Exhibit 10(s)
May 1, 2003
JUNIPER DEVELOPMENTS LIMITED
- and -
XXXXXXXX UK LIMITED
- and -
XXXXXXXX INC
AGREEMENT FOR LEASE
relating to
Xxxx 0, Xxxxxxx (Xxxxx 0),
Xxxxxx Xxx,
Xxxxxxxx, Xxxxx
DAVIES XXXXXX XXXXXX
0-0 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 000 0000 0000
Fax: 000 0000 0000
e-mail: xxxxxxxxx@xxx.xx.xx
Ref: 1115/143593.17/30/04/03/mey
CLAUSE HEADING PAGE
1 DEFINITIONS.................................................. 1
2 RECITALS..................................................... 3
3 ADDITIONAL WORKS............................................. 4
4 TENANT'S CONTRIBUTION........................................ 4
5 WARRANTIES................................................... 4
6 INSPECTION OF ADDITIONAL WORKS............................... 5
7 COMPLETION OF ADDITIONAL WORKS............................... 5
8 GRANT OF LEASE............................................... 6
9 RENT......................................................... 6
10 INSURANCE AND SERVICE CHARGE................................. 7
11 DEFECTS...................................................... 7
12 VAT.......................................................... 7
13 INTEREST..................................................... 8
14 TITLE........................................................ 8
15 MATTERS AFFECTING THE LEASE.................................. 8
16 USER......................................................... 9
17 NON-MERGER................................................... 9
18 ACKNOWLEDGEMENTS............................................. 9
19 ASSIGNMENT................................................... 9
20 JURISDICTION AND NOTICES..................................... 9
21 DETERMINATION................................................ 10
22 THIRD PARTY RIGHTS........................................... 10
23 GUARANTOR'S COVENANTS........................................ 11
ANNEXURES................................................................. 122
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THIS AGREEMENT FOR LEASE is made the 1st day of May, 2003
BETWEEN:
(1) JUNIPER DEVELOPMENTS LIMITED whose registered office is at 0 Xxxxxx,
Xxxxxx XX0X 0XX (Company Number 4022595) (the "Landlord" which
expression shall where the context admits include its assigns); and
(2) XXXXXXXX UK LIMITED whose registered office is at 00 Xx Xxxxxx Xxxxxx,
Xxxxxxx, XX0 0XX (Company number 286712) (the "Tenant"); and
(3) XXXXXXXX INC a company registered in [California] whose principal place
of business is at 0000 Xxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxx 00000,
XXX (the "Guarantor").
WITNESSETH as follows:-
1 DEFINITIONS
1.1 In all parts of this agreement the following expressions (which for
ease of reference are set out in alphabetical order) shall have the
meanings respectively attributed to them:-
"ADDITIONAL WORKS" means the works to be carried out to the Premises by
the Landlord comprising fitting out as offices the ground floor area
underneath the first floor offices, providing additional fitting out to
the first floor offices and providing lighting to the warehouse as more
particularly described in the Specification;
"AGREED TERM" means 20 years commencing on the 1 August 2003;
"ANNEXURE" means an annexure to this agreement;
"BANK GUARANTEE" means a guarantee to be given by [National Westminster
Bank Plc ] in favour of the Landlord in the form of the draft
comprising Annexure D;
"BUILDING CONTRACT" means the contract made on 16 January 2003 between
the Landlord and the Building Contractor for the construction of the
Development in the form of the JCT standard form of building contract
with contractor's design 1998 edition (with amendments);
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"BUILDING CONTRACTOR" means YJL Plc;
"CLAUSE" means a clause in this agreement;
"COMPLETION DATE" means the date seven days after the Employer's Agent
has certified in writing that the Additional Works have been completed;
"EMPLOYER'S AGENT" means XX Xxxxxx of 0 Xxxxxx Xxxxx Xxxx, Xxxxxx,
Xxxxxx, XX0 0XX;
"LANDLORD'S PROJECT MANAGER" means such project manager as the Landlord
