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Exhibit 10.7
DATED 2nd April 1998
JC No 3 (UK) LIMITED and
FLEET STREET SQUARE MANAGEMENT LIMITED
- and -
XXXXXXX XXXXX PROPERTY MANAGEMENT
- and -
ITOCHU CORPORATION
- and -
THE XXXXXXX SACHS GROUP, L.P.
AGREEMENT
relating to Developer's Fit Out
Works to be carried out
at 000 Xxxxx Xxxxxx
Xxxxxx
XXXXXXXXXX & PAINES
One Xxxx Xxxxxx
Xxxxxx XX0X 0XX
TEL: (x00) 000 000 0000
Ref:AM
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THIS AGREEMENT is made the 2nd day of April 1998
BETWEEN:-
(1) JC No 3 (UK) LIMITED and FLEET STREET SQUARE MANAGEMENT LIMITED together
trading as FLEET STREET PARTNERSHIP ("FSP") both of 00 Xxxx Xxxx Xxxxxx
XX0X 0XX
(2) XXXXXXX XXXXX PROPERTY MANAGEMENT whose registered office is at
Xxxxxxxxxxxx Xxxxx 000 Xxxxx Xxxxxx Xxxxxx XX0X 0XX ("GSPM")
(3) ITOCHU CORPORATION of 0-0, Xxxx-Xxxxxx 0-xxxxx, Xxxxxx-xx, Xxxxx
000.0000, Xxxxx ("Itochu"); and
(4) THE XXXXXXX SACHS GROUP, L.P. of 00 Xxxxx Xxxxxx Xxx Xxxx Xxx Xxxx 00000
("GSGLP")
WHEREBY IT IS AGREED AS FOLLOWS:-
WHEREAS:
(A) FSP is to carry out the Developer's Fit Out Works at its own cost and in
accordance with the provisions of the Agreement for Lease and this
Agreement.
(B) The Tenant is to carry out the Tenant's Fit Out Works at its own cost and
subject to and in accordance with the provisions of the Agreement for
Lease and this Agreement.
(C) FSP has agreed that the Tenant is to provide the design for the Fit Out
Works in accordance with the provisions of the Agreement for Lease.
(D) FSP has agreed to employ GSPM as its contractor to carry out the
Developer's Fit Out Works.
1 DEFINITIONS AND INTERPRETATION
1.1 In this Agreement (including the Recitals) unless the context otherwise
requires expressions defined in the Agreement for Lease (as defined
below) shall have the same meanings herein and additionally the following
words or expressions shall have the following meanings:-
1.1.1 AGREEMENT FOR LEASE means the Agreement for Lease of even date
herewith made between FSP (1) Xxxxxxx Xxxxx International (2)
Restamove Limited (3) GSGLP (4) and Itochu (5);
1.1.2 DEVELOPER'S FIT OUT WORKS shall have the meaning ascribed thereto
in Clause 2.2;
1.1.3 TENANT'S FIT OUT WORKS means (i) Fit Out Works which are not
Developer's Fit Out Works and (ii) other Fit Out Works which are
not implemented by FSP (or on its behalf);
1.1.4 MAXIMUM SUM means the amount which equals the aggregate of the
Developer's Commitment and the Developer's Cap;
1.2 In this Agreement unless the context otherwise requires:-
1.2.1 The 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;
1.2.2 Title and headings to Clauses are for convenience only and shall
not be construed in or affect the interpretation of this
Agreement;
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1.2.3 Words importing persons shall include firms companies and
corporations and vice versa;
1.2.4 Covenants given by FSP where FSP comprises more than one person
shall be construed as made by all such persons jointly and
severally.
2 FIT OUT WORKS
2.1 FSP hereby appoints GSPM and GSPM hereby agrees to implement for FSP the
installation of:
(i) items comprised in the Fit Out Category A Works which are
included in the Developer's Fit Out Works up to a cost not
exceeding to the Developer's Commitment (as reduced from
time to time in accordance with Clause 20.1A of the
Agreement for Lease); and
(ii) items comprised in the Fit Out Category B Works which are
included in the Developer's Fit Out Works up to a cost not
exceeding the Developer's Cap (as reduced from time to time
in accordance with Clause 20.1B of the Agreement for
Lease).
