1
Exhibit 10.5
DATED 2nd April 1998
(1) JC No. 3 (UK) LIMITED
and FLEET STREET SQUARE
MANAGEMENT LIMITED
trading as FLEET STREET
PARTNERSHIP
(2) XXXXXXX XXXXX INTERNATIONAL
(3) RESTAMOVE LIMITED
(4) THE XXXXXXX SACHS GROUP, L.P.
(5) ITOCHU CORPORATION
-------------------------------
AGREEMENT FOR LEASE
relating to the development and
leasing of
000 Xxxxx Xxxxxx,
Xxxxxx XX0
-------------------------------
XXXXXXXX CHANCE
000 Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 0000-000 0000
Fax: 0000-000 0000
Ref: AMW/C1536/839/RMRM
Doc. Name: AMW$03L8.07
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INDEX
Clause PAGE
1. DEFINITIONS, INTERPRETATION AND CONDITIONALITY ....................... 1
1.1 Definitions ................................................... 1
"1927 Act Notice" ............................................. 1
"Agreement for Lease Measurement Plans" ....................... 2
"Approvals" ................................................... 2
"Base Building" ............................................... 2
"Base Building Architects" .................................... 2
"Base Building Consultants" ................................... 2
"Base Building Contracting Team" .............................. 2
"Base Building Contract" ...................................... 2
"Base Building Contractor" .................................... 3
"Base Building M&E Engineers" ................................. 3
"Base Building Plans" ......................................... 3
"Base Building Project Managers" .............................. 3
"Base Building Quantity Surveyors" ............................ 3
"Base Building Specification" ................................. 3
"Base Building Structural Engineers" .......................... 3
"Base Building Works" ......................................... 3
"Base Rate" ................................................... 4
"Basement to Level 4 Lease" ................................... 4
"Building" .................................................... 4
"Building Systems" ............................................ 4
"Category A Works" ............................................ 4
"CAR Policy" .................................................. 4
"CDM Regulations" ............................................. 4
"Certificate of Completion of Fit Out Works" .................. 4
"Certifying Officer" .......................................... 4
"Code of Measuring Practice" .................................. 5
"Commissioning Engineer" ...................................... 5
"Completion of the Fit Out Works" ............................. 5
"Critical Date" ............................................... 5
"Defects Period" .............................................. 5
"Demised Premises" ............................................ 5
"Demolition Works" ............................................ 5
"Demolition Works Specification" .............................. 5
"Developer's Commitment" ...................................... 6
"Development Site" ............................................ 6
"Development Site Plan" ....................................... 6
"Event of Default" ............................................ 6
"Expert" ...................................................... 7
"Extension Event" ............................................. 7
"Extension Period" ............................................ 7
"Fit Out Building Contractor" ................................. 8
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"Fit Out Category A Works" .................................... 8
"Fit Out Category B Works" .................................... 8
"Fit Out Professional Firms" .................................. 8
"Fit Out Quantity Surveyor" ................................... 8
"Fit Out Works" ............................................... 8
"Force Majeure" ............................................... 9
"Group Company" ............................................... 9
"Independent Person" .......................................... 10
"Independent Measurer" ........................................ 11
"Inherent Defect" ............................................. 11
"Initial Rent" ................................................ 11
"Lease" ....................................................... 11
"Lease Insurance Date" ........................................ 11
"Letter of Opinion" ........................................... 12
"Level 5 Lease" ............................................... 12
"Level 6 Lease" ............................................... 12
"Level 7 Lease" ............................................... 12
"Level 8 Lease" ............................................... 12
"Licence for Alterations" ..................................... 12
"Liquidated Damages" .......................................... 12
"Longstop Date" ............................................... 12
"Management Deed" ............................................. 12
"Maximum Damages" ............................................. 12
"Method Statement" ............................................ 12
"Minimum Standard Fitting Out Works" .......................... 13
"Net Internal Area" ........................................... 13
"Planning Permission" ......................................... 13
"Prescribed Interest Rate" .................................... 13
"Professional Appointment" .................................... 13
"Prohibited Materials" ........................................ 14
"Quarter Day" ................................................. 14
"Rent Commencement Date" ...................................... 14
"Retail Unit" ................................................. 14
"Shell & Core Substantial Completion" ......................... 15
"Shell & Core Substantial Completion Date" .................... 15
"Shell & Core Works Certificate" .............................. 15
"Site Regulations" ............................................ 15
"Stage D" ..................................................... 15
"Stage E" ..................................................... 15
"Stage E Design Works" ........................................ 16
"Target Date" ................................................. 16
"Tenant" ...................................................... 16
"Tenant's Delay" .............................................. 16
"Tenant's Proposed Modifications" ............................. 17
"Tenant's Representative" ..................................... 17
"Tenant's Requested Modifications" ............................ 17
"TRM Delay" ................................................... 17
"TRM Specifications" .......................................... 17
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"Tunnel Agreement" ............................................ 17
"Warranty" .................................................... 17
"Working Day" ................................................. 18
1.2 Interpretation ................................................ 18
2. CLADDING ............................................................. 19
3. STOPPING UP .......................................................... 19
4. STAGE E .............................................................. 20
4.1 Upgrade to Stage E ............................................ 20
4.2 Key Stage E Design Packages ................................... 21
4.3 Reference to Independent Expert ............................... 23
4.4 Confirmatory Memorandum ....................................... 23
4.5 Risers ........................................................ 24
5. BASE BUILDING WORKS .................................................. 24
5.1 Approvals ..................................................... 24
5.2 Warranties .................................................... 24
5.3 Millennium Compliance ......................................... 25
5.4 Carrying out of Base Building Works ........................... 25
5.5 Method of Completion .......................................... 25
5.6 Expiry of Developer's Liability ............................... 27
5.7 Tenant's release of adjoining property rights ................. 27
5.8 Quantification of Extension Periods ........................... 27
5.9 Developer to hold harmless .................................... 28
5.10 Payment of Connection Charges ................................. 28
6. SITE VISITS AND MEETINGS AND SUPPLY OF INFORMATION ................... 29
6.1 Entry on to Site to view Base Building Works .................. 29
6.2 Opening Up .................................................... 29
6.3 Progress Meetings ............................................. 30
6.4 Provision of Information ...................................... 31
6.5 Documents to be supplied to Tenant ............................ 32
7. BASE BUILDING PROFESSIONAL FIRMS AND BUILDING
CONTRACTOR ........................................................... 33
7.1 Collateral Deeds of Warranty .................................. 33
7.2 Substitute Appointments ....................................... 33
7.3 Developer to procure performance of contracts ................. 34
7.4 Developer not to terminate contracts .......................... 34
7.5 Novation of appointments of Building Consultants .............. 34
7.6 Construction Documentation .................................... 34
8. DEVELOPER'S VARIATIONS TO BASE BUILDING WORKS ........................ 37
8.1 Detailing of' Base Building Works ............................. 37
8.2 Variations required by law etc. ............................... 37
8.3 Variations requiring approval ................................. 38
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8.4 Disputes ...................................................... 39
9. TENANT'S REQUESTED MODIFICATIONS ..................................... 40
9.1 Tenant's request for change ................................... 40
9.2 Approval of modifications ..................................... 40
9.3 Preparation of Modification Plans ............................. 42
9.4 Developer's Estimates ......................................... 42
9.5 Tenant's response to Developer's estimates . .................. 43
9.6 Tenant not proceeding with modifications ...................... 44
9.7 Tenant accepting the Developer's Estimate . ................... 44
9.8 TRM Costs ..................................................... 44
9.9 Cost and Time Savings for Tenant's Requested Modifications .... 45
9.10 Developer's handling fee ...................................... 46
9.11 Disputes as to TRM Costs ...................................... 46
9.12 Approvals ..................................................... 46
9.13 Time of the essence ........................................... 46
10. COPYRIGHT ............................................................ 46
10.1 Licence to use drawings etc ................................... 46
10.2 Restrictions on copyright to be observed ...................... 47
10.3 Fit Out Category A Works ...................................... 47
11. BASE BUILDING WORKS - ISSUE OF CERTIFICATES .......................... 47
11.1 Inspections, representations and issue of certificates ........ 47
11.2 Fit Out Architect's Duty of Care Deed ......................... 50
11.3 Certificates under building contracts ......................... 50
11.4 Time of the essence ........................................... 50
12. RIGHT TO RESCIND ..................................................... 50
12.1 Tenant's Rescission Notice .................................... 50
12.2 Tenant's Termination Notice ................................... 51
12.3 Agreed grace periods .......................................... 51
12.4 Developer's Request to Extend Longstop Date ................... 52
12.5 Tenant's request to terminate Agreement ....................... 52
12.6 Time of the essence ........................................... 53
13. COMMISSIONING OF PLANT AND MACHINERY ................................. 53
13.1 Commissioning by Commissioning Engineer ....................... 53
13.2 Testing and representations ................................... 53
13.3 Definition of Testing ......................................... 54
13.4 Parties to co-operate as to testing ........................... 54
13.5 Building Systems .............................................. 54
13.6 Testing after fitting-out and occupation ...................... 54
13.7 Carrying out works prior to commissioning ..................... 55
14. DEFECTS .............................................................. 55
14.1 Making good initial defects ................................... 55
14.2 Making good defects at final completion ....................... 55
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14.3 Defects Period ................................................ 55
14.4 Inherent Defects .............................................. 56
14.5 Millennium Compliance rent pay-back ........................... 57
14.6 Maintenance agreements ........................................ 57
14.7 Access by Developer to make good defects ...................... 57
14.8 Damages in respect of a Relevant Defect ....................... 58
14A. FIT OUT WORKS ........................................................ 60
15. FIT OUT PLANS ........................................................ 61
15.1 Preparation of drawings ....................................... 61
15.2 Fit Out Plans/Interface with Building Systems ................. 61
15.3 Detail of Fit Out Plans ....................................... 61
15.4 Restrictions on Fit Out Works ................................. 61
15.5 Documents to be supplied ...................................... 62
15.6 Approval of Fit Out Works ..................................... 62
15.7 Amendment of Fit Out Plans .................................... 63
15.8 Approvals ..................................................... 63
16. ENTRY FOR THE TENANT'S FIT OUT WORKS
AND SUBSEQUENT OCCUPATION ............................................ 63
16.1 Access for Tenant's Fit Out Works ............................. 63
16.2 Design of Fit Out Works ....................................... 63
16.3 Compliance with Site Regulations .............................. 64
16.4 Approval of Fit Out Method Statement .......................... 64
16.5.1 Compliance by Tenant with certain requirements ................ 65
16.5.2 CDM Regulations ............................................... 66
16.6 Observance of Lease covenants ................................. 66
16.7 Developer's right to inspect .................................. 66
16.8 Responsibility for claims ..................................... 66
16.9 Responsibility for delay ...................................... 67
16.10 Collateral Deeds of Warranty .................................. 67
16.11 Early Access .................................................. 67
17. COMPLETION OF TILE FIT OUT WORKS ..................................... 68
17.1 Inspection, representations and issue of certificate .......... 68
17.2 Certificate to be binding ..................................... 69
17.3 Failure to complete Fit Out Category A Works .................. 69
18. ANCILLARY PROVISIONS AS TO TENANT'S FIT OUT WORKS .................... 69
18.1 Documents to be supplied ...................................... 69
18.2 Tenant's indemnity ............................................ 70
19. ENTRY BY THE DEVELOPER AFTER THE SHELL & CORE
SUBSTANTIAL COMPLETION DATE .......................................... 70
20. DEVELOPER'S FIT OUT WORKS ............................................ 71
20.1 Developer's Fit Out Works ..................................... 71
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20.2 Developer's Cap not reached ................................... 72
21. AGREEMENT AS TO OPERATION XX XXXXXXXX
XXX XXXXXX XXX 0000 .................................................. 73
21.1 Effect of Service of 1927 Act Notice .......................... 73
21.2 Disputes as to Cost ........................................... 73
22. INSURANCE ............................................................ 73
22.1 Insurance of Base Building Works .............................. 73
22.2 Destruction of Base Building Works/Developer's Fit Out Works .. 74
22.3 Fit Out Works - notification of reinstatement cost ............ 74
22.4 Insurance of Fit Out Works .................................... 75
22.5 Frustration of re-instatement ................................. 75
22.6 Fit Out Works insurance cost .................................. 75
22.7 Production and inspection of insurance policies ............... 76
23. MEASUREMENT, GRANT OF LEASES, RENT AND OTHER TERMS ................... 76
23.1 Joint Measurement ............................................. 76
23.2 Grant of Leases ............................................... 77
23.3 Calculation of rent and commencement date ..................... 77
23.4 Licence fees pending grant of Lease ........................... 80
23.5 Retail Unit ................................................... 80
23.6 Extension of Rent Commencement Date ........................... 82
23.7 Letter of Opinion ............................................. 82
24. TITLE ................................................................ 82
24.1 Title deduced ................................................. 82
24.2 Developer's Land Certificate to be put on deposit ............. 83
25. CONDITIONS AFFECTING THE GRANT OF THE LEASES ......................... 83
25.1 Leases granted subject to certain matters ..................... 83
25.2 Variations to plans ........................................... 84
25.3 No representations ............................................ 84
25.4 All terms incorporated ........................................ 84
26. EVENT OF DEFAULT ..................................................... 85
26.1 Circumstances giving rise to an Event of Default .............. 85
26.2 Right to determine ............................................ 86
26.3 Repayments .................................................... 86
27. CAPITAL ALLOWANCES ................................................... 86
27.1 Allocation .................................................... 86
27.2 The Contributor's entitlement to capital allowances ........... 87
27.3 The Contributee's claim for capital allowances ................ 87
28. VAT .................................................................. 88
28.1 Definitions ................................................... 88
28.2 All sums exclusive of VAT ..................................... 89
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28.3 VAT on supplies ............................................... 89
28.4 Repayment of amounts .......................................... 89
28.5 Reimbursements and VAT ........................................ 90
29. GUARANTEE OF PERFORMANCE OF TENANT'S OBLIGATIONS ..................... 90
29.1 Covenants by Tenant's Surety .................................. 90
29.2 Successor Tenant's Surety ..................................... 91
30. GUARANTEE OF PERFORMANCE OF DEVELOPER'S OBLIGATIONS .................. 92
31. CONFIDENTIALITY PROVISIONS ........................................... 93
31.1 Non-disclosure ................................................ 93
31.2 Notification of permitted Disclosures ......................... 93
31.3 Non-disclosure period ......................................... 94
31.4 Exceptions .................................................... 94
32. DISPUTES ............................................................. 94
32.1 Determination by an Independent Person ........................ 94
32.2 Appointment of Independent Person ............................. 94
32.3 New appointments .............................................. 94
32.4 Power of Independent Person to bring in specialist advice ..... 94
32.5 Arbitration ................................................... 95
32.6 Expert ........................................................ 95
32.7 Independent Person to determine delays ........................ 96
33. NOTICES .............................................................. 96
33.1 Meaning of "Address" .......................................... 96
33.2 Delivery of Notices ........................................... 96
33.3 Addresses for Notices ......................................... 96
34. SENIOR MANAGERS AND TENANT'S AGENTS' AUTHORITY ....................... 97
34.1 Designation of Senior Managers ................................ 97
34.2 Initial designation ........................................... 97
34.3 Ability to rely upon Senior Managers .......................... 97
34.4 Ability to change designation ................................. 97
35. CONTINUANCE AND NON-MERGER ........................................... 97
36. NO ASSIGNMENT/PERSONAL OBLIGATIONS ................................... 98
36.1 Tenant's interest personal .................................... 98
36.2 Developer's interest personal ................................. 98
36.3 Implied covenants excluded .................................... 98
36.4 Novation of obligations to ITOCHU ............................. 99
37. EXCLUSION OF DEVELOPER'S LIABILITY ................................... 99
37.1 No liability beyond this Agreement ............................ 99
37.2 No liability for consequential loss ........................... 99
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38. GENERAL PROVISIONS ................................................... 99
38.1 Interest on late payments ..................................... 99
38.2 Invalidity of certain provisions .............................. 99
38.3 Proper Law and Jurisdiction ................................... 100
38.4 Immunity from Suit ............................................ 100
38.5 Examination by Tenant ......................................... 100
38.6 Key Man Requirements .......................................... 100
38.7 Shoe Lane Protocol ............................................ 101
39. TUNNEL AND BRIDGES ................................................... 101
40. DEFERRAL OF PAYMENTS ................................................. 102
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INDEX OF ANNEXURES AND EXHIBITS
ANNEXURE CLAUSE REFERENCE
1. Basement to Level 4 Lease
2. Level 5 Lease
3. Level 6 Lease
4. Level 7 Lease
5. Level 8 Lease
6. Management Deed
7. Licence for alterations
8. Base Building Specification and Plans "Base Building Speciflcation"
"Base Building Plans"
9. Development Site Plan "Building" and
"Development Site Plan"
10. Agreement for Lease Measurement Plans "Agreement for Lease
Measurement Plans"
11. Critical Dates "Critical Dates"
12. Demolition Works Specification "Demolition Works
Specification"
13. Minimum Standard Fitting Out Works Specification "Minimum Standard Fitting
Out Works"
14. Base Building Architects Appointment and Warranty Clause 7.1.1
15. Base Building M&E Engineer Appointment and Warranty Clause 7.1.2
16. Base Building Structural Engineer Appointment and Warranty Clause 7.1.3
17. Base Building Contract and Contractor's Warranty Clause 7.1.5
18. Tenant's Proposed Modifications Clause 9.2.3
19. Letter of Opinion Clause 23.7
20. Novation Deed Clause 36.4
21. Shoe Lane Protocol Clause 38.7
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22. Stopping Up Plan Clause 3
23. Tunnel Agreement Clause 39
24. Risers Plan Clause 4.6
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THIS AGREEMENT is made as a deed the 2nd day of April One thousand nine hundred
and ninety-eight
BETWEEN:--
(1) JC No. 3 (UK) LIMITED and FLEET STREET SQUARE MANAGEMENT LIMITED trading as
FLEET STREET PARTNERSHIP ("THE DEVELOPER") BOTH OF 00 XXXX XXXX, Xxxxxx
XX0X 0XX
(2) XXXXXXX XXXXX INTERNATIONAL ("GSI" which expression shall be deemed to
include its successors in title) of Xxxxxxxxxxxx Xxxxx, 000 Xxxxx Xxxxxx,
Xxxxxx XX0X 0XX;
(3) RESTAMOVE LIMITED (Company Registration Number 01429809) ("Levels 5-8
TENANT") which expression shall be deemed to include its successors in
title) whose registered office is at Xxxxxxxxxxxx Xxxxx, 000 Xxxxx Xxxxxx,
Xxxxxx XX0X 0XX;
(4) THE XXXXXXX SACHS GROUP L.P. of 00 Xxxxx Xxxxxx Xxx Xxxx Xxx Xxxx 00000
("THE TENANT'S SURETY");
(8) ITOCHU CORPORATION ("ITOCHU") of 0-0, Xxxx-Xxxxxx 0-xxxxx, Xxxxxx-xx, Xxxxx
000-0000, Xxxxx.
WHEREBY IT IS AGREED as follows:-
1. DEFINITIONS, INTERPRETATION AND CONDITIONALITY
1.1 DEFINITIONS
In this Agreement unless the context requires otherwise the following words
and expressions shall have the meanings respectively ascribed to them:--
"1927 ACT NOTICE" means a notice served by the Tenant pursuant to Section 3
of the Landlord and Xxxxxx Xxx 0000 and as specified in Clause 21
"AFFILIATE" of any specified person means any other person directly or
indirectly controlled or controlled by or under common control with such
specified person (for the purposes of this paragraph "control" (including
"control by" or under "common control with") shall mean the power to direct
management and policies directly or indirectly whether through the
ownership of voting securities or equity interests by contract or
otherwise);
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"AGREEMENT FOR LEASE MEASUREMENT PLANS" are the plans annexed hereto and
entitled as such at ANNEXURE 10
"APPROVALS" means the Planning Permission, listed building consent and all
other consents, licences, permissions and approvals of any local or other
competent authority which may from time to time be necessary to enable the
Developer or the Tenant lawfully to commence and thereafter carry out the
Base Building Works or the Fit Out Works (as appropriate) (together with
any conditions respectively thereof) including, if the same are destroyed
or damaged, the reinstatement of the Base Building Works or the Fit Out
Works (as appropriate) and any other approvals whether of a public or
private nature which may be required including any projection licences for
highway overhangs and the term "APPROVAL" shall be construed accordingly
"ASSOCIATED COMPANY" means a company corporation or partnership which is a
subsidiary or Affiliate of another and a company corporation or partnership
shall be taken to be associated if both are subsidiaries or Affiliates of a
third company corporation or partnership
"BASE BUILDING" means subject to the provisions of this Agreement the
building described in the Base Building Specification and the Base Building
Plans but (for the avoidance of doubt otherwise than as provided for in
Clause 39.4 hereof) excluding the Bridge Works (as defined in the Bridges
Agreement) and the Tunnel Works (as defined in the Tunnel Agreement)
"BASE BUILDING ARCHITECTS" means Xxxxxx Xxxxxxxxx & Associates of 000
Xxxxxxxxx Xxxx Xxxxxx XX0X 0XX or such other firm of architects as shall
with the approval of the Tenant (such approval not to be unreasonably
withheld) be appointed by the Developer
"BASE BUILDING CONSULTANTS" means the Base Building Architects, the
Certifying Officer, the Base Building Project Managers, the Base Building
Quantity Surveyors, the Base Building Structural Engineers and the Base
Building M&E Engineers
"BASE BUILDING CONTRACTING TEAM" means the Base Building Contractor and the
sub-contractors with material design responsibilities appointed by the Base
Building Contractor to carry out the Base Building Works (or any part
thereof)
"BASE BUILDING CONTRACT" means the contract entered into by the Developer
in accordance with Clause 7.6.2 providing for the execution of the Base
Building Works as the same may be amended or modified from time to time in
accordance with this Agreement
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"BASE BUILDING CONTRACTOR" means Kajima U.K. Engineering Limited and Xxxxxx
Xxxxxxx Construction Limited acting in joint venture or an alternative
building contractor appointed with the approval of the Tenant (such
approval not to be unreasonably withheld) from time to time
"BASE BUILDING M&E ENGINEERS" means Xxx Xxxx & Partners, Consulting
Engineers, of 00 Xxxxxxx Xxxxxx Xxxxxx X0X 0XX or such other firm of
mechanical and electrical engineers as shall with the approval of the
Tenant (such approval not to be unreasonably withheld subject to Clause
7.2.2) be appointed by the Developer
"BASE BUILDING PLANS" means subject to the provisions of this Agreement the
Base Building Plans as annexed hereto identified in ANNEXURE 8 and all
other plans drawings and specifications for the Base Building Works (as the
same may be updated or varied in accordance with this Agreement from time
to time)
"BASE BUILDING PROJECT MANAGERS" means Gleeds Management Services of 000
Xxxxxx Xxxxxx Xxxxxx X0X 0XX or such other firm as shall with the approval
of the Tenant (such approval not to be unreasonably withheld subject to
Clause 7.2.2) be appointed by the Developer
"BASE BUILDING QUANTITY SURVEYORS" means Gleeds of 000 Xxxxxx Xxxxxx Xxxxxx
X0X 0XX or such other firm of quantity surveyors as shall with the approval
of the Tenant (such approval not to be unreasonably withheld subject to
Clause 7.2.2) be appointed by the Developer
"BASE BUILDING SPECIFICATION" means subject to the provisions of this
Agreement the specification for the Base Building as described in the
document entitled "Base Building Specification" (including the agreed
amendment schedule) (as the same may be updated or varied in accordance
with this Agreement from time to time) at ANNEXURE 8
"BASE BUILDING STRUCTURAL ENGINEERS" means Xxx Xxxx & Partners, Consulting
Engineers, of 00 Xxxxxxx Xxxxxx Xxxxxx X0X 0XX or such other firm of
structural engineers as shall with the approval of the Tenant (such
approval not to be unreasonably withheld subject to Clause 7.2.2) be
appointed by the Developer
"BASE BUILDING WORKS" means the aggregate of the Demolition Works and the
construction of the Base Building in accordance with the Base Building
Specification and the Base Building Plans (but excluding (for the avoidance
of doubt otherwise than as provided for in Clause 39.4) the Bridge Works
(as defined in the Bridge Agreement) and the Tunnel Works
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(as defined in the Tunnel Agreement) and omitting the Category A Works but
including any Tenant's Requested Modifications which are to be carried out
by the Developer pursuant to Clause 9) as the same may be varied from time
to time under Clause 8
"BASE RATE" means the base rate for the time being of Midland Bank PLC or
some other London Clearing Bank nominated from time to time by the
Developer, or in the event of such base rate ceasing to exist, such other
comparable rate of interest as the Developer shall reasonably specify
"BASEMENT TO LEVEL 4 LEASE" means the draft lease annexed hereto as
ANNEXURE 1
"BRIDGES AGREEMENT" means an agreement substantially in the form of the
Tunnel Agreement with such amendments as may be approved by the Developer
(such approval not to be unreasonably withheld) and in the event of dispute
as shall be determined by the Independent Person
"BUILDING" means the building to be known as 000 Xxxxx Xxxxxx, Xxxxxx XX0
and situate within the red edging on the Development Site Plan and (for the
avoidance of doubt excluding the proposed bridges and tunnel which may
connect the Building to Xxxxxxxxxxxx Xxxxx, 000 Xxxxx Xxxxxx Xxxxxx)
"BUILDING SYSTEMS" means the mechanical, electrical, sanitary, heating,
ventilating, life safety, air conditioning, fire or other systems in the
Building
"CATEGORY A WORKS" means the works described in the Minimum Standard
Fitting Out Works Specification (these being works which the Developer will
be omitting from the Base Building Works with the intention that such works
will be replaced by works comprised within the Fit Out Category A Works)
"CAR POLICY" means the Building Contractor's all risks policy as revised
from time to time
"CDM REGULATIONS" means the Construction (Design and Management)
Regulations 1994
"CERTIFICATE OF COMPLETION OF FIT OUT WORKS" means the certificate to be
issued by the Fit Out Architect in accordance with Clause 17 signifying
that Completion of the Fit Out Works has occurred
"CERTIFYING OFFICER" means Xxxxxx Xxxxxxxxxx of Gleeds (or such other
person as the Developer shall from time to time appoint with the approval
of the Tenant such approval
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not to be unreasonably withheld subject to Clause 7.2.2 as employer's agent
or contract administrator or other person having responsibility for
certification of practical completion or the giving of a written statement
of practical completion or a certificate of completion or any analogous
certification under any Base Building Contract and/or this Agreement)
"CODE OF MEASURING PRACTICE" means the Code of Measuring Practice prepared
by the Royal Institution of Chartered Surveyors and the Incorporated
Society of Valuers and Auctioneers (Fourth Edition dated November 1993)
"COMMISSIONING ENGINEER" means the commissioning engineer to be appointed
by the Developer or the Base Building Contractor (with the approval of the
