Exhibit 10.1
Dated 20 April 2001
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THE PRUDENTIAL ASSURANCE COMPANY LIMITED (1)
and
MERCATOR SOFTWARE LIMITED (2)
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Underlease
of
Levels 1 and 2 City Tower
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Term : l5 Years
From : 24 June 2000 (inclusive)
Expiring : 23 June 2015 (inclusive)
Rent : (pound)798,980 (subject to review)
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Contents
Clause Page
(A) Definitions ..............................................................1
(B) Construction .............................................................2
1 Demise, Term and Rent ....................................................3
2 Tenant's Covenants .......................................................3
3 Landlord's Covenants ....................................................11
4 Provisos ................................................................12
5 Notices .................................................................14
6 Court Order .............................................................14
7 Determination ...........................................................15
8 Miscellaneous ...........................................................15
9 Proper Law ..............................................................15
Schedule 1 The Premises ......................................................16
Schedule 2 Rights Granted ....................................................17
Schedule 3 Rights Reserved ...................................................18
Schedule 4 Rent Review; Insurance Contribution; Service Charge ...............18
Schedule 5 Costs to be included in the Service Charge ........................22
Schedule 6 Services which the Landlord covenants to provide ..................24
Schedule 7 Car Park ..........................................................25
Annexures
Plans (Premises)
Car Park Plan
Specification
THIS UNDERLEASE made the 20 day of April 2001 BETWEEN:
(1) THE PRUDENTIAL ASSURANCE COMPANY LIMITED (Company number 15454) whose
registered office is at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (▇▇▇ "Landlord")
(2) MERCATOR SOFTWARE LIMITED (Company No 1293378) whose registered office is
at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the "Tenant")
WHEREAS:
(A) Definitions
In this Lease unless the context otherwise requires:
"Access Roads" means the roadways ramps access and other vehicular ways
within the Car Park;
"the Building" means City Tower ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇;
"Car Park" means the car park situate in the basement and sub-basement
levels of the Building and the ramp leading thereto from Basinghall
Avenue;
"Car Park Plan" means the attached plan that is marked as such;
"Car Park Spaces" means the car park space referred to in Part 2 of
Schedule 2;
"Conducting Media" means sewers drains pipes wires aerials cables ducts
and any other type of conducting media from time to time used for the
passage of soil water gas electricity or other services and any meters or
other fixtures and fittings connected to or forming part of any Conducting
Media;
"Connected Person" means any person, firm or company which may be
connected with the Tenant for the purposes of section 839 Income and
Corporation Taxes ▇▇▇ ▇▇▇▇;
"the Common Parts" means the entrances main reception area halls lifts
staircases landings passages kitchens toilets service areas and other
parts of the Building enjoyed or used by the Tenant in common with others;
"the Energy Charge" means such proportion properly attributable to the
Premises (having regard where appropriate to the readings of the meter on
Levels 1 and 2 of the Building) of the cost directly incurred by the
Landlord of supplying air conditioning electricity or other forms of
energy or power to the Level on which the Premises are situate which cost
shall be separately metered or recorded by the Landlord and the proportion
shall be paid by the Tenant to the Landlord on demand but not more
frequently than monthly in arrear;
"the Freeholder" means the party owning the freehold interest in the
Building;
"Group Company" means any company of which the Tenant may be a Subsidiary
or which may have the same Holding Company as the Tenant (where Subsidiary
and Holding Company have the meanings given to them by section 736 of the
Companies Act 1985);
"the Insurance Contribution" means the insurance contribution payable by
the Tenant on the basis set out in Part 2 of Schedule 4;
"the Insured Risks" means risks of fire storm lightning explosion riot
civil commotion malicious damage impact flood burst pipes aircraft and
other aerial devices or articles dropped therefrom subterranean fire
earthquake terrorist attack and such other risks as the Landlord or any
Superior Landlord may from time to time require to be covered in its
reasonable discretion subject to such exclusions and limitations as are
imposed by the insurers;
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CITY TOWER "BASEMENT ACCOMMODATION"
[Draft of Lower Basement]
Lower Basement
[Draft of Upper Basement]
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BASE BUILDING SPECIFICATION
FOR
FITTING OUT OF
OFFICE AREAS AND TOILET ACCOMMODATION
ON LEVELS 1 AND 2
Ref: 1772/Report/001/May 2000
Date: May ▇▇▇▇
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Base Building Specification May 2000
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1.0 GENERALLY
1.1 The fitting out of the office areas and toilet accommodation at
levels 1 and 2 to Category A standard shall be as generally set out
in this document.
1.2 The layout, designs and areas are subject to accommodating all
relevant Authority requirements and detailed design development
requirements.
1.3 The fitting out will be designed, and materials selected (within the
parameter dictated by the existing building) to be in accordance
with the latest relevant edition (as defined in the Building
Contract) of British Standards, Codes of Practice, Statutory and
Local Authority legislation, IEE Regulations, CIBSE Regulations, HSE
Regulations, CDM Regulations and all other appropriate legislation,
statutes and recognised standards as indicated herein.
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Base Building Specification May 2000
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2.0 OUTLINE SPECIFICATION
2.1 Curtain ▇▇▇▇▇▇▇ and Windows
Full height curtain ▇▇▇▇▇▇▇ to London Wall elevation, comprising
structurally glazed units, double glazed, frames to be thermally
broken with openable smoke vents and colour coated.
Double glazed window units colour coated to ▇▇▇▇▇▇▇'▇ Hall
elevation, single glazed units to lightwell.
2.2 Staircases
Internal accommodation stair between levels 1 and 2.
2.3 Internal Doors
Full height doors to lobbies and toilets, paint finish with softwood
painted frames to office areas. Stainless steel ironmongery. Access
doors to service risers.
Full height hardwood veneer doors to toilet cubicles.
2.4 Floor Finishes
Sealer to existing concrete structure below raised floors. Fully
accessible, medium grade raised flooring system with 600 x 600 mm
tiles generally, with all necessary ramps and steps, bright
finished, for a minimum overall flooring zone of 85 mm, including
fire barriers within the void to Building Regulation requirements
for open plan office. Grade four carpet tiles, floor outlet boxes at
one per 10m(2) of net lettable floor area.
Softwood or MDF painted skirtings.
Ceramic floor tiling and coved skirtings to toilet areas.
2.5 Wall Finishes
Plaster finish generally, with plasterboard column casings. Paint
decoration.
Ceramic wall tiling to toilet areas with feature glass mosaic
panel, laminated back panels to urinals and WC cubicles.
2.6 Ceiling Finishes
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Base Building Specification May 2000
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Suspended ceilings, comprising concealed grid and 600 x 600 mm
perforated metal tiles with integrated sound attenuation, slimline
luminaries and grilles, plasterboard margins and fire barriers
within the void to Building Regulation requirements for open plan
office.
Suspended ceilings to toilet areas as offices but plain tile with
plasterboard margin.
2.7 Fittings
Glass balustrade with stainless steel handrail around void at level
2.
Statutory signage.
2.8 Sanitary Appliances
White ceramic sanitary-▇▇▇▇, provision for disabled facility, full
height mirrors over limestone vanity units with inset bowls,
stainless steel/chrome taps and towel dispenser.
2.9 Mechanical and Electrical Services Installation
Occupancy Levels: Generally one person per 10m(2) of nett
lettable office floor area
Fresh Air Requirements: 10 litres per second per occupant for
office areas
Heat Gains:
Office Areas: lighting 15 W/m(2) of nett office area
Office Equipment: 20 ▇▇▇▇▇ per sq m nett office area on
(general office areas) fan coil unit
External Design Conditions:
Winter -4(degree)C saturated
Summer 28(degree)C db/20(degree)C wb
Internal Air Temperatures:
Offices - Summer 22(degree)C +/- 1(degree)C db
- Winter 21(degree)C +/- 1(degree)C
Noise Level:
Office Areas Nr 38 generally.
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Base Building Specification May 2000
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Office Lighting:
Category 2 to general office areas, flush fittings. High Frequency
Control Gear together with lighting control system provision to
enable retrofit of local control.
Designed Maintenance levels of illuminance for the building: Based
on average surface reflectance of 70% ceiling, 30% walls, 20% floor.
Office areas: 400 LUX Open Plan
Maximum level of glare: 19 (Offices)
Service illuminances quoted are horizontal on the working plane with
an uniformity better than 0.7.
Design Capacity for Tenants Small Power:
General office areas 35 ▇▇▇▇▇/sq m ▇▇▇▇ office area.
Fire Alarms:
Analogue addressable system P2/L3 to BS5839 to the fire authorities
requirements. Limited smoke detection to protect means of escape.
Wiring provision to enable Tenant provision of detectors to L1
coverage of Tenanted areas. Electronic sounders.
Mechanical Services Installations
Four pipe ceiling mounted air side control fan coil air conditioning systems
within office areas from connections on services risers in central core ducts
inclusive of all controls, primary fresh air supply, wiring, ductwork, heating
and chilled water pipework, insulation, fan coils with controllers, drip trays,
ceiling grilles, testing, balancing and commissioning.
Control systems on floor shall provide individual floor and zone control and
operation of fan coils.
Fan coil unit designated for 1 unit per 15m(2) average.
On floor horizontal runs of dedicated condensate drains to connect into vertical
dedicated condensate stacks.
Hand held fire fighting appliances to Fire Officers requirements.
Electrical Installations
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Base Building Specification May 2000
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Office lighting installation complete back to distribution boards in riser
duct. Luminaires Category 2 low brightness to general office areas. Flush
fittings providing a designed maintenance level of 400 lux in open plan
with uniformity better than 0.7 at desk top level. High Frequency Control
Gear together with lighting control systems provision to enable retrofit
of local control. Controlled group switching locations from each office
floor and facility to enable local switching to be installed by Tenant.
Emergency lighting to office areas designed to comply with the
requirements of BS5266: 1988 for open plan office configuration.
Small power to office areas allowances for under floor outlet boxes
provision. 1 per 10m(2) each providing double power and communications
outlets. Dedicated circuits from Tenants distribution boards in services
risers ducts to power ceiling mounted fan coil units.
Earthing and bonding to appropriate elements of Category A Works.
Fire alarm installation from central core services risers to serve all
office areas inclusive of sounders.
Services Generally
Provision of record drawings. Operating and maintenance manuals for office
area systems.
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"the Landlord" includes the person for the time being entitled to the
reversion immediately expectant on the determination of the Term;
"the Plans" means the plans of Levels 1 and 2 of the Building annexed
hereto which unless otherwise stated shall be for identification purposes
only;
"the Planning Acts" means the Town and Country Planning ▇▇▇ ▇▇▇▇ the
Planning (Listed Buildings and Conservation Areas) ▇▇▇ ▇▇▇▇ the Planning
(Hazardous Substances) ▇▇▇ ▇▇▇▇ the Planning (Consequential Provisions)
▇▇▇ ▇▇▇▇ the Planning and Compensation ▇▇▇ ▇▇▇▇ and any subsequent
legislation of a similar nature;
"the Premises" means the property on Levels 1 and 2 of the Building which
are for the purpose of identification only shown edged pink on the Plans
and the Landlord's fixtures and fittings therein the boundaries of which
are more particularly described in Schedule 1;
"the Prescribed Rate" means four per centum above the base rate from time
to time of HSBC Bank Plc and wherever interest is payable at the
Prescribed Rate the same shall be calculated on a day to day basis and
compounded quarterly (and proportionately for any fraction of a quarter)
on each usual quarter day;
"the Service Charge" means the service charge payable by the Tenant on the
basis set out in Part 3 of Schedule 4 and in respect of the matters set
out or referred to in Schedule 5;
"the Specification" means the annexed specification marked "Base Building
Specification May 2000";
"the Staircase" means the staircase in the approximate location shown
tinted blue on the Plans;
"the Tenant" includes its successors in title and assigns in whom this
Lease shall for the time being be vested;
"the Tenant's Proportion" means a fair and reasonable proportion decided
by the Landlord's surveyor which (except where there are special
circumstances) will be based on the proportion which the net internal area
of the Premises bears to the aggregate net internal area of all parts of
the Building (including the Premises) which are either let or if unlet are
from time to time constructed or intended for separate letting (in each
case measured in accordance with the Code of Measuring Practice issued by
the Royal Institution of Chartered Surveyors and the Incorporated Society
of Valuers and Auctioneers as amended from time to time);
"the Term" means the term hereby granted and shall include any statutory
or other continuation thereof;
"Working Day" means a day when banks are open for business in the City of
London;
(B) Construction
If there are two or more persons included in the expressions `the
Landlord" or "the Tenant" or any other guarantors of the Tenant's
obligations in this Lease from time to time the covenants agreements and
obligations on the part of that party shall be construed as joint and
several;
Words importing the masculine gender shall where appropriate include the
feminine gender and the neuter gender or vice versa as the case may be and
words importing the singular number shall where appropriate include the
plural number and vice versa.
