working Days notification of all site meetings
relating to the Works and the facility to attend if desired;
(iv) copies of all instructions and notices issued by the Project
Managers;
(b) the Tenant shall submit to GM's Representative on the last day of
every month after the date of this Agreement the Interim Valuation
Statement together with evidence to the reasonable satisfaction of
GM's Representative that the sums set out therein have been paid by
the Tenant together with relevant dates of payment to the Project
Managers.
6. Deleterious Materials
6.1 The Tenant hereby warrants and represents to GME and GMI that the
Project Managers have not specified and will not specify to be used
will not use and have not used in the Works:
(a) materials or substances or any combination thereof generally
known in the United Kingdom at the time of specification to be
deleterious to the safety performance or durability of the Works
or the health and safety of any
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person or damaging to the environment including any material or
substance or any combination thereof used otherwise than in
accordance with British Standards and Codes of Practice or the
recommendations of' the Building Research Establishment; and
(b) any deleterious materials referred to or specified in the
Building Contract.
6.2 The Tenant further warrants that it has exercised and will exercise
all reasonable skill and care to see that no such materials or
substances have been specified for use or used in the Works by others.
7. License
7.1 From the date of this Agreement until completion of the. Leases or
termination of this Agreement (whichever is the earlier) GME and GMI
confirm that the Tenant has license to enter onto the Site for the
purpose of carrying out the Works on the terms and conditions herein
mentioned but so that the Tenant shall have no other or additional
interest in the Site pursuant to this Agreement (save such as will
arise upon the grant of the Leases).
7.2 A license fee will be payable by the Tenant to GME and GMI
respectively under this Agreement until the completion of the Leases
or termination of this Agreement (whichever is the earlier) in an
amount equivalent to the Basic Rent (as such expression is defined in
the Cambridge House Underlease) and the rent firstly reserved under
the Oxford House Underlease payable pursuant to the Cambridge House
Underlease and the Oxford House Underlease respectively but subject at
all times to the provisions of the Cambridge House Deed of Indemnity
such license fee to be payable quarterly in advance on the usual
quarter days the
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first payment being a proportionate sum in respect of the period from
the Rent Commencement Date `to the next following quarter day to be
made on the Rent Commencement Date.
7.3 A license fee will be payable by the Tenant to GME and GMI
respectively under this Agreement until the completion of the Leases
or termination of this Agreement (whichever is the earlier) in an
amount equivalent to the Insurance Rent (as such expression is defined
in each of the Leases) and the additional rent (determined in
accordance with clause 4 in each of the Leases) payable pursuant to
each of the Leases upon the days and in the manner stated in the
Leases as if the Leases had been completed.
8. Inspection
8.1 At all times during the execution of the Works GME GMI and GM's
Representative shall have the right:
(a) to enter upon the Site at all reasonable tiptoes on giving (save
in the case of emergency) not less than 48 hours prior notice to
view the state of the Works in progress to ascertain generally
that the covenants agreements conditions and stipulations in this
Agreement and in the Building Contract have been and are being
duly observed and performed;
(b) to make representations to the Tenant regarding the Works;
(c) to require the Tenant to have any materials and workmanship
provided in relation to the Works tested; and
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(d) to require the Tenant to procure the remedy forthwith of any non-
observance or non-performance of any such covenants agreements and
stipulations found upon such inspection and upon default by the Tenant
in remedying or procuring the remedy of any such defect in the Works
GME and GMI may enter upon the Site or any part thereof and any
buildings thereon for the purpose of protecting repairing and
maintaining the Site or the Works or removing any work or item which
contravenes the terms of this Agreement and all expenses of so doing
shall be paid by the Tenant to GME and GMI on demand as a liquidated
debt together with interest at the Prescribed Rate from the date of
expenditure to the date of payment.
8.2 Notwithstanding any rights of inspection or testing herein contained
or the exercise of such rights by GME and/or GMI neither GME nor GMI
nor anyone acting on their respective behalves shall be liable to the
Tenant hereunder and the Tenant shall not be relieved or excused of
any liability or responsibility hereunder.