may from time to time appoint, including any such person who is an
employee of the Landlord or an employee of any company in the group of
companies of which Land Securities plc is the ultimate holding company
and whose identity shall be notified to the Tenant in writing;
"LANDLORD'S SOLICITORS" means Davies Xxxxxx Xxxxxx of 0-0 Xxxxxxxx
Xxxxxx Xxxxxx XX0X 0XX or such other solicitors as the Landlord may
appoint;
"LEASE" means the lease of the Premises to be granted by the Landlord
to the Tenant in the form of the draft comprising Annexure A;
"OPINION LETTER" means a letter relating to the Guarantor from a
suitable firm of lawyers in California to be given to the Landlord in
the form of the draft comprising Annexure C;
"PARTIES" means the Landlord and the Tenant and "Party" means each of
them;
"PERMITTED USER" has the meaning given in the Lease;
"PLAN" means the plan attached to the Lease;
"PREMISES" means the premises to be known as Xxxx 0, Xxxxxxx (Xxxxx 0),
Xxxxxx Xxx, Xxxxxxxx, Xxxxx, shown for the purpose of identification
only coloured pink on the Plan;
"RENT" means the initial rent of L211,000 per annum subject to upward
review at the expiration of every fifth year of the Agreed Term plus an
additional rent of L21,000 per annum for ten years from 1 May 2003;
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"RENT COMMENCEMENT DATE" means the 1 August 2003 in respect of the
initial rent of L211,000 per annum and 1 May 2003 in respect of the
additional rent of L21,000 per annum;
"RENT DEPOSIT DEED" means a rent deposit deed to be entered into by the
Tenant in favour of the Landlord in the form of the draft comprising
Annexure B;
"SPECIFICATION" means the specification comprising Annexure G;
"TENANT'S CONTRIBUTION" means the sum of L60,000 plus VAT being the
contribution to be made by the Tenant to the cost of the Additional
Works;
"VAT" means Value Added Tax or other tax of a similar nature.
1.2 INTERPRETATION
1.2.1 Obligations and liabilities of a party comprising more than
one person are obligations and liabilities of such persons
jointly and severally;
1.2.2 Reference to a statute includes any amendment, modification,
extension, consolidation or re-enactment of it and any
statutory instrument, regulation or order made under it which
is from time to time in force;
1.2.3 all sums expressed to be payable by a party to this agreement
are exclusive of VAT charged or chargeable thereon and such
VAT shall be paid in addition; and
1.2.4 unless the context requires otherwise, words importing the
masculine gender only shall include the feminine gender and
neuter and vice versa and words importing the singular number
only shall include the plural number and vice versa.
2 RECITALS
2.1 The Premises were practically completed pursuant to the Building
Contract on 31 March 2003.
2.2 The Additional Works are to be completed pursuant to the Building
Contract.
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3 ADDITIONAL WORKS
3.1 The Landlord shall procure that the Building Contractor completes the
Additional Works in a good and workmanlike manner in accordance with
the Specification and in accordance with all necessary consents.
3.2 The Landlord shall use all reasonable endeavours to ensure that the
Works are completed by 1 August 2003 unless prevented or delayed by any
cause which under the Building Contract entitles the Building
Contractor to an extension of time or any other cause or circumstance
not within the reasonable control of the Landlord in which case the
Landlord shall be entitled to an extension of time equal to the period
of such delay.
4 TENANT'S CONTRIBUTION
4.1 The Tenant shall on the date of this agreement pay the Tenant's
Contribution to the Landlord's Solicitors, one half of which is to be
paid to the Landlord immediately and the other half of which is to be
held by the Landlord's Solicitors as stakeholders until completion of
the Additional Works is certified by the Employer's Agent.
4.2 The Tenant's Contribution shall be paid by cheque drawn on a
solicitor's client account or paid to the Landlord's Solicitors as
cleared funds to the credit of the Landlord's Solicitors' client
account.