Tenant such approval not to be unreasonably withheld) to commission the
plant and machinery the supply or fixing of which is included in the Base
Building Works and the Developer's Fit Out Works and which the Tenant shall
also simultaneously appoint to perform the same function in relation to the
Tenant's Fit Out Works in accordance with the provisions of and to carry
out the functions referred to in Clause 13
"COMPLETION OF THE FIT OUT WORKS" means the practical completion of the Fit
Out Works as certified by the Fit Out Architect
"CRITICAL DATE" means in respect of various categories of Works the later
of (a) the relevant date identified in the Schedule of Critical Dates at
ANNEXURE 11 and (b) five (5) Working Days after the date when Full Details
in respect of the relevant category of Works have first been provided to
the Tenant in accordance with Clause 4.1.2
"DEFECTS PERIOD" means the period or periods determined in accordance with
the provisions of Clause 14
"DEMISED PREMISES" means the totality of the premises to be demised by the
Leases (subject to revision in accordance with the provisions of Clause
25.2)
"DEMOLITION WORKS" means the works of demolition described in the
Demolition Works Specification
"DEMOLITION WORKS SPECIFICATION" means the specification with that title
attached as ANNEXURE 12
"DEVELOPER'S CAP" shall be determined in accordance with the following:
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DC = Eighteen million two hundred and eighty eight thousand three hundred
pounds (Pounds Sterling 18,288,300) + TRMS - TRMC - NI
Where:
DC means the Developer's Cap;
TRMS means the aggregate amount of all cost savings agreed or determined in
accordance with Clause 9.9.1 less the aggregate of (i) the amount of
any such cost saving paid to the Tenant in accordance with that Clause
and (ii) the amount of any such cost saving in respect of which an
election is made by the Tenant in accordance with Clause 9.9.2;
TRMC means the aggregate of all TRM Costs actually incurred or suffered by
the Developer together with notional interest thereon (which shall be
compounded quarterly) at 9.5% per annum from the date each element of
TRM Cost is incurred or suffered until 15 November 2000; and
NI means notional interest (which shall be compounded quarterly) at 9.5%
per annum from the date each payment is made to GSPM under clause 5.6
of the Procurement Contract until the date which is nine (9) months
after Shell and Core Substantial Completion
and reduced from time to time in accordance with Clause 20.1B;
"DEVELOPER'S COMMITMENT" means Twelve million one hundred and nine thousand
three hundred and twenty four pounds (Pounds Sterling) 12,109,324) as
reduced from time to time in accordance with Clause 20.1A
"DEVELOPER'S FIT OUT WORKS" shall have the meaning set out in the
Procurement Contract
"DEVELOPER'S PROGRAMME" means the programme for the design and construction
of the Base Building Works annexed hereto as updated by the Developer and
notified to the Tenant from time to time in accordance with this Agreement
"DEVELOPMENT SITE" means the area shown edged red on the Development Site
Plan
"DEVELOPMENT SITE PLAN" means the plan with that title annexed to this
Agreement at ANNEXURE 9
"EVENT OF DEFAULT" shall have the meaning set out in Clause 26
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"EXPERT" means an Independent Person acting as an expert pursuant to Clause
32.6
"EXTENSION EVENT" means the events, matters and occurrences set out in the
definition of "Extension Period"
"EXTENSION PERIOD" means the overall period of delay to the Base Building
Works actually incurred as a result of any of the following:-
(A) any extensions of time properly awarded under any Base Building
Contract;
(B) Force Majeure; or
(C) the carrying out by a local authority, statutory undertaker, or
utility company of work in pursuance of its statutory obligations
affecting any work to be carried out in connection with the
Development or the failure to carry out such work or (where there is a
change in law or regulations) any requirement of any such
organisations or bodies for design or specification changes or the
taking down of works which have already been carried out;
(D) any material variation to the design of the Building required as a
result of the failure to have stopped-up pursuant to an Order granted
under section 246 of the Town and Country Planning Xxx 0000 the land
shown hatched black on the plan forming ANNEXURE 22
(E) the insolvency of the Base Building Contractor or the Base Building
Architects or the Base Building Project Managers or the Base Building
Quantity Surveyors or the Base Building Structural Engineers or the
Base Building M&E Engineers (but not due to any negligent act or
omission caused by negligence of the Developer or any failure of the
Developer to pay such persons); and
(F) Tenant's Delay;
as agreed or determined in accordance with Clause 5.8.3 Provided That (a)
for the avoidance of doubt when calculating the overall period of any delay
for the purposes of this Agreement there shall also be included any period
or periods of delay consequential upon any of the above-mentioned events
and (b) there shall be no double counting of any such periods of delay
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"FIT OUT ARCHITECT" means X.X. Xxxxxxx Partnership of 000 Xxxx Xxxxxxx
Xxxxxx XX0X 0XX or such other firm of architects as shall with the approval
of the Developer (such approval not to be unreasonably withheld) be
appointed by or on behalf of the Tenant or any Group Company
"FIT OUT BUILDING CONTRACTOR" means the main building contractor,
management contractor or construction manager as the case may be and
appointed in or on behalf of the Tenant or any Group Company in connection
with the carrying out of the Fit Out Works (in the case of the Tenant's Fit
Out Works, with the prior written approval of the Developer such approval
not to be unreasonably withheld or delayed provided that such approval
shall be given within 10 Working Days of a written request or any objection
notified within such time limit and any failure to respond shall mean that
the Developer is deemed to have accepted such appointment)
"FIT OUT CATEGORY A WORKS" means the works of completing the installation
connection and commissioning of services to and the initial fitting out of
the Demised Premises to the extent necessary to render the Demised Premises
suitable and ready for occupation for the use permitted by the Lease and
shall comprise the Minimum Standard Fitting Out Works or such other works
in substitution therefor as approved by the Developer pursuant to Clause
15.6
"FIT OUT CATEGORY B WORKS" means the works (if any) (in addition to the Fit
Out Category A Works) which are undertaken for the purposes of the fitting
out of the Demised Premises and which are approved in accordance with the
provisions of this Agreement
"FIT OUT PLANS" shall have the meaning ascribed to them in Clause 15.2
"FIT OUT PROFESSIONAL FIRMS" mean the architects, quantity surveyors,
engineers and other professionals or sub-contractors providing services or
advice to the Tenant or any Group Company acting on its behalf in or about
the Fit Out Works
"FIT OUT QUANTITY SURVEYOR" means Xxxxxxx Xxxxxxxx Associates of King's
House 00-00 Xxxxxxx Xxxx Xxxxxxx Xxxx XX0 0XX or such other firm of
quantity surveyors as may from time to time be appointed in respect of the
Fit Out Works
"FIT OUT WORKS" means collectively the Fit Out Category A Works and (if
any) the Fit Out 03 Category B Works or any of them as the context so
requires
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"FORCE MAJEURE" means any of fire, xxxxx, xxxxxxx, other extreme adverse
weather conditions, war, hostilities, rebellion, revolution, insurrection,
military or usurped power, civil war, national strikes, riot, terrorist
action, commotion, disorder, decree of government, non availability of
labour, materials or equipment (to the extent the same are not readily
obtainable elsewhere) and (without prejudice to the generality of the
foregoing) any other cause or circumstances which are beyond the
Developer's reasonable control and which adversely affects the performance
by the Developer or anyone acting on its behalf of the terms and provisions
of this Agreement
Provided that each and every such cause or circumstance shall only count to
the extent that it:-
(i) adversely affects the performance of the Developer or anyone acting
on its behalf in relation to the terms and provisions of this
Agreement; and
(ii) cannot reasonably be avoided or provided against by the Developer
and/or the Base Building Consultants and/or the Base Building
Contracting Team without any undue cost; and
(iii) is not due to the wilful or deliberate act default or negligent act
or omission of the Developer
"FULL DETAILS" means the level of design detail which in the proper opinion
of the Base Building Architect is required to achieve Stage E together with
as incidental thereto such calculations drawings specifications and other
information as have been made available to the Developer as part of the
Stage E Detail Design
"GROUP COMPANY" means:
(i) in relation to the Developer any company which is for the time being:-
(a) a subsidiary of the Developer or
(b) the holding company or parent company of the Developer or
(c) another subsidiary of the holding company or parent company of
the Developer (whether or not that subsidiary may itself be a
parent or holding company of a sub-group of companies within the
whole group),
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in each case within the meaning of Sections 258, 259 and 736 of the
Companies Xxx 0000, as amended by the Companies Xxx 0000; and
(ii) in relation to the Tenant any company within the same group of
companies as the Tenant as set out below:-
(a) any two companies shall be taken to be members of a group if one
is the subsidiary of the other or both are subsidiaries of a
third company;
(b) In determining whether any company is a subsidiary of another
company the word subsidiary bears the meaning assigned to it by
Section 736 of the Companies Xxx 0000 as originally enacted;
(c) In determining whether any corporation (which shall be construed
in accordance with Section 740 of the Companies Xxx 0000 as
originally enacted) is a subsidiary of another corporation or of
a company or whether any company is a subsidiary of a corporation
the word subsidiary bears the meaning assigned to it by section
736 of the Companies Xxx 0000 as originally enacted but modified
only so that `company' includes `corporation' for this purpose;
(d) A partnership (which shall be construed as including a
partnership under the laws of the United Kingdom or elsewhere)
shall be taken to be a subsidiary of another partnership or of a
company or corporation if that other partnership or company or
corporation is entitled to more than one half of the assets or
more than one half of the income of the first mentioned
partnership;
(e) A company or corporation shall be deemed to be a subsidiary of a
partnership if that partnership controls the composition of the
board of directors of the company or corporation or holds more
than half in nominal value of the issued equity share capital of
the company or corporation;
"GSPM" means Xxxxxxx Xxxxx Property Management
"INDEPENDENT PERSON" means the independent person appointed to act as
specified in Clause 32.5 or Clause 32.6 (as applicable)
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"INDEPENDENT MEASURER" means Xxxxxxx Xxxxxx Associates of 000 Xxxxx Xxxxx
Xxxx Xxxxxxx Xxxxxxxxx Xxxxx XX0 0XX or such other firm with expertise in
measuring floors in buildings of a nature similar to the Building as the
parties may agree (or as may in default of agreement be nominated by the
President for the time being of the Royal Institute of Chartered Surveyors
as (or his deputy) on the application of any party);
"INHERENT DEFECT" means any latent or inherent defect attributable to
breach of the Developer's warranty in Clause 5.5 and/or present in the Base
Building Works as originally designed and/or constructed and/or varied by
Tenant's Proposed Modifications or Tenant's Requested Modifications and
which is attributable to or connected with the design workmanship tests
investigation or supervision of the Base Building Works (varied as
aforesaid) or attributable to the materials used therein having been
defective inadequate unsuitable or incomplete or otherwise substandard or
is an occurrence of damage or disrepair caused by or consequent on any such
defect judged in accordance with the standards of professional practice and
any codes of practice usual (in the case of design) at the time when the
relevant part of the Base Building Works (varied as aforesaid) was designed
and usual (in the case of workmanship) at the time when the relevant work
was done but (in the case of design subject further as provided in Clause
5.5.2 and in each case) to the extent only in all cases that any defect is
not caused or aggravated (whether directly or indirectly) by failure by the
Tenant (in circumstances where the Tenant knew or ought reasonably to have
known of the relevant defect) to comply (or procure compliance by others)
with its obligations in this Agreement or any relevant Lease or any
documents ancillary or supplemental to any of them or (where the defect has
come to the attention of the Tenant) any unreasonable actions or omissions
or works which the Tenant or any undertenant or other occupiers or licensee
(or persons acting for or on behalf or any of them or under their control)
may do or make or carry out
"INITIAL RENT" shall have the meaning ascribed thereto in the Leases and in
respect of each Lease shall be the relevant amount specified in Clause 23.3
"LEASE" means any one (as the context shall admit) of the leases comprising
the Basement to Xxxxx 0 Xxxxx, Xxxxx 5 Lease, Level 6 Lease, Level 7 Lease
and Level 8 Lease as the case may be (with such additions or amendments as
are provided for in this Agreement) to be granted to the Tenant on the
terms prescribed by Clause 23 and "Leases" shall be construed accordingly
"LEASE INSURANCE DATE" means the date of completion of the grant of the
Lease
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23
"LETTER OF OPINION" means a letter of opinion in the form of the draft
annexed as ANNEXURE 19 but amended so as to relate to the Leases the
Licence for Alterations the Management Deed the Bridges Agreement and the
Tunnel Agreement at the time of their respective grants
"LEVEL 5 LEASE" means the draft lease annexed hereto as ANNEXURE 2
"LEVEL 6 LEASE" means the draft lease annexed hereto as ANNEXURE 3
"LEVEL 7 LEASE" means the draft lease annexed hereto as ANNEXURE 4
"LEVEL 8 LEASE" means the draft lease annexed hereto as ANNEXURE 5
"LICENCE FOR ALTERATIONS" mean the licence regulating and approving the
manner of execution of the Tenant's Fit Out Works in the form of the draft
annexed as ANNEXURE 7
"LIQUIDATED DAMAGES" means liquidated and ascertained damages payable at
the rate of one hundred thousand pounds (Pounds Sterling 100,000) per week
and pro rata for any part of a week
"LONGSTOP DATE" means (subject to postponement by the number of days of any
Tenant's Delay) 25 December 2003
"MANAGEMENT DEED" means the management deed in the form of the draft
annexed as ANNEXURE 6
"MAXIMUM DAMAGES" means a total of Liquidated Damages not to exceed five
million two hundred thousand pounds (Pounds Sterling 5,200,000)
"METHOD STATEMENT" means the method statement to be provided by the Tenant
in accordance with Clause 16.4
"MILLENNIUM COMPLIANT" means the ability of plant machinery and equipment
and related computer systems and/or related hardware and/or software to
provide those of the following functions to the levels which are required
in order properly to operate the Base Building for the period up to and
including 1 January 2001:-
(a) handle date information before, during and after January 1, 2000,
including, but not limited to, accepting date input, providing date
output taking account of leap years after 1999 and performing
calculations on dates or portions of dates;
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(b) function accurately and without interruption before, during and after
January 1, 2000, without any change in operations associated with the
advent of the year 2000 and the new century
"MINIMUM STANDARD FITTING OUT WORKS" means the works described in the
specification annexed to this Agreement as ANNEXURE 13 and entitled
"Minimum Standard Fitting Out Works Specification"
"NET INTERNAL AREA" means the net internal area expressed in square feet
and square metres (but so that for the avoidance of doubt all figures
relating to rent appearing in or to be calculated pursuant to this
Agreement shall relate to square feet and not square metres) of those parts
of the Demised Premises shown edged red on the Agreement for Lease
Measurement Plans and measured for the purposes of ascertaining the Initial
Rent under each of the Leases in accordance with the Code of Measuring
Practice but so that notwithstanding the provisions of the Code of
Measuring Practice the areas shown cross-hatched red or cross-hatched
yellow or cross-hatched blue or cross-hatched green on the Measurement
Plans and the risers referred to in Clause 4.5 shall in any event be deemed
to constitute Net Internal Area for the purposes of this Agreement and for
the avoidance of doubt in the case of conflict between:-
(a) this definition; and
(b) the application of the said code;
the former shall prevail provided that the storage areas comprised in any
set of Demised Premises shall, if not counted as Net Internal Area for the
purposes of the Code of Measuring Practice, be measured in accordance with
surveyors' normal practice for such areas and shall also be included in the
calculation of the Initial Rent
"PLANNING PERMISSION" means the permission granted on the 9 December 1997
by the Corporation of London under reference number P30926
"PRESCRIBED INTEREST RATE" means two per cent (2%) per annum above Base
Rate
"PROCUREMENT CONTRACT" means the contract of even date herewith for the
carrying out by GSPM on behalf of the Developer of certain elements of the
Fit Out Works
"PROFESSIONAL APPOINTMENT" means the appointment by the Developer of each
of the Base Building Consultants which in the case of those known of at the
date hereof shall be
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materially in the form of the respective consultancy appointments annexed
hereto and in all other cases as provided for in Clause 7.6.1
"PROHIBITED MATERIALS" means:-
(a) any materials where it is known at the time the Base Building Works
are being carried out that such materials might in themselves or as a
result of the manner of their use pose a hazard to health and in
particular to the health of the personnel involved in the construction
or maintenance of the Development or to the eventual occupants
thereof;
(b) any materials which are notified by the Tenant to the Developer prior
to commencement of construction of the Base Building Works as being
prohibited in relation to the Base Building Works and which at the
time the Base Building Works are being carried out are generally
accepted of:-
(i) being deleterious in themselves;
(ii) becoming deleterious when used in a particular situation or in
combination with other materials;
(iii) becoming deleterious with passage of time;
(iv) becoming deleterious as a result of poor workmanship during
construction;
(v) being damaged by or causing damage to the structure in which
they are incorporated or to which they are affixed;
"QUARTER DAY" means each of the 25th day of March, 24th day of June, 29th
day of September and 25th day of December in any year
"RENT COMMENCEMENT DATE" means (subject as set out in Clause 23.3.8) the
date specified in Clause 23.3 (as extended if appropriate pursuant to
Clause 23.6)
"RETAIL UNIT" means the retail accommodation at lower ground and ground
floor levels shown edged and hatched xxxxx on the Measurement Plans
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"SHELL & CORE SUBSTANTIAL COMPLETION" means the practical completion of the
Base Building (save for any openings in the external envelope provided for
in the Base Building Specification or requested as Tenant's Requested
Modifications and save for any items of the Base Building Works which
remain incomplete with the approval of or at the request of the Tenant or
by reason of hoisting or site and other like facilities made available to
the Tenant as requested or approved by the Tenant such approval not to be
unreasonably withheld and excluding the Retail Unit (save for the shell
thereof)) and the installation of the utilities and all facilities, systems
and services of the Base Building which are comprised within the Base
Building Definition all as certified by the Certifying Officer or agreed or
determined in accordance with Clause 11 subject to such matters as are
included in any snagging list Provided that (save as requested or approved
by the Tenant as aforesaid) none of the matters left outstanding (whether
individually or cumulatively) are of such consequence as to prevent or be
reasonably likely to prevent the commencement and/or continuation and/or
completion of the Fit Out Works in a reasonably programmed orderly and
continuous manner without material interruption obstruction interference or
restriction beyond that resulting from the usual making good of snagging
items and defects
"SHELL & CORE SUBSTANTIAL COMPLETION DATE" means the date of completion of
the construction of the works referred to in the Shell & Core Substantial
Completion definition as certified or agreed or determined in accordance
with Clause 11
"SHELL & CORE WORKS CERTIFICATE" means the certificate evidencing Shell &
Core Substantial Completion issued in accordance with this Agreement
"SHOE LANE PROTOCOL" means the protocol annexed to this Agreement as
ANNEXURE 21
"SITE REGULATIONS" means such reasonable regulations as may be promulgated
by or on behalf of the Developer from time to time for the efficient
running of the Development Site Provided that such regulations shall not
prevent the commencement, continuation and completion of the Fit Out Works
in accordance with the provisions of this Agreement in a reasonably
programmed orderly and continuous manner without material interruption
obstruction or restriction
"STAGE D" means Stage D Scheme Design as described in paragraph 01 of Stage
D Scheme Design in Schedule 2 of the Standard Form of Agreement for the
Appointment of an Architect SFA/92, 1996 Revision
"STAGE E" means in relation to services to be carried out by the Base
Building Architects Stage E Detail Design as described in paragraph 01 of
Stage E Detail Design in Schedule 2
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of the Standard Form of Agreement for the Appointment of an Architect
SFA/92, 1996 Revision and in relation to other services to be performed by
other members of the Base Building Consultants means in the proper opinion
of the Base Building Architects design to an equivalent level of detail
"STAGE E DESIGN WORKS" means the design works necessary in order to achieve
Stage E
"STAGE E DRAWINGS AND SPECIFICATIONS" means the drawings and specifications
required to take the Base Building Plans and Base Building Specification to
Stage E
"TARGET DATE" means (subject to postponement day for day by any Extension
Period) 24 June 2000
"TENANT" means together GSI and the Level 5-8 Tenant and any obligation on
the part of the Tenant shall be a joint and several obligation of each of
them unless otherwise expressly stated in this Agreement
"TENANT'S DELAY" means any actual delay to the Base Building Works or any
part or item of them to the extent that it arises out of any act or
omission or requirement of the Tenant or the Tenant's Consultants or its
agents, servants or contractors or other event for which the Tenant or
those acting on its behalf is or are directly or indirectly responsible
including delays resulting from and properly attributable to any
circumstances (or any combination of circumstances) including but not
limited to the following:-
(i) any express request by the Tenant that the Developer delay the
preparation for, commencement or completion of any work comprising
any part of the Base Building Works for any reason (or any
requirement for delay resulting from such request);
(ii) any TRM Delay or delay which pursuant to the Bridges Agreement or
Tunnel Agreement is deemed the equivalent of a TRM Delay or Tenant
Delay;
(iii) any breach by the Tenant of any of the terms of this Agreement; or
(iv) any other delay expressly specified or referred to in this Agreement
as a Tenant's Delay
and so that for the avoidance of doubt (a) in calculating the overall
period of any Tenant's Delay there shall also be included the full amount
of any period or periods of delay
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consequential on any delays caused by any (or any combination) of the above
events and (b) there shall be no double counting of any such periods of
delay but so that in calculating any Tenant's Delay regard shall be had to
the Developer's Programme
"TENANT'S FIT OUT WORKS" shall have the meaning set out in the Procurement
Contract;
"TENANT'S PROPOSED MODIFICATIONS" means the Tenant's proposed modifications
to the Base Building Works which have already been submitted to the
Developer by the Tenant and which the parties have agreed shall be treated
as having formed the subject of a TRM Application and which are detailed in
the Schedule marked "Tenant's Proposed Modifications" annexed as ANNEXURE
18
"TENANT'S REPRESENTATIVE" means the Fit Out Architect or such other firm of
architects as the Tenant may from time to time procure GSPM to appoint in
writing (but so that there shall never be more than one Fit Out
Representative at any one time) with the approval of the Developer (such
approval not to be unreasonably withheld or delayed) Provided That such
approval shall be given within 10 Working Days of a written request or any
objection notified within such time limit and any failure to respond shall
mean that the Developer is deemed to have accepted such appointment and
provided further that the Developer shall be entitled to refuse approval
in its absolute discretion where any proposed replacement Fit Out
Representative does not enter into a deed with the Developer having the
same substantive effect as that previously entered into by the prior Fit
Out Representative
"TENANT'S REQUESTED MODIFICATIONS" means such works of addition, omission
or alteration to the Base Building Works and such other additional works as
are more particularly described in Clause 9.1
"TRM DELAY" means the total of all periods of delay to the Base Building
Works or any part of them resulting (whether directly or indirectly) from
the implementation of Tenant's Requested Modifications provided there shall
be no double counting of such periods
"TRM SPECIFICATIONS" means any plans and specifications for Tenant's
Requested Modifications which are prepared in accordance with Clause 9
"TUNNEL AGREEMENT" means the agreement a draft of which is annexed to this
Agreement as ANNEXURE 23
"WARRANTY" means any warranty to be given to the Developer or Tenant
hereunder
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"WORKING DAY" means any day (other than a Saturday or a Sunday) upon which
clearing banks in the United Kingdom are open to the public for the
transaction of business
1.2 INTERPRETATION
In this Agreement unless the context otherwise requires:
1.2.1 words importing the masculine gender only shall include the feminine
gender and neuter meaning and vice versa and words importing the
singular number shall include the plural number and vice versa and
all references to a Clause or Schedule shall mean a Clause or
Schedule of this Agreement and terms or phrases beginning with upper
case letters which are not referred to in Clause 1.1 or elsewhere in
this Agreement shall have the meanings ascribed to them in the
Lease;
1.2.2 references to drawings and documents annexed hereto shall include
the drawings and documents initialled for identification on behalf
of the parties hereto for the purposes of this Agreement (whether
individually or as part of an agreed bundle or bound volume or
otherwise);
1.2.3 titles and headings to Clauses are for convenience only and shall
not be construed in or affect the interpretation of this Agreement;
1.2.4 words importing persons shall include firms, companies and
corporations and vice versa;
1.2.5 any covenant by any party not to do any act or thing shall include
an obligation not to permit or suffer such act or thing to be done
and any reference to consent or approval not being unreasonably
withheld shall be deemed to include reference to its not being
unreasonably delayed;
1.2.6 any reference to a statute (whether specifically named or not) shall
include any amendment or re-enactment of it for the time being in
force, and all instruments, orders, notices, regulations,
directions, bye-laws, permissions and plans for the time being made,
issued or given under it, or deriving validity from it
(collectively, "CHANGES") provided that where any design has been
carried out or work commenced under this Agreement and any relevant
Change takes place then the Developer may (insofar as to do so would
not place it in breach of statute) carry out the Base Building Works
or perform any of its other obligations hereunder as if such Change
had not taken place;
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1.2.7 the words "including" "include" "excluding" and "exclude" shall be
deemed to be followed by the words "without limitation";
1.2.8 any reference to a Clause or Schedule shall mean a Clause or
Schedule of this Agreement; and
1.2.9 covenants given by the Developer where the Developer comprises more
than one person shall be construed as made by all such persons
jointly and severally
2. CLADDING
2.1 The Tenant hereby confirms to the Developer (but without reducing the
Developer's responsibility for the proper physical implementation thereof
and design development thereof) that the specification of the bomb blast
elements of the cladding system forming part of the Base Building
Specification has been approved by the Tenant as suitable for its purposes
2.2 The specification for the cladding system and bomb blast elements thereof
require design development and the Tenant has agreed to make the Tenant's
Representative and the Tenant's bomb blast specialist fully available as
reasonably necessary to the Developer in order to work alongside the Base
Building Consultants in preparation of the detailed design thereof such
that the same can be finalised and approved by the Developer and the Tenant
within the period shown on the Developer's Programme
2.3 The Tenant shall procure that the Tenant's Representative and the Tenant's
bomb blast specialist and the Developer shall procure that the Base
Building Architect work respectively expeditiously and efficiently in order
to seek to finalise the detailed design within the period referred to in
Clause 2.2
2.4 The Developer and the Tenant have agreed that the cladding system and bomb
blast elements thereof to the extent of the scope of cladding works and
bomb blast elements annexed hereto will not constitute a Tenant's Requested
Modification but changes to the scope of the cladding works and bomb blast
elements forming part of the Base Building Specification requested by the
Tenant will be treated as Tenant's Requested Modifications for the purposes
of this Agreement
3. STOPPING UP
If the Developer is unable to have stopped-up pursuant to an Order granted
under section 247 of the Town and Country Planning Xxx 0000 the land shown
hatched black on the plan forming ANNEXURE 22 on or before 29 September
1998 then the Developer shall propose
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a variation to the design of the Building which shall first avoid any
requirement to incorporate the relevant piece of land within the
Development Site and second shall seek to maintain materially the same
overall design for the resulting Building as proposed pursuant to the
Planning Permission and submit the same to the Tenant for its approval such
approval not to be unreasonably withheld or delayed. The Tenant shall
consider the Developer's proposals promptly and with a view to maintaining
the development programme current at that point and upon the Tenant
approving such variation in the design:-
(a) the revised plans and specifications shall be substituted as necessary
for the relevant parts of the Base Building Plans and the Base
Building Specification annexed to this Agreement; and
(b) any consequential alterations to
(i) Net Internal Area
(ii) a pro-rata reduction in the Developer's Commitment based upon
reduction in Net Internal Area
(iii) the Rent payable pursuant to the Leases to be granted hereunder
and so on and so forth shall be made
4. STAGE E
4.1 UPGRADE TO STAGE E
4.1.1 The parties acknowledge that the Base Building Plans and the Base Building