9. Qualified Notice of Satisfaction and Defects Liability Period
GME and GMI and the Tenant agree with each other as follows:
(a) the Tenant shall procure that GM's Representative be given at least
ten Working Days notice of the intention of the Project Managers to
inspect the Works with a view to the issue of the Certificate of
Practical Completion under the Building Contract and GM's
Representative shall be entitled to accompany the Project Managers
upon their tour of inspection for that purpose to the intent that GM's
Representative may have an opportunity of making its views known to
the Project
-21-
Managers verbally on the occasion of such inspection and in writing to
the Tenant within ten Working Days of such inspection;
(b) following the occasion of an inspection taking place with the
intention of issuing the Certificate of Practical Completion under the
Building Contract GM's Representative shall issue to the Tenant within
ten Working Days of such inspection (if GM's Representative is
satisfied that the works under the Building Contract have been
completed in accordance with the terms of the Building Contract and
this Agreement) the Qualified Notice of Satisfaction and GME and GMI
shall release 50% of the Retention within 10 Working Days of the date
of issue of such Qualified Notice of Satisfaction subject to the
matters contained in such notice;
(c) if the Qualified Notice of Satisfaction is not issued GM's
Representative shall give a written statement of reasons within ten
Working Days of such inspection to the Tenant stating why the same
should not be issued;
(d) in the event that GM's Representative refuses to issue the Qualified
Notice of Satisfaction the Tenant shall within a reasonable time carry
out any further works as may be necessary to allow GM's Representative
to issue the same and the procedure set out in clauses 9(a) to 9(c)
(inclusive) hereof shall be repeated as many times as may be necessary
to enable GM's Representative to issue the same;
(e) following the issue by GM's Representative of the Qualified Notice of
Satisfaction the Tenant shall at its own cost and expense procure the
remedy of all matters contained in the Qualified Notice of
Satisfaction to the satisfaction of
-22-
GM's Representative within one month of the date of issue of the
Qualified Notice of Satisfaction;
(f) if the Tenant shall fail to carry out any remedial works identified in
the Qualified Notice of Satisfaction within a reasonable time after
issue of the Qualified Notice of Satisfaction then GME and/or GMI
shall be entitled to enter and carry out such works and the cost of
such works shall be payable by the Tenant to GME and GMI on demand as
a debt together with interest at the Prescribed Rate from the date of
expenditure to the date of payment;
9.2 At least fifteen Working Days prior to the expiry of any Defects
Liability Period GM's Representative shall inspect the Works with a
view to issuing the relevant Notice of Completion of Making Good
Defects.
9.3 (a) When GM's Representative is satisfied that any defects in the
Works which have arisen during any Defects Liability Period have
been remedied or otherwise dealt with as specified in clause 3(k)
to his satisfaction he shall issue a Notice of Completion of.
Making Good Defects and GME and GMI shall release the balance of
the Retention within 10 Working Days of the issue of the Notice
of Completion of Making Good Defects;
(b) If GM's Representative is not so satisfied he shall give a
written statement of reasons why a Notice of Completion of Making
Good Defects cannot be issued and the Tenant shall procure that
such defects be remedied or otherwise dealt with pursuant to
clause 3(k) such that the relevant Notice of Completion of Making
Good Defects may be issued and the procedure set out in this
clause shall be repeated as many times as may be necessary
-23-
to enable GM's Representative to issue the relevant Notice of
Completion of Making Good Defects.
9.4 If the Tenant shall fail to procure the remedy of or otherwise deal
with the defects as aforesaid under this clause within a reasonable
time GME and/or GMI shall be entitled:
(a) to enter and carry out such works as may be reasonably necessary
in respect thereof and the cost of such works shall be payable by
the Tenant to GME and GMI on demand as a debt together with
interest at the Prescribed Rate from the date of expenditure to
the date of payment; and
(b) to retain the balance of Retention and shall not be obliged to
pay the same to the Tenant.
10. Terms of the Lease
10.1 The term of each of the Leases shall commence; on the quarter day
immediately preceding the grant of the Leases.
10.2 Payment of the Basic Rent (as such expression is defined in the
Cambridge Lease) and the rent firstly reserved under the Oxford Lease
payable under the Cambridge Lease and the Oxford Lease respectively
but subject at all times to the provisions of the Cambridge House
Deed of Indemnity shall commence on the Rent Commencement Date.
-24-
10.3 Payment of the Insurance Rent (as such expression is defined in each
of the Leases) and the additional rent (determined in accordance with
clause 4 in each of the Leases) payable under each of the Leases
shall commence on the date of this Agreement.