In determining whether the Developer's Commitment or the Developer's Cap
is reached for the purposes of (i) or (ii) above, any part of the cost of
the items referred to in (i) or (ii) which represents VAT shall be
disregarded.
2.2 Developer's Fit Out Works shall include the following items
FIT OUT CATEGORY A WORKS
(i) items costing no more in aggregate than the Developer's
Commitment being
(a) items comprised in the Fit Out Category A Works
which constitute fixtures for the purposes of
Chapter VI, Part II of the Capital Allowances Xxx
0000;
(b) (if the aggregate cost of all the items referred to
in (i)(a) above is less than the Developer's
Commitment) items (costing no more in aggregate than
the difference) comprised in the Fit Out Category A
Works, not being items which fall within (i)(a)
above, which constitute machinery or plant for
capital allowances purposes; or
(c) (if the aggregate cost of all the items referred to
in (i)(a) and (i)(b) above is less than the
Developer's Commitment) items (costing no more in
aggregate than the difference) comprised in the Fit
Out Category A Works which do not fall within (i)(a)
or (i)(b) above; and
FIT OUT CATEGORY B WORKS
(ii) items costing no more in aggregate than the Developer's Cap
being:
(a) items comprised in the Fit Out Category B Works, not
being furniture or IT infrastructure, which
constitute fixtures for the purposes of Chapter VI,
Part II of the Capital Allowances Xxx 0000;
(b) (if the aggregate cost of all the items referred to
in (ii)(a) above is less than the Developer's Cap)
items (costing no more in aggregate than the
difference) comprised in the Fit Out Category B
Works, not being items which fall within (ii)(a)
above or furniture or IT infrastructure, which
constitute machinery or plant for capital allowances
purposes; or
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(c) (if the aggregate cost of all the items referred to
in (ii)(a) and (ii)(b) above is less than the
Developer's Cap) items (costing no more in aggregate
than the difference) comprised in the Fit Out
Category B works, not being furniture or IT
infrastructure, which do not fall within (ii)(a) or
(ii)(b) above.
References to the "cost" of any item referred to in this Clause
2.2 do not include a reference to any part of such cost which
represents VAT.
3 DEVELOPER'S FIT OUT WORKS
3.1 ACCESS FOR DEVELOPER'S FIT OUT WORKS
Subject to the other relevant provisions of this Agreement and the
Agreement for Lease FSP shall grant GSPM its contractors agents advisers
workmen and others engaged in the execution of the Developer's Fit Out
Works access to the Building by way of licence only in common with FSP
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 Developer's Fit Out Works.
3.2 DESIGN OF DEVELOPER'S FIT OUT WORKS
GSPM shall procure that the Developer's Fit Out Works shall be designed
with reasonable skill and care and if carried out shall be carried out
and completed:-
3.2.1 in a good substantial and workmanlike manner in accordance with
the plans, drawings and specifications approved by FSP 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;
3.2.2 using materials goods and equipment as set out in any
specifications relating to the Developer's Fit Out Works and
otherwise using good quality materials (if not so specified);
3.2.3 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 Developer's Fit Out Works.
3.2.4 in respect of the Fit Out Category A Works which are included in
the Developer's Fit Out Works to be implemented for FSP on the
floors to be let pursuant to the Basement to Level 4 Lease within
24 months of the Shell & Core Substantial Completion Date and in
respect of the Fit Out Category A Works on the floors to be let
pursuant to the Level 5 Lease, the Level 6 Lease, the Level 7
Lease and the Level 8 Lease within 48 months of such Date; and
3.2.5 so that the Tenant obtains a Fire Certificate for the Demised
Premises.
3.3 COMPLIANCE WITH SITE REGULATIONS
GSPM 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 GSPM in relation to the
Developer's Fit Out Works comply with the Site Regulations.
3.4 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 Developer's Fit
Out Works GSPM after consultation with FSP shall submit to FSP for and
obtain FSP's approval to the detailed method statement (a "METHOD
STATEMENT")
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in writing (which approval shall not be unreasonably withheld or
delayed). The Method Statement shall contain the following information;
3.4.1 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 Developer's Fit Out Works;
3.4.2 details of the manner in which GSPM will structure the
responsibilities of the professional team and contractors and
sub-contractors engaged in connection with the carrying out of the
Developer's Fit Out Works;
3.4.3 proposals for liaison co-ordination and co-operation between FSP,
the Deveoper's Senior Managers, the Base Building Contracting
Team, and the Fit Out Professional Firms and the Fit Out Building
Contractor and the Tenant's Senior Managers; and
3.4.4 proposals for the storage on-site of the materials and equipment
intended for incorporation in the Developer's Fit Out Works.