5 WARRANTIES
The Landlord shall procure that on the Completion Date or as soon as
practicable thereafter there shall be delivered to the Tenant:-
5.1 a collateral warranty executed by the Building Contractor in the form
of the draft comprising Annexure E; and
5.2 a collateral warranty executed by the Employer's Agent in the form of
the draft comprising Annexure F
in each case with such amendments as may be reasonably required by the
Landlord.
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6 INSPECTION OF ADDITIONAL WORKS
6.1 Subject to the Tenant giving the Landlord ten working days' notice the
Tenant or its duly authorised agent shall be allowed at all reasonable
times in the company of the Landlord's Project Manager, the Employer's
Agent or such other person who may be approved by the Landlord to view
the state and progress of the Additional Works and to inspect the
workmanship and the materials used (but not to test any of the
materials) on the following conditions:
6.1.1 the person inspecting must report to the site office before
making an inspection and act in accordance with the
instructions of the Building Contractor's representatives;
6.1.2 the person inspecting must comply with all relevant safety and
security precautions and insurance requirements;
6.1.3 every inspection is entirely at the risk of the person
inspecting;
6.1.4 there must be no communication with the Building Contractor
about the Additional Works; and
6.1.5 the progress of the Additional Works must not be impeded.
6.2 If as a result of an inspection the Tenant wishes to make
representations regarding the Additional Works such representations
shall be made exclusively to the Landlord's Project Manager who shall
have due and proper regard to such representations.
7 COMPLETION OF ADDITIONAL WORKS
7.1 The Landlord shall procure that the Tenant is given not less than ten
working days notice in writing of the date on which the Employer's
Agent intends to inspect the Additional Works with a view to certifying
that they have been completed and shall procure that the Tenant is
afforded the opportunity of attending the inspection of the Additional
Works and that the Employer's Agent has due and proper regard to any
representations made by or on behalf of the Tenant.
7.2 In the event of the Employer's Agent not certifying completion as
anticipated the provisions of Clause 7.1 shall apply mutatis mutandis
(except that the period of notice
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shall be three working days instead of ten) as often as may be
necessary until completion of the Works is actually certified.
7.3 In the event of the completion being certified subject to a snagging
list the Landlord shall procure that the works on such snagging list
are carried out free of expense to the Tenant.
7.4 The Landlord will provide the Tenant with a copy of the statement or
certificate of completion and any such snagging list.
8 GRANT OF LEASE
8.1 On the Completion Date:-
8.1.1 the Landlord will grant to the Tenant the Lease for the Agreed
Term;
8.1.2 the Tenant will accept the Lease and the Tenant and the
Guarantor will execute a counterpart thereof;
8.1.3 the Tenant will execute a counterpart of the Rent Deposit Deed
and the Landlord and the Tenant will complete the same;
8.1.4 the Tenant will deliver to the Landlord the Opinion Letter
duly signed;
8.1.5 the Tenant will deliver to the Landlord the Bank Guarantee
duly executed.
8.2 The Lease shall be at the Rent payable from the Rent Commencement Date
and otherwise subject in all respects to the terms and conditions set
out in the Lease.
8.3 The first Review Date (as defined in clause 7.1.1 of the Lease) shall
be the fifth anniversary of the date of commencement of the Agreed
Term.
8.4 Completion of the grant of the Lease and the Rent Deposit Deed shall
take place at the offices of the Landlord's Solicitors.
9 RENT
The Tenant shall be liable on and from the Rent Commencement Date for
the payment to the Landlord on the dates specified in the Lease (the
first payment to be made on the Rent Commencement Date and to be in
respect of the period from that date until the next following quarter
day) of sums equal to the amounts which would have been
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payable by way of rent under the covenants of the Lease had the same
actually been granted on the Rent Commencement Date provided
nevertheless that any money so paid shall be set against the rent which
would otherwise be due under the Lease in respect of the same period.