10.4 Nothing in this clause 10 shall prejudice the provisions of clause 7.
11. Completion
11.1 GM's Solicitors shall prepare the engrossed Leases and shall deliver
the same to the Tenant's Solicitors `with five Working Days of [he
issue of the Qualified Notice of Satisfaction.
11.2 (a) GME and GMI shall on or before the Completion Date duly execute
the original Oxford House Underlease and Cambridge House
Underlease.
(b) The Tenant shall on or before the Completion Date duly execute
the counterpart Oxford House Underlease and Cambridge House
Underlease.
11.3 Upon the Completion Date each of the parties to this Agreement agrees
with the other that the following shall occur:
(a) GME shall grant and the Tenant shall accept the Oxford House
Underlease and simultaneously GMI shall grant and the Tenant
shall accept the Cambridge House Underlease;
(b) GM's Solicitors shall deliver the original Oxford House
Underlease and Cambridge House Underlease to the Tenant's
-25-
Solicitors and the Tenant's Solicitors shall deliver the
counterpart Oxford House Underlease and Cambridge House
Underlease to GM's Solicitors; and
(c) the Tenant shall deliver the counterpart Licenses for Alterations
to GM Solicitors duly executed and shall release the Licenses for
Alterations to GM Solicitors for completion at will.
12. Title
The Tenant's Solicitors having been supplied with copies of the Title
Documents the Tenant shall accept the grant of the Leases with full
knowledge of all matters contained in such documents and shall make no
requisition or objection in respect of them or in any way relating to them.
13. National Conditions
The National Conditions of Sale Twentieth Edition shall apply to this
Agreement in so far as they are not inconsistent with the terms of this
Agreement.
14. Forfeiture
Notwithstanding and without prejudice to any other remedies and powers
herein contained or otherwise available to GME and GMI:
(a) if the Tenant shall fail to perform and observe any covenants
agreements stipulations or conditions on its part in this
Agreement; or
(b) if in relation to the Tenant an Insolvency Event occurs; or
-26-
(c) if the Target Date occurs prior to the issue of the Qualified
Notice of Satisfaction; or
(d) if the Tenant shall suspend the execution of the Works for a
period in excess of two months other than for a reason which
constitutes Force Majeure,
THEN and in any such case GME and GMI shall have full right
liberty and power at any time thereafter:
(i) to determine this Agreement by service of written notice on
the Tenant to that effect and this Agreement shall thereupon
immediately determine but without prejudice to any right of
action or other remedy by any party against another party;
(ii) to enter the Site and complete tire Works and five Working
Days following completion of the Works by GME and GMI the
Completion Date shall occur and the parties shall complete
the documentation provided for in clause 11 of this
Agreement;
(e) if the Landlord shall enter the Site and complete the Works
pursuant to the terms of this clause the cost of so doing
shall at the option of GME and GMI either:
(i) be paid by the Tenant to GME and GMI as a debt payable
on demand together with interest at the Prescribed Rate
from the date of expenditure to the date of payment; or
-27-
(ii) be deducted from the amount of the Contribution owed by
GME and GMI to the Tenant pursuant to the Interim
Valuation Statements issued prior to the date of such
entry by GME and/or GMI.
15. Disputes
15.1 If any dispute or difference shall arise between GME GMI and the
Tenant as to their respective rights duties and obligations hereunder
or as to any matter arising out of or in connection with the subject
matter of this Agreement (other than any dispute or difference with
regard to the meaning or construction of this Agreement) then (unless
this Agreement otherwise expressly provides) any party at any time by
giving written notice to the other ("Determination Notice") may :refer
the dispute or difference for determination to an independent person
("Independent Person") who shall have been qualified in respect of the
general subject matter of the dispute or difference for not less than
ten years and who shall be a specialist in relation to such subject
matter.
15.2 The Independent Person shall be appointed by agreement between GME GMI
and the Tenant or if within three Working Days after service of the
Determination Notice they are unable to agree then on the application
of any party to such one of the following persons as shall be agreed
to be appropriate having regard to the nature of the dispute or
difference in question:
(a) the Chairman for the time being of the Bar Council;
(b) the President for the time being of the Royal Institute of British
Architects;
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(c) the President for the time being of the Royal Institution of
Chartered Surveyors;
(d) the President for the time being of the Institute of Chartered
Accountants;
(e) the President for the time being of the Institution of Civil
Engineers or (in each such case) the duly appointed deputy of
such President or any other person authorized by him to make
appointments on his behalf.