Provided that FSP shall be entitled to refuse entry or access to the
Demised Premises pursuant to the access to be granted under Clause 4.1
until the Method Statement shall have been approved as aforesaid by FSP.
3.5 COMPLIANCE BY GSPM WITH CERTAIN REQUIREMENTS
Upon entering the Demised Premises or any other part of the Development
Site GSPM will itself and will use all reasonable endeavours to procure
that its contractors agents advisers and workmen will at all times:-
3.5.1 comply in all respects with the provisions of the Method Statement
approved pursuant to the provisions of Sub-Clause 3.4 of this
Clause as the same may be added to amended or varied from time to
time as permitted by this Agreement;
3.5.2 keep free and unobstructed all escape routes in relation to the
Development Site and instruct vehicles visiting it in connection
with the Developer's Fit Out Works to go directly to designated
unloading points and leave the Development Site promptly upon
unloading being completed;
3.5.3 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 Developer's Fit Out
Works;
3.5.4 comply in all respects and for all purposes with the safety and
floor loading requirements comprised in the Base Building
Specification;
3.5.5 (save to the extent approved by reason of FSP'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 Developer's Fit Out Works and then in conformity with the
other provisions of the Agreement for Lease and this Agreement
without the prior approval of FSP to such connections (which
approval shall not be unreasonably withheld or delayed); and
3.5.6 comply in all respects with any relevant insurers and legislation
in respect of safety health and welfare and reasonably safety
requirements of FSP.
3.5.7 comply in all respects with all the obligations on the part of the
Tenant contained in the Agreement for Lease relating to the
Developer's Fit Out Works
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3.6 DEVELOPER'S RIGHT TO INSPECT
GSPM shall at all reasonable times permit FSP and its nominated
representative to inspect the progress and manner of execution of the
Developer's Fit Out Works on reasonable prior notice and subject to the
reasonable and proper safety requirements imposed by GSPM and/or the Fit
Out Building Contractor.
3.7 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 FSP and GSPM;
3.7.1 the party receiving notice of a Claim shall provide the other with
full details and shall take all reasonable steps to defend the
Claim;
3.7.2 neither FSP nor GSPM shall settle or compromise any Claim whilst
both the Base Building Works and the Developer's Fit Out Works are
proceeding without the prior approval of the other (such approval
not to be unreasonably withheld);
3.7.3 if the Base Building Works and the Developer's Fit Out Works are
both proceeding at the time of such Claim FSP and GSPM shall as
between themselves share rateably in any liability according to
their relative contributions to the matter complained of: and
3.7.4 if only the Developer's Fit Out Works are proceeding at the time
of such Claim GSPM shall be solely liable and GSPM shall indemnify
FSP (with the intention of putting FSP 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
FSP shall not settle compromise or admit liability for such claim
without GSPM's prior written consent (such consent not to be
unreasonably withheld or delayed.
3.8 EARLY ACCESS
Notwithstanding the provisions of this Clause 3 if by the Target Date FSP
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 FSP shall (subject to payment
in full by GSPM or the Tenant of FSP's associated costs in accordance
with Clause 40 of the Agreement for Lease) facilitate the early access
for initial fitting out by GSPM in such areas upon such terms as to
access as are set out in clause 16.11 of the Agreement for Lease
4 GSPM INDEMNITY
GSPM shall in respect of the Developer's Fit Out Works and without
prejudice to any other obligation on its part herein contained keep FSP
fully and effectually indemnified (with the intention of putting FSP in
the same after-tax position it would have been in had the matter giving
rise to the indemnification not arisen) against:-
4.1 any breach by GSPM 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 Developer's Fit Out Works; and
4.2 all claims actions damages demands losses expenses costs and other
liabilities whatsoever suffered by FSP which arise out of the carrying
out of the Developer's Fit Out Works (other than FSP's obligations to
make payments under this Agreement);
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and will make good forthwith to the satisfaction of FSP any damage or
injury caused by GSPM (or by anyone for whom GSPM 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 FSP or any of its
servants agents licencees or workmen.