10 INSURANCE AND SERVICE CHARGE
The Tenant shall also be liable on and from the date that the
Additional Works are certified by the Employer's Agent to be completed
for the payment to the Landlord on the dates specified in the Lease of
sums equal to the amounts which would have been payable by way of
insurance and service charge under the covenants of the Lease had the
same actually been granted on that date provided nevertheless that any
money so paid shall be set against the insurance and service charge
which would otherwise be due under the Lease in respect of the same
period.
11 DEFECTS
Any defects, shrinkages or other faults in the works to construct the
Premises or in the Additional Works which shall appear within the
defects liability period or periods provided under the Building
Contract shall be certified by the Tenant in a schedule of defects to
be delivered by the Tenant to the Landlord not later than fourteen days
prior to the date of expiry of each defects liability period and the
Landlord shall take all reasonable steps to procure the making good of
all such defects as are covered by the defects liability clause in the
Building Contract and the Tenant shall give reasonable access to the
Building Contractor for this purpose.
12 VAT
12.1 All payments of whatever nature which are payable under this agreement
are exclusive of VAT and the Tenant shall pay and keep the Landlord
indemnified against all VAT which may from time to time be charged on
any monies payable by the Tenant under this agreement.
12.2 The Tenant does not intend or expect the Premises to be occupied by it
or a person that is connected with the Tenant as determined in
accordance with section 839 Income and Corporation Taxes Act 1988 other
than wholly or mainly for eligible purposes (within the meaning of
paragraph 3(A)(7) to 3(A)(11) Schedule 10 Value Added Tax Act 1994).
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13 INTEREST
If any sum of money payable by the Tenant under this agreement remains
unpaid for more than seven days after the date when payment is due the
Tenant shall pay interest on the amount due from time to time at the
rate of four per cent per annum above the base lending rate from time
to time of Lloyds TSB Bank plc from the date when payment was due until
the date of payment (both before and after any judgment).
14 TITLE
Title down to the date hereof has been deduced to the Tenant's
Solicitors (as the Tenant hereby acknowledges) and the Tenant is deemed
to have full knowledge of such title and shall raise no objection or
requisition relating thereto.
15 MATTERS AFFECTING THE LEASE
15.1 The Lease will be granted subject to and with the benefit of such of
the following as may apply:-
15.1.1 all local land charges (whether registered or not before the
date of this agreement) and all matters capable of
registration as a local land charge or otherwise registrable
by any competent authority or pursuant to statute or like
instrument;
15.1.2 all notices served and orders, demands, proposals or
requirements made by any local or other public or competent
authority whether before or after the date of this agreement;
15.1.3 all actual or proposed charges, notices, orders, restrictions,
agreements, conditions or other matters arising under any
enactment relating to Town and Country Planning;
15.1.4 all existing rights and easements and quasi-easements;
15.1.5 all matters in the nature of overriding interests as defined
in Section 70 of the Land Registration Xxx 0000; and
15.1.6 the matters contained, mentioned or referred to in the
documents mentioned in the third schedule to the Lease.
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15.2 The Tenant is deemed to have full knowledge of all matters referred to
in Clause 15.1 and shall raise no objection or requisition in relation
to any such matter.
16 USER
The Landlord does not warrant that the Premises may lawfully be used
for any purpose authorised under the Lease.
17 NON-MERGER
The provisions of this agreement so far as not performed prior to
completion of the Lease shall remain in full force and effect
notwithstanding the completion of the Lease.
18 ACKNOWLEDGEMENTS
The Parties agree that:-
18.1 This agreement constitutes the entire contract between them and may not
be varied except by written agreement between them or their respective
solicitors.
18.2 The Tenant hereby acknowledges and admits that it has not entered into
this agreement in reliance upon any representation made by or on behalf
of the Landlord but not embodied in this agreement, except to the
extent that the Tenant may be entitled to rely on any representation
made by the Landlord's solicitors on behalf of the Landlord in any
written reply to any enquiry made by the Tenant's solicitors on behalf
of the Tenant.
19 ASSIGNMENT
The Tenant shall not assign, charge or otherwise deal with the whole or
any part of its interest under this agreement.