Specification annexed to this Agreement have been approved by the Tenant
but will require further detail and design development to be incorporated
before Stage E is achieved
4.1.2 Subject to Clause 4.1.4 the Developer shall forthwith following the date
hereof and in consultation with the Building Contractor and the Base
Building Consultants continue, complete and provide to the Tenant for its
review and as appropriate pursuant to Clause 4.2.1 for its approval, to
the extent not contained within the Base Building Plans and the Base
Building Specification annexed hereto, Full Details of the Stage E
Drawings and Specifications in accordance with Clause 4.1.4 and Provided
That such Full Details should be made progressively available on a rolling
basis in defined packages in sufficient time to allow the Tenant a
reasonable period to review, comment on and return them to the Developer
without any programme impact on the elements of the Base Building Works
design, manufacture, construction or installation to which such Full
Details refer
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4.1.3 The Developer shall in conjunction with the preparation of the Stage E
Drawings and Specifications also prepare or procure the preparation of the
Employer's Requirements and the Contractor's Proposals and shall submit
the same to the Tenant for its approval (such approval not to be
unreasonably withheld) but so that such approval shall not provide the
Tenant with any wider or additional rights to approve the Stage E Drawings
and Specifications beyond those set out in Clause 4.2 and so that such
approval or a written and reasoned refusal shall be given within ten (10)
Working Days of a written request for approval and any failure to respond
shall mean that the Tenant is deemed to have approved the relevant matter
4.1.4 In or about such continuation, completion and provision of the documents
set forth in Clauses 4.1.2 and 4.1.3 hereof the Developer shall use all
reasonable endeavours to procure that the same (1) conform, comply and are
consistent with the Base Building Plans and the Base Building
Specification (2) are consistent with the standards of a high quality
building and (3) are provided to the Tenant's Representative in a timely
and co-ordinated manner consistent with the Developer's Programme and (4)
deal with the comments made in the agreed amendment schedule forming part
of the Base Building Specification and which are agreed as not
constituting Tenant's Requested Modifications
4.1.5 Notwithstanding the other provisions of Clauses 4.1 and 4.2 it is agreed
(for the avoidance of doubt) that the Developer may always elect to
provide the Tenant with drawings and specifications which reflect a stage
of design beyond Stage E and that provision of these drawings and
specifications will satisfy the Developer's obligation to produce Full
Details of the Stage E Drawings and Specifications
4.2 KEY STAGE E DESIGN PACKAGES
4.2.1 Of the Stage E Drawings and Specifications supplied to the Tenant pursuant
to Clause 4.1.2 the Tenant (subject to Clause 4.2.2) shall be entitled on
a rolling basis to approve (such approval not to be unreasonably withheld)
pursuant to Clause 4.2.2 Full Details of the Stage E Drawings and
Specifications relating to the following packages (the "KEY STAGE E DESIGN
PACKAGES"):-
(a) concrete work;
(b) steelwork (including specific identification of pinch point areas
where the structure is likely to impinge into the clear service
zones identified in the Base Building Plans and Base Building
Specifications annexed hereto);
(c) cladding (including external cleaning requirements);
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(d) mechanical and electrical and public health installation (including
the pinch points described above);
(e) lift installation; and
(f) finishes (including materials specifications locations and
workmanship specifications to the level consistent with Stage E)
and when doing so the Developer shall notify the Tenant of the period
within which it properly and reasonably requires the Tenant's approval in
order to maintain the Developer's Programme then current
4.2.2 The Tenant's approval pursuant to Clause 4.2.1 shall only be required in
relation to those elements of the Key Stage E Design Packages:-
(i) which are inconsistent with or which address matters not dealt with
to Stage E Detail Design by the Base Building Specification or Base
Building Plans (as amended by any approved Tenant's Requested
Modifications) and
(ii) in each case which have not previously been approved by the Tenant
4.2.3 Once the Key Stage E Design Packages have been or are deemed to have been
approved by the Tenant no further approvals shall be required from the
Tenant in relation to any further detailing of the Base Building works
save any which may be required pursuant to Clause 8
4.2.4 The Tenant shall and shall procure that the Tenant's professional firms
and consultants shall provide (with a view to maintaining the Developers
Programme then current and having regard to any preliminary details of the
particular Key Stage E Design Packages already seen or provided) all
approvals required pursuant to Clause 4.2 (including the provision of
written explanations providing full details and reasons for any refusal)
as reasonably expeditiously as possible according to the nature and extent
of the particular Key Stage E Design Package under consideration
4.2.5 The Tenant shall procure that approvals and refusals are delivered in
writing and deal with each relevant Key Stage E Design Package or part
thereof (as the case may be according to the whether the whole or part has
been submitted) and to the extent that the Tenant only approves or refuses
an element or elements of a particular submitted Package the Tenant shall
be treated as having approved the balance of the relevant Package which
has been submitted and in respect of which no specific objection has been
made
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4.3 REFERENCE TO INDEPENDENT EXPERT
4.3.1 If the Tenant objects to any element of a Key Stage E Design Package or
does not respond with an approval or reasoned refusal of such matters
within the required time period for approval specified by the Developer as
being necessary to maintain the Developers Programme, the Developer shall
be entitled to refer the matter to an Independent Person in accordance
with Clause 32 who shall determine whether the relevant Key Stage E Design
Package required an approval pursuant to Clause 4.2 and (if so) whether a
Tenant Delay has arisen as a result of the Tenant in breach of its
obligations in Clause 4.2.4 refusing or failing to approve the relevant
Key Stage E Design Package within the relevant period or raising an
unreasonable objection
4.3.2 If the Independent Person determines that the relevant Key Stage E Design
Package did not require an approval pursuant to Clause 4.2 the relevant
Key Stage E Design Package shall be deemed approved by the Tenant and the
costs of appointing the Independent Person and his costs and disbursements
in connection with his duties under this Agreement shall be the Tenant's
4.3.3 If the Independent Person determines that the Tenant has failed to act in
accordance with Clause 4.2.4 and that such failure has caused or will
cause delay to the Base Building Works, the Independent Person at the
appropriate time shall determine the actual period of delay and the period
so determined shall be treated as Tenant's Delay and the decision of the
Independent Person in this regard shall be final and binding
4.3.4 If the Independent Person determines that the relevant Key Stage E Design
Package requires approval pursuant to Clause 4.2 but that the Tenant has
so far acted in accordance with its obligations in Clause 4.2.4 in
relation to approval of that Key Stage E Design Package then no Tenant's
Delay shall be treated as having been caused in relation to approval of
that Key Stage E Design Package up to that point and the costs of
appointing the Independent Person and his costs and disbursements in
connection with his duties under this Agreement shall be the Developer's
but all the provisions of this Clause 4 shall in all respects continue to
apply to that Key Stage E Design Package and (for the avoidance of doubt)
the Developer shall remain entitled to refer the same matter to an
Independent Person for further determination according to the
circumstances at a later date
4.4 CONFIRMATORY MEMORANDUM
As soon as reasonably practicable after the Tenant has approved the Stage
E Drawings and Specifications, the Employer's Requirements and the
Contractor's Proposals (which may be approved in any number of sections or
packages) (or such approval has been deemed to have taken place) the
Developer and the Tenant shall sign a memorandum confirming that the
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approved Stage E Drawings and Specifications shall for the purposes of
this Agreement be substituted for the Base Building Plans and Base
Building Specifications annexed to this Agreement at the date of this
Agreement and so that (i) such Stage E Drawings and Specifications shall
thereafter be treated as the Base Building Plans and the Base Building
Specification and (ii) as each Key Stage E Design Package is approved (or
deemed approved) the Base Building Plans and Base Building Specification
shall be treated as updated accordingly
4.5 RISERS
The Developer and the Tenant agree that the plan forming ANNEXURE 24
identifies the number and broadly the location of risers which will be for
the exclusive use of the tenant of the Basement to Level Four Lease. The
Developer and the Tenant agree to use reasonable endeavours precisely to
identify the location of the risers following the settling of the layout
of the core of the Building pursuant to this Clause 4, and for the matter
to be referred on default of agreement to the Independent Expert pursuant
to Clause 32 hereof and, for the avoidance of doubt, the riser areas which
would otherwise reduce Net Internal Area shall be shown as part of the
demise on the relevant lease plans and rentalised to the same rent per
square foot as office premises on the relevant floor.
5. BASE BUILDING WORKS
5.1 Approvals
The Developer shall take all reasonable and practical measures (and the
Tenant shall without having to incur material cost promptly lend such
assistance and support as is reasonably required to obtain the Approvals
as soon as may be reasonably practicable) to enable it to commence and
thereafter save to the extent delayed by the occurrence of any of the
Extension Events, proceed with and complete the Base Building Works.
5.2 Warranties
The Developer hereby warrants to the Tenant that:
5.2.1 the ground and soil conditions of the land on which the Building is
to be constructed have been and the existing structure and frame of
the Daily Express Building (the "SITE") will be appropriately
investigated and tested;
5.2.2 to the extent reasonably prudent it has on the basis of professional
advice from appropriately qualified professionals carried out or
will carry out on in and under the Site such works of soil or
materials removal (whether or not being Prohibited Materials) as
will render the Site thoroughly prepared and ready for the carrying
out of the Base Building Works;
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5.2.3 (unless otherwise agreed by the parties hereto) it has or will
remove from the Site and dispose of any containers or tanks of
Prohibited Materials or other potentially hazardous materials and
their contents referred to in the report dated August 1997 prepared
by Xxxxxxxx Environmental which were left on the Site by previous
owners or occupiers and that such removal and disposal shall be
undertaken by appropriately qualified and competent persons in a
safe and controlled way and in compliance with all relevant laws,
licences and regulations;
5.2.4 the Developer is not aware of any ground or soil substance or
condition at the Site which will prejudice the Tenant or delay the
issue of the Shell & Core Substantial Completion Certificate;
5.2.5 the design of the Base Building Works respects the sub-ground
condition of the Site;
5.3 MILLENNIUM COMPLIANCE
The Developer will use all reasonable endeavours to specify that all plant
and equipment and machinery forming part of the Base Building Works shall
be Millennium Compliant.
5.4 CARRYING OUT OF BASE BUILDING WORKS
The Developer shall, save to the extent delayed by the occurrence of the
Extension Events, proceed diligently and expeditiously with the execution
of the Base Building Works following the obtaining of all relevant
Approvals and shall use its reasonable endeavours to achieve Shell & Core
Substantial Completion by the Target Date.
5.5 METHOD OF COMPLETION
The Developer shall procure the execution and completion of the Base
Building Works save to the extent delayed by any of the Extension Events:-
5.5.1 in a good and workmanlike manner according to good building practice
generally accepted at the date hereof;
5.5.2 according to the standards of good design practice for high class
City of London office buildings provided that if the Building is
constructed in accordance with the Stage E Drawings and
Specifications referred and/or approved in conformity with the
provisions of Clause 4 hereof as incorporated within the Base
Building Plans and the Base Building Specification then the
Developer shall have no further liability pursuant to this
Sub-Clause 5.5.2 in respect of design matters properly incorporated
in the Base Building Plans and the Base Building Specification;
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5.5.3 using (save insofar as may be specified otherwise by the Tenant in
relation to Tenant's Requested Modifications) good quality materials
goods and equipment of their several kinds selected by the Developer
acting reasonably without using Prohibited Materials;
5.5.4 in accordance with:-
(a) the Base Building Plans and the Base Building Specification
and any TRM Specifications;
(b) the Approvals relevant to the Base Building Works;
(c) all relevant Acts of Parliament now or hereafter passed (which
shall include any instrument or order regulation code of
practice or other subordinate legislation deriving validity
from any such Act which shall affect the execution and
carrying out of the Base Building Works including fire
officer's requirements but not where this is an obligation of
the Tenant under this Agreement including, without limitation,
Clause 16.2.5);
(d) the Building Regulations 1991, the CDM Regulations and
statutory requirements of the Health and Safety at Work
Executive and the appropriate EHO and such other mandatory
rules and regulations as govern site and works safety and are
applicable to the Development;
(e) all relevant codes of practice and regulations (taking account
of any changes which have already been announced or which will
be implemented during the construction period) and
recommendations of professional institutes to which any member
of the Base Building Consultants (named in the definition of
that term) shall belong and which are at the time of execution
of the relevant works properly regarded in the UK construction
industry as constituting prudent professional practice; and
(f) the terms of this Agreement.
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5.6 EXPIRY OF DEVELOPER'S LIABILITY
The Developer shall not have any liability in respect of any claims for
breach of the Developer's obligations set out in Clause 5.2 and in Clauses
5.5.1 to 5.5.4 (inclusive) in respect of any matter which manifests itself
and which is made or notified in writing to the Developer at its address
defined in Clause 33 after the fifth anniversary of Shell & Core
Substantial Completion.
5.7 TENANT'S RELEASE OF ADJOINING PROPERTY RIGHTS
The Tenant in its capacity as leaseholder of the neighbouring property
known as Peterborough Court waives and releases (and will use reasonable
endeavours to procure that any Group Company Affiliate and Associated
Company and that any superior landlord of the Tenant in relation to such
neighbouring property waives and releases) all rights of light and air (if
any) benefitting Peterborough Court which might otherwise inhibit the
Development.
5.8 QUANTIFICATION OF EXTENSION PERIODS
5.8.1 If, in the Developer's opinion, at any time during the course of the
execution of the Base Building Works, the Developer has been or is
being or is likely to be delayed in its ability to commence or
continue with the carrying out of the Base Building Works or to
complete the same in accordance with the provisions of this
Agreement by reason of any Extension Period properly allowable under
this Agreement then the Developer shall notify the Tenant
accordingly giving the Tenant as much early warning of such delay or
potential delay as reasonably practicable.
5.8.2 The Developer and the Tenant shall discuss the best methods for
minimising any such delay or potential delay and mitigating its
effects and shall wherever practicable (acting reasonably) seek to
agree upon a plan or strategy for minimising the same and mitigating
such effects and (subject always to Clause 5.8.4) both the Developer
and the Tenant shall (acting reasonably) assist each other to
overcome and/or minimise and/or mitigate the same with all due
speed.
5.8.3 The Developer and the Tenant shall together seek to agree a fair and
reasonable period for each Extension Period and when each such
Extension Period has been agreed or (in the event of dispute)
determined by an Independent Person acting as an expert in
accordance with Clause 32 each such Extension Period shall be
granted to the Developer and all the dates and periods in this
Agreement which are expressed to be extendable by reason of such
delay shall be treated as deferred (or
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further deferred if prior Extension Periods have already been
granted) by such agreed or determined Extension Period and so that
if the Developer fails to comply with its obligations to achieve the
matters the subject of this Agreement by the date specified in this
Agreement referrable to such matters but would have so complied but
for Tenant's Delay and/or (but only where applicable) Force Majeure,
then for the purposes of this Agreement the Developer shall be
treated as having so complied with such obligation but without
prejudice to the Developer's obligations hereunder to achieve the
matters the subject of this Agreement by the date specified in this
Agreement referrable to such matters as extended by agreement or
determination under this Clause 5.8.3.
5.8.4 The Developer shall constantly (but without being obliged to incur
any additional expenditure (unless and to the extent the Tenant
agrees in writing to reimburse the Developer for the same)) use all
reasonable endeavours to mitigate delays caused by Extension Events.
5.8.5 The Tenant shall constantly (but without being obliged to incur any
additional expenditure (unless and to the extent that the Developer
agrees in writing to reimburse the Tenant for the same) use all
reasonable endeavours to mitigate delays caused by Extension Events.
5.9 DEVELOPER TO HOLD HARMLESS
The Developer shall hold harmless the Tenant (with the intention of
putting the Tenant in the same after-tax position it would have been in
had the matter giving rise to the indemnification not arisen) from and
against all actions proceedings claims demands damages losses liabilities
costs charges penalties fines fees and expense whatsoever arising out of
or by reason of or incidental to any interference with or disturbance to
the access or light or air or other easements or rights enjoyed by the
owners or occupiers of any adjoining property caused by the execution of
the Base Building Works otherwise than resulting from the effect of Clause
5.7
5.10 PAYMENT OF CONNECTION CHARGES
The Developer shall pay all connection charges which may be payable to any
relevant authority or undertaker for the connection of services the
provision of which forms part of the Base Building Works and any fees or
charges payable under any statute or to any statutory undertaker in
respect of the Base Building Works and the Developer shall at its own cost
comply with all requirements of any water gas electricity and
telecommunications authorities in relation to the Base Building Works.
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6. SITE VISITS AND MEETINGS AND SUPPLY OF INFORMATION
6.1 ENTRY ON TO SITE TO VIEW BASE BUILDING WORKS
The Developer shall permit the Tenant and its advisers (but limited to
such number of people as is reasonable in the circumstances) at all
reasonable times (including access out of normal site working hours
subject to the Tenant bearing the proper cost incurred by the Developer
of enabling such access out of normal site working hours) to enter the
Development Site (accompanied by a representative of the Developer if the
Developer shall so require) to view the progress and state of the Base
Building Works and the materials used or intended for use therein and for
the purpose of tendering the Fit Out Works (but so that entry may be
denied on any occasion when such entry would cause delay to the execution
of any Base Building Works other than to a de minimis extent) and subject
nevertheless to:-
6.1.1 reasonable prior notice being given to the Base Building Project
Managers save where such inspections shall have been arranged to
occur on a regular basis and such shall be known to the Base
Building Project Managers;
6.1.2 the Tenant and others as aforesaid reporting to the works offices
at the Development Site before making any inspection and acting in
accordance with the reasonable instructions of the Base Building
Project Managers and complying also with the reasonable
requirements (if any) of the Base Building Contracting Team and
Site Regulations;
6.1.3 compliance with such reasonable safety and security precautions
and insurance requirements as may be in force from time to time in
or in respect of the Development Site;
6.1.4 the Tenant and others as aforesaid not giving instructions or
making representations to the persons engaged in the carrying out
of such works; and
6.1.5 no material delay being caused thereby to the Base Building Works.
Provided that the Tenant shall be entitled to make observations in
writing to the Base Building Project Manager or to the Developer (with a
copy to the other) concerning progress and standards of workmanship.
6.2 OPENING UP
The Tenant may where there are reasonable grounds to apprehend that some
part of the Base Building Works or materials used or to be used in them
are not in accordance with the terms of this Agreement require that:-
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6.2.1 The relevant part of the Base Building Works be opened up or the
materials be submitted for testing;
6.2.2 If the relevant part of the Base Building Works or the materials
proved to be defective or unsuitable they be replaced and that the
cost of the process of opening up the Base Building Works testing
and replacement including the cost of the delay attributable to
the process shall be borne entirely by the Developer and in case
of dispute the matter shall be referred to an Independent Person
acting as an expert in accordance with Clause 32
but if the result of the test is negative in all materials respects so
that no remedial action need be taken the Tenant will itself bear the
cost of the process and any consequential delay shall be Tenant's Delay.
6.3 PROGRESS MEETINGS
6.3.1 From the date hereof until the final making good of defects has
been achieved there shall be regular progress meetings relating to
the Base Building Works arranged for that purpose between the Base
Building Project Managers the Base Building Consultants the Tenant
the Base Building Contractor and representatives from the
appropriate Fit Out Professional Firms to review the progress of
the Base Building Works such meetings to be as frequent as may be
requisite and in any event not less frequently than monthly.
6.3.2 One representative of the Tenant shall also be entitled to attend
as an observer (but not to speak) at the regular monthly
monitoring meetings between the Developer and the Base Building
Consultants and the Base Building Contractor at which all
materially important matters shall be discussed.
6.3.3 The Developer shall have proper regard to (but not be bound by)
any representations made by or on behalf of the Tenant in
connection with the Base Building Works and the progress thereof
considered during such progress meetings as are mentioned in
Sub-Clause 6.3.1 provided that nothing in this Sub-Clause 6.3.3
shall interfere in any way with the rights of the Developer under
the Base Building Contract or to deal with or give instructions to
the Base Building Contracting Team or any other advisors or
consultants and provided further that no representations shall be
made by the Tenant to any member of the Base Building Contracting
Team or the Developer's Architects or any other consultant or
party involved in the design, carrying out or construction of the
Base Building Works;
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6.3.4 The Developer shall give to the Tenant appropriate notice of and
copies of the agenda and minutes of all meetings referred to in
Sub-Clauses 6.3.1 and 6.3.2
6.3.5 The Developer shall if it has not already done so procure and
promptly send to the Tenant or the relevant person acting on its
behalf as soon as practicable after the date hereof such
information relating to the Base Building Works as the Tenant may
reasonably require and, as the Developer acting reasonably is
willing to provide, including copies of the following:-
(a) copies of the Base Building Contracts and Professional
Appointments (with financial details edited) and any
variations thereof;
(b) all applications for and Approvals and permissions and
licences of the town planning local and other statutory
authorities obtained by the Developer for the execution of
the Base Building Works;
(c) details of the Developer's Programme and any changes
thereto;
(d) minutes of all progress meetings referred to in this Clause
6.3. The Tenant shall procure that any disagreement as to
the accuracy or completeness of such minutes is
communicated to the Base Building Project Manager as soon
as reasonably practicable following receipt of those
minutes and giving full details of (and reasons for) any
alleged inaccuracy;
(e) Copies of all reports required to be produced by the Base
Building Contractor to the Developer pursuant to the Base
Building Contract.
6.4 PROVISION OF INFORMATION
6.4.1 The Developer shall provide to the Tenant such information relating to
the Base Building Works as the Tenant may reasonably require in order to
plan and design and tender for the Fit Out Works or in connection with
the subsequent repair and maintenance of the Building provided that the
provision of such information does not interfere with or delay the
execution of the Base Building Works.
6.4.2 The Developer shall use reasonable endeavours to maintain until the
Tenant is supplied with all the documents referred to in Clause 6.5 on
the Site an information room (which may be the Developer's site office)
and up to such date keep available for inspection by the Tenant and its
advisers a register and copies of (a) appropriately sized copies of all
drawings plans
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and specifications (including working drawings) produced by the Base
Building Consultants or any other person from time to time in relation to
the Base Building Works or any part thereof (b) working details for
specialist package contractors and (c) other technical information
relating to the Base Building Works necessary to enable the Tenant to
plan and execute the Fit Out Works.
6.4.3 The Developer shall make available on or within 200 metres of the
Development Site for the use (by arrangement on a shared basis with the
Developer and the Developer's team) of the Tenant and its advisers an
appropriately furnished meeting room.
6.5 DOCUMENTS TO BE SUPPLIED TO TENANT
At Shell & Core Substantial Completion the Developer shall supply the
Tenant with as much of the following as is then available and as soon as
reasonably possible after Shell & Core Substantial Completion and in any
event within six months thereof, the Developer shall, at its own cost,
supply the Tenant with the following:-
6.5.1 four complete sets of the final "as-built" scale drawings of the
Base Building Works and one set of DXF files on computer disk (or
in such other format as the Tenant reasonably requests and as can
be produced at no material additional cost) showing the same;
6.5.2 a complete reproducible set of "as-built" scale drawings of the
mechanical, electrical and other installations and services of the
Base Building Works and one set of DXF files (or such other format
as the Tenant reasonably requires and as can be produced at no
material additional cost) on computer disk showing the same;
6.5.3 one copy of the Health and Safety file for the Premises together
with a copy on optical disk; and
6.5.4 three complete bound sets of operating and maintenance manuals
(including copies of all test certificates and commissioning
reports) for the lifts air-conditioning ventilating heating and
other plant apparatus and equipment;
6.5.5 copies of all warranties given to the Developer by manufacturers
in respect of all Building Systems;
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6.5.6 a schedule listing the names and addresses of all contractors and
principal sub-contractors and suppliers who have been involved in
or concerned with the Base Building Works;
6.5.7 copies of all Approvals and all contracts agreements and other
documents in the Developer's control relating to or affecting the
maintenance or operation of the Building.
7. BASE BUILDING PROFESSIONAL FIRMS AND BUILDING CONTRACTOR
7.1 COLLATERAL DEEDS OF WARRANTY
As soon as reasonably practicable after the date of the execution of this
Agreement and in any event within six (6) months of the date of this
Agreement, the Developer shall procure the execution and delivery to the
Tenant of a collateral deed of warranty in relation to each set of
premises which is to be the subject of a Lease:-
7.1.1 in substantially the form set out as ANNEXURE 14 duly executed by
the Base Building Architects;
7.1.2 in substantially the form set out as ANNEXURE 15 duly executed by
the Base Building M & E Engineer;
7.1.3 in substantially the form set out as ANNEXURE 16 duly executed by
the Base Building Structural Engineer;
7.1.4 a form of warranty duly executed by the Base Building Project
Managers; and
7.1.5 in substantially the form set out as ANNEXURE 17 duly executed by
the Base Building Contractors;
7.1.6 a form of warranty duly executed by the Certifying Officer;
or in the case of any of the forms of collateral deeds of warranty set
out above with such amendments as or in such form as the Developer
reasonably requests and the Tenant approves (such approval not to be
unreasonably withheld or delayed).
7.2 SUBSTITUTE APPOINTMENTS
7.2.1 The Developer shall, prior to any substituted appointment of any of the
Base Building Consultants or the Base Building Contractors, procure that
Collateral Deeds of Warranty are
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executed respectively by the persons who are appointed in substitution in
substantially the same forms (mutatis mutandis) as those referred to in
Clause 7.1.
7.2.2 If the Tenant's approval is required under the terms of this Agreement
for the appointment of any member of the Base Building Contracting Team
the form of any appointment, collateral warranty or building contract or
any amendment of any of them or any waiver compromise or termination of
any of them then such approval shall be given within ten (10) days of a
written request or any objection notified within such time limit and any
failure to respond shall mean that the Tenant is deemed to have accepted
such relevant matters.
7.3 DEVELOPER TO PROCURE PERFORMANCE OF CONTRACTS
The Developer shall diligently take all steps reasonably necessary to
seek to procure and to enforce the due performance by the Base Building
Project Manager, the Base Building Contractors or any of the Base
Building Consultants of their respective obligations to the Developer.
7.4 DEVELOPER NOT TO TERMINATE CONTRACTS
The Developer shall not, without (a) good cause and (b) the prior written
approval of the Tenant (such approval not to be unreasonably withheld or
delayed) terminate or suspend nor do, or omit to do, any act or thing
which would entitle the Base Building Project Manager, the Base Building
Contractors or any of the Base Building Consultants to regard as
terminated the Base Building Contracts or their contracts for services
respectively.
7.5 NOVATION OF APPOINTMENTS OF BUILDING CONSULTANTS
The Developer shall not novate or allow the novation of the appointments
of the Base Building Consultants at any time prior to the Tenant's
approval or deemed approval to all Key Stage E Design Packages pursuant
to Clause 4.