The headings to the clauses, schedules and paragraphs shall not affect the
interpretation.
This Lease shall be construed as an underlease and "the Superior Lease"
means the lease under which the Landlord holds the Building and "the
Superior Landlord" shall be deemed to include all reversioners (whether
immediate or mediate) in respect of that lease and all
2
exceptions and reservations and rights (including those by way of
covenant) in favour of the Landlord shall also be for the benefit of the
Superior Landlord to the intent that the Superior Landlord shall be
entitled to exercise the same in addition to the Landlord.
WITNESSES as follows:
1 Demise, Term and Rent
IN consideration of the rents hereinafter reserved and the covenants
on the part of the Tenant hereinafter contained the Landlord HEREBY
DEMISES unto the Tenant the Premises TOGETHER WITH the rights set
out in Schedule 2 BUT EXCEPT AND RESERVING the rights set out in
Schedule 3 AND SUBJECT to all subsisting easements and
quasi-easements affecting the same or any part or parts thereof TO
HOLD the same unto the Tenant for a term of FIFTEEN years commencing
on (and including) 24 June 2000 PAYING during the Term and so in
proportion for any less time than a year the yearly rent of (pound)1
per annum from (and including) 24 June 2000 until (but excluding) 14
August 2000, Six thousand pounds ((pound)6,000) per annum from (and
including) 14 August 2000 until (but excluding) 29 November 2001,
Four hundred and seventy three thousand six hundred and forty two
pounds ((pound)473,642) per annum from (and including) 29 November
2001 until (but excluding) 4 March 2002 and thereafter seven hundred
and ninety-eight thousand nine hundred and eighty pounds
((pound)798,980) per annum (subject to review as mentioned in Part I
of Schedule 4) and by way of further rent from the date of this
Lease the Insurance Contribution the Energy Charge and the Service
Charge such rents (save as may otherwise be provided in Schedule 4)
to be paid in advance without any set-off or deduction whatsoever by
equal quarterly payments on the four usual quarter days in each year
the first such (proportionate) payment to be made on the date of
this Lease in respect of the period from the commencement of the
Term to the quarter day next following the date of this Lease.
2 Tenant's Covenants
THE Tenant HEREBY COVENANTS with the Landlord to observe and perform
throughout the Term the following covenants agreements and
obligations:
2.1 To pay Rent and Outgoings
To pay the yearly rent the Insurance Contribution the Service Charge
the Energy Charge and other moneys reserved by or made payable under
this Lease at the times and in manner respectively provided by this
Lease and also to pay and discharge all rates taxes charges duties
assessments impositions and outgoings whatsoever whether
parliamentary parochial local or of any other description which now
are or which may at any time during the Term be payable either by
the owner or occupier in respect of the Premises and whether the
same are existing at the date hereof or are imposed during the Term
other than any taxes (save for value added tax or any similar tax in
respect of payments by the Tenant under this Lease) imposed upon the
Landlord by virtue of its receipt of the yearly rent hereunder or
any dealing with its reversionary interest in the Premises PROVIDED
that if and so long as the Premises are not separately assessed for
any of the foregoing the Tenant shall pay to the Landlord on demand
from time to time a fair proportion of the assessment on the
Building such fair proportion to be determined by the Landlord's
Surveyor or Agent whose decision shall be final and binding upon the
parties;
2.2 Repair
At all times during the Term to keep the Premises including all
fixtures fittings (other than tenant's and trade fixtures) additions
alterations and improvements from time to time affixed or made
thereto and the appurtenances thereof clean and in good and
substantial repair condition and decoration (damage by any of the
Insured Risks only excepted unless payment of any moneys payable
under any policy of insurance shall be refused either in whole or in
part by reason of any act neglect or default of the Tenant any
sub-tenant or their respective servants agents licensees or
invitees) PROVIDED THAT in case any of the Landlord's fixtures and
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fittings shall need to be replaced the Tenant shall within a
reasonable period replace them with others of a similar quality and
value;
2.3 Yielding Up
On determination to yield up the Premises to the Landlord with
vacant possession in a state of repair condition and decoration
which is consistent with the proper performance of the Tenant's
covenants in this Lease and in accordance with the Specification and
if on determination the Tenant leaves any fixtures fittings or other
items in the Premises and fails to remove these within 14 days of
the Landlord serving written notice requiring this then the Landlord
may treat them as having been abandoned and may remove destroy or
dispose of them as the Landlord wishes and the Tenant shall pay to
the Landlord within 7 days of written demand the cost of this and
before determination the Tenant shall if required by the Landlord
reinstate all alterations additions or improvements made to the
Premises whether by the Landlord or the Tenant and if required by
the Landlord carry out and complete any work necessary to put the
Premises into an open plan form and where this involves the
disconnection of any plant equipment machinery or other installation
or any Conducting Media the Tenant shall ensure that the
disconnection is carried out properly and safely and that such plant
equipment machinery and other installation or Conducting Media are
suitably sealed off or capped and left in a safe condition so as not
to interfere with the continued function of the plant equipment
machinery and other installation or the use of the Conducting Media
elsewhere in the Building and the Tenant shall make good any damage
caused in complying with this clause and shall carry out all
relevant works (including the making good of damage) to the
reasonable satisfaction of the Landlord;
2.4 Decoration
In every fifth year of the Term and also in the last year thereof
(howsoever the same may come to an end) to paint with two coats at
least of good quality paint of a colour to be on the last occasion
previously approved of in writing by the Landlord (such approval not
to be unreasonably withheld or delayed) or otherwise treat as the
case may be in a proper and workmanlike manner all the internal wood
iron and other work in or upon the Premises previously or usually
painted or otherwise treated as aforesaid and to carry out all work
required by this clause with good quality materials and in a good
and workmanlike manner;
2.5 Rights of Entry
To permit the Landlord or his agents or surveyors and all other
persons authorised by him or otherwise entitled thereto with or
without workmen and others by appointment and on giving at least two
working day's written notice to the Tenant (or at any time and
without appointment in an emergency) to enter into and upon the
Premises for the purpose of exercising the rights excepted and
reserved in Schedule 3 and to examine the state and condition of the
Premises and to prepare schedules of the Landlord's fixtures and
fittings and any dilapidations and to ascertain the use and
occupation and the current value for insurance or otherwise and for
any other reasonable purpose;
2.6 Notice of wants of repair
To commence and diligently continue to repair and make good in
accordance with sub-clauses 2.2 and 2.4 of this clause all defects
and wants of repair or decoration for which the Tenant is liable of
which notice in writing shall have been given to the Tenant within
two calendar months after service on the Tenant of such notice or
sooner if requisite;
2.7 Costs incurred by the Landlord
To pay all proper costs and expenses (including Solicitors' costs
and Surveyors' fees) incurred by the Landlord for the purpose of or
incidental to (i) the preparation and service of any notice under
section 146 of the Law of Property ▇▇▇ ▇▇▇▇ notwithstanding that
forfeiture may be avoided otherwise than by relief granted by the
Court (ii) the preparation and service of any notice under this
Lease relating to the repair or decoration of the Premises given
under subclause 2.6 hereof or any schedule of dilapidations which
the Landlord may serve during or at or
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within three months of the end of the Term and (iii) procuring the
recovery of arrears of rent the Insurance Contribution the Service
Charge or the Energy Charge or the remedy of any breach of any
Tenant's covenant under this Lease;
2.8 Rights of Entry to repair
That if the Tenant shall at any time make default in the performance
of any of the covenants herein contained for or relating to the
repair or decoration or the yielding up in good and substantial
repair and decoration of the Premises it shall be lawful for (but
not obligatory upon) the Landlord (but without prejudice to the
right of re-entry in this Lease and to any other rights of the
Landlord with regard thereto) after the Tenant has failed to comply
with the notice served in accordance with sub-clause 2.6 hereof to
enter upon the Premises and repair and decorate the same at the
expense of the Tenant in accordance with the covenants and
provisions of this Lease and the expense of such repairs and
decorations shall be repaid by the Tenant to the Landlord within 7
days of written demand notwithstanding the fact that the Term may
have expired or determined and the certificate of the Landlord's
surveyor certifying the cost to the Landlord shall be final and
binding on the Tenant and if such repairs and decorations have not
been carried out by the Landlord before the determination of the
Term the Tenant shall pay mesne profits at the rate of the rent
payable hereunder immediately prior to the expiry or determination
of the term during the period reasonably required for carrying out
such work and the amount of such mesne profits shall be added to the
cost of carrying out such work as aforesaid;
2.9 Legal Obligations
At all times during the Term to observe and perform all the
requirements of all Acts of Parliament local Acts or bye-laws
regulations orders directions notices and of any consents or
licences issued thereunder and to do and execute or cause to be done
and executed all such works or things as under or by virtue of any
Act of Parliament local Act or bye-law already or thereafter to be
passed shall or may be directed or required by any local or public
or other authority to be done or executed upon the Premises or any
part thereof or relating to the Tenant's user thereof and if
required to produce to the Landlord all plans and documents and
other evidence which may reasonably be required to show that the
provisions of this clause have been performed and to indemnify and
keep indemnified the Landlord from and against all claims and
liability in respect of all matters the subject of this sub-clause;
2.10 Cost of Works
To pay to the Landlord within 7 days of demand the cost of all works
which the Landlord may be required to do under the Office Shops and
Railway Premises Act 1963 and/or the Fire Precautions ▇▇▇ ▇▇▇▇
and/or the Health and Safety at Work etc ▇▇▇ ▇▇▇▇ in respect of the
Premises or in the case of works required to be done in respect of
or for the benefit of the Premises and other premises the proportion
of such costs attributable to the Premises such proportion to be
properly determined by the Landlord's Surveyor whose decision shall
be final (save in the case of manifest error);
2.11 Alterations
Not to cut maim or alter any part of the Premises nor make any
addition improvement or alteration to the Premises either external
or internal whether structural or otherwise PROVIDED THAT on
obtaining the Landlord's prior written consent such consent not to
be unreasonably withheld or delayed the Tenant may make alterations
to the interior of the Premises which are not of a structural nature
PROVIDED FURTHER THAT the Tenant may without the Landlord's consent
install alter and remove internal demountable partitioning together
with associated minor mechanical and electrical works so long as
there is no material detrimental effect on the mechanical and
electrical services of the Building and such works comply with all
statutory requirements and the then current standard fit-out guide
for tenants of the Building;
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2.12 Planning Acts
At all times during the Term at the expense of the Tenant to comply
in all respects with the Planning Acts and all licences consents
permissions and conditions (if any) granted or imposed thereunder or
under any enactment repealed thereby so far as the same respectively
relate to or affect the Premises or any part thereof or any
operations works acts or things already or hereafter to be carried
out executed done or omitted thereon or the use thereof for any
purpose PROVIDED that the Tenant shall not carry out any operations
for which planning permission is necessary but has not been obtained
nor apply for or implement any planning permission with the
Landlord's prior written consent which consent may not be
unreasonably withheld or delayed;
2.13 Use
Not at any time during the Term to use the Premises otherwise than
as high class offices within purpose (a) of Class BI of the Town and
Country Planning (Use Classes) Order 1987 and not being such at
which services are provided principally to visiting members of the
public;
2.14 Floor Loading
Not at any time during the Term to overload the floors of the
Premises or any Conducting Media;
2.15 Storage of inflammable matter
Not to bring store or place in or upon the Premises any inflammable
combustible radioactive toxic corrosive or explosive matter;
2.16 Nuisance
Not to do on the Premises or the Common Parts anything whatsoever
which may be or tend to become in the reasonable opinion of the
Landlord noisy or offensive or an annoyance nuisance damage
disturbance or inconvenience to the Landlord or its tenants or which
may render the Landlord or the Tenant liable to any notice under any
Public Health Act for the time being in force or which would
constitute a breach of any of the provisions of any private or
public Act of Parliament for the time being in force or any
regulations or bye-laws made by any competent public or local
authority and not to permit any sale by auction or public exhibition
or public show or spectacle or political meeting to take place on
the Premises;
2.17 Offer-Back and Assignment
2.17.1 If the Tenant at any time desires to assign or transfer or underlet
the whole of the Premises the Tenant shall by an irrevocable
unconditional written notice ("the Tenant's Notice") served upon the
Landlord offer to surrender or assign this Lease to the Landlord in
accordance with this sub-clause:
2.17.2 If the Landlord wishes to accept such surrender or assignment it