5 PAYMENTS BY FSP
5.1 GSPM shall not later than six months after the issue of the Certificate
of Completion of Fit Out Works produce to FSP a statement (the
"STATEMENT") showing (inter alia) the VAT-exclusive cost of each item
comprised in the Fit Out Works. The Statement shall contain a reasonably
detailed breakdown of such items.
5.2 The format and level of detail to be provided in the Statement shall be
agreed between GSPM and FSP as if part of the process under which the
Tenant is to obtain the Developer's approval of the Fit Out Works in
accordance with clause 15 of the Agreement for Lease and as if such
clause applied (mutatis mutandis) to this Agreement for such purposes.
5.3 FSP shall no later than [25] Working Days after receipt of the Statement
serve a notice (the "DEVELOPER'S NOTICE") on GSPM confirming all items
included in the Developer's Fit Out Works which have been implemented by
GSPM for FSP.
5.4 Subject to the provisions of Clause 2.1 and 5.5, the consideration
payable by FSP to GSPM for implementing the Developer's Fit Out Works for
FSP is an amount equal to the aggregate VAT-exclusive cost set out in the
Statement against the items referred to in the Developer's Notice.
5.5 For the avoidance of doubt:
(i) the consideration payable by FSP to GSPM for implementing
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 (as reduced from time to time in
accordance with Clause 20.1A of the Agreement for Lease);
and
(ii) the consideration payable by FSP to GSPM for implementing
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 (as reduced from time to time in
accordance with Clause 20.1 B of the Agreement for Lease).
5.6 With effect from the Shell & Core Substantial Completion Date until the
day when all the Developer's Fit Out Works which GSPM has been appointed
to implement for FSP are completed or the aggregate of all sums
(excluding any part thereof which represents VAT) paid under this Clause
5.6 is equal to the Maximum Sum (whichever is the earlier), FSP shall on
the first Working Day of each month pay GSPM on account of the
consideration payable by FSP to GSPM under Clause 5.4 the sum of
(pound)3,000,000 (except that, in the case of the last such payment, the
sum shall be such amount as equals the difference between the aggregate
of all sums (excluding any part thereof which represents VAT) then paid
under this Clause 5.6 and the Maximum Sum).
5.7 GSPM shall within 15 Working Days of service of the Developer's Notice
issue a final invoice (the "INVOICE") to FSP showing (inter alia) the
total VAT-exclusive amount (which for the avoidance of doubt shall not
exceed the Maximum Sum) charged to FSP in respect of all the items
referred to in the Developer's Notice. The Invoice shall show the cost
breakdown of the items covered at the level of detail shown in the
Statement.
5.8 To the extent that the total VAT-exclusive amount shown in the Invoice is
in excess of the aggregate of all sums (excluding any part thereof which
represents VAT) previously paid by FSP to GSPM under Clause 5.6 then (and
subject always to the provisions of Clauses 2.1 and 5.5) FSP shall within
10 Working Days of the date of the Invoice pay to GSPM an amount equal to
the
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excess. To the extent that the aggregate of all sums (excluding any part
thereof which represents VAT) previously paid by FSP to GSPM under Clause
5.6 is in excess of the total VAT-exclusive amount shown in the Invoice,
then GSPM shall on issuing the Invoice repay to FSP (or pay to such
person as FSP shall direct) an amount equal to the excess. For the
avoidance of doubt, no payment shall be made by either party if and to
the extent that the total VAT-exclusive amount shown in the Invoice is
equal to the aggregate of all sums (excluding any part thereof which
represents VAT) previously paid by FSP to GSPM under Clause 5.6.
5.9 Nothing herein shall constitute a statement, warranty or representation
that FSP shall be or become entitled to any capital allowances in respect
of any of its expenditure incurred or made under this Agreement.
6 VAT
6.1 All sums payable under this Agreement by FSP to GSPM or by GSPM to FSP
shall be deemed to be exclusive of any VAT which is chargeable on the
supply made by GSPM or FSP (as the case may be) for which such sums are
(the whole or part of) the consideration for VAT purposes.
6.2 Where, pursuant to the terms of this Agreement, either party (the
"SUPPLIER") makes a supply to the other party (the "RECIPIENT") for VAT
purposes and VAT is chargeable on such supply, the Recipient shall pay to
the Supplier (in addition to, and at the same time as providing, any
other consideration for such supply) a sum equal to the amount of such
VAT, and the Supplier shall on receipt of such payment immediately
provide the Recipient with a valid tax invoice for VAT purposes.