7.6 CONSTRUCTION DOCUMENTATION
7.6.1 The appointments of the Base Building Consultants shall be in
substantially the form of the draft annexed to this Agreement or
if not so annexed or materially different in form shall be
approved by the Tenant such approval not to be unreasonably
withheld and shall in any case
(a) be terminable by the Developer in the event of the
insolvency of or material default by the relevant Base
Building Consultant
(b) provide for the relevant Base Building Consultant to
maintain appropriate professional indemnity insurance of
not less than (pounds)10 million and require
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the relevant Base Building Consultant to produce evidence
that such insurance is in force from time to time
(c) in the case of the Certifying Officer set out the matters
stated in the definition in this Agreement of "Shell & Core
Substantial Completion" as pre-conditions to the issue of
the Shell & Core Works Certificate and the Developer shall
instruct the Certifying Officer to take such matters fully
into account when considering whether to issue the Shell &
Core Works Certificate
7.6.2 The form of the Base Building Contract shall be substantially in the form
of the draft annexed to this Agreement or if materially different in such
other form as the Tenant shall approve such approval not to be
unreasonably withheld and shall in any case:-
(a) provide for the Building to be designed and completed in
accordance with the Base Building Specification and the Base
Building Plans
(b) require Shell & Core Substantial Completion to be achieved on or
before the Target Date
(c) provide for termination of the employment of the Base Building
Contractor in the event of the insolvency of or material default
by the Base Building Contractor
(d) require the Base Building Contractor to give a warranty to the
Tenant in accordance with the provisions of this Agreement and to
use reasonable endeavours to procure that sub-contractors with
significant design responsibility are obliged to give warranties
to the Tenant substantially in the form annexed to this Agreement
or if materially different in such other form as shall be approved
by the Tenant such approval not to be unreasonably withheld
(e) require the Base Building Contractor to hold a sub-contractor's
certificate
(f) require the Base Building Contractor to provide a parent company
guarantee of the warranty in favour of the Tenant if reasonably
required by the Tenant
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(g) require the Base Building Contractor to accommodate any Tenant's
Requested Modifications if so instructed by the Developer
7.6.3 The Developer shall consult fully with and obtain the approval of the
Tenant such approval not to be unreasonably withheld as to the selection
of any replacement Base Building Contractor or any other one of the Base
Building Consultants and shall appoint substitute Base Building
Contractors or Base Building Consultants as soon as reasonably
practicable in the event of their insolvency
7.6.4 The Developer shall obtain the prior written consent of the Tenant (which
shall not be unreasonably withheld) to:-
(a) any material amendments to the Base Building Contract or the
Professional Appointments
(b) any waiver or compromise of any of the Developer's rights under
the Base Building Contract or the Professional Appointments
7.6.5 The Developer shall
(a) use all reasonable endeavours to enter into the Base Building
Contract and any outstanding Professional Appointments as soon as
reasonably practicable
(b) ensure that the Base Building Contractor and the Base Building
Consultants are aware of the terms of this Agreement which are
relevant to or have an impact on the design carrying out and
completion of the Base Building Works and require them to perform
their own obligations so as not to cause a breach of those terms.
7.6.6 There is annexed hereto the current Developer's Programme for the design
and construction of the Base Building in such a manner as to achieve
Shell & Core Substantial Completion by the date specified therein (but so
that no contractual obligation is owed to the Tenant in relation to
achievement of that date so long as earlier than the Target Date pursuant
to this Agreement) and on or before the Target Date
7.6.7 The Developer will not change the Developer's Programme otherwise than in
a way consistent with the acts of a reasonable and prudent owner seeking
to achieve
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Shell & Core Substantial Completion of the Base Building to the standards
required by this Agreement
8. DEVELOPER'S VARIATIONS TO BASE BUILDING WORKS
8.1 DETAILING OF BASE BUILDING WORKS
Save as provided in Clause 4.2, no consent from the Tenant shall be
required for any detailing of the Base Building Works or other adjustment
which does not comprise a material variation thereof provided that such
further detailing or adjustment shall in all material respects be
consistent with and in conformity with the Base Building Specification
and/or the TRM Specification as relevant.
8.2 VARIATIONS REQUIRED BY LAW ETC.
8.2.1 The Developer may also make alterations additions or variations to
the Base Building Works without obtaining the prior approval of
the Tenant where:-
(a) such are lawfully required by any competent authority;
(b) such are required as a result of unforeseen ground
conditions or obstructions in the Development Site which
could not reasonably have been foreseen;
(c) such are a variation of or an alteration to the Base
Building Specification which is not material;
(d) such are necessary as a result of any actual or proposed
Tenant's Requested Modifications or a proposed Tenant's
Requested Modification for which a Developer's Estimate has
been accepted pursuant to Clause 9.5; or
(e) such are otherwise required pursuant to the express
provisions of this Agreement.
8.2.2 Notwithstanding the provisions of Clause 5.5, if any materials
specified in the Base Building Specification or other
specifications relating to the Base Building Works are in short
supply or are or become unobtainable, turn out to be defective,
damaged or unsatisfactory or an adequate supply cannot be
guaranteed or are subject to delay or anticipated delay or
uncertainty and if awaited would or may impede materially the
progress of the Base Building Works the Developer may use
alternative materials of a similar type character design and
quality to those
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specified subject to the Tenant's approval not to be unreasonably
withheld and Provided That such approval shall be given within
seven (7) Working Days of a written request or any objection
notified within such time limit and any failure to respond shall
mean the Tenant is deemed to accept such alternative materials and
PROVIDED that such alternative materials shall not in any case be
of a lesser quality to those of the materials originally
specified.
8.2.3 The Developer shall supply to the Tenant full details of any
variation alteration addition or alternative materials referred to
in Clause 8.2.1 and 8.2.2 and reasons for the changes together
with copies of any plans drawings and specifications relating
thereto.
8.3 VARIATIONS REQUIRING APPROVAL
8.3.1 The Developer shall make application to the Tenant for consent to
all alterations additions or variations to the Base Building Works
which are material, which consent the Tenant shall not
unreasonably withhold or delay. For the purposes of this Clause 8
"material" shall mean any alteration addition or variation to the
Base Building Works which is adverse to the Tenant (whether long
term, or in respect of the fitting out programme) and:-
(a) involves any change (other than immaterial or de minimis
changes having no practical effect on the running and
maintenance of the Building) to the exterior of the
Building including its height or projection; or
(b) involves any change (other than immaterial or de minimis
changes) to the overall size of the core or central systems
in the Building or to the layout of all the common areas
all as proposed by the Base Building Specification as would
have a material adverse impact on the Tenant (whether long
term or in respect of the Tenant's fitting out programme);
(c) materially prejudices or is likely materially to prejudice
the beneficial occupation and use of the Building by the
Tenant or any underlessee for the purposes permitted by the
Lease; or
(d) causes or is likely to cause any material increase in the
cost which would otherwise have been incurred and borne by
the Tenant in the carrying out of the Tenant's Fit Out
Works or the running costs of the Building; or
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(e) causes or is likely to cause any material increase in the
time which would otherwise have been taken in the carrying
out of the Tenant's Requested Modifications or the Fit Out
Works; or
(f) reduces the quality of the Building below the quality
contemplated by this Agreement; or
(g) is likely to reduce the performance or life-span of any
element of the Building or any of the plant and machinery
to be installed in the Building comprised in the Base
Building Works below the performance or life-span which it
would be reasonable to expect having regard to the Base
Building Specification;
8.3.2 Any application for consent to make any alteration addition or
variation to the Base Building Works for which the Tenant's
consent shall be required shall be sent to the Tenant in writing
by the Developer (or on its behalf) together with copies of any
plans drawings and specifications relating thereto and the reasons
therefor and attaching copies of any relevant reports received by
the Developer in that regard and shall be responded to by the
Tenant in writing (either giving the Tenant's approval or refusing
such approval but if refusing approval stating a properly and
fully reasoned basis for refusing and attaching copies of any
reports received by the Tenant in that regard) within ten (10)
Working Days. In the absence of the receipt of any acceptance or
fully reasoned rejection from the Tenant within ten (10) Working
Days from the receipt by the Tenant of the request as aforesaid
the alteration or variation shall be deemed to be approved by the
Tenant provided that if the Tenant provides within the said period
of ten (10) Working Days a properly and fully reasoned statement
as to why it needs a longer period to give or refuse approval then
the said period of ten (10) Working Days shall be extended by a
further period of ten (10) Working Days.
8.4 DISPUTES
In the event of dispute as to whether or not the Tenant or the Developer
is acting reasonably in connection with any approval sought pursuant to
this Clause 8 then either party may refer the matter for decision to the
Independent Person (acting as an Expert) pursuant to the provisions of
Clause 32 hereof.
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9. TENANT'S REQUESTED MODIFICATIONS
9.1 TENANT'S REQUEST FOR CHANGE
Subject to the other provisions of this Clause the Tenant shall be
entitled from time to time by application in writing to the Developer to
request changes ("TENANT'S REQUESTED MODIFICATIONS") to the Base Building
Works in accordance with the provisions of this Clause 9.
9.2 APPROVAL OF MODIFICATIONS
9.2.1 The Tenant shall furnish with any such application (A "TRM
APPLICATION") the reasons for it and full and sufficient
information to enable the Developer to determine the precise
extent and scope of the Tenant's Requested Modifications and any
proposed changes to lettable area and to consider any impact on
the Developer's Programme. The Developer shall not be obliged,
where it has given initial consideration to a TRM Application but
has found that any such information has not been provided, to give
further consideration to the TRM Application until the Tenant has
(following request from the Developer, which the Developer shall
give within ten (10) Working Days) provided the information. The
Developer may, if it shall so reasonably require and subject to
the Tenant's prior approval of the cost thereof such approval not
to be unreasonably withheld, instruct the relevant Base Building
Consultants to undertake at the Tenant's cost a feasibility study
in connection with any proposed Tenant's Requested Modifications
(the Developer instructing its relevant advisers to carry out the
feasibility study within ten (10) Working Days). The Developer
shall (subject to the conditions set out in Clause 9.2.2) where
implementation of the request contained within the TRM Application
is practicable and where such feasibility study undertaken by the
Developer confirms that the Tenant's Requested Modifications are
reasonably capable of being implemented (including the proposed
works, omissions or other matters comprised in the Tenant's
Requested Modifications) decide whether to approve such Tenant's
Requested Modifications (such approval not to be unreasonably
withheld or delayed) and communicate its decision to the Tenant
within five (5) Working Days of receipt of the feasibility study
or within ten (10) Working Days following the Tenant's request if
no feasibility study is undertaken.
9.2.2 Notwithstanding any other provisions in this Agreement the
Developer shall always be entitled to refuse in its absolute
discretion approval to any Tenant's Requested Modifications:-
(i) which would necessitate a new planning permission or
materially delay any approval of reserved matters; or
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52
(ii) which would affect the exterior of the Building other than
to an immaterial extent; or
(iii) which would reduce the lettable area of any part of the
Development (other than to an immaterial extent); or
(iv) which would negate or adversely affect the validity or
enforceability of, or the availability or quantum of
remedies or damages under, any Warranty unless the Tenant
accepts that the Developer's liability to the Tenant as to
Inherent Defects is similarly reduced; or
(v) the TRM Costs of which (when taken together with other
Tenant's Requested Modifications) would (in the Developer's
reasonable opinion) cause the Developer's Cap to be a
negative number if such TRM Costs were taken into account
in the determination of the Developer's Cap; or
(vi) which, if implemented and the cost of which is borne in
accordance with the provisions of this Agreement, would (in
the Developer's reasonable opinion) result in any grant of
the Building to be made by the Developer for VAT purposes
being or becoming a grant giving rise to an exempt supply
or exempt supplies by virtue of the application of
paragraph 2(3AA) of Schedule 10 to the Value Added Tax Xxx
0000
and in any event the Developer may refuse approval to a Tenant's
Requested Modification if it is requested after the Critical Date
and would inevitably lead to a Tenant's Delay.
9.2.3 The Developer warrants to the Tenant that each of the Tenant's
Proposed Modifications set forth in ANNEXURE 18:-
(i) has been approved in principle by the Developer subject to
the completion of feasibility studies;
(ii) are not in the absence of circumstances unforeseen at the
date of this Agreement but on the basis of the information
currently available estimated as likely to lead to a
Tenant's Delay and the Developer in respect thereof will to
the extent not already provided within 28 days of the date
of this Agreement provide the Tenant with a non-binding
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53
estimate of the TRM Costs relating thereto in accordance
with Clause 9.4.1(a)
9.2.4 The Tenant agrees with the Developer that if the Tenant after the
date of this Agreement were to elect not to implement any of the
Tenant's Proposed Modifications set out in numbers 3, 4, 5 and 7
of ANNEXURE 18 then that may cause delay to the Base Building
Works with the result that any actual delay will be treated as
Tenant's Delay
9.3 PREPARATION OF MODIFICATION PLANS
If the Developer approves a TRM Application it shall at its option (the
Tenant meeting the Developer's reasonable and proper cost and expense)
either (i) as soon as reasonably practicable and in any event within
twenty (20) Working Days unless it is not reasonably practicable to do so
prepare scaled and dimensioned architectural and engineering working
drawings and specifications showing in detail and in scope the accepted
Tenant's Requested Modifications for the Tenant's approval such approval
not to be unreasonably withheld or delayed or (ii) require the Tenant to
prepare such items (which items are hereinafter called the "TRM PLANS")
and the Developer shall confirm when it gives approval under Clause 9.2.1
whether or not it requires the Tenant to prepare the TRM Plans. If the
Developer requires the Tenant to prepare the TRM Plans they shall be
subject to the Developer approving same, such approval not to be
unreasonably withheld or delayed.
9.4 DEVELOPER'S ESTIMATES
9.4.1 Following preparation of approved TRM Plans the Developer will
within ten (10) Working Days provide the Tenant with:
(a) a reasonably detailed statement with reasonable supporting
information (the "DEVELOPER'S ESTIMATE") being the
Developer's non-binding estimate of the additional costs
and expenses (including all costs arising from delay)
incurred or likely to be incurred or suffered by the
Developer as a result of or in connection with the Tenant's
Requested Modifications including (without limitation)
costs properly incurred by the Developer in connection with
the obtaining of Approvals and those for reviewing the
Tenant's Requested Modifications, carrying out any
feasibility study, preparing TRM Plans and any changes
thereto, preparing the Developer's Estimate and
implementing the relevant works and any relevant
preparatory works (the "TRM COSTS") including a non binding
estimate of the amount of any direct loss and/or expense
not included in any other estimate which results from the
regular progress of
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the Base Building Works or any part thereof being affected
by the implementation of the Tenant's Requested
Modification;
(b) a non-binding estimate of any Tenant's Delay which is
likely to result from the implementation of such Tenant's
Requested Modifications; and
(c) details of any necessary alterations additions or
variations as referred to in Clause 8.2.1(d) and any impact
on the matters referred to in Clause 9.2.2(iv) in each case
of which the Developer is already aware.
9.4.2 The Developer's Estimate will be calculated on the basis (if same
can be agreed which the Developer shall use all reasonable
endeavours to achieve) of an agreed fixed price with the relevant
Base Building Contractor in accordance with the relevant Base
Building Contract, plus fixed fee quotations from the Base
Building Consultants and with appropriate allowances for
reasonable and proper expenses, other charges, delay costs, and
any other costs which may arise from considering and implementing
the Tenant's Requested Modifications. If fixed prices cannot be
agreed then the Developer will use non binding estimated figures.
9.5 TENANT'S RESPONSE TO DEVELOPER'S ESTIMATES
If within ten (10) Working Days after the Developer gives notice to the
Tenant of the Developer's Estimate the Tenant countersigns and returns a
copy of the Developer's Estimate to the Developer the Developer's
Estimate shall be binding and irrevocable against the Tenant and the
Tenant shall be deemed to have agreed that any delay reasonably incurred
in the completion of the Base Building Works occasioned by the
implementation of the Tenant's Requested Modifications shall constitute a
Tenant's Delay
PROVIDED THAT
(a) During such period of ten Working Days the Tenant's advisors may
make representations to the Developer and following such
representations the Developer shall be entitled (but not obliged)
to vary the Developer's Estimate in agreement with the Tenant but
no such variation shall be effective unless agreed in writing by
and between the Developer and the Tenant.
(b) The Developer shall at the Tenant's cost provide the Tenant with
such quotations estimates costings and similar information which
the Tenant's advisors shall reasonably require in order to assess
on behalf of and advise the Tenant upon the fairness and
reasonableness of the Developer's Estimate.
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9.6 TENANT NOT PROCEEDING WITH MODIFICATIONS
The failure or refusal of the Tenant to countersign and return to the
Developer a copy of the Developer's Estimate within ten (10) Working Days
after receipt of the Developer's Estimate or ten (10) Working Days after
any determination pursuant to Clause 9.11 shall be deemed to be a
withdrawal by the Tenant of the relevant TRM Application.
9.7 TENANT ACCEPTING THE DEVELOPER'S ESTIMATE
If the Tenant shall countersign the Developer's Estimate and return it to
the Developer pursuant to Clause 9.5 within the specified timescale the
Developer (subject as referred to in Clause 9.12) shall give appropriate
instructions to the Base Building Contractor to carry out and complete
the Tenant's Requested Modifications as part of the programme under the
Base Building Contract and for the avoidance of doubt (subject as
referred to in Clause 9.12) the Tenant's Requested Modifications shall
thereafter form part of the Base Building Works and the Developer and the
Tenant shall be bound by all their respective obligations set out herein
in relation thereto.
9.8 TRM COSTS
Subject always to Clause 9.9 the Developer shall deliver to the Tenant on
request and without request at monthly intervals a statement or
statements specifying all TRM Costs actually incurred or suffered by the
Developer in connection with the Tenant's Requested Modifications
(whether or not the same are approved, withdrawn or implemented). The
Developer shall have sole responsibility for all, and the Tenant shall
have no responsibility for any proper TRM Costs actually incurred. The
Developer shall not agree any TRM Costs chargeable by third parties which
exceed those which are reasonable and proper and shall if the Tenant so
requests but at the Tenant's cost in all respects take any necessary
steps which are reasonably available to contest such costs unless they
are fixed price costs not previously objected to by the Tenant. The
Developer shall not be entitled to delay or cease execution of any
aspects of the Base Building Works and/or the preparation of designs or
specifications or the placing or negotiation of any contracts orders or
other matters (together, "IMPLEMENTATION") following submission of a TRM
Application pending the Tenant countersigning and returning the copy of
the Developer's Estimate as referred to in Clause 9.5 (unless the
Developer and the Tenant shall otherwise agree) notwithstanding that the
Developer acting reasonably may consider that the matters referred to in
the TRM Application mean that any matter relevant to Implementation would
or might stand to be wasted or need to be repeated or changed in the
event of the relevant TRM Plans being prepared or the TRMs being
implemented. Provided that, if the Developer and the Tenant do agree to
such delay or cessation of Implementation, the Tenant shall indemnify the
Developer (with the intention of putting the Developer in the same
after-tax position it would have been in had the matter giving rise to
the indemnification not arisen) against the
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costs so incurred by the Developer and any such delay or cessation and
all delays consequential thereon shall be deemed a Tenant's Delay.
9.9 COST AND TIME SAVINGS FOR TENANT'S REQUESTED MODIFICATIONS
9.9.1 If the implementation of a Tenant's Requested Modification is agreed by
the Developer and the Tenant (or in the event of dispute determined in
accordance with Clause 32) to have resulted in a cost saving to the
Developer then the amount of such saving shall at the Tenant's option be
paid to the Tenant on the date when the amount is agreed or determined in
accordance with Clause 32. If the implementation of a Tenant's Requested
Modification is agreed by the Developer and the Tenant or in the event of
a dispute referred for decision to the Independent Person (acting as an
Expert) pursuant to the provisions of Clause 32 hereof to have resulted
in a time saving to the Developer then the amount of such time saving
shall be credited against the total of Tenant's Delay.
9.9.2 If a Tenant's Requested Modification consists of an agreed omission from
the Base Building Works and:
(i) it is agreed or determined in accordance with Clause 9.9.1 that
such omission has resulted in a cost saving to the Developer; and
(ii) the relevant item omitted is subsequently installed or carried out
as part of the Fit Out Works ("AN IMPLEMENTED TRM"); and
(iii) such item is not an item comprised in the Developer's Fit Out
Works which is implemented by the Developer (or on its behalf),
then the Tenant may elect by notice given in writing to the Developer
within ten (10) Working Days of the Developer having agreed to the
Tenant's Requested Modification (or such matter having been determined
pursuant to Clause 32) that instead of having such cost saving taken into
account in the calculation of the Developer's Cap, the Developer shall
pay to the Tenant the Tenant's proper and reasonable costs of installing
the relevant Implemented TRM. The payment for the Implemented TRM shall
be made to the Tenant within fourteen (14) Working Days after the later
of:-
(a) the date when the Developer and the Tenant have agreed the cost to
the Tenant of installing or carrying out the Implemented TRM or in
the event of a dispute referred for decision to the Independent
Person (acting as an Expert) pursuant to the provisions of Clause
32 hereof the date when such cost is determined by such
Independent Person; and
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(b) the date of issue of the Certificate of Completion of the Fit Out
Works.
9.10 DEVELOPER'S HANDLING FEE
The Tenant will pay to the Developer a handling fee of three (3) per cent
of all TRM Costs such fee to be paid in the case of each Tenant's
Requested Modification within ten (10) Working Days of demand following
the final determination of the relevant TRM Costs.
9.11 DISPUTES AS TO TRM COSTS
The Developer and the Tenant shall procure that the Base Building
Quantity Surveyors and the Fit Out Quantity Surveyors use all reasonable
endeavours to agree the TRM Costs but in the event of disagreement either
party may at any time refer the matter in dispute to an Independent
Person (acting as an Expert) in accordance with the provisions of Clause
32.
9.12 APPROVALS
The implementation of any Tenant's Requested Modifications (but not the
fact that any delays relating to Tenant's Requested Modifications shall
be counted a Tenant's Delay) shall be conditional on all necessary
Approvals being obtained. The Tenant shall be responsible for obtaining
all such Approvals unless the parties agree that the Developer shall
obtain them at the Tenant's cost. The obtaining of any such Approvals and
any delay relating thereto shall be at the Tenant's risk in all respects
and the Developer shall have no responsibility where the Approvals are
not forthcoming or are late (save where the Developer has agreed to
obtain the Approvals and, having been supplied with all necessary
information required to be provided by the Tenant and application fees,
has failed to do so). Where delay is caused by the need to wait for
Approvals or Approvals not being forthcoming this shall be deemed a
Tenant Delay (save as aforesaid). The Developer shall not be obliged to
implement any Tenant's Requested Modifications unless and until any
necessary Approvals have been obtained.
9.13 TIME OF THE ESSENCE
Time shall be of the essence for all purposes of this Clause 9.
10. COPYRIGHT
10.1 LICENCE TO USE DRAWINGS ETC.
Insofar as the copyright to any drawings or other intellectual property
relevant to the Base Building Works is owned by the Developer or that
relevant to those of the Fit Out Works which do not relate to information
technology is owned by the Tenant (or the Developer or the Tenant
respectively have power without incurring liability for payment of money
or otherwise to grant licence to use or reproduce the same) the Developer
and the Tenant
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hereby irrevocably grant to each other non-exclusive licence to use and
reproduce the same for the purposes set forth in Clause 10.2 below.
10.2 RESTRICTIONS ON COPYRIGHT TO BE OBSERVED
The Developer and the Tenant undertake that they shall observe all
restrictions on copyright and other intellectual property rights
applicable to and treat as supplied in confidence all drawings plans
specifications cost information trade contract documents and calculations
supplied by the other, their contractors consultants or agents in
connection with or related to the Base Building Works or those of the Fit
Out Works which do not relate to information technology as the case may
be and will not use or permit to be used any of the same otherwise than
exclusively in connection with the planning and execution of the Fit Out
Works or the Base Building Works as the case may be and that each of them
will use all reasonable endeavours to procure compliance with this Clause
10 by their contractors consultants and agents or any third party engaged
instructed or retained by them in connection with the Base Building Works
or Fit Out Works or matters provided for in this Agreement.
10.3 FIT OUT CATEGORY A WORKS
The Tenant shall procure for the Developer prior to commencement of the
Fit Out Category A Works royalty free irrevocable licences from all
relevant parties to use and reproduce all drawings designs calculations
and other intellectual property relating to such Fit Out Category A
Works.
11. BASE BUILDING WORKS - ISSUE OF CERTIFICATES
11.1 INSPECTIONS, REPRESENTATIONS AND ISSUE OF CERTIFICATES
11.1.1 The Developer will keep the Tenant regularly informed of the
progress of the Base Building Works and in particular of the
anticipated date of Shell & Core Substantial Completion and of any
changes to it and the Developer will procure that in the three
months prior to the anticipated issue of the Shell & Core Works
Certificate arrangements are made for weekly meetings and
inspections by the Certifying Officer and the Fit Out Architect in
order to identify defects and other matters which would or might
preclude the issue of the same.
11.1.2 The weekly meetings referred to in Clause 11.1.1 shall be attended
by representatives of the Base Building Consultants and the Base
Building Contractor as well as the Certifying Officer and the Fit
Out Architect and at such meetings the then current snagging items
shall be discussed and reviewed.
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11.1.3 The Developer shall procure that the Fit Out Architect shall be
given not less than five (5) Working Days' notice of the intention
of the Certifying Officer to pre-inspect the Base Building Works
with a view to the eventual issue of the Shell & Core Works
Certificate and shall provide the Fit Out Architect with the then
current draft of the list of snagging items (if any) which the
Certifying Officer proposes at that time to annex to the Shell &
Core Works Certificate.
11.1.4 Within five (5) Working Days after the Developer gives such notice
to the Tenant of the pre-inspection the Tenant shall procure that
the Fit Out Architect and other relevant Tenant's Consultants
accompany the Certifying Officer on a "rehearsal" inspection of
the Base Building Works to ascertain whether Shell & Core
Substantial Completion has been achieved during which inspection
the Developer and the Fit Out Architect shall use all reasonable
endeavours to agree a preliminary list of any alleged defects in
the Base Building Works or matters requiring further work or
remedy (A "PRELIMINARY SNAG LIST") such list (which is to be
divided into (i) snagging items which the parties agree will not
be an impediment to the issue of the Shell & Core Works
Certificate and (ii) more serious defects which would constitute
such an impediment) to be prepared by the Certifying Officer
during the course of the inspection and countersigned by the
Tenant by way of agreement and the Tenant shall not be entitled to
raise at a later date any alleged defects in the Base Building
Works or matters requiring further work or remedy which were not
raised and put on the Preliminary Snag List at the time of the dry
run inspection, save that the Tenant will be entitled to raise
issues arising:
(a) from alleged unsatisfactory carrying out of snagging works
or other remedying of defects; or
(b) after the date of the "rehearsal" inspection.
11.1.5 The Developer shall procure that the Fit Out Architect shall be
given not less than five (5) Working Days' notice in writing of
the intention of the Certifying Officer to inspect the Base
Building Works with a view to the issue of the Shell & Core Works
Certificate. Such notice shall state the proposed date and time
of such inspection and the Tenant and/or the Fit Out Architect
will be permitted to accompany and make representations to the
Certifying Officer on such inspection. The Certifying Officer
shall be instructed by the Developer to have regard to (but shall
not be bound by) any representations made by the Developer and/or
the
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Tenant and/or the Fit Out Architect during such inspection or
made forthwith in writing thereafter as to the state and
condition of the Base Building Works.
11.1.6 The Certifying Officer shall at the same time give notice to the
Developer and the Tenant certifying the date on which the Shell &
Core Works Certificate would have been issued but for Tenant's
Delay and but for Extension Periods in each case taking account
of any periods quantified pursuant to Clause 5.8 ("DELAY
NOTICE").