shall within fourteen days of receipt of the Tenant's Notice serve a
Counternotice (the "Counternotice") upon the Tenant stating as much;
2.17.3 The price to be paid for the surrender or assignment shall be the
open market value (which may be a negative value) of this Lease at
the date of the Tenant's Notice and if the open market value is not
agreed within fourteen days following the service of the
Counternotice it shall be referred to a valuer experienced in
valuing high class office accommodation in the City of London who
shall act as an expert and not as an arbitrator and who shall be
agreed upon by the Landlord and the Tenant within fourteen days
after the service of the Counternotice falling which he shall be
appointed on the application of either party by the President for
the time being of The Royal Institution of Chartered Surveyors and
who shall determine the open market value within fourteen days of
being requested to do so and whose decision shall be binding on the
parties hereto and whose costs shall be shared equally by the
Landlord and the Tenant;
6
2.17.4 For the purposes of valuing the Tenant's fixtures in clause 2.17.3
above it shall be assumed (whether or not it is the case) that the
Tenant's fixtures and fittings are improvements
2.17.5 Within seven days of the open market value being agreed or
determined the Landlord and the Tenant may serve upon each other
written notice ("Acceptance Notice") that they wish to proceed with
the surrender or assignment at the open market value and if both
parties serve such notice within that period (but not otherwise) the
Tenant shall surrender or assign this Lease (the Landlord having the
right to decide whether a surrender or an assignment shall be
appropriate) with vacant possession subject only to such derivative
interests as may with the Landlord's consent as hereinafter provided
have been created out of the Term but otherwise free from
encumbrances on the day being not less than fourteen days nor more
than three months after the Tenant's Notice but otherwise on a date
specified by the Tenant in its Acceptance Notice (provided that if
such day is not a Working Day then the next Working Day thereafter)
and on which day the Landlord shall pay to the Tenant (or the Tenant
shall pay to the Landlord) the open market value and the Landlord
shall give the Tenant a release under seal in respect of any further
liability of the Tenant hereunder;
2.17.6 Time shall be of the essence for the serving of the Counternotice
and the Acceptance Notice and if the Landlord does not serve the
Counternotice or its Acceptance Notice within the times stated above
then the Tenant may within six months of the date of the Tenant's
Notice either (a) after obtaining the previous written consent of
the Landlord (which may be withheld unless the conditions set out in
sub-clause 2.17.7 are satisfied) assign the whole of the Premises or
(b) sublet the whole of the Premises in accordance with sub-clause
2.18.4;
2.17.7 The conditions referred to in sub-clause 2.17.6 are:
(a) in relation to either the prospective assignee or any
prospective guarantor or guarantors:
(i) the prospective assignee is not a Group Company or a
Connected Person; and
(ii) the prospective assignee or any prospective guarantor is
in the Landlord's reasonable opinion of sufficient
financial standing to enable it to comply with the
covenants in the Lease for the remainder of the Term;
and
(iii) the prospective assignee covenants with the Landlord
that from the date of the assignment of this Lease to it
until it assigns this Lease pursuant to the terms of
this Lease it will pay all rents reserved under this
Lease and observe and perform all the Tenant's covenants
and obligations in this Lease; and
(iv) the Tenant enters into an authorised guarantee agreement
within the meaning of the Landlord and Tenant
(Covenants) ▇▇▇ ▇▇▇▇ with the Landlord in such terms as
the Landlord may reasonably require; and
(b) if the Landlord reasonably requires a guarantor or some other
form of security for the Tenant's obligations under the
authorised guarantee agreement is provided to the Landlord
(c) any sum properly due from the Tenant to the Landlord under
this Lease which is outstanding is paid
2.18 Dealings with the Premises
2.18.1 Except as expressly permitted by the subsequent paragraphs in this
sub-clause 2.18 or sub-clause 2.17 not to assign underlet charge
part with or share possession or occupation of the Premises or any
part thereof;
2.18.2 The Tenant may (after serving written notice to the Landlord) share
occupation of the Premises with a Group Company on condition that
the sharing shall not create the relationship of landlord and tenant
and that on any such company ceasing to be a Group Company the
occupation shall immediately cease;
7
2.18.3 Any consent granted under this sub-clause 2.18 shall (unless it
expressly states otherwise) only be valid if the dealing to which it
relates is completed within two months after the date of the
consent;
2.18.4 The Tenant may underlet the whole or part of the Premises with the
prior written consent of the Landlord (not to be unreasonably
withheld or delayed) so long as:
(a) the prospective undertenant has covenanted with the Landlord
to observe and perform until it assigns the underlease with
consent as required by the underlease the Tenant's covenants
in this Lease (except the covenant to pay the rent Insurance
Contribution Service Charge and Energy Charge);
(b) if the Landlord reasonably requires a guarantor or guarantors
reasonably acceptable to the Landlord has guaranteed the due
performance by the undertenant of its above covenant in such
terms as the Landlord may reasonably require; and
(c) no fine or premium is taken for the grant of the underlease;
and
(d) the rent payable shall not be less than the open market rent
reasonably obtainable for the Premises; and
(e) the form of the underlease has been approved in writing by the
Landlord (such approval not to be unreasonably withheld or
delayed); and
(f) in the case of an underletting of part of the Premises the
conditions set out in clause 2.18.6 are satisfied.
2.18.5 The conditions referred to in clause 2.18.5(f) are:
2.18.6.1 the total number of such underleases which may subsist at any time
during the Term shall not exceed two per floor of the Premises; and
2.18.8.2 any such underlease shall contain provisions enabling the Tenant (as
lessor) to recover from the undertenant a due proportion of the
Insurance Contribution the Service Charge the Energy Charge and of
the cost to the Tenant of repairing decorating and operating the
Premises; and
2.18.6.3 any such underlease shall preclude further underletting of all or
part of the underlet premises; and
2.18.6.4 any such underlease shall be excluded from the operation of sections
24-28 Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇.
2.19 Registration of dealings
The Tenant will within one month next after the making thereof
without any demand by the Freeholder or the Landlord deliver for
registration at the office of the Freeholder and also to the
Landlord or as it may direct a certified copy of all assignments
underleases (or the counterparts thereof) tenancy agreements
occupational licences deeds of variation mortgages charges by way of
legal mortgage probates of ▇▇▇▇▇ letters of administration and other
dispositions or deeds affecting the interests terms or conditions of
occupancy of the Premises or any part thereof which shall at any
time during the Term be made of the Premises or of any part thereof
and leave the same with them for that purpose and pay the reasonable
costs of the Freeholder and of the Landlord for the registration of
every such document;
2.20 Registration covenant in Underlease
The Tenant will insert in every underlease tenancy agreement or
occupational licence of the Premises or of any part thereof granted
by the Tenant a covenant by the underlessee tenant or occupational
licensee with the Tenant to produce within one month next after the
making thereof (without any demand by any person) for registration
at the office of the Freeholders a certified
8
copy of every assignment of the sub-demised premises or any part
thereof and every sub-demise (including by way of tenancy agreement
or occupational licence save as aforesaid) of the same or any part
thereof made by any permitted underlessee or the persons deriving
title under him and to leave every such copy of such assignment
sub-demise agreement and licence (save as aforesaid) with the
Freeholders for the purpose of such registration and to pay the
reasonable costs of the Freeholders for the registration of every
such assignment sub-demise agreement or licence (save as aforesaid);
2.21 Waiver by Tenant
The Tenant will not at any time accept a surrender of any
underleases (in whole or part) or release or waive or vary any
underlessee's covenant and will by use all reasonable endeavours to
enforce the performance thereof by every such underlessee tenant or
occupational licensee (save as aforesaid) and the persons deriving
title under him PROVIDED THAT the Tenant shall be permitted to
surrender any underlease in part so long as no more than two
occupancies are created;
2.22 Vitiation of Insurance
Not to do or bring on to the Premises any act deed matter or thing
which shall or may cause any policy for insurance of the Premises or
the Building or any adjoining or neighbouring premises to become
void or voidable or whereby the premium or premiums payable in
respect thereof shall or may be increased above the ordinary or
common rate payable and to comply in all respects with the terms and
conditions of all policies for insurance of the Premises or the
Building and the requirements of the insurers notified to the Tenant
and further not without the previous written consent of the Landlord
to arrange any additional insurances against any of the Insured
Risks upon or in respect of the Premises;
2.23 Signs
Not to place fix or exhibit in or on the Premises so that they can
be viewed from outside the Premises any hoarding showcase aerial
sign signboard ▇▇▇▇ plate board fascia placard poster advertisement
or other notification of any kind whatsoever PROVIDED THAT:
2.23.1 the Tenant and any permitted undertenant or occupier shall be
entitled to have its name shown on the common signboard in the main
entrance hall and the lift lobby in Level 1 of the Building;
2.23.2 the Tenant and any permitted undertenant shall be permitted to
display a sign on or near the entrance doors to the Premises showing
its name and logo but in a style consistent with the house style of
the Building; and
2.23.3 notwithstanding the foregoing if in the opinion of the Landlord any
such sign or other matter as aforesaid which may be placed affixed
or exhibited shall be or become offensive or unsightly the same
shall be removed or resited immediately on receipt of written
request from the Landlord;
2.24 Not to obstruct Common Parts
Not to do any act or thing whereby any of the Common Parts or any
road parking area forecourt path or passage in or enjoyed with the
Building may be damaged or obstructed or the fair use thereof by
others may be impeded or hindered in any manner whatsoever or
whereby any right of prescription shall arise against the Landlord
nor to park or allow to be perked on the rear service road any
vehicle except for the minimum time necessary for the loading and
unloading of goods;
2.25 Sewers drains and watercourses
Not to cause (or allow those under its control) to pass into the
sewers drains or watercourses serving the Premises or the Building
or any adjoining or neighbouring premises any noxious or deleterious
effluent or any other substance which may cause an obstruction in or
injure the
9
same and in the event of any such obstruction or injury forthwith to
remove such obstruction and to make good all damage to the
reasonable satisfaction of the Landlord;
2.26 Fire Prevention Apparatus
To maintain to the reasonable satisfaction of the Landlord adequate
fire prevention apparatus upon the Premises and from time to time to
remove as speedily as possible from the Premises all waste and
inflammable material;
2.27 Costs
To pay on demand all legal costs Surveyor's fees and other expenses
of any kind incurred or expended by the Landlord in respect of all
applications made by or on behalf of the Tenant or any occupier or
undertenant (whether actual or prospective) for the consent or
approval of the Landlord to or in respect of any act matter or thing
for which consent or approval is required under the terms of this
Lease and whether or not consent or approval is refused or the
application is withdrawn or not proceeded with for any reason;
2.28 VAT
In addition to the rents and any other sums which shall or may
become payable by the Tenant under the terms of this Lease to pay on
an indemnity basis all Value Added Tax in respect thereof at the
rate of such tax from time to time applicable thereto;
2.29 Superior Lease
To observe and perform the lessee's covenants in the Superior Lease
(other than the covenants to pay rent and to insure the Building and
the covenants as to repair and decoration) insofar as such covenants
relate to the Premises;
2.30 Indemnity
To keep the Landlord fully and effectively indemnified against (i)
all damage to the Premises or the Building occasioned by any act
default or negligence of the Tenant its servants agents licensees or
undertenants and (ii) all costs claims liabilities actions and
expenses (by whomsoever alleged or demanded and whether in respect
of death sickness personal injury damage to property or otherwise)
arising through the use or occupation by the Tenant or any of its
servants agents licensees or undertenants of the Premises or any
part thereof or the existence of any articles in or about the same
or the execution of any works upon the Premises or the state or
condition of or the existence of any defect in the Premises (insofar
as the Tenant is liable hereunder to repair the same) or any
interference or alleged interference or destruction of any right or
alleged right (whether of drainage light air way or otherwise)
existing for the benefit of any adjoining or neighbouring property;
2.31 Regulations
To comply with such rules and regulations for the better management
and control of the Building as the Landlord may from time to time
prescribe and notify to the Tenant
2.32 Third Party Rights
At the request of the Landlord and at the joint expense of the
Landlord and the Tenant to take all steps which may be reasonably
required by the Landlord to prevent any encroachment on or
acquisition of any easement against the Premises or the loss of any
easement enjoyed by the Premises (or any other part of the Building)
and to join with the Landlord to take such action or proceedings as
the Landlord may reasonably require against any owner or occupier of
any nearby land to prevent any such encroachment acquisition or
loss;
2.33 Car Park Covenants
10
In relation to the Car Park Space the Tenant shall observe the Car
Park covenants set out in part 1 of schedule 7.