15.3 Any dispute or difference arising between GME GMI and the Tenant as
to:
(a) the meaning or construction of this Agreement; and
(b) whether a particular dispute or difference should be dealt with
under clause 15.1 and which classification applies under clause
15.2,
shall be referred to an independent solicitor or barrister of not less than
ten years' admission or call agreed between GME GMI and the Tenant or
failing such agreement within three Working Days of such dispute or
difference arising nominated at the request of either party by the
President for the time being of the Law Society or his duly appointed
deputy or any other person authorized by him to make appointments on his
behalf.
15.4 The Independent Person shall act as an expert and the following
provisions shall have effect:
(a) his decision shall be final and binding upon the parties hereto;
-29-
(b) the Independent Person shall consider (inter alia) any written
representations and cross representations and supporting evidence
made on behalf of GME and GMI or the Tenant (if made reasonably
promptly) but shall not be bound thereby;
(c) GME GMI and the Tenant shall use all reasonable endeavours to
procure that the Independent Person shall give his decision as
speedily as possible and such decision shall be in writing
accompanied by reasons;
(d) the costs of appointing the Independent Person and his costs and
disbursements in connection with his duties under this Agreement
shall be shared between the parties in such proportions as the
Independent Person shall determine or in the absence of such
determination equally between the parties.
15.5 Where the Independent Person dies refuses to act or is unable to act
or fails to proceed with reasonable speed to discharge his duties the
procedure contained in this clause 15 for the appointment of the
Independent Person may be repeated as often as necessary until a
decision is obtained.
16. Notices
Any notices requiring to be served by any party hereunder shall be deemed
to be validly served if sent by prepaid recorded delivery post:
(a) in respect of the Tenant addressed to Tenant at its registered office
for the time being;
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(b) in respect of GME and GMI if sent to ▇▇▇▇ ▇▇▇▇▇▇▇▇ of GME at ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇; and
(c) in respect of GM's Representative if sent to ▇▇▇ ▇▇▇▇ at ▇▇▇▇▇▇▇
▇▇▇▇▇▇ & Partners of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇.
17. Payment of Landlord's Contribution to the Works
17.1 The Tenant shall not more frequently than monthly deliver the Interim
Valuation Statement to GME and GMI with a copy to GM's Representative
within 5 Working Days of receipt of the same from the Project
Managers.
17.2 GM's Representative shall approve or disapprove in writing the Interim
Valuation Statement within five Working Days of receipt of the same
from the Tenant.
17.3 If GM's Representative shall disapprove the Interim Valuation
Statement he shall give written notice to the Tenant specifying the
reasons for such disapproval and the Tenant shall return to GM's
Representative appropriate corrections or amendments to the Interim
Valuation Statement within five Working Days after the date of receipt
of such notice.
17.4 If GM's Representative shall still decline to approve the Interim
Valuation Statement as corrected or amended GM's Representative shall
within 5 Working Days after the date of the receipt of such
corrections or amendments, give written notice to the Tenant
specifying the reasons for such disapproval in which event any party
may at any time thereafter refer the matter or matters in dispute to
the
-31-
Independent Person for determination in accordance with the
provisions of clause 15.
17.5 GME shall (subject to receiving a valid VAT invoice from the Tenant
addressed to GME) on behalf of itself and GMI pay the amount sated in
the Interim Valuation Statement or the amount determined by the
Independent Person pursuant to clause 17.4 (whichever is applicable)
within 5 Working Days of the earliest of:
(a) approval in writing of the Interim Valuation Statement by GM's
Representative; and
(b) determination by the Independent Person in accordance with clause
17.4.
17.6 The aggregate of the payments made under clause 17.5 shall not exceed
the Contribution less the Retention.
18. Bank Guarantee
On the date of this Agreement the Tenant will deliver the completed Oxford
House Bank Guarantee to GME and the completed Cambridge House Bank
Guarantee to GMI.
19. Value Added Tax
Any sums mentioned in this Agreement shall be deemed to be exclusive of
Value Added Tax and each party shall be entitled to charge any Value Added
Tax properly payable on any supply made by that party in connection with
this Agreement and Value Added Tax shall be payable in addition at the
appropriate rate by the party receiving the supply upon production of a
valid Value Added Tax invoice.