11.1.7 The Developer shall forthwith supply to the Tenant a copy of the
Shell & Core Works Certificate together with the Delay Notice
when issued. The Certificate may be issued subject to a list of
snagging items additional to the matters detailed in the
Preliminary Snag List.
11.1.8 The Shell & Core Works Certificate shall be final and binding on
the parties hereto but without prejudice to any claims against
the Certifying Officer.
11.1.9 If the Tenant disputes the correctness of the Delay Notice the
Tenant may serve a Counter-Notice (hereinafter called the
"TENANT'S COUNTER-NOTICE") in writing upon the Developer within
fifteen (15) Working Days after the receipt by the Tenant of the
Delay Notice specifying the respects in which in the opinion of
the Tenant the Delay Notice is incorrect and giving full written
reasons for any such contentions by the Tenant and attaching
copies of all notes, reports, memoranda or other matters in the
possession of or available to the Tenant and which are relevant
to its contentions.
11.1.10 If the Developer (by notice in writing to the Tenant within five
(5) Working Days after the Tenant's Counter-Notice) disputes the
correctness of the Tenant's Counter-Notice giving full written
reasons for any such contentions by the Developer and attaching
copies of all notes reports memorandum or other matters in the
possession of or available to the Developer and which are
relevant to its contentions the dispute shall be referred for
settlement to an Independent Person who shall act as an Expert
who shall be requested forthwith to determine whether the Delay
Notice is correct and, if not, what steps are necessary to
correct the Delay Notice and the Expert shall consider (inter
alia) any representations made to him by the Developer and/or the
Tenant and/or the Fit Out Representative but shall not be bound
thereby.
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11.2 FIT OUT ARCHITECT'S DUTY OF CARE DEED
The Tenant will procure that as soon as reasonably practicable after the
date of this Agreement the Fit Out Architect enters into an appointment
and provides a duty of care deed to the Developer in the form approved by
the Developer (such approval not to be unreasonably withheld).
11.3 CERTIFICATES UNDER BUILDING CONTRACTS
None of the provisions of this Clause 11 shall place any obligations on
the Developer or the Certifying Officer in connection with the issue or
refusal of any certificate under a Base Building Contract (whether or not
with a snagging or defects list) and the Developer and Certifying Officer
shall have complete discretion in that regard.
11.4 TIME OF THE ESSENCE
Time shall be of the essence in this Clause 11.
12. RIGHT TO RESCIND
12.1 TENANT'S RESCISSION NOTICE
12.1.1 If Shell & Core Substantial Completion has not occurred by the date which
is twelve (12) months after the Target Date then, subject to Clause 12.3,
the Tenant may by not less than twenty (20) Working Days written notice
to the Developer served before the expiry of twenty (20) Working Days
following the Target Date (a "RESCISSION NOTICE") rescind this Agreement
(in which event the Developer shall have no further liability hereunder
save as provided in Clause 12.1.2) but if no such notice is served within
such time limit then the Tenant shall not thereafter be entitled to serve
a Rescission Notice.
12.1.2 Where a Rescission Notice has been served if the parties agree or in the
event of a dispute referred for decision to the Independent Person
(acting as an Expert) pursuant to the provisions of Clause 32 hereof it
is determined that any part of the failure to achieve Shell & Core
Substantial Completion by the Target Date is attributable to the neglect
and default of the Developer, then the Developer shall pay to the Tenant
Liquidated Damages (which are recognised as a genuine and realistic
assessment of the Tenant's prospective losses) for each period of delay
attributable to the Developer's neglect and default but only up to and
not exceeding the Maximum Damages and subject to payment the Developer
shall have no other liability to the Tenant on termination of this
Agreement other than as provided in this Sub-Clause 12.1.2.
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12.2 TENANT'S TERMINATION NOTICE
12.2.1 If Shell & Core Substantial Completion has not occurred by the Longstop
Date then, subject to Clause 12.3, the Tenant may by not less than twenty
(20) Working Days' written notice to the Developer served at any time
before Shell & Core Substantial Completion has occurred (a "TERMINATION
NOTICE") rescind this Agreement in which event the Developer shall have
no further liability hereunder save as provided in Clause 12.2.2.
12.2.2 Where a Termination Notice has been served if the parties agree or in the
event of a dispute referred for decision to the Independent Person
(acting as an Expert) pursuant to the provisions of Clause 32 hereof it
is determined that any part of the failure to achieve Shell & Core
Substantial Completion by the Longstop Date is attributable to the
neglect and default of the Developer, then the Developer shall pay to the
Tenant Liquidated Damages (which are recognised as a genuine and
realistic assessment of the Tenant's prospective losses) for each period
of delay attributable to the Developer's neglect and default but only up
to and not exceeding the Maximum Damages and the Developer shall have no
other liability to the Tenant on termination of this Agreement other than
as provided in this sub-Clause 12.2.2.
12.3 AGREED GRACE PERIODS
If the Tenant serves a Rescission Notice pursuant to Clause 12.1.1 or a
Termination Notice pursuant to Clause 12.2.1 and the Developer notifies
the Tenant within ten (10) Working Days following receipt of the relevant
notice that it considers that only works which are reasonably likely to
be substantially completed within a period of not longer than three (3)
months ("OUTSTANDING WORKS") still remain to be carried out in order to
achieve Shell & Core Substantial Completion then if the Tenant agrees
that the Outstanding Works are reasonably likely to be substantially
completed within a period of not longer than three months ("THE GRACE
PERIOD") or in the event of a dispute it is determined by an Independent
Person (acting as an Expert) pursuant to the provisions of Clause 32
hereof that the Outstanding Works are reasonably likely to be
substantially completed within the grace period then the Rescission
Notice or the Termination Notice (as the case may be) shall be suspended
for the grace period (as agreed or determined) to allow the Outstanding
Works to be completed. If the Outstanding Works have not been
substantially completed at the end of the grace period then the
Rescission Notice or the Termination Notice (as the case may be) shall
become effective from the day after the expiry of the grace period and
the Tenant may rescind this Agreement in accordance with the provisions
of Clause 12.1 or Clause 12.2 but otherwise the Recision Notice or the
Termination Notice (as the case may be) shall be treated as ineffective.
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12.4 DEVELOPER'S REQUEST TO EXTEND LONGSTOP DATE
If it becomes evident that the Developer will not achieve Shell & Core
Substantial Completion by the Longstop Date then it may request the
Tenant by a notice in writing (an "EXTENSION REQUEST NOTICE") served not
earlier than 24 June 2002 to confirm within three (3) months of the date
of the service of the Extension Request Notice whether it is prepared to
agree to extend the Longstop Date by an additional period to a reasonable
revised date (the "EXTENDED LONGSTOP DATE") as reasonably proposed by the
Developer in its notice. The Tenant shall unequivocally and in writing
agree or refuse within three months the request set out in the Extension
Request Notice. If the Tenant refuses the request (or fails to respond
unequivocally in writing as to whether the Developer's proposal is
accepted or rejected) in such three months timescale then the Developer
may determine this Agreement by serving written notice (a "DEVELOPER'S
RESCISSION NOTICE") on the Tenant. Any such termination will be without
prejudice to any right of action or other remedy any party may have in
respect of any antecedent breach of this Agreement but if the parties
agree or in the event of a dispute referred for decision to the
Independent Person (acting as an Expert) pursuant to the provisions of
Clause 32 hereof it is determined that any part of the failure to achieve
Shell & Core Substantial Completion by the Target Date is attributable to
the neglect and default of the Developer, then the Developer shall pay to
the Tenant Liquidated Damages (which are recognised as a genuine and
realistic assessment of the Tenant's prospective losses) for each period
of delay attributable to the Developer's neglect and default but subject
to the Maximum Damages and subject to payment the Developer shall have no
other liability to the Tenant on termination of this Agreement other than
as provided in this Sub-Clause 12.4. If the Tenant agrees to the
Extension Request Notice then for the purposes of this Agreement the
Extended Longstop Date shall be substituted for the Longstop Date.
12.5 TENANT'S REQUEST TO TERMINATE AGREEMENT
12.5.1 If the Tenant is concerned that the Developer cannot possibly achieve
Shell & Core Substantial Completion by the Longstop Date then it may by a
notice in writing served not earlier than 24 June 2002 notify the
Developer that it does not consider that Shell & Core Substantial
Completion can possibly be achieved by the Longstop Date and the Tenant
may serve any number of such notices. If the Developer agrees with the
Tenant's Notice, or if the Developer disagrees and subject to it having
been determined by an Independent Person (acting as an Expert) in
accordance with the provisions of Clause 32 hereof that it is impossible
(notwithstanding every effort being made to accelerate the programme) to
achieve Shell & Core Substantial Completion by the Longstop Date then the
Tenant may within twenty (20) Working Days of such agreement or
determination as aforesaid determine this Agreement by not less than
twenty (20) Working Days notice in writing to the Developer
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12.5.2 If the parties have agreed or it has been determined that Shell & Core
Substantial Completion cannot possibly be achieved by the Longstop Date
and the Tenant has determined this Agreement in accordance with Clause
12.5.1 then if the parties agree or in the event of a dispute referred
for decision to the Independent Person (acting as an Expert) pursuant to
the provisions of Clause 32 hereof it is determined that any part of the
failure to achieve Shell & Core Substantial Completion by the Longstop
Date is attributable to the neglect and default of the Developer, then
the Developer shall pay to the Tenant Liquidated Damages (which are
recognised as a genuine and realistic assessment of the Tenant's
prospective losses) for each period of delay attributable to the
Developer's neglect and default but subject to the Maximum Damages and
subject to payment the Developer shall have no other liability to the
Tenant on termination of this Agreement save that either party shall be
liable to the other in respect of any breaches occurring prior to the
termination of the Agreement pursuant to Clause 12.5.1.
12.6 TIME OF THE ESSENCE
Time shall be of the essence for the purpose of this Clause 12.
13. COMMISSIONING OF PLANT AND MACHINERY
13.1 COMMISSIONING BY COMMISSIONING ENGINEER
The Developer and the Tenant shall (each at its own cost) appoint or
procure the appointment of the Commissioning Engineer to document witness
and validate the commissioning and performance testing process, in
accordance with the specifications relating thereto, all plant and
machinery the supply or fixing of which is included (in the case of the
Developer's appointment) in the Base Building Works and (in the case of
the Tenant's appointment) the Fit Out Works respectively both separately
and together and the Commissioning Engineer shall be appointed on terms
whereby in each case the Commissioning Engineer owes an equal duty of
care to both the Developer and the Tenant and whereby the Commissioning
Engineer is instructed to issue copies of all certificates issued by him
to both the Developer and the Tenant.
13.2 TESTING AND REPRESENTATIONS
The Developer and the Tenant shall each procure that the other is given
not less than five (5) Working Days' notice of the proposed commencement
of any procedures for documenting witnessing and validating the
commissioning and performance testing process and/or commissioning any of
the plant and machinery and the party to which such notice is given and
its advisers shall be entitled to be present at any such test and to make
representations to the Commissioning Engineer and the party instructing
the Commissioning Engineer for the purpose of such test shall procure
that he has due regard to such representations (though he shall not be
bound thereby).
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13.3 DEFINITION OF TESTING
For the purpose of this Clause "testing" shall mean static rotation and
continuity testing of individual items of equipment and commissioning and
performance testing of systems against the specified requirements and
whatever the Commissioning Engineer can reasonably carry out in order to
check whether plant and machinery is Millennium Compliant provided always
that it is agreed that Millennium Compliance shall not be a pre-condition
to Shell & Core Substantial Completion
13.4 PARTIES TO CO-OPERATE AS TO TESTING
The Developer and the Tenant shall co-operate so as to procure the
efficient testing and commissioning of the plant and machinery in cases
where the functioning of plant and machinery installed as part of the
Base Building Works is dependent upon plant and machinery installed as
part of the Fit Out Works and vice versa.
13.5 BUILDING SYSTEMS
In relation to those portions of the Fit Out Works which involve any
connection to or interface with or affect the Building Systems, the
Tenant shall give to the Developer not less than five (5) Working Days'
notice of the proposed works and allow the Developer to be present at the
carrying out of such work Provided that if the Tenant elects not to use
the members of the Base Building Contracting Team or Base Building
Consultants or other advisors who are or were responsible for the design
and/or installation of such systems with which the connection or
interface is being made the Developer will have no liability for any
defects which arise to the extent that (and always subject to the Tenant
having been provided with copies of relevant warranties) the warranties
of such persons have been rendered wholly or partially invalid due to the
Tenant electing not to instruct such persons to make such connection or
interface.
13.6 TESTING AFTER FITTING-OUT AND OCCUPATION
Where any plant or machinery the supply or fixing of which is included in
the Base Building Works needs to be commissioned or to be tested or
balanced after fitting-out and occupation of the Demised Premises or any
part thereof, the Developer shall arrange for the commissioning testing
and balancing but with the Developer being responsible for costs so far
as they relate to the Base Building Works the Tenant being responsible
for the costs so far as they relate to Fitting Out Works and the
Developer and the Tenant being jointly responsible in equal shares for
the costs so far as they relate to the interface between the Base
Building Works and the Fitting Out Works.
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13.7 CARRYING OUT WORKS PRIOR TO COMMISSIONING
The Developer shall be responsible for carrying out any works which prove
to be necessary to enable any plant and machinery or installations
forming part of the Base Building Works to be initially commissioned and
the Tenant shall be responsible for procuring the carrying out of any
works which require to be done in order to enable any plant or machinery
or installations forming part of the Fit Out Works to be commissioned. To
the extent however that any works connected with or arising from the Fit
Out Works lead to a need for commissioning, rebalancing, alteration of or
adjustment to any plant or other items which would otherwise be the
Developer's responsibility, the Developer shall carry out any necessary
works but at the cost of the Tenant in all respects.
14. DEFECTS
14.1 MAKING GOOD INITIAL DEFECTS
The Developer shall as soon as reasonably practicable (or immediately in
case of emergency) remedy or cause to be remedied those omissions
imperfections defects or other faults specified in the Schedule annexed
to the Shell & Core Works Certificate as issued agreed or determined in
accordance with Clause 32.
14.2 MAKING GOOD DEFECTS AT FINAL COMPLETION
Without prejudice to the foregoing the Developer shall procure that the
Certifying Officer prepares a schedule in accordance with the terms of
the Base Building Contract listing any omissions defects shrinkages or
other faults appearing in the Base Building Works or any part thereof and
supply a copy thereof to the Fit Out Representative not later than
seventeen (17) Working Days before the expiry of the relevant Defects
Period and the Tenant shall procure that not later than fifteen (15)
Working Days after the receipt of such schedule the Fit Out Architect and
the Fit Out Professional Firms (as appropriate) list any omissions
defects shrinkages or other faults which they have observed and the
Developer shall procure that the Certifying Officer has regard to the
same and if appropriate adds them to the list to be notified to the Base
Building Contractor for completion and the Developer shall as soon as
reasonably practicable make good or procure to be made good all such
omissions defects shrinkages or other faults. Any disagreement as to the
extent or nature of any omissions defects shrinkages or other faults
shall be referred to the Independent Person acting as an Expert under
Clause 32.
14.3 DEFECTS PERIOD
For the purposes of Clause 14.2 the relevant Defects Period means that
specified in the Base Building Contract.
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14.4 INHERENT DEFECTS
Without prejudice to any other rights and remedies of the Tenant under
this Agreement (subject to Clause 5.5.2) if any Inherent Defect manifests
itself or the Building or any part thereof is damaged by an Inherent
Defect and such Inherent Defect is notified to the Developer and has
manifested itself during the period of five years commencing on the date
of Shell & Core Substantial Completion (the "ID PERIOD") then the
Developer and the Tenant shall agree a method and programme for carrying
out any necessary remedial work and the Developer shall procure the
carrying out any necessary works to remedy the Inherent Defect and any
damage thereby caused provided always that:-
14.4.1 Where the Developer carries out any works the Tenant shall give
and procure all reasonably necessary access for that purpose
subject to the provisions of Clause 14.6;
14.4.2 The Developer shall not be liable for the remedy of defects
(whether under this Clause 14.4 or otherwise and howsoever
arising) to the extent that the existence of any Inherent Defect
results from acts or omissions of the Tenant in breach of this
Agreement or any subsequent Fit Out Works or alterations carried
out by the Tenant or any subtenant, licensee, occupier, person
sharing possession with the Tenant result in any claims by the
Developer in relation to any relevant contract, appointment,
warranty, duty of care deed, or insurance policy the terms of
which in each case have previously been notified to the Tenant
being defeated, vitiated or avoided or in the Inherent Defect
being worsened and in such case the Developer shall allow the
Tenant all access to the Building which is necessary to enable the
Tenant to carry out the remedial work itself; and
14.4.3 Notwithstanding Clause 14.4 and to the extent that it will not
result in any claims by the Developer in relation to any relevant
contract appointment warranty duty of care deed or insurance
policy the terms of which in each case have previously been
notified to the Tenant being defeated vitiated or avoided the
Tenant may elect to carry out remedial works which the Developer
is liable to carry out itself where entry by the Developer is
likely to interfere materially with the Fit Out Works and if the
Tenant makes such election the reasonable and proper costs and
expenses (excluding any part thereof which represents VAT in
respect of which the Tenant is entitled to credit or repayment
from H M Customs & Excise) of the remedial works including
professional fees (excluding any part thereof which represents VAT
in respect of which the Tenant is entitled to credit or repayment
from H M Customs & Excise) shall be paid by the Developer to the
Tenant within five (5)
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Working Days of demand accompanied by such bills receipts and
invoices as are reasonably necessary to evidence payment by the
Tenant.
14.5 MILLENNIUM COMPLIANCE RENT PAY-BACK
To the extent that the premises demised by any of the Lease or any part
thereof are at any time prior to 31 January 2001 rendered incapable of
use and occupation as high class offices by reason of any plant machinery
and equipment and related computer systems and/or related hardware and/or
software (together the "MILLENNIUM ITEMS") not being Millennium
Compliant, then the Developer as liquidated and ascertained damages
(which are recognised as a genuine and realistic assessment of the
Tenant's prospective losses) shall pay to the Tenant while the relevant
part(s) of the said premises remain incapable of such use and occupation
within ten (10) days of a proper demand a sum being a rateable or due
proportion (depending on the use and extent of the part of the said
premises affected) of the rent payable under Clause 4.1.1 of the relevant
Lease or (if the rent free period has not expired) which would have been
payable if the rent free period had expired (or an equivalent sum due
under the terms of this Agreement if the Leases have not then been
granted) and subject to the Developer making such payment the Developer
shall have no other liability to the Tenant and Provided Always that the
Developer shall have no further liability under this Clause 14.5 after 31
January 2001 except to the extent the Tenant has notified the Landlord in
writing prior to that date that the premises or the relevant part of the
premises is incapable of use and occupation as aforesaid by reason of a
Millennium Item not being Millennium Compliant.
14.6 MAINTENANCE AGREEMENTS
The Tenant shall with effect from Shell & Core Substantial Completion and
until Completion of the Fit Out Works enter into such maintenance
agreements as are reasonably necessary to enable the Developer to obtain
extended warranties from the Base Building Contractors and appropriate
sub-contractors in respect of all plant and machinery.
14.7 ACCESS BY DEVELOPER TO MAKE GOOD DEFECTS
In circumstances where the Developer has liability to remedy defects or
carry out works:-
14.7.1 The Tenant shall whether before or following the grant of the
Leases or any underleases permit the Developer the Base Building
Architects and the Base Building Contractors and all persons
reasonably authorised by them at all reasonable times and on
giving reasonable prior written notice (except in an emergency
where access shall be available at any time and no notice shall be
required) and complying with the Tenant's reasonable requirements
to have access
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to all relevant common parts of the Building in order to remedy
any defects and to enjoy all facilities necessary for carrying out
such works; and
14.7.2 Where the Developer requires access to other parts of the Building
in order to remedy any defects therein the Developer shall make
prior arrangements with the Tenant as to the times of access and
the Developer and the Tenant shall endeavour to agree a programme
for carrying out any such remedial works. The Tenant shall be
entitled to require such works to be carried out outside usual
business hours. Each such person so entering shall:-
(a) cause the minimum amount of interference and disruption as
is reasonably possible to the carrying out of the Fit Out
Works or any other works by the Tenant in the Building and
to the Tenant's business;
(b) comply with any reasonable directions and security
precautions for the Building so long as these shall not
prevent the carrying out of the relevant works or
inspection;
(c) be accompanied if the Tenant so requires by a
representative of the Tenant; and
(d) make good as soon as reasonably practicable to the
reasonable satisfaction of the Tenant any loss damage or
injury thereby caused to the Building the Fit Out Works or
the property of the Tenant or any sub-tenant or other
lawful occupiers or visitors in the Building
but so that neither the Developer nor anyone acting on its behalf
shall be liable for any consequential loss (or diminution) of
business, whether actual or prospective.
14.8 DAMAGES IN RESPECT OF A RELEVANT DEFECT
14.8.1 In this Clause 14.8.1 the expression "Damages" means all amounts actually
recovered by the Developer in respect of any Relevant Defect (less any
part of such amounts paid in respect of any tax payable by the Developer
in respect of such amounts) from all or any parties to the Base Building
Contract or the Base Building Contracting Team or the Base Building
Consultants responsible in whole or in part for the Relevant Defect
pursuant to any action or proceedings brought against such parties under
this Clause 14.8.1 or pursuant to a settlement of a claim whether before
or after such proceedings are commenced and "Relevant Defect" means any
defect in the Base Building Works which is due to or arises from a breach
by the Developer of its obligations contained in Clause 14.8.2 and which
the
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Developer is not obliged to make good pursuant to Clauses 14.2 and/or
14.4 and which manifests itself within twelve (12) years of the date
hereof
14.8.2 The Developer hereby agrees to indemnify the Tenant (with the intention
of putting the Tenant in the same after-tax position it would have been
in had the matter giving rise to the indemnification not arisen) against
the cost of making good a Relevant Defect by contributing to the same by
way of payment for services pursuant to the Lease or pursuant to the
Tenant's repairing covenants contained in the Lease PROVIDED ALWAYS that
the liability of the Developer to the Tenant under this Clause 14.8.2
shall be limited to the Damages actually recovered by the Developer and
as between the lessees from time to time of each of the Leases the amount
of the Damages actually recovered by the Developer shall be pro-rated
between the lessees according to the proportion which the Net Internal
Area of the premises demised by the relevant lessee's lease bears to the
aggregate Net Internal Area of the Lettable Areas within the Building as
a whole
14.8.3 In respect of any Relevant Defect the Developer will at the request of
the Tenant and subject to the Developer receiving:-
(a) an indemnity from the Tenant satisfactory to the Developer acting
reasonably in respect of all proper costs losses and expenses
incurred by the Developer in any such actions (including costs
awarded against it and any other costs or losses of any nature
incurred in connection with or as a result of any of the
provisions of this Clause 14.8 which exceed those recovered by the
Developer) and such security for costs and expenses as the
Developer shall reasonably require; and
(b) (if so requested by the Developer and upon the Developer supplying
to the Tenant full information concerning the Relevant Defect) a
written opinion of Leading Counsel who shall have been approved by
the Developer and the instructions to whom shall have been
approved by the Developer (in each case such approval not to be
unreasonably withheld) that any such action is reasonably likely
to succeed and that action by the Tenant itself would be unlikely
to succeed
enforce for the benefit of the Tenant and Developer and any other
relevant person or persons any warranties guarantees or other rights or
remedies which the Developer may have under any of the Base Building
Contracts in respect of such Relevant Defects;
14.8.4 The Developer shall be entitled in relation to any claim or proceedings
brought by the Developer pursuant to Clause 14.8.3 to negotiate terms for
settlement if advised by Leading Counsel that the terms proposed for
settlement are prudent and reasonably satisfactory
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the context of the amount of the claim the likelihood of recovery of
additional sums the time and costs involved in proceeding further and all
other relevant considerations Provided that the Tenant shall be consulted
by the Developer (but so that the Developer shall not be bound by its
views) and shall be entitled to make representations to such Leading
Counsel prior to such settlement being concluded
14.8.5 The Developer shall apply the Damages in paying or reimbursing the
following amounts in the order set out and pro rata in the event that
the Damages shall be insufficient to fully discharge the total amount
under any head:-
(a) firstly all amounts paid or incurred by the Developer and
(following discharge of any such amounts) all amounts paid or
incurred by the Tenant and/or any other parties contributing to
the costs incurred by the Developer in any action or proceedings
brought against any parties to the Base Building Contract or the
Base Building Consultants or the Base Building Contracting Team
brought against such parties under this Clause 14.8 (save to the
extent that the same shall be recovered from the party in default)
together with interest thereon at Base Rate from the date of
payment of such amounts until repayment
(b) secondly all amounts paid by the Tenant the Developer and/or any
other party in making good the Relevant Defect in question
whether by a contribution to the same by way of payment for
services or pursuant to repairing covenants and
(c) thirdly any balance shall be divided between the Developer and
Tenant and any other party or parties in such fair proportions as
shall be determined by the Developer (who shall be required to
act reasonably and promptly) having regard to the losses in
respect of the Relevant Defect in question suffered by the Tenant
the Developer and such other party or parties (whether or not a
claim has actually been made by the Tenant the Developer or such
other party or parties at the time when the Damages are
recovered).
References in this Clause 14.8.5 to amounts paid or incurred by any
person do not include a reference to such part of such amounts as
represents VAT input tax in respect of which such person is entitled to
credit or repayment from H M Customs & Excise.
14A. FIT OUT WORKS
The Tenant is not obliged to but may elect for the Fit Out Works to be
carried out. If it does so elect, the Fit Out Works shall be carried out
in accordance with the provisions of this Agreement.
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15. FIT OUT PLANS
15.1 PREPARATION OF DRAWINGS
The Tenant shall not later than two (2) months before the anticipated
Shell & Core Substantial Completion Date at its cost and expense cause to
be prepared and submitted to the Developer details of the Fit Out Works
for approval including (but without limitation):-
15.1.1 architectural working drawings and specifications; and
15.1.2 structure and services engineering working drawings and
specifications; and
15.1.3 separate schedules setting out those items which in the Tenant's
reasonable opinion constitute Fit Out Category A Works (the "FIT
OUT CATEGORY A SCHEDULE") and those which will constitute Fit Out
Category B Works (the "FIT OUT CATEGORY B SCHEDULE")
in respect of the design materials and work for the various elements of
the Fit Out Works. The Fit Out Works shall not be commenced until the
Developer's prior approval has been obtained in accordance with Clause
15.6.
15.2 FIT OUT PLANS/INTERFACE WITH BUILDING SYSTEMS
The drawings and specifications caused to be prepared by the Tenant and
any changes therein permitted under this Clause 15 are herein
collectively called "FIT OUT PLANS".