3 Landlord's Covenants
THE Landlord HEREBY COVENANTS with the Tenant that the Tenant paying
the rents hereby reserved and performing the covenants agreements
and obligations set out in clause 2 the Landlord will observe and
perform the following covenants:
3.1 Quiet Enjoyment
That the Tenant may peaceably hold and enjoy the Premises during the
Term without any lawful interruption or disturbance from or by the
Landlord or any person lawfully claiming through under or in trust
for it;
3.2 Insurance
3.2.1 To use its best endeavours to procure that the Freeholder shall
insure and (unless the insurance so effected shall become void or
voidable through or by reason of any act neglect or default of the
Tenant or any servant agent licensee or invitee of the Tenant) keep
insured the Building (including any plate glass) against the Insured
Risks at all times during the Term in some insurance office or with
underwriters of repute in the full reinstatement value thereof
including Architects' and Surveyors' fees and shall request that the
Tenant's interest be noted on the policy if requested to do so by
the Tenant and in case of destruction or damage by the Insured Risks
that subject to the Landlord or the Freeholders obtaining all
necessary permissions permits consents authorities and approvals
which the Landlord or the Freeholder shall use their best endeavours
to obtain as quickly as possible the Freeholder or the Superior
Landlord shall forthwith apply all policy moneys received under or
by virtue of any such insurance as aforesaid (except those in
respect of loss of rent) in reinstating the Building with reasonable
speed;
3.2.2 To insure against five years loss of the rents reserved under this
Lease and referred to in Part 2 of Schedule 4 of this Lease;
3.3 Copy Insurance Policy
To provide the Tenant on request with a copy of the insurance policy
or policies applicable to the Building (or a certificate of such
insurances) as are then currently maintained together with details
of the sum insured and provide the Tenant with details of all
changes to such insurance policy or policies as soon as reasonably
possible after receipt from the Superior Landlord;
3.4 Services
Except where the Building (or any part of it) has been damaged
otherwise than by an Insured Risk to provide the services specified
in Schedule 6 and the Car Park Services set out in part 3 of
schedule 7 PROVIDED THAT the Landlord shall not be responsible or
liable in any way whatever for any failure to provide the same or
any of them if such failure shall be due either wholly or in part to
any act neglect or default of the Tenant or the Tenant's servants
agents licensees or invitees or to any strike lock-out shortage of
labour or materials power cuts failure in delivery of supplies or to
any other cause whatsoever beyond the Landlord's control so long as
the Landlord has taken all reasonable steps to remedy such failure
PROVIDED FURTHER that the Landlord will endeavour to maintain the
Service Charge at a reasonable figure consistent with due
performance and observance of its obligations but the Tenant shall
not be entitled to object to any item comprised therein by reason
only that the materials work or service in question might have been
provided or performed at a lower cost and in particular the Landlord
Shall be entitled itself to provide any materials and by its own
agents servants and workmen to perform any particular work or
service;
11
3.5 Superior Lease
To pay the rent reserved by the Superior Lease and to observe and
perform the lessee's covenants therein contained insofar as such
covenants do not fall to be observed by the Tenant hereunder and to
use reasonable endeavours to procure that the Superior Landlord
observes and performs the Landlord's covenants therein contained.
4 Provisos
PROVIDED ALWAYS AND IT IS HEREBY AGREED:
4.1 Forfeiture
Without prejudice to any other remedies and powers contained in this
Lease or otherwise available to the Landlord if:
4.1.1 the whole or part of the rents shall be unpaid for twenty-one days
after becoming due (whether demanded or not); or
4.1.2 any of the Tenant's covenants in this Lease are not performed or
observed; or
4.1.3 the Tenant or any guarantor of the Tenant's obligations (or if more
than one person any one of them):
(a) proposes or enters into any composition or arrangement with or
a notice is issued convening a meeting of its creditors
generally or any class of its creditors; or
(b) is the subject of any judgment or order made against it which
is not complied with within seven days or is the subject of
any execution sequestration or other process levied upon or
enforced against any part of its undertaking property assets
or revenue; or
(c) being a company:
(i) is the subject of a petition presented (save where it is
being contested in good faith) or an order made or a
resolution passed or analogous proceedings taken for
appointing, an administrator of or winding up such
company or is the subject of a notice issued convening a
meeting for the purpose of passing any such resolution
(save for the purpose of and followed by an amalgamation
or reconstruction not involving or arising out of
insolvency or giving rise to a reduction in capital) and
is on terms previously approved in writing by the
Landlord; or
(ii) an encumbrancer takes possession or exercises any power
of sale or a receiver is appointed of the whole or any
part of the undertaking property assets or revenues of
such company; or
(iii) stops payment or agrees to declare a moratorium or
becomes or is deemed to be insolvent or unable to pay
its debts within the meaning of section 123 of the
Insolvency ▇▇▇ ▇▇▇▇; or
(iv) without the prior consent in writing of the Landlord
ceases or threatens to cease to carry on its business in
the normal course; or
(d) being an individual:
(i) is the subject of a bankruptcy order; or
(ii) is the subject of an application or order or appointment
under section 253 or section 273 or section 286 of the
Insolvency ▇▇▇ ▇▇▇▇; or
12
(iii) is unable to pay or has no reasonable prospect of being
able to pay his debts within the meaning of sections 267
and 268 of the Insolvency ▇▇▇ ▇▇▇▇;
then and in any of the said cases the Landlord may at any time
thereafter (and notwithstanding the waiver of any previous
right of re-entry) re-enter the Premises (or any part of the
Premises in the name of the whole) whereupon this Lease shall
absolutely determine but without prejudice to any right of
action of the Landlord in respect of any antecedent breach of
the Tenant's covenants in this Lease.
4.2 Rent Suspension
That in the event of the Premises or any part thereof or the means
of access thereto at any time during the Term being damaged or
destroyed by any of the Insured Risks so as to be unfit for
occupation and use then (so long as the Landlord's policy of
insurance shall not have been vitiated or payment of the policy
moneys withheld or refused in whole or in part in consequence of any
act neglect or default of the Tenant or of any servant agent
licensee or invitee of the Tenant) the yearly rent hereby reserved,
the Energy Charge and the Service Charge or a fair proportion
thereof according to the nature and extent of the damage sustained
shall be suspended until the expiration of five years from the date
of such damage or destruction or until the Premises shall again be
rendered fit for habitation and use (whichever shall be the sooner)
and a proportionate part of any yearly rent Energy Charge or Service
Charge paid in advance by the Tenant shall be refunded by the
Landlord to the Tenant and in case of difference touching this
proviso the same shall be determined by a single arbitrator to be
agreed upon between the parties or in default of agreement to be
nominated at the request of either party by the President for the
time being of The Royal Institution of Chartered Surveyors and in
either case in accordance with the provisions of the Arbitration ▇▇▇
▇▇▇▇;
4.3 Vitiation of Insurance
In the event of the Building or any part thereof being destroyed or
damaged by any of the Insured Risks and the insurance money under
any insurance against the same effected by the Superior Landlord or
the Landlord being wholly or partly irrecoverable by reason of any
act or default of the Tenant or any servant agent licensee or
invitee of the Tenant then the Tenant will upon demand (in addition
to the rents hereinbefore reserved) pay to the Landlord the whole or
(as the case may require) a fair proportion of the cost (including
professional fees) of rebuilding or reinstating the same with
interest at the Prescribed Rate on all payments made by the Landlord
or the Superior Landlord in or in connection with such rebuilding or
reinstatement for the period from the time of expenditure until
repayment by the Tenant;
4.4 Compensation
Save to the extent that the same may be payable by law
notwithstanding any agreement to the contrary neither the Tenant nor
any assignee of the Tenant or any underlessee or any occupier for
the time being of the Premises or any part thereof shall upon
quitting or giving up the Premises be entitled to any compensation
under any enactment;
4.5 Landlord's Liability
Save to the extent that the Landlord may be liable by law
notwithstanding any agreement or disclaimer to the contrary the
Landlord shall not be liable in any way whatsoever to the Tenant or
any servant agent licensee or invitee of the Tenant by reason of any
act neglect default or omission on the part of any of the tenants or
owners or occupiers of any adjoining or neighbouring premises or of
any representative or employee of the Landlord (unless acting within
the scope of the express authority of the Landlord) or by reason of
the defective working stoppage or breakage of any of the Conducting
Media or other plant apparatus or machinery of any kind whatsoever;
13
4.6 Interest
If any part of the rents hereby reserved or any other sum of any
kind whatsoever which shall or may from time to time become payable
to the Landlord under this Lease shall remain unpaid after the same
shall have become due (whether or not demanded except where a demand
therefor is prescribed by the terms of this Lease when the due date
shall be deemed to be the date of demand) the same shall carry
interest for the period from the date on which the same became due
until the date of actual payment at the Prescribed Rate and such
interest shall be paid by the Tenant on demand;
4.7 Other Property owned by the Landlord
In consideration of the grant of this Lease the Tenant agrees that
the Tenant and all persons deriving title under the Tenant to the
Premises as lessee or occupier of the said Premises or any part
thereof will not raise any objection under the London Building Acts
or the London County Council (General Powers) ▇▇▇ ▇▇▇▇ or otherwise
to the erection of a building of a height in excess of that
ordinarily permitted by such Acts or otherwise on any premises in
the ownership of the Landlord within a radius of One hundred yards
of the nearest point thereto of the Building nor require any
compensation to be paid in respect of any loss of light or air to
the Premises caused by the erection of any such building within the
said radius;
4.8 Easements
The Tenant shall not be or become entitled to any easement right
quasi-easement or quasi-right save as expressly set out in the
Second Schedule;
4.9 Cleaning Contractor
If the Tenant wishes to appoint a third party to clean the Premises
it may only appoint a cleaning contractor nominated by the Landlord
at the request of the Tenant and the Landlord shall be entitled to
refuse to allow any other cleaning contractor access to the Building
but this provision shall not render the Landlord liable for the fees
of the nominated cleaning contractor or for its actions or
omissions;
4.10 Acts of the Tenant
Where in this Lease the Tenant covenants not to do any act the
Tenant shall neither do such act and shall use all reasonable
endeavours not to permit or suffer the same to be done.
4.11 Termination if Premises not Reinstated
Whenever the Premises or any part thereof or the means of access
thereto are damaged or destroyed by any of the Insured Risks so as
to be unfit for use and occupation and if the Premises are still not
fit for use and occupation by the Tenant at the end of a five year
period starting on the date of the damage or destruction then either
the Landlord or the Tenant may at any time within 3 months of the
end of the period serve notice in writing on the other whereupon the
Term is to cease absolutely but without prejudice to any rights or
remedies that may have accrued on either party
5 Notices
SECTION 196 of the Law of Property Act 1925 (as amended by the
Recorded Delivery Service Act 1962) shall apply to all notices which
may be served under the terms of this Lease.