6.3 If either party (the "PAYER") has paid any amount in respect of VAT under
this Clause 6 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 and provide the Payer with an
appropriate credit note for VAT purposes 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 3 Working Days following receipt by the Payee
of the said repayment from H M Customs & Excise or 3 Working Days
following the date on which the Payee has fully utilised the said credit
(as the case may be).
6.4 Where either party (the "REIMBURSING PARTY") is required by the terms of
this Agreement to reimburse the 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.
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7 OWNERSHIP OF FIT OUT
7.1 For the avoidance of doubt all Developer's Fit Out Works invoiced to or
paid for by FSP shall, upon being attached to or built into the Building,
become and remain the property of FSP and (if appropriate) a part of the
Demised Premises and subject to the Lease.
7.2 The parties hereby acknowledge that no Xxxxxxx Xxxxx Group Company shall
have any liability to, and no such Group Company shall, pay for any
Developer's Fit Out Works which are implemented by FSP (or on its behalf)
and that FSP shall have no liability to, and shall not, pay for any
Tenant's Fit Out Works.
8 CDM REGULATIONS
8.1 GSPM acknowledges that it shall act as and shall be regarded as the only
client for the purposes of the CDM Regulations in relation to the
Developer's Fit Out Works and shall make the necessary declaration (in
accordance with paragraph 4(4) of the CDM Regulations) to the Health and
Safety Executive that it so acts.
8.2 GSPM shall comply with all its obligations as client under the CDM
Regulations.
8.3 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 FSP
throughout the duration of the Developer's Fit Out Works and on
completion of the Developer's Fit Out Works shall deliver a copy of the
Health and Safety File to FSP.
9 GUARANTEE OF PERFORMANCE OF GSPM'S OBLIGATIONS
9.1 COVENANTS BY GSGLP
GSGLP in consideration of FSP entering into this Agreement at the request
of GSGLP unconditionally and irrevocably agrees with and in favour of
FSP, as a primary obligation, as follows:-
9.1.1 that GSPM or GSGLP shall duly perform and observe all the
obligations on the part of GSPM 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 GSGLP had instead been the
Tenant) indemnifies FSP (with the intention of putting FSP 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 FSP by reason of, or arising in any way
directly or indirectly out of, any default by GSPM in the
performance and observance of any of its obligations.
9.1.2 None of the following, or any combination of them, shall release,
determine, discharge or in any way lessen or affect the liability
of GSGLP as principal obligor under this Agreement or otherwise
prejudice or affect the right of FSP to recover from GSGLP to the
full extent of this guarantee:
(a) any neglect, delay or forbearance of FSP in endeavouring to
obtain payment of any of the amounts required to be paid by
GSPM on in enforcing the performance or observance of any
of the obligations of GSPM under this Agreement or the
Agreement for Lease;
(b) any extension of time given by FSP to GSPM;
(c) any variation of the terms of this Agreement or the
Agreement for Lease or the transfer of FSP's interests in
this Agreement;
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(d) any change in the constitution, structure or powers of
either GSPM, GSGLP or FSP or the liquidation,
administration or bankruptcy (as the case may be) of either
GSPM or GSGLP;
(e) any legal limitation, or any immunity, disability or
incapacity of GSPM (whether or not known to FSP) or the
fact that any dealings with FSP by GSPM may be outside, or
in excess of, the powers of GSPM;
(f) any other act, omission, matter or thing whatsoever
whereby, but for this provision GSGLP would be exonerated
either wholly or partly (other than a release executed and
delivered as a deed by FSP).
9.3.3 GSGLP may not assign its rights nor delegate its obligations under
this Guarantee, in whole or in part, without the prior written
consent of FSP, and any purported assignment or delegation absent
such consent is void, except for an assignment and delegation of
all of the GSGLP's rights and obligations hereunder in whatever
form GSGLP 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 GSGLP'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 FSP having received in a
form reasonably satisfactory to FSP, a deed executed by the
Successor (accompanied by a legal opinion from a reputable firm of
lawyers confirming due execution) confirming to FSP that the
Successor assumes all obligations of GSGLP under this Agreement,
whether by operation of law or by virtue of such deed, GSGLP shall
be relieved of and fully discharged from all obligations
hereunder, whether such obligations arose before of after such
delegation and assumption.