15.3 DETAIL OF FIT OUT PLANS
The Fit Out Plans shall be fully co-ordinated by the Tenant with the
plans comprised within the Base Building Specification (as varied or
modified) and shall incorporate all reasonable information which may be
required to let all contracts required for the performance of the Fit Out
Works including the details of all such Fit Out Works and the dimensioned
locations thereof with reference to the building column centre line or
the face of finished column enclosures. The plans of Fit Out Works shall
consist of all details reasonably required by the Developer, including
without limitation a CAD disk and scaled and dimensioned architectural
and engineering working drawings and specifications showing all of the
Fit Out Works which architectural and engineering working drawings and
specifications shall contain sufficient detail to enable the Developer to
determine whether or not the Fit Out Works both as a whole and in their
individual parts are acceptable and comply with the provisions of Clause
15.4;
15.4 RESTRICTIONS ON FIT OUT WORKS
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The Fit Out Works (including any changes thereto) shall not contain
proposals for or refer to materials or work which if implemented would:-
(a) require any changes in the Base Building Works other than those
arising from such Tenant's Requested Modifications as are to be
actually implemented; or
(b) alter the external dimensions of the Building; or
(c) be matters which the landlord under the Lease would be absolutely
entitled to withhold consent for (save that the Fit Out Works may
include works to areas outside the demises granted to the Tenant)
or involve the use of Prohibited Materials; or
(d) adversely affect the Building Systems otherwise than to an
immaterial extent or the cost of operating the Building Systems
Provided that the proposed use of floors as trading floors shall
not be a ground for withholding approval under this sub-Clause; or
(e) violate any laws or the requirements of any Approvals (unless the
Tenant obtains a revised Approval) or the reasonable requirements
from time to time of the insurers of the Building notified to the
Tenant (or its representatives or advisors) or be such that any
Approval or any insurance to be effected by the Developer pursuant
to this Agreement is reasonably likely to be unobtainable on
reasonable terms or made materially more expensive; or
(f) comprise or contain any works which are not at least equivalent in
scope and quality to those described in the Minimum Standard
Fitting Out Works Specification.
15.5 DOCUMENTS TO BE SUPPLIED
One set of transparencies and three full size prints of each plan and
specifications and one set of DXF files on computer disk showing the same
shall be submitted to the Developer on each occasion that the Tenant
supplies details of its proposals to the Developer for approval.
15.6 APPROVAL OF FIT OUT WORKS
The Developer shall not unreasonably withhold or delay its approval to
any of the Fit Out Works save that the Developer shall be entitled to
withhold approval to any of the items mentioned in Clause 15.4.
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15.7 AMENDMENT OF FIT OUT PLANS
If the Developer shall on reasonable grounds disapprove of any aspects of
the applicable drawings and specifications then the Developer shall
within ten (10) Working Days give notice in writing specifying the
grounds for such disapproval and the Tenant shall return to the Developer
appropriate corrections thereto as soon as reasonably practicable after
receipt of such notice. If the Developer shall still decline to approve
the Tenant's plans as amended either party may refer the matter or
matters in dispute to the Independent Person (acting as an Expert) for a
decision in accordance with the provisions of Clause 32.
15.8 APPROVALS
The Tenant shall use all reasonable endeavours and the Developer shall
(without obligation to incur cost unless reimbursed by the Tenant) lend
such assistance and support as is reasonably required to obtain all
necessary Approvals required for the Fit Out Works (and the Tenant shall
not implement them or procure their implementation unless and until such
Approvals are granted) and the Tenant shall promptly provide copies of
any such Approvals to the Developer.
16. ENTRY FOR THE TENANT'S FIT OUT WORKS AND SUBSEQUENT OCCUPATION
16.1 ACCESS FOR TENANT'S FIT OUT WORKS
Subject to the other relevant provisions of this Agreement the Developer
shall grant the Tenant its contractors agents advisers workmen and others
engaged in the execution of the Tenant's Fit Out Works access to the
Demised Premises by way of licence only in common with the Developer and
others at all times (subject as hereinafter mentioned) with effect from
Shell & Core Substantial Completion Date for the purpose of the
commencement and execution (where all necessary consents and Approvals
have been obtained) of the Tenant's Fit Out Works and for the Tenant's
subsequent occupation and use for the purposes of its business.
16.2 DESIGN OF FIT OUT WORKS
The Fit Out Works shall be designed with reasonable skill and care and
the Tenant's Fit Out Works if carried out shall be carried out and
completed:-
16.2.1 in a good substantial and workmanlike manner in accordance with
the plans, drawings and specifications approved by the Developer
and according to good building practice as generally accepted at
the date of the works being carried out according to standards of
good design practice as at the date of design of the works;
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16.2.2 using materials goods and equipment as set out in any
specifications relating to the Fit Out Works and otherwise using
good quality materials (if not so specified);
16.2.3 in accordance with any relevant Approvals, the relevant terms of
this Agreement and all relevant codes of practice and regulations
of relevant professional institutes applying at the time of
carrying out of the Tenant's Fit Out Works;
16.2.4 in respect of the Fit Out Category A Works comprised in the
Tenant's Fit Out Works on the Basement level through to Level 4
(inclusive) within 24 months of the Shell & Core Substantial
Completion Date and in respect of such Fit Out Category A Works on
the higher Levels within 48 months of such Date; and
16.2.5 so that the Tenant obtains a Fire Certificate for the Demised
Premises.
16.3 COMPLIANCE WITH SITE REGULATIONS
The Tenant shall itself, and shall use all reasonable endeavours to
procure that the Fit Out Professional Firms and the Fit Out Building
Contractor and all other parties instructed by or acting for the Tenant
comply with the Site Regulations.
16.4 APPROVAL OF FIT OUT METHOD STATEMENT
As soon as reasonably practicable and in any event not less than one
month prior to the anticipated Shell & Core Substantial Completion Date
and not less than one month prior to commencement of the Tenant's Fit Out
Works the Tenant after consultation with the Developer shall submit to
the Developer for and obtain the Developer's approval to the detailed
method statement (a "METHOD STATEMENT") in writing (which approval shall
not be unreasonably withheld or delayed). The Method Statement shall
contain the following information:-
16.4.1 details of the Fit Out Professional Firms the Fit Out Building
Contractor and the Fit Out "Principal Contractor" (as defined in
the CDM Regulations) for the design overseeing and carrying out of
each part of the Tenant's Fit Out Works;
16.4.2 details of the manner in which the Tenant will structure the
responsibilities of the professional team and contractors and
sub-contractors engaged in connection with the carrying out of the
Tenant's Fit Out Works;
16.4.3 proposals for liaison co-ordination and co-operation between the
Developer, the Developer's Senior Managers, the Base Building
Contracting Team, and the Fit
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Out Professional Firms and the Fit Out Building Contractor and the
Tenant's Senior Managers; and
16.4.4 proposals for the storage on-site of the materials and equipment
intended for incorporation in the Tenant's Fit Out Works.
Provided That the Developer shall be entitled to refuse entry or access
to the Demised Premises pursuant to the access to be granted under Clause
16.1 until the Method Statement shall have been approved as aforesaid by
the Developer.
16.5.1 COMPLIANCE BY TENANT WITH CERTAIN REQUIREMENTS
Upon entering the Demised Premises or any other part of the Development
Site the Tenant will itself and will use all reasonable endeavours to
procure that its contractors agents advisers and workmen will at all
times:-
16.5.1.1 comply in all respects with the provisions of the Method
Statement approved pursuant to the provisions of Sub-Clause 16.4
of this Clause as the same may be added to amended or varied
from time to time as permitted by this Agreement;
16.5.1.2 keep free and unobstructed all escape routes in relation to the
Development Site and instruct vehicles visiting it in connection
with the Tenant's Fit Out Works to go directly to designated
unloading points and leave the Development Site promptly upon
unloading being completed;
16.5.1.3 where appropriate consult and thereafter comply in all proper
respects with the proper requirements of the Police and all
relevant statutory authorities in respect of the delivery of
materials for use in connection with the Tenant's Fit Out Works;
16.5.1.4 comply in all respects and for all purposes with the safety and
floor loading requirements comprised in the Base Building
Specification;
16.5.1.5 (save to the extent approved by reason of the Developer's
approval of the Fit Out Works) not to damage or cause or permit
its servants agents or contractors or any other persons to
damage the Base Building Works and not to make or instruct to be
made by any such persons any connections with or to any
installation forming part of the Base Building Works (other than
any which form part of the Tenant's Fit Out Works and then in
conformity with the other provisions of this Agreement) without
the prior approval of the Developer to such connections (which
approval shall not be unreasonably withheld or delayed); and
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16.5.1.6 comply in all respects with any relevant insurers and
legislation in respect of safety health and welfare and the
reasonable safety requirements of the Developer.
16.5.2 CDM REGULATIONS
16.5.2.1 The Tenant acknowledges that it or GSPM shall act as and shall
be regarded as the only client for the purposes of the
Construction (Design and Management) Regulations 1994 (the "CDM
REGULATIONS") in relation to the Fit Out Works and shall make
the necessary written declaration (in accordance with paragraph
4(4) of the CDM Regulations) to the Health and Safety Executive
that it so acts.
16.5.2.2 Without prejudice to the generality of Clause 16.5, the Tenant
shall comply or shall procure that GSPM shall comply with all
its obligations as client under the CDM Regulations.
16.5.2.3 The Tenant shall or shall procure that GSPM shall provide access
to a copy of the Health and Safety Plan and the Health and
Safety File as defined under the CDM Regulations to the
Developer throughout the duration of the Fit Out Works and on
completion of the Fit Out Works shall deliver a copy of the
Health and Safety File to the Developer.
16.6 OBSERVANCE OF LEASE COVENANTS
From the Shell & Core Substantial Completion Date until the date of
completion of each of the Leases the Developer and Tenant shall (subject
to the terms of this Agreement) be subject to and shall observe and
perform and be bound by the covenants conditions and provisions in the
Leases notwithstanding that the same have not been executed.
16.7 DEVELOPER'S RIGHT TO INSPECT
The Tenant shall at all reasonable times permit the Developer and its
nominated representative to inspect the progress and manner of execution
of the Tenant's Fit Out Works on reasonable prior notice and subject to
the reasonable and proper safety and security requirements imposed by the
Tenant and/or the Fit Out Building Contractor.
16.8 RESPONSIBILITY FOR CLAIMS
If any action claim demand or similar matter (each a "CLAIM") is brought
made or asserted by any person in respect of any noise dust vibration
nuisance disturbance loss of amenity interference with access or egress
connected with the Development Site or the carrying out of works or
otherwise then as between the Developer and the Tenant:-
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16.8.1 the party receiving notice of a Claim shall provide the other with
full details and shall take all reasonable steps to defend the
Claim;
16.8.2 neither the Developer nor the Tenant shall settle or compromise
any Claim whilst both the Base Building Works and the Fit Out
Works are proceeding without the prior approval of the other (such
approval not to be unreasonably withheld);
16.8.3 if the Base Building Works and the Fit Out Works are both
proceeding at the time of such claim the Developer and the Tenant
shall as between themselves share rateably in any liability
according to their relative contributions to the matter complained
of; and
16.8.4 if only the Tenant's Fit Out Works are proceeding at the time of
such claim the Tenant shall be solely liable and the Tenant shall
indemnify the Developer (with the intention of putting the
Developer in the same after-tax position it would have been in had
the matter giving rise to the indemnification not arisen) for any
claim against it provided that the Developer shall not settle
compromise or admit liability for such a claim without the
Tenant's prior written consent (such consent not to be
unreasonably withheld or delayed).
16.9 RESPONSIBILITY FOR DELAY
The Tenant hereby covenants with the Developer that it will use its
reasonable endeavours not to do anything (beyond exercising its rights
hereunder to request Tenant's Requested Modifications) which would hinder
or delay the carrying out of the Development Works
16.10 COLLATERAL DEEDS OF WARRANTY
As soon as reasonably practicable, the Tenant shall use all reasonable
endeavours to procure the execution and delivery to the Developer of a
collateral deed of warranty from the Fit Out Building Contractor, the Fit
Out Architect the Fit Out M & E Engineer and the Fit Out Project Manager
and any sub-contractor with any material design responsibility in a form
negotiated by the Tenant and approved by the Developer such approval not
to be unreasonably withheld.
16.11 EARLY ACCESS
Notwithstanding the provisions of this Clause 16 if by the Target Date
the Developer shall not have achieved Shell & Core Substantial Completion
but in respect of computer areas plant areas and other areas reasonably
requested by the Tenant the Base Building Works are complete in
accordance with the normal standards applied by architects except for
items omitted at the request of the Tenant the Developer shall (subject
to the Tenant paying in full
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the Developer's associated costs) facilitate the early access for initial
Tenant's Fit Out Works by the Tenant in such areas upon such terms as to
access (other than the payment of rent which shall remain as provided for
in Clause 23.3.4) as shall be reasonably determined by the Developer.
Provided that the Tenant will
(i) not damage or cause or permit its servants agents or contractors
or any other persons to damage the Base Building Works and in
particular not to interfere with or permit such persons to
interfere with or do or permit to be done by any such persons any
act or thing which may adversely affect the carrying out or
completion of the Base Building Works
(ii) comply in all respects with the reasonable safety requirements of
the Developer
and provided further that the Developer's liability to pay Liquidated
Damages pursuant to the terms of this Agreement shall be reduced by the
same proportion which the areas to which the Tenant is allowed early
access bear to the total Net Internal Area of the Demised Premises.
17. COMPLETION OF THE FIT OUT WORKS
17.1 INSPECTION, REPRESENTATIONS AND ISSUE OF CERTIFICATE
The Tenant shall procure that:-
17.1.1 the Developer shall be given not less than five (5) Working Days'
notice of the intention of the Fit Out Architects to inspect the
Fit Out Works with a view to the issue of the Certificate of
Completion of Fit Out Works (or any part thereof);
17.1.2 that the Developer and such of its consultants as it may wish
shall be given the opportunity to accompany the Fit Out Architects
on the final inspection prior to the issue of the Certificate of
Completion of Fit Out Works (or part thereof) in order that the
Developer may (but shall not be bound to) make whatever
representations to the Fit Out Architects which the Developer
thinks fit as to whether or not the Fit Out Works or the relevant
part shall have been practically completed;
17.1.3 the Fit Out Architects will have regard to (but shall not be bound
by) any representations made pursuant to Sub-Clause 17.1.2; and
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17.1.4 the Tenant shall supply to the Developer a copy of the Certificate
of Completion of Fit Out Works or part thereof when issued
together with any snagging list and subject to Clause 17.2 the
date specified in the Certificate of Completion of Fit Out Works
or part thereof shall be the date of practical completion of the
Fit Out Works or the relevant part thereof for the purposes of
this Agreement. The Tenant shall procure the prompt and effective
remedy of all defects or other items referred to in any snagging
or similar list or schedule to the Certificate of Completion of
Fit Out Works and shall keep the Developer fully informed and up
to date in that regard.
17.2 CERTIFICATE TO BE BINDING
The Certificate of Completion of Fit Out Works shall be final and binding
on the parties hereto but without prejudice to any claim against the Fit
Out Architect.
17.3 FAILURE TO COMPLETE FIT OUT CATEGORY A WORKS
If at the expiration of the period specified in Clause 17.2.4 (subject to
extension by Force Majeure) the Tenant has not completed the Fit Out
Category A Works comprised in the Tenant's Fit Out Works on the relevant
floor or floors then the Developer shall be entitled (without prejudice
to its other remedies under this Agreement) to enter the Demised Premises
in order to carry out or cause to be carried out the relevant Fit Out
Category A Works or any part thereof comprised in the Tenant's Fit Out
Works in accordance with the provisions of Clause 16 and all costs and
expenses thereby incurred (or such payment on account of the same as the
Developer may specify) shall be paid by the Tenant to the Developer upon
demand.
18. ANCILLARY PROVISIONS AS TO TENANT'S FIT OUT WORKS
18.1 DOCUMENTS TO BE SUPPLIED
As soon as practicable (but within six (6) months in any event) following
the Certificate of Completion of Fit Out Works:-
18.1.1 the Tenant shall supply to the Developer four complete sets of the
final as-built drawings showing the works actually carried out
together with a set of DXF files on computer disk showing the
same;
18.1.2 the Developer and the Tenant shall each sign and exchange the
Licence annexing the relevant marked up or as-built plans for the
purpose of recording the Fit Out Works;
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18.1.3 the Tenant shall give to the Developer a copy of the revised
health and safety file (taking account of all the Tenant's Fit Out
Works) compiled pursuant to the CDM Regulations; and
18.1.4 the Tenant shall give to the Developer a copy of all warranties
given by manufacturers in respect of all plant and machinery.
18.2 TENANT'S INDEMNITY
The Tenant shall in respect of the Fit Out Works and without prejudice to
any other obligation on its part herein keep the Developer fully and
effectually indemnified (with the intention of putting the Developer in
the same after-tax position it would have been in had the matter giving
rise to the indemnification not arisen) against:-
18.2.1 any breach by the Tenant or its servants or agents of the
conditions or requirements imposed or implied by the Approvals and
any other permission or licence granted (on the application of or
on behalf of the Tenant) for or otherwise pursuant to the terms of
this Agreement for the execution of the Fit Out Works; and
18.2.2 all claims actions damages demands losses expenses costs and other
liabilities whatsoever suffered by the Developer which arise out
of the carrying out of the Fit Out Works
and will make good forthwith to the satisfaction of the Developer any
damage or injury caused by the Tenant (or by anyone for whom the Tenant
is responsible) to the Building or the Demised Premises or to the Base
Building Works any other part of the Development Site or to the property
of the Developer or any of its servants agents licensees or workmen.
19. ENTRY BY THE DEVELOPER AFTER THE SHELL & CORE SUBSTANTIAL COMPLETION DATE
The Tenant shall whether before or following the grant of any Lease (the
Tenant acknowledging that certain works may take place after Leases are
granted) permit the Developer and/or the Base Building Contractor and all
persons authorised by them subject to the conditions set out in Clause
14.7 to enter the Demised Premises in order first to perform any
unperformed obligations of the Developer and second to examine the state
and condition of the Demised Premises and any plant machinery or
mechanical and electrical services therein.
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20. DEVELOPER'S FIT OUT WORKS
20.1 DEVELOPER'S FIT OUT WORKS
The Developer shall procure the carrying out of the Developer's Fit Out
Works Provided
That:
(i) the total cost (excluding any part thereof which represents VAT)
to be incurred by the Developer in respect of items comprised in
the Fit Out Category A Works which are included in the Developer's
Fit Out Works shall not exceed the Developer's Commitment (and,
for the avoidance of doubt, the Developer shall not be obliged to
procure the implementation of any further item comprised in the
Fit Out Category A Works once such total cost is equal to the
Developer's Commitment); and
(ii) the total cost (excluding any part thereof which represents VAT)
to be incurred by the Developer in respect of items comprised in
the Fit Out Category B Works which are included in the Developer's
Fit Out Works shall not exceed the Developer's Cap (and, for the
avoidance of doubt, the Developer shall not be obliged to procure
the implementation of any further item comprised in the Fit Out
Category B Works once such total cost is equal to the Developer's
Cap).
For the avoidance of doubt, all Fit Out works invoiced to or paid
for by the Developer shall be the property of the Developer and
(if appropriate) form part of the Demised Premises and be subject
to the Lease.
20.1A If, at any time:-
(i) the VAT-exclusive cost of any item comprised in the Fit Out
Category A Works which would, but for this Clause 00.xX, be
included in the Developer's Fit Out Works is an amount which, if
incurred in full by the Developer, would cause the total cost
(excluding any part thereof which represents VAT) to be incurred
by the Developer in respect of items comprised in the Fit Out
Category A Works to exceed the Developer's Commitment; and
(ii) there is no other item comprised in the Fit Out Category A Works
which can be included in the Developer's Fit Out Works (with the
Developer incurring the full VAT-exclusive cost thereof) without
causing the total cost (excluding any part thereof which
represents VAT) to be incurred by the Developer in respect of
items comprised in the Fit Out Category A Works to exceed the
Developer's Commitment,
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then such item shall be excluded from the Developer's Fit Out Works, in
which case the Tenant may include such item in the Tenant's Fit Out
Works, and if it does, the Developer shall within ten (10 Working Days
pay the Tenant a sum equal to the aggregate of (a) the difference between
the Developer's Commitment and the total cost (excluding any part thereof
which represents VAT) to be incurred by the Developer in respect of items
comprised in the Fit Out Category A Works as a contribution towards the
cost of such item and (b) the amount of VAT chargeable on the supply for
which such sum is (wholly or partly) the consideration for VAT purposes,
and the Developer's Commitment shall be reduced by the amount of the
difference referred to in (a)
20.1B If, at any time:
(i) the VAT-exclusive cost of any item comprised in the Fit Out
Category B Works which would, but for this Clause 00.xX, be
included in the Developer's Fit Out Works is an amount which, if
incurred in full by the Developer, would cause the total cost
(excluding any part thereof which represents VAT) to be incurred
by the Developer in respect of items comprised in the Fit Out
Category B Works to exceed the Developer's Cap; and
(ii) there is no other item comprised in the Fit Out Category B Works
which can be included in the Developer's Fit Out Works (with the
Developer incurring the full VAT-exclusive cost thereof) without
causing the total cost (excluding any part thereof which
represents VAT) to be incurred by the Developer in respect of
items comprised in the Fit Out Category B Works to exceed the
Developer's Cap,
then such item shall be excluded from the Developer's Fit Out Works, in
which case the Tenant may include such item in the Tenant's Fit Out
Works, and if it does, the Developer shall within ten (10) Working Days
pay the Tenant a sum equal to the aggregate of (a) the difference between
the Developer's Cap and the total cost (excluding any part thereof which
represents VAT) to be incurred by the Developer in respect of items
comprised in the Fit Out Category B Works as a contribution towards the
cost of such item and (b) the amount of VAT chargeable on the supply for
which such sum is (wholly or partly) the consideration for VAT purposes,
and the Developer's Cap shall be reduced by the amount of the difference
referred to in (a).
20.2 DEVELOPER'S CAP NOT REACHED
In the event that the aggregate cost incurred by the Developer in
implementing such items comprised in the Fit Out Category B Works which
are included in the Developer's Fit Out Works is less than the
Developer's Cap, then the amount by which such cost is less than the
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Developer's Cap shall be paid to the Tenant on the date which is ten (10)
Working Days following the date of issue of the Certificate of Completion
of Fit Out Works as a contribution in connection with the Tenant's
general expenses of moving into the Building.
21. AGREEMENT AS TO OPERATION XX XXXXXXXX XXX XXXXXX XXX 0000
21.1 EFFECT OF SERVICE OF 1927 ACT NOTICE
The Tenant hereby agrees with the Developer that if the Tenant serves a
1927 Act Notice upon the Developer in relation to the Fit Out Works or
any part or parts thereof the Tenant shall within twenty-eight (28) days
following the service of the 1927 Act Notice or within seven days after
determination of the cost (hereinafter called "THE COST") to the Tenant
of the carrying out of the works and alterations the subject of the 1927
Act Notice (time being of the essence) pay to the Developer a sum equal
to One hundred and five per cent. (105%) of the Cost.
21.2 DISPUTES AS TO COST
The Developer and the Tenant shall use all reasonable endeavours to agree
the Cost but in default of written agreement between them as to the
amount of the Cost then either party may at any time following the
expiration of a period of fourteen (14) days following the service of the
1927 Act Notice refer the matter for settlement to an Independent Person
pursuant to the provisions of Clause 32.
22. INSURANCE
22.1 INSURANCE OF BASE BUILDING WORKS
As soon as reasonably practicable following the date hereof until the
Lease Insurance Date the Developer shall insure or cause to be insured
the Base Building Works in accordance with the following provisions:-
22.1.1 the insurance shall include cover for the Base Building Works the
Building and all on site fixtures plant machinery and apparatus
intended for incorporation within the Base Building Works;
22.1.2 the sum insured shall not be less than the aggregate of:-
(a) the full reinstatement rebuilding and replacement cost (as
appropriate) for the time being of the Base Building Works;
(b) professional fees as may be incurred in connection with the
reinstatement and rebuilding of the Base Building Works;
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(c) the cost of demolition shoring up and site clearance; and
(d) irrecoverable value added tax on such items;
22.1.3 the insured risks shall (subject to Clause 22.1.4) be fire storm
tempest lightning explosion riot civil commotion malicious damage
impact flood bursting or overflowing of water tanks burst pipes
discharge from sprinklers aircraft and other aerial devices or
articles dropped therefrom terrorist risks earthquake heave
landslip subsidence and such other risks as the Developer may
reasonably require;
22.1.4 all the Developer's obligations in respect of insurance shall be
subject to the risks being insurable in the London insurance
market on reasonable terms and at reasonable rates and subject to
insurers' requirements and such exclusions excesses limitations
terms and conditions as may be contained in any relevant policy;
22.1.5 the insurance shall provide for the interest of the Tenant to be
noted on the policy; and
22.1.6 the Developer shall use all reasonable endeavours to procure that
the insurers issue a letter waiving rights of subrogation against
the Tenant.
22.2 DESTRUCTION OF BASE BUILDING WORKS/DEVELOPER'S FIT OUT WORKS
Subject to the other provisions of this Clause 22, if the Base Building
Works or Developer's Fit Out Works are destroyed or damaged by an Insured
Risk during the course of construction and (in the case of the Base
Building Works) prior to the Lease Insurance Date then the Developer
shall rebuild and reinstate the Base Building Works so destroyed or
damaged (but not necessarily to provide accommodation identical in
layout, specification or finish so long as the same is not materially
less commodious unless otherwise agreed by the Tenant) the Developer
making good any shortfall in the insurance monies save to the extent that
such shortfall arises by reason of any act or default of the Tenant or
any of its contractors, agents, invitees or persons under its control.
22.3 FIT OUT WORKS - NOTIFICATION OF REINSTATEMENT COST
The Tenant shall or shall procure that GSPM shall advise the Developer
from time to time in writing of the full reinstatement cost of the Fit
Out Works including professional fees costs of debris removal and VAT
where applicable and the Developer shall be entitled to rely without
further enquiry on such cost notified from time to time in effecting any
relevant insurance of the Fit Out Works pursuant to the provisions set
out below. If the Tenant or GSPM fails to provide the necessary
information the Developer shall have no liability to the
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extent that it transpires that such estimate was too low and the Tenant
shall indemnify the Developer (with the intention of putting the
Developer in the same after-tax position it would have been in had the
matter giving rise to the indemnification not arisen) in respect of any
losses suffered in that respect, including in relation to averaging or as
a result of any policy being wholly or partly vitiated or avoided.
22.4 INSURANCE OF FIT OUT WORKS
The Developer shall also keep insured or cause to be kept insured
(subject to the provisions of Clause 22.1.4) the Fit Out Works against
loss or damage by the risks referred to in 22.1.3. In the event of
destruction or damage to the Fit Out Works by an insured risk during the
course of construction and prior to the Lease Insurance Date then the
Developer shall (where reinstatement is actually to take place and so
long as this Agreement shall at that time still subsist and no Rescission
Notice, Termination Notice or Developer's Rescission Notice shall have
been served or be about to be served and no grounds exist for either
party terminating this agreement) hand over to the Tenant (so long as the
Tenant proceeds with reinstatement and to the extent that cover has not
been vitiated or reduced due to any act or default of the Tenant or
anyone acting on its behalf) against receipt of invoices in connection
with the actual reinstatement of the Tenant's Fit Out Works, such
proportion of the insurance monies as relates to the relevant Tenant's
Fit Out Works (any dispute on the apportionment being referred to an
Independent Person in accordance with Clause 32).