6 Court Order
HAVING been authorised so to do by an Order of The Mayor's and City
of London Court dated 1st February 2001 (Application Number MYIG0856
pursuant to Section 38(4) Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, the parties
hereto agree that if a Tenant's Notice is served under
14
sub-clause 2.17 or a notice is served by the Tenant under clause 7.1
then the provisions of sections 24 to 28 (inclusive) of the Landlord
and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ shall be excluded in relation to this Lease.
7 Determination
7.1 The Tenant may determine this Lease on 24 June 2012 by serving on
the Landlord not less than nine months written notice specifying the
proposed date of Determination.
7.2 This Lease shall only determine as a result of notice served by the
Tenant under clause 7.1 if:
7.2.1 that notice has been served strictly in accordance with that clause
and
7.2.2 on or before the intended date of Determination the Tenant:
(a) gives vacant possession of the Premises and the Car Park
Spaces to the Landlord; and
(b) is not in breach of its covenant to pay the yearly rents and
pay the other rents reserved by clause 1 properly demanded at
least one month before the intended date of Determination; and
(c) delivers to the Landlord the original of this Lease and any
other title documents to the Premises or a statutory
declaration as their destruction if the originals have been
lost or destroyed.
7.3 The Landlord may in its absolute discretion waive compliance with
all or any of the conditions set out in clause 7.2.
7.4 If the provisions of this clause 7 are complied with then upon the
expiry of the notice of Determination this Lease shall determine but
without prejudice to any right of action of either party in respect
of any previous breach by the other of any covenant or obligation in
this Lease.
7.5 Time is of the essence in respect of this clause 7.
7.6 Any notice of Determination served under this clause 7 shall be
irrevocable.
8 Miscellaneous
8.1 This Lease is a new tenancy within the definition given in section
1(3) of the Landlord and Tenant (Covenants) ▇▇▇ ▇▇▇▇.
8.2 This Lease does not pass to the Tenant the benefit of or the right
to enforce any covenants which now benefit or which may in the
future benefit the reversion to this Lease and the Landlord shall be
entitled in its sole discretion to waive, vary or release any such
covenants.
8.3 If the Landlord and the Tenant agree in writing that the Tenant may
defer payment of any sums due under this Lease then for the purposes
of this Lease (and of section 17 of the Landlord and Tenant
(Covenants) Act 1995) those sums shall be deemed to be due for
payment on the deferred date so agreed and not on the earlier date
on which they would, but for that agreement, have fallen due.
8.4 The provisions of the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇
are excluded from this Lease.
9 Proper Law
This Lease shall be governed by English law and the Tenant
irrevocably submits to the non-exclusive jurisdiction of the English
Courts.
IN WITNESS whereof each party hereto has executed this Deed the day and year
first above written.
15
Schedule 1
The Premises
The Premises shall (for the purposes of obligation as well as grant) include:
(i) the internal wood concrete plaster tiles carpets or other coverings and
plaster work of the floors walls and the ceiling tiles in the false
ceilings bounding the Premises and the doors door-frames internal windows
and window-frames and the glass therein;
(ii) all Conducting Media which are laid inside the area bounded by the
internal faces of the said floors walls and false ceilings and which serve
the Premises exclusively;
(iii) the main lights and light fittings recessed into the false ceiling;
(iv) the false floor and the supports thereof and the space underneath the
false floor down to but not including the floor slab;
(v) the Staircase;
(vi) the items listed or referred to in the Specification.
BUT shall exclude
(i) all structural parts of the Building and any part or parts of the Building
lying above outside or below the surfaces of the floors walls and false
ceilings hereinbefore expressly included;
(ii) external double glazing and windows window-frames and the glass therein;
(iii) any Conducting Media which do not serve exclusively the Premises;
(iv) all parts of the air conditioning and heating system (other than that
referred to in the Specification);
(v) the concrete floor slab.
16
Schedule 2
Rights Granted
Part 1 - Rights Granted in Common
The rights in common with the Landlord and all others for the time being
authorised by the Landlord or otherwise entitled thereto:
(1) At all times to pass and ▇▇▇▇▇▇ on foot only over along and across the
Common Parts as a means of access to and egress from the Premises and on
foot and using vehicles over along and across the Access Roads as a means
of access to and egress from the Car Park Spaces but for no other purpose
whatsoever and the right to use the service areas of the Building for the
loading and unloading of vehicles;
(2) To the passage of services through the Conducting Media under over through
or about the Building or any part thereof which from time to time serve
the Premises;
(3) To store refuse in such part of the Building as may from time to time be
nominated by the Landlord.
(4) The support and protection for the Premises from other parts of the
Building.
(5) To connect to and use the hot and cold water services (capped off)
provided to and available from within the Premises.
Part 2 - Exclusive Rights
1 At all times the exclusive right to park two motor cars in the Car Park
the initial spaces being shown edged red on the Car Park Plan or in such
other space within the Car Park as the Landlord may nominate in writing to
the Tenant Provided that:
(1) The Landlord will exercise the right to nominate alternative Car
Park Spaces reasonably and only if this is reasonably required in
the interests of good estate management; and
(2) Such alternative Car Park Spaces will so far as practicable be no
smaller and no less convenient to use than the former Car Park
Spaces; and
(3) Unless the Landlord requires the Car Park Spaces for uses associated
with the management and running of the Building the Landlord will as
soon as practicable restore to the Tenant the Car Park Spaces in
which the Tenant had the exclusive right to park immediately before
such nomination.
2 The exclusive right to use the toilets on levels 1 and 2 subject to the
Landlord having the right for itself and those authorised by it for
maintenance purposes having access on reasonable prior notice (except in
emergency) where no notice need be given.
3 The exclusive right to connect to the Conducting Media for the purposes of
installing air conditioning equipment so long as Landlord's prior written
consent (if required) under clause 2.11 has been obtained
17
Schedule 3
Rights Reserved
To the Landlord and the Superior Landlord such rights as are reserved by the
Superior Lease and further the rights for the Landlord and all others for the
time being authorised by the Landlord or otherwise entitled thereto:
1 To build or rebuild upon any adjoining or adjacent land or to alter any
building or erection from time to time thereon (including without
prejudice to the generality thereof the Building) and the right to consent
on behalf of the Tenant to any person doing the same on any adjoining or
adjacent land to such height and in such manner and otherwise as the
Landlord may desire or permit and to use the same in whatever manner may
be desired and whether or not the access of light and air to the Premises
or any other amenity from time to time appertaining to the Premises shall
be affected in any way;
2 The passage of services through and the use of all Conducting Media in
under over through or about the Premises or any part thereof to and from
any other Premises from time to time served thereby;
3 To enter and remain upon the Premises with tools appliances and materials
for the purposes of inspecting testing repairing renewing relaying
cleaning maintaining connecting up to or altering the Building or any
Conducting Media whether or not serving the Premises exclusively and the
toilets or adjoining or contiguous premises or any other things used in
common and for the purpose of doing any other things comprised in the
Landlord's obligations contained in this Lease or in respect of which the
Service Charge is payable and of ensuring the proper security of the
Building and its occupiers and of performing any of the covenants in the
Superior Lease or doing anything which may be necessary or desirable to
prevent or avoid a forfeiture thereof or the marketing of any part of the
Building PROVIDED THAT the exercise of this right shall not (except in
emergency) prevent or substantially impede the Tenant's use of the
Premises and that the Landlord shall make good or cause to be made good
any damage caused to the Premises or the Tenant's fixtures within them
occasioned by such entry at the Premises;
4 The support and protection from the Premises enjoyed by other parts of the
Building now or hereafter to be erected
Schedule 4
Rent Review; Insurance Contribution; Service Charge
Part 1 - Rent Review
(1) On 24 June 2005 and 24 June 2010 (in each case the "review date") the
yearly rent payable hereunder shall be reviewed and thereafter there shall
be payable (in addition to the rents reserved by Parts 2 and 3 of this
Schedule) a yearly rent equal to the higher of the yearly rent payable
immediately prior to the review date and an amount which shall represent
the market rent on the review date.
(2) In this schedule "market rent" means the rack rent at which the Premises
might reasonably be expected to be let as a whole in the open market with
vacant possession by a willing landlord to a willing tenant without taking
any fine or premium for a term equal to 10 years commencing on the
relevant review date and for the use permitted under this Lease (or for
the actual use if attracting a higher value) and upon the terms of this
Lease (other than as to the amount of the rent reserved but including the
provisions for rent review) and upon the assumptions that:
18
(i) the Landlord and the Tenant have complied with all of the covenants
agreements and obligations on their (respective) parts in this
Lease; and
(ii) in case the Premises have been destroyed or damaged by an Insured
Risk they have been fully restored; and
(iii) the Premises have been finished to the Specification and are ready
and fit for immediate use or occupation by the willing tenant (so
that no rent-free period or allowance need be made in respect of any
fitting out work); and
(iv) the Tenant is to receive whatever inducements or other concessions
would be given in the market to the willing tenant on the relevant
review date (ignoring any concessionary rent period or other
inducement required for fitting out the Premises).
BUT disregarding (if appropriate):
(i) the fact that the Tenant has been in occupation of the whole or any
part of the Premises;
(ii) any goodwill attached to the Premises by reason of the carrying on
at the Premises of the business of the Tenant or any permitted
undertenant;
(iii) any permitted improvement to the Premises carried out by and at the
expense of the Tenant or any undertenant otherwise than in pursuance
of an obligation to the Landlord;
(iv) any restraint or restriction on the right to recover or increase
rent imposed by or by virtue of any Act of Parliament.
(3) In the first instance the Landlord and the Tenant shall endeavour to agree
the amount of the market rent to be paid on and from the review date but
if (for whatever reason) they shall not have agreed the same by such date
as shall be one month before the review date then at any time thereafter
either party may refer the matter to be determined by a valuer experienced
in valuing high class office accommodation in the City of London (who
shall act as an expert and not as an arbitrator but who shall afford to
each of the Landlord and the Tenant a reasonable opportunity to make
representations to him) previously agreed upon between the Landlord and
the Tenant or in the absence of such agreement to be nominated on the
application of the Landlord or the Tenant by the President for the time
being of The Royal Institution of Chartered Surveyors and the decision of
any such valuer shall be binding on the parties hereto and the cost of the
reference to him and his determination shall lie in his award in the event
that any such valuer shall die or become unwilling to act or become
incapable of acting or if for any other reason the President aforesaid
shall in his absolute discretion think fit the said President may by
writing discharge him and appoint another valuer in his place.
(4) If (for whatever reason) the market rent is not agreed or determined until
after the review date the Tenant shall continue to pay the yearly rent at
the rate applicable immediately before such date and on the date on which
the market rent shall have been agreed or determined as aforesaid there
shall be due as arrears of rent and the Tenant shall pay the amount of any
increase for the period on and from the review date up to the quarter day
next after such agreement or determination together with interest thereon
(at four per centum below the Prescribed Rate) for the period on and from
the review date up to the date of actual payment.
(5) If the market rent is higher than the rent previously payable then within
twenty-eight days of the market rent being agreed or determined as
aforesaid the parties shall for evidence purposes execute a memorandum
recording the market rent and each party shall bear its own cost in
respect thereof.
(6) It is hereby declared that time shall not be of the essence in this Part
of this Schedule except as regards the review date.
19
Part 2 - Insurance Contribution
A proportion to be properly determined by the Landlord of the amount which the
Landlord or the Superior Landlord shall from time to time expend in or in
respect of effecting or maintaining insurance of the Building against the
Insured Risks in the full reinstatement value thereof for the time being and all
Architects' and Surveyors' and other fees and incidental expenses consequent
upon reinstating the Building rent payable under this Part of this Schedule to
be paid on demand together with (1) the full amount of any additional or
increased premiums which may be demanded by the insurers an account of the
nature of the occupation or business of the Tenant or any undertenant and (ii)
the full amount of all insurance premiums in respect of five years' loss of rent
hereunder at a rate which takes into account potential increases of rent in
accordance with the rent review provisions referred to above or following the
expiry or determination of the Term.