-32-
20. General Provisions
20.1 Notwithstanding the occurrence of the Completion Date or completion of
the Leases pursuant to clause 26 this Agreement shall remain in full
force and effect in respect of any matter which remains to be carried
out observed or completed by any party and the terms and conditions of
this Agreement shall continue to apply thereto.
20.2 The Tenant agrees with GME and GMI that it will not assign charge or
part with interest under this Agreement or any part thereof or
undertake so to do.
20.3 It is acknowledged by the Tenant that in relation to this Agreement
the Tenant has not acted or relied on any representations made by or
on behalf of GME and/or GMI except those made in writing by GM's
Solicitors in response to written enquiries submitted by the Tenant's
Solicitors.
20.4 This Agreement constitutes the entire contract between the parties.
21. Paragraph Headings
The headings to the clauses and the schedules hereto shall be of no force
or effect and shall not affect the construction hereof.
22. Jurisdiction
The parties hereto agree that this Agreement shall be subject to the
jurisdiction and laws of England.
-33-
23. Schedules
This Agreement incorporates the schedules bound separately and signed by
the parties as being referred to herein.
24. Perpetuity
For the avoidance of doubt the Perpetuity Period for the purposes of this
Deed is 21 years.
25. Dilapidations
25.1 The parties acknowledge that the Premises are not currently in the
state of repair required under the terms of the superior lease of the
Cambridge House Premises and the superior lease of the Oxford House
Premises and the parties further acknowledge that such superior leases
impose a full repairing obligation on GMI and GME respectively.
25.2 The parties have agreed that the Tenant will carry out the
Dilapidation Works on behalf of GME and GMI and GME and GMI have
agreed[ to reimburse the Tenant in respect of such Dilapidation Works
by payment of the Contribution.
26. Early Completion
26.1 Notwithstanding clause 11 of this Agreement, GME and GMI shall be
entitled to serve written notice on the Tenant requiring it to
complete the Leases prior to the Completion Date.
26.2 Five working days following the date of issue of the written notice
referred to in clause 26.1 GME shall grant and the Tenant shall accept
the Oxford House
-34-
Underlease and simultaneously GMI shall grant and the Tenant shall
accept the Cambridge House Underlease.
27. Rent Deposit
27.1 In the event that a demand is made by GMI under the Cambridge House
Bank Guarantee and/or by GME under the Oxford House Bank Guarantee GMI
and/or GME shall pay the amount equal to the product of the total
liability under the relevant bank guarantee less the amount demanded
under the relevant bank guarantee into the relevant Account (as such
expression is defined in the rent deposit deeds dated today's date in
respect of Oxford House and Cambridge House respectively.
27.2 In the event that GME and/or GMI serve written notice on the Tenant
determining this Agreement GME and/or GMI shall send a copy of such
written notice to Lloyds Bank Plc at the address for service stated in
the relevant bank guarantee.
28. Confidentiality
28.1 The parties agree that except where such disclosure is required in
order to comply with the requirements of this agreement or of any
statutory or other competent authority none of them shall disclose to
any third party details of this agreement but this clause shall not
prevent the GME GMI or the Tenant from disclosing the contents of this
Agreement-to their respective professional advisers or bankers or any
associated company.
28.2 Where such disclosure is required for the reasons specified in clause
28.1 the person or body to whom details are disclosed shall be made
aware of the confidential nature of this agreement and shall be put
under an obligation to keep
-35-
such information confidential and not to disclose details to any other
person or body.
28.3 No announcement of the conclusion of this agreement shall be made
unless it has been mutually agreed by the parties.
AS WITNESS whereof the parties hereto have executed this Agreement as a deed the
day and year first before written.
THE COMMON SEAL of GRAND )
METROPOLITAN ESTATES LIMITED )
was affixed in the presence of: )
Director
Director/Secretary
THE COMMON SEAL of GRAND )
METROPOLITAN INFORMATION )
SERVICES LIMITED was affixed in the )
presence of: )
Director
Director/Secretary
THE COMMON SEAL of AIRSPAN )
COMMUNICATIONS LIMITED was )
affixed in the presence of: )
Director
Director/Secretary
-36-