22.5 FRUSTRATION OF RE-INSTATEMENT
Where (due to whatever cause) reinstatement is impossible or is
frustrated (or this Agreement shall have ceased to subsist or a
Developer's Rescission Notice, Rescission Notice or Termination Notice
shall have been issued) the Developer shall hand to the Tenant the
insurance proceeds attributable to any parts of the Tenant's Fit Out
Works and shall otherwise be under no obligation to apply any insurance
proceeds in any particular fashion and (save as aforesaid) shall be
entitled to retain as its absolute and unencumbered property all
insurance proceeds.
22.6 FIT OUT WORKS INSURANCE COST
The Tenant shall pay to the Developer from time to time within ten (10)
Working Days of demand (against a copy of the relevant invoice or other
satisfactory written evidence) the cost incurred or to be incurred by the
Developer in insuring the Fit Out Works or any part thereof and otherwise
complying with Clause 22.4.
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22.7 PRODUCTION AND INSPECTION OF INSURANCE POLICIES
The Developer shall at the request of the Tenant from time to time supply
to the Tenant a copy of the insurance policy or policies maintained under
this Clause 22 and satisfactory evidence of the payment of any premium
due thereunder.
23. MEASUREMENT, GRANT OF LEASES, RENT AND OTHER TERMS
23.1 JOINT MEASUREMENT
23.1.1 On or after Shell & Core Substantial Completion when the Developer
reasonably considers the Demised Premises is capable of
measurement the Developer and the Tenant shall jointly instruct
the Independent Measurer to measure and certify to the Developer
and the Tenant the Net Internal Area thereof and the square
footage of any storage area in accordance with the Code of
Measuring Practice (but subject always to Clause 23.1.2) and so as
to show both the Net Internal Area of the whole of the Demised
Premises and the Net Internal Area for the premises to be demised
pursuant to each Lease.
23.1.2 In measuring the Net Internal Area the Independent Measurer shall
be instructed to:-
(a) assume that the Base Building has been completed in
accordance with the Base Building Specification as the same
existed or would have existed had all Tenant's Requested
Modifications not been carried out;
(b) assume that the Tenant's Requested Modifications have not
been carried out;
(c) assume that the Category A Works have been carried out;
(d) assume that any Fit Out Works (including those equivalent
to Category A Works) and any other works carried out by or
on behalf of the Tenant or on its behalf have not been
carried out; and
(e) (subject as aforesaid) take into account any changes to the
Agreement for Lease Measurement Plans as a result of the
actual final layout of the Premises.
23.1.3 The Independent Measurer's Certificate shall be final and binding
on the parties save in the case of manifest error.
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23.1.4 The parties agree that the appointment of the Independent Measurer
shall be on terms reasonably satisfactory to all parties
(including provision of a duty of care warranty under seal).
23.2 GRANT OF LEASES
Within ten (10) Working Days following the later of:-
(a) the date upon which Shell & Core Substantial Completion is
achieved (or deemed or determined as achieved); and
(b) the date upon which the Net Internal Area of all parts of the
relevant set of Demised Premises have been finally agreed or
determined pursuant to Clause 23.1
the Developer (or its successor in title) shall cause to be delivered to
the Tenant the relevant executed Lease and the Management Deed and the
Tenant (meaning whichever is the relevant one of GSI or Restamove Limited
only) and the Tenant's Surety (here meaning The Xxxxxxx Xxxxx Group L.P.
and (but in the case only of the Leases of Levels 5 - 8 inclusive) GSI
only) shall forthwith accept and execute and deliver the relevant
counterparts thereof to the Developer (or its successor in title) and
completion of the Leases and Management Deed shall take place at the
offices of the Developer's (or its successor in title's) solicitors or at
such other place in the United Kingdom as the Developer (or its successor
in title) shall reasonably require.
23.3 CALCULATION OF RENT AND COMMENCEMENT DATE
The following provisions shall apply to the computation and the
commencement date for payment of the rents payable under and the
calculation of the commencement and length of the term of the Leases:-
23.3.1 The contractual term of the Leases shall be a period of
twenty-five years from the Shell & Core Substantial Completion
Date with review dates thereafter at every fifth anniversary of
that date;
23.3.2 The VAT exclusive amount of the Initial Rent under the Basement to
Level 4 Lease shall be the aggregate of:-
(a) for the Net Internal Area of the Upper Ground to Xxxxx 0
and Part Level 5 office areas which form part of the
Demised Premises and are shown edged red on the Measurement
Plans (the resulting Net Internal Area being hereinafter
referred to
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as "THE NET UPPER GROUND AND UPPER FLOORS OFFICE AREA") the
product of multiplying the Net Upper Ground and Upper
Floors Office Area (expressed in square feet) by
(pounds)40.00; plus
(b) for the Net Internal Area of the ground floor office areas
edged yellow on the Measurement Plans (the resulting Net
Internal Area being hereinafter referred to as the "GROUND
FLOOR OFFICE AREA") the product of multiplying the Ground
Floor Office Area (expressed on square feet) by
(pounds)35.00; plus
(c) for the Net Internal Area of the upper ground floor office
areas edged and hatched purple on the Measurement Plans
(the resulting Net Internal Area being hereinafter referred
to as the "ST BRIDE STREET FACING UPPER GROUND FLOOR AREA")
the product of multiplying the St Bride Street Facing Upper
Ground Floor Area (expressed in square feet) by
(pounds)27.50; plus
(d) for the Net Internal Area of the upper ground floor office
areas edged blue (in the Daily Express Building) (the
resulting Net Internal Area being hereinafter referred to
as the "DAILY EXPRESS AREA") the product of multiplying the
Daily Express Area (expressed in square feet) by
(pounds)20; plus
(e) for the Net Internal Area of the lower ground office areas
edged blue on the Measurement Plans ("THE NET LOWER GROUND
FLOOR OFFICE AREA") the product of multiplying the Net
Lower Ground Floor Office Area (expressed in square feet)
by (pounds)20.00; plus
(f) for the Net Internal Area of the storage areas edged green
on the Measurement Plans the product of multiplying such
Net Internal Area (expressed in square feet) by
(pounds)12.50; plus
(g) (pounds)93,500 (being the product of multiplying 34 car
parking spaces by (pounds)2,750).
For the avoidance of doubt (subject as set out in Clause
23.1.2) all edgings and hatchings on the Measurement Plans
shall be deemed changed and adjusted to conform with the
actual "as built" dimensions and configuration of the
Demised Premises.
23.3.3 The VAT exclusive amount of the Initial Rent under each of the Part Level
5 Lease, the Level 6 Lease, the Level 7 Lease and the Level 8 Lease shall
be the aggregate of the Net
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Internal Area of the relevant set of Demised Premises shown edged red on
the Measurement Plans (expressed in square feet) multiplied by
(pounds)40.00 plus:
(a) in the case of the Level 5 Lease (pounds)13,750 (being the product
of multiplying 5 car parking spaces by(pounds)2,750)
(b) in the case of the Level 6 Lease (pounds)11,000 (being the product
of multiplying 4 car parking spaces by(pounds)2,750)
(c) in the case of the Level 7 Lease (pounds)8,250 (being the product
of multiplying 3 car parking spaces by(pounds)2,750)
(d) in the case of the Level 8 Lease (pounds)5,500 (being the product
of multiplying 2 car parking spaces by (pounds)2,750).
23.3.4 The Initial Rent shall become payable under the Lease with effect from
and including the date which is nine (9) months after whichever is the
earlier of (a) the date on which Shell & Core Substantial Completion is
achieved (or deemed or determined as achieved) and (b) the date on which
the Tenant first takes possession of the Demised Premises or any part
thereof (other than as referred to in Clause 16.11) for the purposes of
fitting out or otherwise.
23.3.5 Any Additional Rent (as defined in the Lease) shall be reserved under the
Lease payable from the Shell & Core Substantial Completion Date.
23.3.6 Value Added Tax shall be reserved and become payable as rent under the
Lease on all of the other Rents as described in the Lease.
23.3.7 The Insurance Rent as reserved in the Lease shall be reserved under the
Lease with effect from and including the date of Shell & Core Substantial
Completion.
23.3.8 In computing all periods and dates any period or date shall be calculated
and adjusted to accord with the position which would have been achieved
had no Tenant's Delay occurred. All periods and dates shall be deemed to
be that or those which would have occurred or have been achieved but for
Tenant's Delay all to the intent and effect that no Tenant's Delay shall
entitle the Tenant to delay completion of any Lease or the commencement
of any rents or other payments due under it or the commencement of any
rent free or reduced rent period (but so that if completion of any Lease
is in fact delayed by reason of any such matters the Tenant shall
immediately pay to the Developer sums equivalent to all rents and other
monies
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which would have been due under the relevant Lease, had it been granted,
on the dates they would then have been due).
23.4 LICENCE FEES PENDING GRANT OF LEASE
Where in consequence of the calculations made under Sub-Clause 23.3 sums
and amounts become due and payable by the Tenant to the Developer as rent
in respect of any period or periods prior to commencement of the term of
the Lease or completion of the Lease such sums and amounts shall instead
be due and shall commence to be paid by the Tenant as licence fees under
the terms of this Agreement until the Lease has been completed.
23.5 RETAIL UNIT
The Retail Unit is excluded from the Leases and retained by the Developer
and it is agreed that:-
(a) The Developer and its successors in title shall not use or allow
the use of the Retail Unit for the following uses:-
Betting Office, Undertakers, Pet Shop, Hairdressers, Charity Shop,
Sex Shop, Newsagents, Ticket Agency, Music Centre, Sale of
secondhand goods, Sandwich bar (not extending to operations like
Boots)
Any use involving formal exhibitions open to the public or
entertainment
Government department offices visited by members of the public
PROVIDED THAT Newsagents of the like of XX Xxxxx, Ticket Agencies
of the like of Xxxxxx Xxxx and Music Centres of the like of HMV
will be permitted so long as their proposed level of use of the
loading bay is not so excessive as to unduly xxxxxx the Tenant's
(or other occupiers of the offices) use of the loading bay or
offices and so long as the relevant Retail Unit tenant agrees to
be bound by the initial rules and regulations governing use of the
loading bay (and any reasonable replacements) Provided Further
that if the Retail Unit is let by way of a single letting to a
Newsagents, Ticket Agency or Music Centre of the type described
above then so long as the relevant Retail Unit tenant agrees to be
bound by the initial rules and regulations governing use of the
loading bay (and any reasonable replacements) and to act
reasonably in relation to such use of the loading bay then such
user shall be permitted
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(b) The Developer shall impose obligations upon (and if so reasonably
requested by the Tenant and at the Tenant's cost take steps to
enforce those obligations) the occupiers of the Retail Unit
requiring that they shall
(i) at all times maintain a high quality display in the windows
of the Retail Unit
(ii) cover no more than 15% of the windows (other than those
required to be obscured pursuant to the Lease) with trade
placards, posters or advertisements
(iii) not wilfully to do anything within the Retail Unit which
would be likely to be a nuisance or cause damage to the
Tenant
(iv) ensure that no music or machinery noise can be heard
outside the Retail Unit
(v) not deposit rubbish outside the Building
(vi) not to erect any external additions to the Retail Unit
other than shop fascia approved by the planning authority
and signage and projections approved by the Tenant (such
approval not to be unreasonably withheld)
(c) The Developer shall not allow the use of the Retail Unit for any
use other than retail sales and ancillary uses (including storage)
and not for the sale of food and drink for consumption on the
premises or of hot food for consumption off the premises save that
the basement may be used as a high class winebar subject to
compliance with the following conditions
(A) The operator of the winebar shall have no right to use the
loading bay at the Building otherwise than at specified
times (if any) confirmed by the Tenant
(B) The proposed access for deliveries to the winebar, the
method of providing kitchen extracts and exhausts, the
method of managing smells and noise, how public access
would be given and all matters relating to fire
precautions, safety and security shall all be approved by
the Tenant such approval not to be unreasonably withheld
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23.6 EXTENSION OF RENT COMMENCEMENT DATE
If Shell & Core Substantial Completion has not occurred by the date which
is twenty-eight (28) days after the Target Date then the Developer shall,
at its option, either:-
23.6.1 pay to the Tenant Liquidated Damages (which are recognised as a genuine
and realistic assessment of the Tenant's prospective losses) for each
period of delay not attributable to Tenant's Delay but up to and not
exceeding the Maximum Damages and Provided that the damages payable shall
only continue for a period up to the date when the Tenant becomes
entitled to serve a Rescission Notice pursuant to Clause 12.1.1 and
subject to payment of such Liquidated Damages the Developer shall have no
other liability to the Tenant other than as provided in this Sub-Clause
23.6; or
23.6.2 extend the Rent Commencement Date by the number of additional days
produced by application of the following formula:-
A + (B/365) = number of additional days of rent free
period
Where:
"A" = the sum of the Liquidated Damages which (if Clause 23.6.1
were to operate) would be payable to the Tenant by the
Developer pursuant to Clause 23.6.1
"B" = the aggregate annual Initial Rent payable pursuant to the
Leases as ascertained pursuant to Clause 23.3
23.7 LETTER OF OPINION
The Tenant's Surety (here meaning The Xxxxxxx Sachs Group, L.P. only)
shall provide to the Developer (or its successor in title) on completion
of each of the Leases a Letter of Opinion in relation to the Leases the
Management Deed, the Licence for Alteration, the Bridges Agreement and
the Tunnel Agreement.
24. TITLE
24.1 TITLE DEDUCED
The Developer's title to grant the Lease having been deduced to the
Tenant prior to the date hereof the Tenant shall raise no objection or
requisition in respect thereof save in respect of matters arising after
the date hereof.
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24.2 DEVELOPER'S LAND CERTIFICATE TO BE PUT ON DEPOSIT
The Developer shall place its Land Certificates in respect of its
interest in the Demised Premises (once issued) on deposit at H.M. Land
Registry and shall notify the Tenant or its solicitors of the deposit
number allocated thereto for the purposes of enabling the Tenant to
register a notice of the Tenant's interest arising out of this Agreement
relating to the Demised Premises.
24.3 The Tenant shall raise no objection to the Developer entering into any
agreements with adjoining landowners on reasonable terms regarding mutual
rights of air or light or the oversailing of cranes to the extent that
such agreements are reasonably necessary for the carrying out of the
Development provided that in the case of crane oversailing licences which
permit oversailing of Peterborough Court or the Base Building the
Tenant's approval (not to be unreasonably withheld) shall be required
24.4 The Tenant shall raise no objection to the Developer granting leases to
the relevant utility company of electricity substations that are
reasonably necessary in connection with the Development in locations
agreed by the Tenant such agreement not to be unreasonably withheld.
24.5 The Tenant shall raise no objection to the Developer entering into
licences or consents with the Corporation of London in respect of
overhead apparatus over along or across the highway vaults or cellars or
projections over the highway.
25. CONDITIONS AFFECTING THE GRANT OF THE LEASES
25.1 LEASES GRANTED SUBJECT TO CERTAIN MATTERS
The Leases will be granted subject to:-
25.1.1 all charges, notices, orders, directions, regulations, restrictions and
other matters whatsoever arising under the Town and Country Planning Xxx
0000, the Planning Listed Buildings and Conservation Areas) Xxx 0000, the
Planning (Hazardous Substances) Xxx 0000, the Planning (Consequential
Provisions) Xxx 0000, the Planning and Compensation Xxx 0000 and any
subsequent legislation of a similar nature and the Tenant shall be deemed
to accept the Leases with full knowledge thereof and of the authorised
use of the Building and the Development Site for the purpose of such Acts
and shall not raise any requisition enquiry or objection with regard
thereto; and
25.1.2 the matters contained or referred to in the deeds or documents referred
to in the Sixth Schedule to the Leases.
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25.2 VARIATIONS TO PLANS
The parties hereto acknowledge that the plans in the Leases or entries in
the Sixth Schedule thereto may need to be varied to reflect the final
design of the Building or any rights to which the Site and the Building
becomes subject as and when the same has been fully constructed provided
that the Tenant has first approved (a) the plans and (b) the rights. In
the event that the Developer reasonably requests the Tenant to agree to
any such variation the Tenant shall not unreasonably withhold or delay
such agreement and then the parties hereto shall use all reasonable
endeavours to agree the terms and document such proposed variation and
any related provisions and in the event of dispute as to the content of
any such variations or provisions such dispute may be referred for
settlement by either party to an Independent Person in accordance with
Clause 32 and the parties shall execute any deed or do any other thing
necessary to give effect to any variation agreed or settled as aforesaid.
25.3 NO REPRESENTATIONS
The Tenant hereby admits that no representation whether oral or written
(save in any written reply by the Developer's solicitors or by Field
Xxxxxx Xxxxxxxxxx on behalf of the Developer to written preliminary
enquiries raised by the Tenant's solicitors or contained in this
Agreement) has been made to the Tenant prior to the execution hereof by
or on behalf of the Developer concerning the Development Site, the
Building or the Base Building Works or any part thereof which has
influenced induced or persuaded the Tenant to enter into or which forms
part of this Agreement or of any agreement collateral herewith.
25.4 ALL TERMS INCORPORATED
The parties acknowledge that:-
25.4.1 this Agreement; and
25.4.2 the Procurement Contract; and
25.4.3 any plan, inventory or agreed form of document, or other instrument
referred to in this Agreement, and either annexed to this Agreement or
signed or initialled for identification with, and on or before the
entering into of, this Agreement (whether individually or as part of a
bundle or volume so signed or initialled); and
25.4.4 any additional provision or variation of any term of this Agreement
agreed in writing between the parties (or, with their authority, their
respective solicitors) on or before the entering into of this Agreement
(any such additional provision or variation being incorporated into this
Agreement by this provisions)
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contain all of the terms of the contract agreed between the parties and
between some of the parties and GSPM
26. EVENT OF DEFAULT
26.1 CIRCUMSTANCES GIVING RISE TO AN EVENT OF DEFAULT
An Event of Default shall occur in any of the following circumstances:-
26.1.1 if the Tenant or the Tenant's Surety (being a body corporate) passes a
winding-up resolution (other than a resolution for the purposes of an
amalgamation or reconstruction resulting in a solvent corporation meeting
the criteria referred to in Clause 19.2.2 of the Lease) or resolves to
present its own winding-up petition or is wound-up or the directors of
the Tenant or the Tenant's Surety resolve to present a petition for an
administration order in respect of the Tenant or an Administrative
Receiver or a Receiver or a Receiver and Manager is appointed in respect
of the property or any part thereof of the Tenant or the Tenant's Surety
or the Tenant or the Tenant's Surety otherwise becomes insolvent;
26.1.2 if the Tenant or the Tenant's Surety (being a body corporate) calls or a
nominee calls on its behalf a meeting of its creditors or any of them or
makes an application to the Court under Section 425 of the Companies Xxx
0000 other than an application for the purposes of an amalgamation or
reconstruction resulting in a solvent corporation or submits to its
creditors or any of them a proposal pursuant to Part I of the Insolvency
Act 1986 or enters into any arrangement, scheme, compromise, moratorium
or composition with its creditors or any of them (whether pursuant to
Part I of the Insolvency Xxx 0000 or otherwise);
26.1.3 if any event analogous to those described in Clause 26.1.1 or 26.1.2
above occurs in relation to the Tenant or the Tenant's Surety in any
jurisdiction;
26.1.4 if the Tenant or the Tenant's Surety ceases for any reason to maintain
its corporate existence;
26.1.5 if the Tenant or the Tenant's Surety shall irremediably breach this
Agreement or (if the breach is capable of remedy) shall fail to remedy
such breach as soon as possible but in any event within 10 Working Days
of being required in writing by the Developer so to do;
26.1.6 if the Tenant or the Tenant's Surety shall cease for any other reason to
be or to remain liable under this Agreement.
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26.2 RIGHT TO DETERMINE
If prior to the grant of the Lease an Event of Default occurs then the
Developer may at any time thereafter while such Event of Default still
subsists but before the Lease is granted by notice in writing to the
Tenant forthwith determine this Agreement (but without prejudice to any
right of action by either party in respect of any antecedent breach of
any of the obligations on the part of the other herein contained).
26.3 REPAYMENTS
26.3.1 Where this Agreement is determined due to the default of the Tenant or
the occurrence of an Event of Default the Tenant shall pay to the
Developer within five (5) Working Days a sum equal to:
(i) the aggregate of all TRM Costs actually incurred or suffered by
the Developer up to that date; and
(ii) the aggregate of all sums which the Developer shall have paid or
incurred (including, without limitation, all sums paid on account)
prior to that date pursuant to the Procurement Contract
26.3.2 Where this Agreement is determined for any reason other than default of
the Tenant or the occurrence of an Event of Default the Tenant shall pay
to the Developer within five (5) Working Days an amount equal to the
aggregate of the Developer's Commitment and the Developer's Cap less the
cost of all Developer's Fit Out Works implemented by the Developer (or on
its behalf) up to the date of termination (such cost to be ascertained as
at such date)
26.3.3 Where this Agreement is terminated in circumstances where any insurance
monies payable in respect of the Fit Out Works have been refused or
withheld as a result of any act or omission by the Tenant or a person on
its behalf or directly or indirectly as a result of any breach by the
Tenant of its obligations under this Agreement then the Tenant shall pay
to the Developer within five Working Days the difference between any
insurance monies actually received by the Developer in respect of the Fit
Out Works (if any) and the amount that would have been received but for
the Tenant's or other person's act or omission or the Tenant's breach of
its obligations under this Agreement
27. CAPITAL ALLOWANCES
27.1 ALLOCATION
In the event that the Developer (here the "CONTRIBUTOR") makes a
contribution (the "CONTRIBUTION") towards the cost incurred or to be
incurred by the Tenant (the
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"CONTRIBUTEE") in respect of any item (the "SHARED ITEM") comprised in
the Fit Out Works in accordance with the provisions of Clause 00.xX or
20.1B, the amount of such contribution shall be allocated to such item
and such item only.
27.2 THE CONTRIBUTOR'S ENTITLEMENT TO CAPITAL ALLOWANCES
The Developer and the Tenant agree that:
(i) the Contributor's entitlement to capital allowances in respect of
any Shared Item shall be restricted to the amount of the relevant
Contribution; and
(ii) subject to Clause 27.3, the Contributee shall not claim capital
allowances in respect of any of its expenditure on any Shared Item
to the extent that the Contributor is treated as having made a
contribution to, or otherwise met, such expenditure pursuant to
Clause 00.xX, 00.xX or this Clause 27.
27.3 THE CONTRIBUTEE'S CLAIM FOR CAPITAL ALLOWANCES
The Contributor shall as soon as reasonably practicable notify the
Contributee upon any claim by the Contributor for capital allowances in
respect of any Contribution (or any part of it) being disallowed or
disputed by the Inland Revenue in whole or in part, and shall keep the
Contributee informed of the progress or any appeal against such
disallowance and of the details of any correspondence or communication or
other relevant matter relating to such dispute.
Where any part of the Contribution which the Contributor is treated as
having made pursuant to Clause 00.xX, 00.xX or this Clause 27 is
treated by the Inland Revenue as not giving rise to capital allowances
for the Contributor, or the eligibility to capital allowances in respect
of such part (or the allocation thereof) is denied by the Inland Revenue,
the Contributee may make a further claim for capital allowances in
respect of the expenditure to which such part of the Contribution has
been allocated in accordance with Clause 27.1, and the Contributor shall
supply the Contributee with such information and documents as the
Contributee may reasonably request from time to time in connection with
the making of such further claim PROVIDED THAT the Contributee may only
make such further claim where:
(i) it has first received written notification from the Contributor
that the Contributor does not intend, or is unable, to pursue a
claim for capital allowances in respect of such expenditure; or
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(ii) if such further claim were not made by the Contributee, it would
subsequently be barred from making such further claim by statutory
time limits PROVIDED THAT, in such a case:
(a) such further claim shall be made on a protective basis
only, and confirmation shall be given by the Contributee to
the Inland Revenue that in the event of agreement being
reached between the Contributor and the Inland Revenue to
the effect that the Contributor is entitled to capital
allowances in respect of such expenditure, such further
claim shall be withdrawn; and
(b) the Contributee shall take no action (other than the making
of such further claim) which may undermine the claim made
(or any claim which may in the future be made) by the
Contributor.
27.4 Nothing herein shall constitute a statement, warranty or representation
that the Developer or the Tenant shall be or become entitled to any
capital allowances in respect of any expenditure or contribution to
expenditure incurred or made under this Agreement.
27.5 Except where Clause 00.xX or 00.xX applies the Developer shall not
make (and is not obliged to make), and shall not purport to make, any
contribution towards any of the costs incurred or to be incurred by
the Tenant in respect of any item comprised in the Tenant's Fit Out
Works.
27.6 The Tenant shall not make (and is not obliged to make), and shall not
purport to make, any contribution towards any of the costs incurred
or to be incurred by the Developer in respect of any item comprised
in the Developer's Fit Out Works.
28. VAT
28.1 DEFINITIONS
References in this Agreement to:
(i) the "Developer" shall (where appropriate) be deemed to include a
reference to the representative member of the group of companies
of which the Developer is treated as a member for the purposes of
section 43 of the Value Added Tax Xxx 0000; and
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(ii) the "Tenant" shall (where appropriate) be deemed to include a
reference to the representative member of the group of companies
of which the Tenant is treated as a member for the purposes of
section 43 of the Value Added Tax Xxx 0000.
28.2 ALL SUMS EXCLUSIVE OF VAT
All sums payable under this Agreement by any party to any other party
shall be deemed to be exclusive of any VAT which is chargeable on the
supply made by such other party for which such sums are (the whole or
part of) the consideration for VAT purposes.
28.3 VAT ON SUPPLIES
Where, pursuant to the terms of this Agreement, any party (the
"SUPPLIER") makes a supply to any other party (the "RECIPIENT") for VAT
purposes and VAT is chargeable on such supply, the Recipient shall pay to
the Supplier (in addition to any other consideration for such supply) a
sum equal to the amount of such VAT, such payment to be made (subject to
the provisions in Clauses 9.10, 20. lA and 20.1B) no later than three (3)
Working Days before the last day (as notified to the Recipient by the
Supplier in writing) on which the Supplier can account to H M Customs &
Excise for such VAT without incurring any interest or penalties, and the
Supplier shall provide the Recipient with a valid tax invoice for VAT
purposes.
28.4 REPAYMENT OF AMOUNTS
If either party (the "PAYER") has paid any amount in respect of VAT under
this Clause 28 to the other party (the "PAYEE") on the basis that:
(i) the transaction in respect of which such amount was paid gave rise
to a supply made by the Payee to the Payer for VAT purposes; and
(ii) such supply was a taxable supply for VAT purposes,
and it subsequently transpires that no supply was made, or that such
supply was not a taxable supply, for VAT purposes, the Payee shall
forthwith repay such amount to the Payer PROVIDED THAT, if the Payee has
already accounted to H M Customs & Excise for VAT in respect of the said
transaction on the basis that such transaction gave rise to a taxable
supply for VAT purposes, the Payee shall only be obliged to repay such
amount to the Payer if and to the extent that it is able to obtain
repayment or credit from H M Customs & Excise in respect of the VAT it
has accounted to them, and in such a case, the Payee shall use all
reasonable endeavours to obtain such repayment or credit from H M Customs
& Excise, and the Payee shall only be obliged to repay such amount to the
Payer as aforesaid within three (3) Working Days following receipt by the
Payee of the said
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repayment from H M Customs & Excise or three (3) Working Days following
the date on which the Payee has fully utilised the said credit (as the
case may be).