Part 3 - Service Charge
(1) By way of Service Charge at the times and in the manner hereinafter
provided the Tenant's Proportion of the expenditure from time to time
incurred by or on behalf of the Landlord in connection with the matters
set out or referred to in Schedules 5 and 6 Provided always that the
Tenant's contribution by way of Service Charge towards the cost and
expense of replacing the external cladding at the Building incurred by the
Landlord in any one service charge year shall be capped at (pound)100,000
(the "Initial Figure") as reviewed in accordance with Paragraph (2) below.
(2) The Initial Figure shall be reviewed on the expiry of each service charge
year and the capped amount for the purposes of Paragraph 1 shall become
the Initial Figure plus the amount that bears the same proportion to the
Initial Figure as the amount, if any, by which the "all items" index
figure of the Index of Retail Prices published by the Department of
Employment (or any successor, Ministry or department or any substitution
therefor) for the month preceding the expiry of the relevant service
charge year exceeds the index figure for the month preceding the date of
this Lease.
(3) The expenditure shall be ascertained and certified by the Landlord's
surveyor for each successive period of twelve months expiring on the
twenty-third day of June in each year (or such date as the Landlord may
from time to time select and notify) as soon as may be practicable
thereafter (hereinafter referred to as the "relevant year") and the Tenant
shall pay to the Landlord in respect of each relevant year the Tenant's
Proportion of the amount so certified apportioned if necessary for the
commencement and the expiration or sooner determination of the Term.
(4) The Tenant shall pay to the Landlord on account of the Service Charge such
annual sum as the Landlord's surveyor shall notify to the Tenant as a fair
estimate of the Tenant's likely Service Charge for the relevant year
(hereinafter called the "Initial Contribution") such annual sum to be paid
by equal quarterly payments in advance on the four usual quarter days the
first proportionate payment in respect of the period from the date of
commencement of the Term to the quarter day next following the date hereof
to be made on the date hereof.
(5) After the expenditure for each relevant year shall have been ascertained
and certified by the Landlord's surveyor the Tenant shall pay to the
Landlord on demand or the Landlord shall allow to the Tenant (as the case
may require) the difference between the Initial Contribution paid by the
Tenant for the relevant year and the actual amount of the Service Charge
for that relevant year.
(6) Every certificate of the Landlord's surveyor as to the expenditure or any
sum payable by the Tenant hereunder shall be in writing and save in the
case of manifest error be final and binding on the Landlord and the
Tenant.
20
(7) Any omission by the Landlord or his surveyor to include in any relevant
year a sum expended or a liability incurred in that relevant year shall
not preclude the Landlord from including such sum or the amount of such
liability in any subsequent relevant year as the Landlord shall deem fit.
21
Schedule 5
Costs to be included in the Service Charge
(i) The costs of and incidental to compliance by the Landlord with every
notice regulation or order of any competent local or other authority
affecting the Building (save insofar as such costs are the
responsibility of an individual occupational tenant).
(ii) All proper fees charges expenses and commissions of any person or
persons the Landlord may from time to time employ in connection with the
management including rent collection and maintenance of the Building
including the cost of administering the Service Charge and the Energy
Charge (but excluding for the purposes of this clause any such fees
charges expenses and commission in connection with the actual letting or
reletting of the Building or any part or parts thereof) PROVIDED THAT if
the Landlord shall itself perform such services it shall be entitled to
an annual management fee equivalent to the reasonable fee which would
have been payable to a managing agent had one been employed.
(iii) All fees charges and expenses payable to any person who the Landlord may
at any time employ in connection with the security of the Building or to
inspect repair and keep in running order the lifts air conditioning
plant and the hot water systems and such other plant as is necessary to
provide the Landlord's services including the Landlord's costs incurred
from time to time in entering into a contract or contracts with any such
persons and also the cost from time to time of carrying out such repairs
and any replacements.
(iv) The cost of taking out and maintaining in force such engineering third
party employers or public liability insurances or such other insurances
as the Landlord shall from time to time in its absolute discretion deem
necessary and the cost of valuing the Building for insurance purposes
from time to time.
(v) The cost of employing staff for the performance of any of the duties and
services referred to in this Schedule and Schedule 6 and all other
incidental expenditure in relation to such employment including but
without limiting the generality of such provision such insurance health
pension welfare and other payments contributions and premiums and such
compensation for redundancy or unfair dismissal as the landlord may in
its absolute discretion deem desirable or necessary and the provision of
uniforms working clothes tools appliances cleaning and other materials
bins receptacles and other equipment for the proper performance of their
duties.
(vi) Such sum or sums from time to time as the Landlord's surveyor shall
certify as desirable to be retained by the Landlord by way of a reserve
fund against depreciation of plant and fixed equipment.
(vii) All rates outgoings insurance premiums service charge and rental and
service charge values and other incidental expenses of any accommodation
provided in the Building or elsewhere for occupation by a resident
caretaker or other persons employed in connection with the provision of
the said services.
(viii) The cost of maintaining repairing servicing renewing and replacing all
heating air-conditioning ventilation and drainage plant installations
hot and cold water and sanitary systems lifts equipment standby
generator security fire alarm and fire prevention apparatus and
sprinkler units (if any) (including electrical wiring gas oil and other
necessary pipes) and all machinery and apparatus used in connection
therewith as may from time to time be in the Building and any
maintenance contracts in respect thereof (including all charges for
water gas electricity motor fuel or power and all other costs of
operating and running the said equipment plant and apparatus).
(ix) The cost of providing security and hall porterage facilities for the
Building.
22
(x) The cost of cleaning the exterior of the windows of the Building and
the interior and exterior of all windows and glass in the Common Parts.
(xi) The cost of cleaning maintaining redecorating and lighting the Common
Parts and the car parking areas of the Building and providing hot and
cold water towels and toilet and other requisites in all the lavatories
in the Building.
(xii) save to the extent already provided for in this Schedule the costs to
the Landlords of complying with its obligations under this Lease.
(xiii) The cost of repairing renewing maintaining decorating amending altering
cleaning and when necessary rebuilding the Common Parts main walls roof
structure foundations columns pillars beams slabs external double
glazing and windows window-frames and the glass therein and exterior of
the Building (which expression in this particular context shall without
prejudice to the generality thereof be deemed to include all parts of
the Building and Conducting Media excluded from the demise as set out in
the first schedule) and any land including any car park and accessways
areas passages staircases landings walls fences drains pipes wires
cables water and sanitary apparatus and all other conveniences and
things for the time being used or capable of being used in connection
therewith or belonging thereto and for which the Tenant is not herein
made expressly liable.
(xiv) The cost of carrying out any other works or services of any kind
whatsoever which the landlord may from time to time consider desirable
for the purpose of maintaining or improving services in or for the
Building for the common benefit of the tenants and other occupiers of
the Building.
(xv) The removal of waste paper refuse and garbage from the refuse disposal
area.
(xvi) The payment of any rates (including water rates) charges assessments or
outgoings in respect of the Common Parts or the plantrooms liftroom and
other accommodation in respect of equipment plant and apparatus referred
to in this schedule.
(xvii) The provision tending and maintenance of such plants and other
landscaping or decorative features within the Common Parts as the
landlord may from time to time deem fit.
(xviii) Any value added tax or other similar tax payable by the Landlord in
respect of any of the matters in this schedule insofar as the same is
not recoverable by the Landlord as an input.
(xix) The provision of the Car Park Services.
23
Schedule 6
Services which the Landlord covenants to provide
(i) Between the hours of 8 a.m. and 6 p.m. Mondays to Fridays (bank and other
public holidays excepted) and at such other times as the Tenant may
request to provide a reasonable supply of air-conditioning and (during the
winter months) central heating to the Premises and the Common Parts.
(ii) To provide a reasonable supply of hot and cold water to the Common Parts.
(iii) To provide reasonable security caretaking and porterage facilities for the
Building and to decorate the Common Parts.
(iv) To maintain repair amend renew cleanse repaint and redecorate and
otherwise keep in good and tenantable condition:
(a) the structure of the Building and in particular the roofs
foundations columns pillars beams floor slabs main walls and
external surfaces of the Building;
(b) the Common Parts;
(c) the Conducting Media in under or upon the Building which shall serve
the same (excluding nevertheless any which exclusively serve the
Premises);
(d) the plantrooms lift motor rooms and other accommodation in respect
of the equipment plant and apparatus referred to in paragraph (viii)
of Schedule 5;
(v) To maintain repair service renew and replace all lighting in the Common
Parts and all heating air-conditioning ventilation and drainage plant
installations hot and cold water and sanitary systems lifts equipment
standby generator security fire alarm and fire prevention apparatus and
sprinkler units (if any) (including electrical wiring gas oil and other
necessary pipes) and all machinery and apparatus used in connection
therewith as may from time to time be in the Building.
(vi) The provision tending and maintenance of such plants and other landscaping
or decorative features within the Common Parts as the Landlord may from
time to time deem fit.
24
Schedule 7
Car Park
Part 1 - Car Park Covenants
In respect of the Car Park Spaces the Tenant covenants as follows:
1 To pay Uniform Business Rates
1.1 To pay and discharge all Uniform Business Rates relating to the Car Park
Spaces at the times when they become due.
1.2 Not without Consent (which shall not be unreasonably withheld or delayed)
to make any claim for relief in respect of Uniform Business Rates for the
Car Park Spaces.
2 Yielding up on Determination
On Determination of the Term the Tenant to yield up the Car Park Spaces
with vacant possession.
3 Insurance
The Tenant shall:
3.1.1 not knowingly do anything which shall or may cause any of the insurance
policies for the Building to be void or voidable or increase the premiums
payable under them;
3.1.2 not knowingly do anything which shall or may cause the insurance of any
adjoining or neighbouring property for the time being owned by the
Superior Landlord to be void or voidable;
3.1.3 not insure or maintain insurance of the Car Park Spaces against any of the
Insured Risks.
4 Use
4.1 The Tenant shall not use either Car Park Spaces other than for the purpose
of parking one private motor vehicle belonging to or hired by the Tenant
or any authorised subtenant or employee of the Tenant.
4.2 The Tenant shall not use the Car Park Spaces for any purpose or activity
which is illegal immoral noisy noxious dangerous or offensive or which may
be or become a nuisance to or cause damage to the Landlord or the Superior
Landlord or any other person or which might be harmful to the Car Park
Spaces or the Building.
4.3 The Tenant shall not use the Car Park Spaces for the purpose of carrying
out any washing polishing repairing (save in emergency) or overhauling of
any motor vehicle.
4.4 The Tenant shall not store any inflammable or dangerous liquid or
substance on the Car Park Spaces (other than in the oil reservoirs and
petrol tanks of any motor vehicle).
5 Alterations
The Tenant shall not make any alteration addition or improvement to the
Car Park Spaces whether structural or otherwise.
25
6 Legal Obligations
The Tenant shall not breach any Legal Obligations relating to the Car Park
Spaces (in so far as they relate to or affect the Car Park Spaces or the
Tenant's use of them).
7 Rights and Easements
7.1 The Tenant shall not grant to any third party any rights of any nature
over the Car Park Space.
7.2 The Tenant shall not do anything to jeopardise all easements and rights
currently enjoyed by the Car Park Spaces.
8 Car Park Regulations
The Tenant shall comply with the Car Park Regulations set out in part 2 of
this schedule.