10 GUARANTEE OF PERFORMANCE OF DEVELOPER'S OBLIGATIONS
10.1 COVENANTS BY ITOCHU
Itochu in consideration of GSPM entering into this Agreement at the
request of ltochu unconditionally and irrevocably agrees with and in
favour of GSPM as a primary obligation, as follows:-
10.1.1 that FSP or Itochu shall duly perform and observe all the
obligations on the part of FSP contained in this Agreement in the
manner and at the times specified in it and (but not so as to
provide GSPM with a greater claim than it would have enjoyed in
such circumstances if Itochu had been FSP) indemnifies GSPM (with
the intention of putting GPSM 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 GSPM by reason of, or arising in any way directly or indirectly
out of, any default by FSP in the performance and observance of
any of its obligations and it is agreed that such obligations of
Itochu shall survive any determination of this Agreement and any
assignment of this Agreement by FSP;
10.1.2 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 GSPM to recover from Itochu to
the full extent of this guarantee:-
(a) any neglect delay or forbearance of GSPM in endeavouring
to obtain payment of any of the amounts required to be paid
by FSP or in enforcing the
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performance or observance of any of the obligations of FSP
under this Agreement;
(b) any extension of time given by GSPM to FSP;
(c) any variation of the terms of this Agreement or the
Agreement for Lease or the transfer of GSPM interests in
this Agreement;
(d) any change in the constitution, structure or powers of
either GSPM Itochu or FSP or the liquidation,
administration or bankruptcy (as the case may be) or either
FSP or Itochu;
(e) any legal limitation, or any immunity, disability or
incapacity of FSP (whether or not known to GSPM) or the
fact that any dealings with GSPM by FSP may be outside, or
in excess of, the powers of FSP;
(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 GSPM).
11 CONFIDENTIALITY
The provisions of Clause 31 of the Agreement for Lease shall (mutatis
mutandis) apply to the provisions of this Agreement.
12 DISPUTES
The provisions of Clause 32 of the Agreement for Lease shall (mutatis
mutandis) apply to this Agreement.
13 NOTICES INCLUDING REQUESTS FOR PAYMENT/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.
13.1 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:
13.1.1 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
13.3.2 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.
13.4 ADDRESSES FOR NOTICES
13.4.1 Notices to the Tenant or GSPM 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.
13.3.2 Notices to FSP 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 Lane,
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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.
13.3.3 Notices to GSGLP shall be marked for the attention of General
Counsel the Legal Department Xxxxxxx Xxxxx & Co., 00 Xxxxx Xxxxxx,
Xxx Xxxx Xxx Xxxx 00000.
14 SUB-CONTRACTOR'S CERTIFICATE
GSPM confirms that it will be applying for a certificate issued under
section S561 of the Income and Corporation Taxes Act 1988 and will notify
FSP if it does not hold such a certificate at the dates on which payments
are to be made.
15 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 Interest Rate.
16 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 parties hereby irrevocable agrees that any
process may be served on it by leaving a copy thereof at its address (as
referred in to Clause [30] of the Agreement for Lease).
17 IMMUNITY FROM SUIT
To the extent that any party 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 parties each hereby and will
irrevocably waive such 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 proceeding or
process of attachment or execution by the other relevant party.
18 INTEREST
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 2% above
Base Rate.
19 TERMINATION
This Agreement will automatically determine upon the determination for
whatever reason of the Agreement for Lease but without prejudice to the
rights of any party against another in respect of any antecedent breach.
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IN WITNESS whereof this document has been executed as a Deed the day and year
first before written.
Executed as a Deed by
JC NO.3 (UK) LIMITED
acting by:
Director /s/ [signature]
Director /s/ [signature]
Executed as a Deed by
FLEET STREET SQUARE
MANAGEMENT LIMITED
acting by:
Director /s/ [signature]
Director /s/ [signature]
By
Executive Vice President
For and on behalf of ITOCHU CORPORATION
/s/ [signature]
Executed as a Deed by
XXXXXXX XXXXX PROPERTY
MANAGEMENT acting by:
Director
Director
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THE XXXXXXX SACHS GROUP, LP.
By the XXXXXXX XXXXX CORPORATION
By
Executive Vice President
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