20 JURISDICTION AND NOTICES
20.1 This agreement shall be governed by and construed in accordance with
English law.
20.2 Each Party submits to the exclusive jurisdiction of the English courts
in respect of all matters arising out of this agreement but the
Landlord shall have the right to bring
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proceedings in the courts of any other jurisdiction for the purpose of
enforcing a judgment.
20.3 Any notice served under this agreement shall be in writing and it shall
be sufficiently served if sent by recorded delivery post to or left at
the registered office of the Party to be served.
21 DETERMINATION
21.1 If:-
21.1.1 the Tenant commits any breach of the provisions of this
agreement and fails to remedy such breach within twenty-one
(21) days after notice in writing by the Landlord to the
Tenant specifying the breach; or
21.1.2 if the Tenant or the Guarantor becomes Insolvent (as that term
is defined in the Lease); or
then in either such case the Landlord may at any time thereafter by
notice in writing to the Tenant determine this agreement but without
prejudice to any claim which the Landlord may have against the Tenant
arising before the date of determination.
21.2 Notwithstanding such determination the Tenant shall if and to the
extent required by the Landlord remove at its own expense any works
carried out by or on behalf of the Tenant to the Premises and reinstate
the same and if the Tenant shall default in carrying out any such works
of removal and reinstatement the Landlord shall be entitled to carry
out such works at the Tenant's expense and all costs so incurred shall
be repaid by the Tenant forthwith upon demand.
22 THIRD PARTY RIGHTS
22.1 In this Clause the expression "third party" has the meaning conferred
by section 1 of the Contracts (Rights of Third Parties) Xxx 0000 (the
"Act").
22.2 No person who is not a party to this agreement may enforce any term of
it.
22.3 Nothing in this Clause shall affect the enforceability of any term of
the agreement by any third party who would have been able to enforce it
in the absence of the application of the Act.
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23 GUARANTOR'S COVENANTS
The Guarantor covenants with the Landlord that:-
23.1 during the continuance of this agreement the Tenant shall observe and
perform the obligations on the Tenant's part contained in this
agreement and in case of default the Guarantor will observe and perform
the obligations in respect of which the Tenant is in default and make
good to the Landlord on demand and indemnify the Landlord against all
losses, damages, costs and expenses thereby arising or incurred by the
Landlord;
23.2 the liability of the Guarantor under Clause 23.1 shall not be affected
in any way by:
23.2.1 any neglect or forbearance of the Landlord in enforcing the
observance or performance of the obligations on the Tenant's
part;
23.2.2 any time or indulgence given to the Tenant by the Landlord;
23.2.3 any variation in the terms of this agreement;
23.2.4 any other act, matter or thing or the release of any person
apart from the express release in writing of the Guarantor;
and
23.3 if during the continuance of this agreement the Tenant is dissolved or
if the liquidator of the Tenant disclaims this agreement the Guarantor
shall upon written notice from the Landlord given within three months
after the date of dissolution or disclaimer enter into an agreement for
lease of the Premises (as tenant) upon the same terms as in this
agreement (without however requiring any other person to act as
guarantor) such new agreement to take effect from the date of
dissolution or disclaimer and to be granted at the cost of the
Guarantor who shall execute and deliver to the Landlord a counterpart
of it.
AS WITNESS the hand of duly authorised signatories for the Landlord and the
Tenant.
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ANNEXURES
Annexure A The Lease
Annexure B Rent Deposit Deed
Annexure C Opinion Letter
Annexure D Bank Guarantee
Annexure E Building Contractor's Warranty
Annexure F Employer's Agent's Warranty
Annexure G Specification
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SIGNED for )
JUNIPER DEVELOPMENTS LIMITED )
by:/s/Des Xxxxx )
Authorised Signatory
SIGNED for )
XXXXXXXX UK LIMITED )
by:/s/Xxxxxxx X. Xxxxx )
Authorised Signatory
SIGNED for )
XXXXXXXX INC )
by:/s/Xxxxx Xxxx )
Authorised Signatory
1