Part 2 - Car Park Regulations
1 Not to cause any unnecessary noise vibration or exhaust fumes within the
Car Park
2 Not to do anything in the use of the Car Park which may be or become a
nuisance or annoyance or inconvenience or cause damage to the Landlord or
any other user of the Car Park
3 Not to obstruct the Access Roads and not to park any motor vehicle
anywhere in the Car Park or elsewhere in the Building except in the Car
Park Spaces
4 Not to deposit in the Car Park any rubbish litter or refuse of any kind
other than in any proper receptacles provided for the purpose
5 To use care and diligence when driving motor vehicles into the Car Park
Spaces and when parking motor vehicles in the Car Park Spaces to do so in
such manner that such motor vehicles do not in any way obstruct the
ingress or egress of any motor vehicle into or out of any adjoining
parking space and so that they do not prevent access to any adjoining
motor vehicle
6 To comply with all reasonable directions made by the Landlord relating to
security or fire precautions in respect of the Car Park
7 To comply with all reasonable directions and requests of the Landlord for
regulating and controlling traffic within the Car Park including without
limitation directions relating to the speed at which traffic within the
Car Park may travel
26
Part 3
Car Park Services
1 The cleaning and maintenance of the Car Park.
2 The provision and operation in the Car Park of such fire prevention fire
fighting and fire alarm equipment and signs as may be required by any
authority or by the insurers.
3 Keeping lit at appropriate times all appropriate parts of the Car Park.
4 So far as reasonably practicable keeping open and unobstructed the Access
Roads (subject to any temporary closure from time to time).
5 The provision of security services and personnel for the purposes of
surveillance and supervision of users of the Car Park (both vehicular and
pedestrian).
6 The provision of all necessary signs or notices in the Car Park.
THE COMMON SEAL of PRUDENTIAL )
PROPERTY INVESTMENT MANAGERS )
LIMITED acting as attorney for THE )
PRUDENTIAL ASSURANCE COMPANY )
LIMITED was affixed in the presence of: )
[Name of sealing officer] /s/ S.C. KING
/s/ S.C. King
Signature: ------------------------
Duly appointed and authorised sealing [SEAL]
officer of Prudential Property Investment
Managers Limited
27
THIS DEED OF AGREEMENT is made the 20 day of April 2001 BETWEEN:
(1) Foremans Limited whose registered office is at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ('the Consultant'); and
(2) Mercator Software Limited whose registered office is at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ('the Company')
WHEREAS:
A. The Company has entered into an agreement for lease with City Tower
Limited (the 'Employer') in respect levels 1 and ▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ (the 'Premises')
B. By a contract ('the Appointment') dated 6th June, 2000 the Employer
has appointed the Consultant as mechanical and engineering
consultants in connection with renovation works at the Premises (the
'Works')
C. The Employer is the employer under a building contract ('the
Building Contract') which it has entered into with Blenheim House
Construction Limited for the execution of the Works
NOW IT IS HEREBY AGREED as follows:
1. The Consultant warrants that it has exercised and will continue to
exercise all the professional skill, care and diligence required by
the Appointment in the performance of its duties under the
Appointment and all other services and duties performed and
undertaken, provided that the Consultant shall have no greater
liability to the Company by virtue of this Agreement than it would
have had if the Company had been named as a joint 'Employer' under
the Appointment.
2. The Consultant further warrants that it has complied or will comply
with its obligations in relation to the use or specification for use
of goods, materials substances or products referred to in paragraph
8 of the Appointment.
3. The Company and its appointee shall have a license to copy and use
and to reproduce documentation on the same terms as paragraph 12 of
the Appointment.
4. The Consultant shall maintain professional indemnity insurance in
the amount stated in and in accordance with the requirements of the
Appointment. As and when it is reasonably requested to do so by the
Company, the Consultant shall produce for inspection documentary
evidence that its professional indemnity insurance has been
maintained.
2
5. For the avoidance of doubt the Consultant's liability under this
Deed shall cease twelve years from the Practical Completion date.
IN WITNESS whereof the parties hereto have caused their respective common seals
to be affixed hereunder the day and year first before written.
The COMMON SEAL of )
FOREMANS LIMITED was )
hereto affixed in the presence )
of: )
Director /s/ [ILLEGIBLE] [SEAL]
Director /s/ [ILLEGIBLE]
Signed as a deed by )
MERCATOR SOFTWARE )
LIMITED acting by a )
director and its Secretary )
(or two directors) )
Director /s/ [ILLEGIBLE] [SEAL]
Secretary /s/ [ILLEGIBLE]
THIS DEED OF AGREEMENT is made the 20 day of April 2001 BETWEEN:
(1) ▇▇▇▇ ▇▇▇▇▇▇▇▇ & Partners Limited whose registered office is situate at ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ('the Consultant'); and
(2) Mercator Software Limited whose registered office is at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ('the Company')
WHEREAS:
A. The Company has entered into an agreement for lease ('the
Agreement') with City Tower Limited (the 'Employer') in respect of
levels 1 and ▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
(the 'Premises')
B. By a contract ('the Appointment') dated 6th June, 2000 the Employer
has appointed the Consultant as quantity surveyors and project
managers in connection with renovation works at the Premises (the
'Works')
C. The Employer is the employer under a building contract ('the
Building Contract') which it has entered into with Blenheim House
Construction Limited for the execution of the Works
NOW IT IS HEREBY AGREED as follows:
1. The Consultant warrants that it has exercised and will continue to
exercise all the professional skill, care and diligence required by
the Appointment in the performance of its duties under the
Appointment and all other services and duties performed and
undertaken, provided that the Consultant shall have no greater
liability to the Company by virtue of this Agreement than it would
have had if the Company had been named as a joint 'Employer' under
the Appointment.
2. The Consultant further warrants that it has complied or will comply
with its obligations in relation to the use or specification for use
of goods, materials substances or products referred to in paragraph
8 of the Appointment.
3. The Company and its appointee shall have a licence to copy and use
and to reproduce documentation on the same terms as paragraph 12 of
the Appointment.
2
4. The Consultant shall maintain professional indemnity insurance in
the amount stated in and in accordance with the requirements of the
Appointment. As and when it is reasonably requested to do so by the
Company, the Consultant shall produce for inspection documentary
evidence that its professional indemnity insurance has been
maintained.
5. For the avoidance of doubt the Consultant's liability under this
Deed shall cease fifteen years from the Practical Completion date.
IN WITNESS whereof the parties hereto have caused their respective common seals
to be affixed hereunto the day and year first before written.
The COMMON SEAL of )
▇▇▇▇ ▇▇▇▇▇▇▇▇ & )
PARTNERS was hereto )
affixed in the presence of: )
Director /s/ [ILLEGIBLE]
--------------------
[SEAL]
Director /s/ [ILLEGIBLE]
-------------------
THIS DEED OF AGREEMENT is made the 20 day of April 2001 BETWEEN:
(1) ▇▇▇▇▇▇ ▇▇▇▇▇ & Partners Limited whose registered office is situate at
Stanhope House, 475 Kingston Road, ▇▇▇▇▇, Epsom, Surrey, KTl9 OEE ('the
Consultant'); and
(2) Mercator Software Limited whose registered office is at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇ lJQ ('the Company')
WHEREAS:
A. The Company has entered into an agreement for lease with City Tower
Limited (the 'Employer') in respect of levels 1 and ▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ (the 'Premises')
B. By a contract ('the Appointment') dated 16th June, 2000 the Employer
has appointed the Consultant as structural engineering consultants
in connection with renovation works at the Premises (the 'Works')
C. The Employer is the employer under a building contract ('the
Building Contract') which it has entered into with Blenheim House
Construction Limited for the execution of the Works
NOW IT IS HEREBY AGREED as follows:
1. The Consultant warrants that it has exercised and will continue to
exercise all the professional skill, care and diligence required by
the Appointment in the performance of its duties under the
Appointment and all other services and duties performed and
undertaken, provided that the Consultant shall have no greater
liability to the Company by virtue of this Agreement than it would
have had if the Company had been named as a joint 'Employer' under
the Appointment.
2. The Consultant further warrants that it has complied or will comply
with its obligations in relation to the use or specification for use
of goods, materials substances or products referred to in paragraph
8 of the Appointment.
3. The Company and its appointee shall have a license to copy and use
and to reproduce documentation on the same terms as paragraph 12 of
the Appointment.
4. The Consultant shall maintain professional indemnity insurance in
the amount stated in and in accordance with the requirements of the
Appointment. As and when it is reasonably requested to do so by the
Company, the Consultant shall produce for inspection documentary
evidence that its professional indemnity insurance has been
maintained.
2
5. For the avoidance of doubt the Consultant's liability under this
Deed shall cease fifteen years from the Practical Completion date.
IN WITNESS whereof the parties hereto have caused their respective common seals
to be affixed hereunto the day and year first before written.
The COMMON SEAL of ) [SEAL]
▇▇▇▇▇▇ ▇▇▇▇▇ AND )
PARTNERS LIMITED was )
hereto affixed in the presence of: )
/s/ [ILLEGIBLE] Director
/s/ [ILLEGIBLE] Secretary
Signed as a deed by ) [SEAL]
MERCATOR SOFTWARE )
LIMITED acting by a )
director and its Secretary )
(or two directors) )
Director /s/ [ILLEGIBLE]
Secretary /s/ [ILLEGIBLE]
28
THIS DEED OF AGREEMENT is made the 20 day of April 2001 BETWEEN:
(1) ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ International Limited whose registered office is
situate at ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ('the Consultant'); and
(2) Mercator Software Limited whose registered office is at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ('the Company')
WHEREAS:
A. The Company has entered into an agreement for lease with City Tower
Limited (the 'Employer') in respect of levels 1 and ▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ (the 'Premises')
B. By a contract ('the Appointment') dated 16th June, 2000 the Employer
has appointed the Consultant as architects in connection with
renovation works at the Premises (the 'Works')
C. The Employer is the employer under a building contract ('the
Building Contract') which it has entered into with Blenheim House
Construction Limited for the execution of the Works
NOW IT IS HEREBY AGREED as follows:
1. The Consultant warrants that it has exercised and undertakes that it
will continue to exercise all the professional skill, care and
diligence required by the Appointment in the performance of its
duties under the Appointment, provided that the Consultant shall
have no greater liability to the Company by virtue of this Agreement
than it would have had if the Company had been named as a joint
'Employer' under the Appointment.
2. The Consultant further warrants that it has complied or will comply
with its obligations in relation to the specification for use of
goods, materials substances or products referred to in paragraph 8
of the Appointment.
3. The Company and its appointee shall have a license to copy and use
and to reproduce documentation on the same terms as paragraph 12 of
the Appointment.
4. The Consultant shall maintain professional indemnity insurance in
the amount stated in and in accordance with the requirements of the
Appointment. As and when it is reasonably requested to do so by the
Company, the Consultant shall produce for inspection documentary
evidence that its professional indemnity insurance has been
maintained.
5. For the avoidance of doubt the Consultant's liability under this
Deed shall cease twelve years from the Practical Completion date.
IN WITNESS whereof the parties hereto have caused their respective common seals
to be affixed hereunto the day and year first before written.
The COMMON SEAL of )
▇▇▇▇▇▇ ▇▇▇▇▇▇ )
▇▇▇▇▇▇▇ )
INTERNATIONAL LIMITED )
was hereto affixed in the )
presence of: )
Director /s/ [ILLEGIBLE] [SEAL]
Secretary /s/ [ILLEGIBLE]
Signed as a deed by )
MERCATOR SOFTWARE )
LIMITED acting by a )
director and its Secretary )
(or two directors) )
Director /s/ [ILLEGIBLE] [SEAL]
Secretary /s/ [ILLEGIBLE]
2
Dated 20 April 2001
-------------------
MERCATOR SOFTWARE, INC (1)
and
THE PRUDENTIAL ASSURANCE COMPANY LIMITED (2)
--------------------------------------------------
Counterpart/
GUARANTEE
relating to a Lease of Levels 1 and 2, City Tower,
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
--------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇
Contents
Clause Page
1 Definitions and Interpretation ............................................1
2 Undertaking ...............................................................2
3 Terminating Event .........................................................2
4 Enforcement ...............................................................2
5 Security taken by Guarantor ...............................................3
6 Set-off and Deductions ....................................................3
7 Interest ..................................................................3
8 Settlement and Discharge ..................................................3
9 Notices ...................................................................4
10 Severable Nature of Obligations ...........................................4
11 Continuance of Tenant's Obligations .......................................4
12 Execution in Counterpart ..................................................4
13 Applicable law, submission to jurisdiction and address for service ........4
THIS DEED made on 20 April 2001 BETWEEN:
(1) MERCATOR SOFTWARE, INC whose corporate headquarters is at ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Guarantor")
(2) THE PRUDENTIAL ASSURANCE COMPANY LIMITED whose registered office is
at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (▇▇▇ "Landlord")
WHEREAS this Deed is entered into by the Guarantor in consideration of the
Landlord granting the Lease to the Tenant.