28.5 REIMBURSEMENTS AND VAT
Where any party (the "REIMBURSING PARTY") is required by the terms of
this Agreement to reimburse any other party (the "OTHER PARTY") for the
costs or expenses of any supplies made to the Other Party, the
Reimbursing Party shall also at the same time pay and indemnify the Other
Party against all VAT input tax incurred by the Other Party on such
supplies save to the extent that the Other Party is entitled to repayment
or credit in respect of such VAT input tax from H M Customs & Excise.
29. GUARANTEE OF PERFORMANCE OF TENANT'S OBLIGATIONS
29.1 COVENANTS BY TENANT'S SURETY
The Tenant's Surety in consideration of the Developer entering into this
Agreement at the request of the Tenant's Surety unconditionally and
irrevocably agrees with and in favour of the Developer, as a primary
obligation, as follows:-
29.1.1 that the Tenant shall duly perform and observe all the obligations on the
part of the Tenant contained in this Agreement in the manner and at the
times specified in it and (but not so as to provide the Developer with a
greater claim than it would have enjoyed in such circumstances if the
Tenant's Surety had instead been the Tenant) indemnifies the Developer
(with the intention of putting the Developer in the same after-tax
position it would have been in had the matter giving rise to the
indemnification not arisen) against all claims, demands, losses, damages,
liability, costs, fees and expenses whatsoever sustained by the Developer
by reason of, or arising in any way directly or indirectly out of, any
default by the Tenant in the performance and observance of any of its
obligations.
29.1.2 None of the following, or any combination of them, shall release,
determine, discharge or in any way lessen or affect the liability of the
Tenant's Surety as principal obligor under this Agreement or otherwise
prejudice or affect the right of the Developer to recover from the
Tenant's Surety to the full extent of this guarantee:-
(a) any neglect, delay or forbearance of the Developer in endeavouring
to obtain payment of any of the amounts required to be paid by the
Tenant or in enforcing the performance or observance of any of the
obligations of the Tenant under this Agreement;
(b) any extension of time given by the Developer to the Tenant;
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(c) any variation of the terms of this Agreement or the Lease or the
transfer of the Developer's interests in this Agreement;
(d) any change in the constitution, structure or powers of either the
Tenant, the Tenant's Surety or the Developer or the liquidation,
administration or bankruptcy (as the case may be) of either the
Tenant or the Tenant's Surety;
(e) any legal limitation, or any immunity, disability or incapacity of
the Tenant (whether or not known to the Developer) or the fact
that any dealings with the Developer by the Tenant may be outside,
or in excess of, the powers of the Tenant;
(f) any other act, omission, matter or thing whatsoever whereby, but
for this provision, the Tenant's Surety would be exonerated either
wholly or partly (other than a release executed and delivered as a
deed by the Developer).
29.1.3 If any of the acts or events specified in Clauses 29.2.3 to 29.2.6 of the
Lease shall occur in relation to the Tenant and the liquidator or trustee
in bankruptcy (as the case may be) shall disclaim this Agreement, then
the Tenant's Surety shall, if the Developer gives written notice to the
Tenant's Surety within ninety (90) days after such disclaimer so
requires, take up and complete the Lease in its own name in substitution
for the Tenant.
29.2 SUCCESSOR TENANT'S SURETY
The Tenant's Surety may not assign its rights nor delegate its
obligations under this Guarantee, in whole or in part, without the prior
written consent of the Developer and any purported assignment or
delegation absent such consent is void, except for an assignment and
delegation of all the Tenant's Surety's rights and obligations hereunder
in whatever form the Tenant's Surety determines may be appropriate to a
partnership, corporation, trust or other organisation in whatever form
(the "Successor") that succeeds to all or substantially all of the
Tenant's Surety's assets and business and that assumes such obligations
by contract, operation of law or otherwise. Upon any such delegation and
assumption of obligations, and subject to the Developer having received
in a form reasonably satisfactory to the Developer, a deed executed by
the Successor (accompanied by a legal opinion from a reputable firm of
lawyers confirming due execution) confirming to the Developer that the
Successor assumes all obligations of the Tenant's Surety under this
Agreement whether by operation of law or by virtue of such deed, the
Tenant's Surety shall be relieved of and fully discharged from all
obligations hereunder, whether such obligations arose before or after
such delegation and assumption.
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30. GUARANTEE OF PERFORMANCE OF DEVELOPER'S OBLIGATIONS
30.1 COVENANTS BY ITOCHU
ITOCHU in consideration of the Tenant entering into this Agreement at the
request of ITOCHU unconditionally and irrevocably agrees with and in
favour of the Tenant, as a primary obligation, as follows:-
30.1.1 that the Developer shall duly perform and observe all the obligations on
the part of the Developer contained in this Agreement in the manner and
at the times specified in it and (but not so as to provide the Tenant
with a greater claim than it would have enjoyed in such circumstances if
ITOCHU had instead been the Developer) indemnifies the Tenant (with the
intention of putting the Tenant in the same after-tax position it would
have been in had the matter giving rise to the indemnification not
arisen) against all claims, demands, losses, damages, liability, costs,
fees and expenses whatsoever sustained by the Tenant by reason of, or
arising in any way directly or indirectly out of, any default by the
Developer in the performance and observance of any of its obligations and
it is agreed that such obligations of Itochu shall survive any assignment
of this Agreement by the Developer but not any determination of this
Agreement (save for antecedent breaches of the Developer's obligations)
30.1.2 None of the following, or any combination of them, shall release,
determine, discharge or in any way lessen or affect the liability of
ITOCHU as principal obligor under this Agreement or otherwise prejudice
or affect the right of the Tenant to recover from ITOCHU to the full
extent of this guarantee:-
(a) any neglect, delay or forbearance of the Tenant in endeavouring to
obtain payment of any of the amounts required to be paid by the
Developer or in enforcing the performance or observance of any of
the obligations of the Developer under this Agreement;
(b) any extension of time given by the Tenant to the Developer;
(c) any variation of the terms of this Agreement or the Lease or the
transfer of the Tenant's interests in this Agreement;
(d) any change in the constitution, structure or powers of either the
Tenant, ITOCHU or the Developer or the liquidation, administration
or bankruptcy (as the case may be) of either the Developer or
ITOCHU;
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(e) any legal limitation, or any immunity, disability or incapacity of
the Developer (whether or not known to the Tenant) or the fact
that any dealings with the Tenant by the Developer may be outside,
or in excess of, the powers of the Developer;
(f) any other act, omission, matter or thing whatsoever whereby, but
for this provision, ITOCHU would be exonerated either wholly or
partly (other than a release executed and delivered as a deed by
the Tenant).
31. CONFIDENTIALITY PROVISIONS
31.1 NON-DISCLOSURE
None of the parties to this Agreement shall without the prior written
consent of all the other parties to this Agreement disclose or publish
("DISCLOSURE") or permit or cause Disclosure of any financial or other
details whatsoever naming the parties hereto or otherwise relating to the
transaction hereby effected save that the following shall be permitted:-
31.1.1 Disclosure of any particular extracts or details which must be the
subject of Disclosure in order to comply with any order of the court or
law or any Stock Exchange or statutory requirements or the lawful
requirements of any regulatory bodies;
31.1.2 Disclosure to professional advisers and key employees of each of the
parties and their Group Companies and affiliates who need to know such
details;
31.1.3 Disclosure to the current (and any potential) bankers funders and lenders
of any of the parties;
31.1.4 Disclosure of matters already in the public domain; and
31.1.5 Disclosure to their respective contractors and consultants responsible
for the carrying out of the Development.
31.2 NOTIFICATION OF PERMITTED DISCLOSURES
In the case of a party wishing to make Disclosure as permitted pursuant
to the provisions of Clause 31.1 that party shall first submit details of
the proposed text of the Disclosure to the other parties to this
Agreement and shall act reasonably in taking full account of all
representations and comments made by such other parties upon the text.
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31.3 NON-DISCLOSURE PERIOD
This Clause 31 shall remain in effect until the date of Shell and Core
Substantial Completion.
31.4 EXCEPTIONS
This Clause 31 shall not apply to Disclosure by or on behalf of any party
to this Agreement to any third parties and/or their professional advisers
in pursuance of bona fide negotiations relating to the Development Site
or the whole or part of their interest in the Development Site or the
disposal of either the Developer or the Tenant or any Group Company of
either of them.
32. DISPUTES
32.1 DETERMINATION BY AN INDEPENDENT PERSON
If any dispute or difference shall arise between the parties hereto as to
the construction or meaning of this Agreement or 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 such dispute or
difference shall (unless this Agreement otherwise expressly provides) if
any party hereto so requires at any time by notice served on the others
("THE DETERMINATION NOTICE") be referred to and determined by an
independent person ("THE INDEPENDENT PERSON") who shall have been a
project manager for development projects in Central London of not less
than ten years standing
32.2 APPOINTMENT OF INDEPENDENT PERSON
The Independent Person shall be Xxxxx Xxxxx of Project Management
International 00-00 Xxxxxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX or such other
person appointed by the Developer with the approval of the Tenant, such
approval not to be unreasonably withheld
32.3 NEW APPOINTMENTS
Where the Independent Person (whether acting as arbitrator or expert)
dies, refuses to act or is unable to act or fails to proceed with
reasonable speed to discharge his duties, the procedure contained in
Clause 32.2 for the appointment of the Independent Person may be repeated
as often as necessary until a decision is obtained
32.4 POWER OF INDEPENDENT PERSON TO BRING IN SPECIALIST ADVICE
The Independent Person shall have the power in relation to any dispute
referred to him pursuant to Clause 32.1 which he considers to be of a
specialist nature to seek specialist advice from a third party or
parties (as appropriate), who shall have been qualified in respect of the
subject matter of the dispute or difference in question for not less than
ten
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years and who shall be a specialist in relation to the whole or part of
such subject matter (each a "Specialist Person")
32.5 ARBITRATION
32.5.1 Except as mentioned in Clause 32.6 the Independent Person appointed under
this Clause shall act as an arbitrator in accordance with the provisions
of the Arbitration Xxx 0000.
32.5.2 The parties agree that the Independent Person appointed pursuant to
Clause 32.4.1 shall not have the powers set out in S.48(5) of the
Arbitration Xxx 0000.
32.6 EXPERT
Whenever the parties have agreed in writing prior to his appointment that
the Independent Person shall act as an expert or this Agreement expressly
so provides then the following provisions shall have effect:-
32.6.1 the Independent Person shall act as an expert and not as an arbitrator
and his decision shall be final and binding upon the parties hereto;
32.6.2 the Independent Person shall consider (and make available to any
Specialist Person) (inter alia) any written representations made on
behalf of any party (if made reasonably promptly) but shall not be bound
thereby;
32.6.3 the parties hereto shall use all reasonable endeavours to procure that
the Independent Person (with the assistance of any Specialist Person(s))
shall give his decision as speedily as possible;
32.6.4 the costs of appointing the Independent Person (and any Specialist
Person(s)) and his costs and disbursements in connection with his duties
under this Agreement shall be shared between the parties to the dispute
in such proportions as the Independent Person shall determine or in the
absence of such determination then equally between the parties; and
32.6.5 if the Independent Person (or Specialist Person) shall be or become
unable or unwilling to act then the procedure herein before contained for
the appointment of an expert may be repeated as often as necessary until
a decision is obtained.
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32.7 INDEPENDENT PERSON TO DETERMINE DELAYS
Where the dispute or difference between the parties which was the subject
of the Determination Notice shall have resulted in delay to the carrying
out of the Fit Out Works or the Base Building Works, the Independent
Person shall be entitled (inter alia) to award such extension of time for
the fulfilment of the obligation in question in respect of such delay as
shall in all the circumstances be fair and reasonable.
33. NOTICES
33.1 MEANING OF "ADDRESS"
"Address" means the address of the party in question shown on the first
page of this Agreement or such other address as the party in question may
from time to time notify in writing to the other parties to this
Agreement as being its address for service for the purposes of this
Agreement.
33.2 DELIVERY OF NOTICES
Any notice, approval, election or other communication given or made in
accordance with this Agreement shall be in writing and shall be:
33.2.1 sent by registered or recorded delivery post to the relevant party at
such party's Address and, if so sent, shall be deemed to have been
delivered, given or made on the date occurring 72 hours after the date it
was sent;
33.2.2 transmitted by telex to the telex number for the party in question shown
on the first page of this Agreement (or such other telex number as the
party in question may from time to time notify in writing to the other
parties to this Agreement as being its telex number for the purposes of
this Agreement) and, if so transmitted, shall be deemed to have been
delivered, given or made on the date of transmission; or
33.2.3 shall be personally delivered to the relevant party at such party's
Address as defined in this Clause and, if so delivered, shall be deemed
to have been delivered, given or made on the date of delivery.
33.3 ADDRESSES FOR NOTICES
33.3.1 Notices to the Tenant shall be marked for the attention of The Facilities
Manager -Xxxxxxx Xxxxx International at 000 Xxxxxxxxxxxx Xxxxx, Xxxxxx
XX0X 0XX with a further copy to General Counsel Legal Department Xxxxxxx
Sachs International at 000 Xxxxxxxxxxxx Xxxxx, Xxxxxx XX0X 0XX.
33.3.2 Notices to the Developer shall be marked for the attention of Managing
Director JC No 3 (UK) Limited at x/x XXXXXX Xxxxxx XXX, Xxxxxxxxxxxxx
Xxxxx Xxxxxx Xxxxxxxx, 00 Shoe
-00-
000
Xxxx, Xxxxxx XX0X 0XX with a further copy to General Counsel, Legal
Department ITOCHU at 0-0, Xxxx-Xxxxxx 0-xxxxx, Xxxxxx-Xx, Xxxxx 000-0000,
Xxxxx.
33.3.3 Notices to the Tenant's Surety shall be marked for the attention of
General Counsel the Legal Department Xxxxxxx Xxxxx & Co., 00 Xxxxx
Xxxxxx, Xxx Xxxx Xxx Xxxx 00000.
34. SENIOR MANAGERS AND TENANT'S AGENTS' AUTHORITY
34.1 DESIGNATION OF SENIOR MANAGERS
Each of the Developer and the Tenant shall by notice in writing given to
the other designate not more than three (3) senior managers (each being
herein referred to as a "Senior Manager" which expression shall include
any persons appointed in place of the initial persons so designated) each
of whom shall have authority to approve all matters requiring the
approval of the relevant party pursuant to this Agreement.
34.2 INITIAL DESIGNATION
It is hereby acknowledged that the Tenant has designated Xxxxx Xxxxxxxxx,
Xxxx Xxxxxxx and Xxx Xxxx as its Senior Managers and the Developer has
designated Kenzo Sato, Xxxxxxx Xxxxx and Xxxxxxxx Xxxxxx as its Senior
Managers.
34.3 ABILITY TO RELY UPON SENIOR MANAGERS
Each party acknowledges and represents that the other may rely upon the
communications statements representations and directions of not less than
two of its Senior Managers acting together and that such persons have
authority to act on its behalf and to it in connection with this
Agreement. Directions and other communications given to or received from
any two or more of the Senior Managers shall be deemed given to and
received from all of the Senior Managers.
34.4 ABILITY TO CHANGE DESIGNATION
Either party may by written notice to the other at any time hereafter
change its designation of any of the Senior Managers appointed by it with
effect from the date of such notice.
35. CONTINUANCE AND NON-MERGER
This Agreement shall remain in full force and effect in respect of any of
the provisions hereof which remain to be completed satisfied or fulfilled
on the grant of the Lease.
36. NO ASSIGNMENT/PERSONAL OBLIGATIONS
36.1 TENANT'S INTEREST PERSONAL
Pending the grant of the Leases the benefit of the Tenant's interest in
this Agreement shall be personal to the Tenant and it shall not assign
underlet mortgage or charge the benefit of this Agreement or any part
thereof other than to a Group Company or Affiliate or Associated Company
and only in circumstances where the Leases are still to be taken in the
names of the Tenant. Provided That the Tenant may notwithstanding the
foregoing enter
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into agreements to underlet on terms permitted by the Lease subject to
the prior approval of the Developer such approval not to be unreasonably
withheld or delayed.
36.2 DEVELOPER'S INTEREST PERSONAL
Pending Shell & Core Substantial Completion, the benefit of the
Developer's interest in this Agreement shall (save as provided below) be
personal to the Developer and (save as provided below) it shall not
assign mortgage or charge the benefit of the Agreement or any part
thereof without the prior consent of the Tenant (such approval not to be
unreasonably withheld or delayed) Provided Always that nothing herein
contained shall prevent or restrict:-
36.2.1 the Developer from dealing with its interest in and with the
benefit of this Agreement in order to seek and obtain financing
for the purposes of enabling it to perform its obligations
pursuant to this Agreement and/or for the purposes of entering
into finance leasing arrangements and/or for the purposes of
introducing a joint venture partner or partners and/or from
agreeing to deal with its interest in and with the benefit of this
Agreement once Shell & Core Substantial Completion has occurred;
or
36.2.2 a Developer's mortgagee, chargee or assignee by way of security of
the benefit of this Agreement from assigning the benefit of this
Agreement following enforcement of its security.
36.3 IMPLIED COVENANTS EXCLUDED
The obligations of the Developer under this agreement are personal to the
Developer and will not bind successors in title save for the obligation
to grant the Leases in Clause 23.2 and provide approvals in relation to
the Fit Out Works.
36.4 NOVATION OF OBLIGATIONS TO ITOCHU
After Shell & Core Substantial Completion the Developer may novate such
obligations contained in this Agreement (other than the obligation to
grant the Leases) as it reasonable requires to ITOCHU and the Tenant will
enter into a deed in a form annexed as ANNEXURE 20 at the request of the
Developer.
37. EXCLUSION OF DEVELOPER'S LIABILITY
37.1 NO LIABILITY BEYOND THIS AGREEMENT
37.1.1 The Developer's obligations and duties in respect of the design
supervision carrying out and completion of the Base Building Works and
the fitness of the Base Building Works and the fitness of the Base
Building Works for the purposes of the Tenant shall be expressly limited
to the express contractual obligations contained in this Agreement and
any other right of action by the Tenant its successors in title or
persons deriving title under it against the Developer whether in tort or
otherwise is hereby excluded
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37.1.2 The Tenant agrees that if the Developer shall appoint GSPM to carry out
the Developer's Fit Out Works pursuant to the Procurement Contract and
shall perform its obligations thereunder then the Developer shall have no
liability to the Tenant in relation to and is hereby released from all
liability for the Developer's Fit Out Works
37.2 NO LIABILITY FOR CONSEQUENTIAL LOSS
The Tenant hereby waives all of its rights (if any) in respect of claims
for consequential losses arising from any breach by the Developer of its
obligations contained in this Agreement.
38. GENERAL PROVISIONS
38.1 INTEREST ON LATE PAYMENTS
If and so often as any of the sums payable hereunder by either party to
the other shall be unpaid after becoming due and payable the party from
whom such payment shall be due shall pay on demand interest on such
unpaid sums from the due date until payment in cleared funds at the
Prescribed Rate.
38.2 INVALIDITY OF CERTAIN PROVISIONS
If any term of this Agreement or the application thereof to any person or
circumstances shall to any extent be invalid or unenforceable the same
shall be severable from the remainder of this Agreement and the remainder
of this Agreement or the application of such term or provision to persons
or circumstances other than those as to which it is held invalid or
unenforceable shall not be affected thereby and each term and provision
of this Agreement shall be valid and be enforced to the fullest extent
permitted by the law.
38.3 PROPER LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance in all
respects with English law and the parties hereto hereby submit to the
non-exclusive jurisdiction of the High Court of Justice of England in
relation to any claim, dispute or difference which may arise hereunder
and in relation to the enforcement of any judgment rendered pursuant to
any such claim dispute or difference and, for the purpose of Order 10
Rule 3 of the Rules of the Supreme Court of England (or any modification
or re-enactment thereof), the Tenant hereby irrevocably agrees that any
process may be served on it by leaving a copy thereof at its Address (as
determined pursuant to Clause 33).
38.4 IMMUNITY FROM SUIT
To the extent that the Tenant, the Developer, the Tenant's Surety or
ITOCHU is entitled to any right of immunity from any judicial
proceedings, from the granting of any form of relief in any proceedings,
from attachment of its property or assets, or from execution of judgment,
on the ground of sovereignty diplomatic immunity or otherwise in respect
of any matter arising out of or relating to its obligations under this
Agreement, the Tenant, the Developer, the Tenant's Surety and ITOCHU each
hereby and will irrevocably waive such
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right for the benefit of the other relevant parties and agree not to
invoke such right and consent to the giving of any such relief or the
issue of any such proceeding or process of attachment or execution by the
other relevant party.
38.5 EXAMINATION BY TENANT
Neither any approval given by the Tenant pursuant to this Agreement nor
any examination by the Tenant of any plans or other details supplied by
the Developer in connection with the Base Building Works nor any failure
by the Tenant to examine information supplied to it nor any examination
or inspection on or off site with regard to the carrying out or design of
the Base Building Works shall in any way relieve the Developer from its
obligations in connection with the design and carrying out of the Base
Building Works.
38.6 KEY MAN REQUIREMENTS
38.6.1 The Developer shall use all reasonable endeavours to procure that the key
persons named below shall be allocated by the Developer and/or the Base
Building Contractor and/or the Base Building Architects (as appropriate)
to the carrying out of the Base Building Works and to procure that each
such person shall continue to perform their responsibilities until Shell
and Core Substantial Completion or until such persons are removed or
replaced pursuant to Sub-Clause 38.6.3
KEY PERSONS
(a) Mr M Namura of ITOCHU
(b) Xx X Xxxxx of the Base Building Contractor
(c) Mr J Xxxxxxxxx of Xxxxxx Xxxxxxxxx
38.6.2 The Developer shall use all reasonable endeavours to ensure that each of
the Key Persons identified above unless he is removed or replaced
pursuant to Sub-Clause 38.6.3 shall at all times give to the performance
of his duties so much of his time and attention as is required for the
proper and effective carrying out of the Base Building Works in
accordance with the Developer's programme.
38.6.3 The Developer shall use reasonable endeavours to procure that none of the
Key Persons identified above shall be dismissed without the Tenant's
prior approval, such approval not to be unreasonably withheld or delayed.
In the event that any Key Person ceases to be employed by his current
employer the Developer shall seek to procure that he is replaced by a
person who shall have been previously approved by the Tenant, such
approval not to be unreasonably withheld or delayed.
38.6.4 The Tenant shall be entitled to receive on request full details of the
curriculum vitae of any Key Person's proposed replacement.
38.7 SHOE LANE PROTOCOL
The Developer and the Tenant shall use all reasonable endeavours to
procure that their respective contractors (as appropriate) sign up to and
observe the Shoe Lane Protocol.
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39. TUNNEL AND BRIDGES
The Tenant wishes to link Peterborough Court with the Building by tunnel
and bridges so soon as all relevant consents have been obtained by the
Tenant and subject to that the Landlord is prepared to enter into
agreements permitting this on terms substantially as set out in the draft
Tunnel Agreement and Bridges Agreement. Accordingly:-
39.1 So soon after the Tenant shall have secured and produced to the Developer
for its approval (not to be unreasonably withheld) all relevant approvals
and consents for the carrying out of the Tunnel Works to be implemented
by the Tunnel Agreement (as such works are therein defined) and the
Bridges Works to be implemented by the Bridges Agreement (as such works
are therein defined) and upon the Tenant requiring by written notice to
that effect served on the Developer the Developer and Itochu shall
execute the Tunnel Agreement and the Bridges Agreement and when the other
parties to those Agreements have also executed them then the Tunnel
Agreement and the Bridges Agreement will be completed and implemented
with immediate effect;
39.2 The form of the Tunnel Agreement shall be substantially in the form of
the draft annexed hereto and the form of the Bridge Agreement shall be
substantially in the form of the Tunnel Agreement with such amendments
thereto as each of the parties reasonably shall approve;
39.3 The Developer will co-operate and liaise with the Tenant in good faith
with a view to the early implementation of the Tunnel Agreement and the
Bridges Agreement and an early start to the Tunnel Works and the Bridge
Works and in the meantime the Developer (to the extent reasonably so
requested by the Tenant) will take all requisite steps and at the
reasonable and proper cost of the Tenant to assist the Tenant to complete
the preparation of all plans specifications designs contracts and other
matters in readiness for a start on site in respect of each of the Tunnel
Works and the Bridge Works as if in all practical effect such aforesaid
Agreements had already been implemented;
39.4 Without prejudice to the provisions of Clause 39.3 the Developer shall in
the design and carrying out of the Base Building Works make due allowance
for the design and implementation of portals to facilitate the
construction of the Tunnel Works and cladding panels and openings to
facilitate construction of the Bridge Works in such a manner as the
Tenant shall reasonably require and as will allow the Developer to adhere
to the Developer's Programme and the same shall constitute Tenant's
Requested Modifications for the purposes of this Agreement
40. DEFERRAL OF PAYMENTS
Notwithstanding the other provisions of this Agreement as to the timing
of payments and without prejudice to the Tenant's liability to make any
payment pursuant to this Agreement, it is hereby agreed that, save to the
extent otherwise required by the Developer, all payments to be made by
the Tenant to the Developer pursuant to this Agreement shall be
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postponed until, and shall be made on (i) the day falling 30 days after
the day on which the Lease is granted or (ii) (if this Agreement is
terminated) the day of termination.
IN WITNESS whereof the parties have executed this Agreement as a deed and intend
the same to be delivered on the day and year first before written
Executed as a Deed by
JC NO. 3 (UK) LIMITED
acting by:
Director [ILLEGIBLE]
Director [ILLEGIBLE]
Executed as a Deed by
FLEET STREET SQUARE
MANAGEMENT LIMITED
acting by:
Director [ILLEGIBLE]
Director [ILLEGIBLE]
By [ILLEGIBLE]
------------------------------------------
Executive Vice President
For and on behalf of ITOCHU CORPORATION
114
INDEX OF ANNEXURES AND EXHIBITS
ANNEXURE CLAUSE REFERENCE
1. Basement to Level 4 Lease
2. Level 5 Lease
3. Level 6 Lease
4. Level 7 Lease
5. Level 8 Lease
6. Management Deed
7. Licence for alterations
8. Base Building Specification and Plans "Base Building Specification"
"Base Building Plans"
9. Development Site Plan "Building" and
"Development Site Plan"
10. Agreement for Lease Measurement Plans "Agreement for Lease
Measurement Plans"
11. Critical Dates "Critical Dates"
12. Demolition Works Specification "Demolition Works
Specification"
13. Minimum Standard Fitting Out Works Specification "Minimum Standard Fitting
Out Works"
14. Base Building Architects Appointment and Warranty Clause 7.1.1
15. Base Building M&E Engineer Appointment and Warranty Clause 7.1.2
16. Base Building Structural Engineer Appointment and Warranty Clause 7.1.3
17. Base Building Contract and Contractor's Warranty Clause 7.1.5
18. Tenant's Proposed Modifications Clause 9.2.3
19. Letter of Opinion Clause 23.7
20. Novation Deed Clause 36.4
21. Shoe Lane Protocol Clause 38.7
115
22. Stopping Up Plan Clause 3
23. Tunnel Agreement Clause 39
24. Risers Plan Clause 4.6