THIS DEED WITNESSES as follows:
1 Definitions and Interpretation
In this Deed, unless the context otherwise requires:
"AGA" means any authorised guarantee agreement which the Tenant may
from time to time enter into in respect of the Lease;
"Landlord" includes the immediate reversioner from time to time to
the Lease, or the party who would be that reversioner if the Lease
still subsisted;
"Lease" means a lease of the Premises dated 20 April 2001 made
between the Landlord (1) and the Tenant (2) and includes:
(a) any continuation of the Lease pursuant to the Landlord and
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇;
(b) any overriding lease granted to the Tenant pursuant to the
Landlord and Tenant (Covenants) ▇▇▇ ▇▇▇▇;
(c) any lease granted to the Tenant pursuant to an AGA;
(d) any deed of variation, licence, consent, or other document
supplemental or collateral to, or otherwise associated with,
the Lease to which the Tenant is a party, whether presently
existing or not;
"Premises" means Levels 1 and ▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
"Tenant's Obligations" means the obligation to pay all sums from
time to time due or expressed to be due, and to perform all other
obligations which are from time to time owed, or expressed to be
owed, to the Landlord by the Tenant under:
(a) the Lease or any AGA;
(b) any compromise or arrangement agreed to by the Landlord and
the Tenant, under which the Landlord agrees not to seek to
exercise any of its rights or powers under the Lease or any
AGA, or to compromise, abandon or waive any such rights,
powers, or any claim against the Tenant;
(c) any order of the Court made in respect of the Lease or any
AGA, or any claim arising under them, including, without
limitation, an order granting relief against forfeiture;
and includes the obligation to pay all sums from time to time
payable by, or on behalf of, the Tenant to the Landlord in
connection with, or arising out of the termination of the Lease or
any AGA;
"Tenant" means Mercator Software Limited;
1
"Terminating Event" means the disclaimer or repudiation of the Lease
by or on behalf of the Tenant, or the forfeiture of the Lease, or
the Tenant ceasing to exist so that the Lease becomes bona vacantia.
1.1 In this Deed unless the context otherwise requires:
1.1.1 words importing any gender include every gender;
1.1.2 references to numbered clauses are to the relevant numbered clauses
of this Deed;
i.1.3 words importing the plural shall include the singular and vice
versa;
1.1.4 references in this Deed to the Lease, any AGA or any other document,
are to the Lease, AGA or that other document as varied or amended
from time to time.
2 Undertaking
2.1 The Guarantor covenants that the Tenant shall observe and perform
the Tenant's Obligations, and that if it does not, then the
Guarantor shall do so.
2.2 The Guarantor's obligation under clause 2.1 is a primary obligation,
and it shall be liable for the fulfilment of all the Tenant's
Obligations as though it were named as the Tenant in the Lease or as
guarantor under any relevant AGA.
2.3 If requested by the Landlord, the Guarantor shall enter into any
deed of variation, licence, consent or other document supplemental
to the Lease or any AGA to which the Tenant is party, to acknowledge
that its liabilities under this Deed include the Tenant's
liabilities under that document.
3 Terminating Event
3.1 The Guarantor shall, if required by the Landlord in writing within
the period beginning on the day of a Terminating Event and expiring
three months after the Landlord has been notified in writing by the
Guarantor or the Tenant of that Terminating Event, within one month
of the Landlord's notice, accept (and execute and deliver to the
Landlord a counterpart of) a new lease of the Premises, and the
Guarantor shall also pay all legal charges and stamp duties incurred
by the Landlord in respect of that new lease.
3.2 The new lease referred to in clause 3.1 shall:
3.2.1 be for a term commencing on the date of the Terminating Event and
expiring on the date on which the contractual term granted by the
Lease would have expired by effluxion of time;
3.2.2 be at the rent which would have been payable under the Lease
(ignoring any period of rent cesser or rent reduction then current)
if it still existed; if, at the date of the Terminating Event, there
is a rent review due under the Lease which has not been agreed or
determined, then the new lease shall be granted at the rent due
under the Lease before that review, and the second day of the term
of the new lease shall be a rent review date (in addition to any
other rent review dates) under the new lease;
3.2.3 be otherwise on the same terms as the Lease, save that any rights or
obligations which arise at a particular date (whether or not
calculated by reference to the start of the term of the Lease) shall
arise on the same dates under the new lease; and
3.2.4 take effect from the date of the Terminating Event.
4 Enforcement
4.1 The Landlord may enforce this Deed without first:
2
4.1.1 making demand on, or taking proceedings against the Tenant; or
4.1.2 having recourse to any other security which may from time to time be
held by the Landlord in respect of the Tenant's Obligations.
5 Security taken by Guarantor
5.1 Until the Tenant's Obligations have been paid and discharged in
full, the Guarantor shall not, without the Landlord's written
consent, exercise its rights:
5.1.1 of subrogation or indemnity in respect of the Tenant's Obligations;
5.1.2 to take the benefit of, or share in, or enforce any security or
other guarantee or indemnity for the Tenant's Obligations; or
5.1.3 to prove in the bankruptcy or liquidation of the Tenant in
competition with the Landlord.
5.2 The Guarantor warrants that it has not taken any security from the
Tenant and agrees not to do so.
5.3 Any security taken by the Guarantor in breach of clause 5.2, and all
moneys received from it, and all moneys received by the Guarantor in
breach of clause 5.1, shall be held in trust for the Landlord to the
extent necessary for the discharge of the liabilities of the
Guarantor under this Deed.
6 Set-off and Deductions
6.1 All payments made by the Guarantor under this Deed shall be made
without set-off or deduction (whether legal or equitable).
6.2 If the Guarantor is required by law to make any deduction or
withholding from a payment under this Deed (save for deduction of
tax which the Landlord can reclaim from the Inland Revenue, or which
the Landlord would have been obliged to pay), the sum due from the
Guarantor in respect of such payment shall be increased to the
extent necessary to ensure that after that deduction or withholding
the Landlord receives and retains a net sum equal to the sum which
it would have received had no such deduction or withholding been
required to be made.
7 Interest
7.1 Any sum payable by the Guarantor under this Deed which is not paid
on the date that it is due shall bear interest at the Interest Rate
defined in the Lease, and that interest shall be paid on demand.
7.2 Clause 7.1 shall not operate to charge interest twice on the same
amount for the same period, so that if any sum payable by the
Guarantor includes interest payable under the Lease, it shall not,
to that extent, bear interest under this Deed.
8 Settlement and Discharge
8.1 Any release or discharge of, or settlement between, the Guarantor
and the Landlord, shall be conditional upon any security disposition
or payment to the Landlord by the Tenant, the Guarantor, any
co-guarantor, or any other person not being void, set aside or
ordered to be refunded pursuant to any law or enactment relating to
bankruptcy, liquidation or insolvency or for any other reason
whatever. If such condition shall not be fulfilled the Landlord
shall be entitled to enforce this Deed subsequently as if any such
release discharge or settlement had not occurred.
8.2 Any money received in connection with this Deed (whether before or
after the liquidation or bankruptcy of the Tenant or the Guarantor)
may be placed to the credit of a suspense account
3
with a view to preserving claims against the Tenant or the
Guarantor, or may be applied by the Landlord in or towards
satisfaction of such of the Tenant's Obligations as the Landlord in
its absolute discretion may from time to time conclusively and
reasonably determine.
9 Notices
Any notice, demand or legal process to be served on the Guarantor
under this Deed shall be in writing, and, (in addition to any other
valid method of service) shall be sufficiently served if delivered
to, or if sent by registered or recorded delivery post to, the
address for service given in clause 13.
10 Severable Nature of Obligations
Each of the provisions of this Deed is severable from the others. If
at any time one or more of such provisions becomes illegal, invalid
or unenforceable, then the validity and enforceability of the
remaining provisions of this Deed shall not affected.
11 Continuance of Tenant's Obligations
11.1 The liability of the Guarantor, as the primary obligor, shall
continue notwithstanding any, or any combination of, the following:
11.1.1 any forbearance by the Landlord to the Tenant in enforcing any of
the Tenant's Obligations;
11.1.2 any forbearance by the Landlord to the Guarantor in enforcing any of
the rights granted by this Deed;
11.1.3 any extension of time, or any other concessions, given by the
Landlord to the Tenant or the Guarantor;
11.1.4 any legal limitation or incapacity relating to the Tenant or the
Guarantor;
11.1.5 the Tenant being dissolved, wound up or ceasing to exist;
11.1.6 the giving and subsequent withdrawal of any notice to determine or
rescind the Lease;
11.1.7 any variation of the demise or in the other terms of the Lease;
11.1.8 the disclaimer or termination of the Lease (other than termination
by way of surrender or effluxion of time);
11.1.9 the taking, holding, varying, releasing or not enforcing any other
security for the liabilities of the Tenant or the Guarantor;
11.1.10 the release of the Guarantor otherwise than by a deed executed by
the Landlord;
11.1.11 any other act, omission or matter whatsoever, which but for this
provision would serve to release the Guarantor, either wholly or
partly.
12 Execution in Counterpart
This Deed may be entered into in any number of counterparts, and by
the parties to it on separate counterparts, each of which when
executed and delivered shall be an original, but all the
counterparts shall together constitute one and the same instrument
13 Applicable law, submission to jurisdiction and address for service
13.1 This Deed shall be governed by, and construed in accordance with,
English Law.
4
13.2 Any dispute incidental upon this Deed shall be referred to the High
Court of Justice in England, to the jurisdiction of which each of
the parties hereto irrevocably submits. The jurisdiction of the High
Court of Justice in England shall be an exclusive jurisdiction and
no courts outside England shall have jurisdiction to hear or
determine any such claim.
13.3 The Guarantor irrevocably authorises and appoints Pettman ▇▇▇▇▇ of
▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (or such other firm of solicitors
resident in England or Wales as it may from time to time by written
notice to the Landlord substitute) to accept service of all legal
process arising out of or connected with this Deed and service on
the said Pettman ▇▇▇▇▇ (or such substitute) shall be deemed to be
service on the Guarantor
IN WITNESS of which each party has duly executed this Agreement as a Deed the
date first above written
THE COMMON SEAL of PRUDENTIAL
PROPERTY INVESTMENT MANAGERS
LIMITED acting as attomey for THE
PRUDENTIAL ASSURANCE COMPANY
LIMITED was affixed in the presence of: [SEAL]
[Name of sealing officer] S.C. King
Signature: /s/ S.C. King
......................
Duly appointed and authorised sealing
officer of Prudential Property Investment
Managers Limited
5
Dated 20 April 2001
RUSHMOOR MECHANICAL SERVICES LIMITED (1)
[Sub-Contractor]
- and -
MERCATOR SOFTWARE LIMITED (2)
[Tenant]
-----------------------------------------
- DEED OF WARRANTY -
Relating to a refurbishment at
City Tower
Podium and Levels 1 and 2
-----------------------------------------
Page 1
DOMESTIC SUB-CONTRACTOR'S COLLATERAL WARRANTY TO TENANT
THIS DEED is made the day of 2000
BETWEEN:-
(1) RUSHMOOR MECHANICAL SERVICES LIMITED (Company Number 1307680) whose
registered office is situated at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ("the Sub-Contractor")
(2) MERCATOR SOFTWARE LIMITED (Company Number 1293378) whose registered office
is situated at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇-▇▇▇ ("▇▇▇ Tenant" which
expression shall where the context so admits include its successors in
title)
WHEREAS:-
A. BLENHEIM HOUSE CONSTRUCTION LIMITED ("the Contractor") has entered into an
agreement dated the 22nd September 2000 ("the Building Contract") with
City Tower Limited, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ("the
Employer") to carry out the Works as defined therein at City Tower, ▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ("the Development").
B. The Contractor has entered into an agreement with the Sub-Contractor dated
the 6th April 2000 ("the Sub-Contract") to carry out the Works as defined
therein in execution of part of the Works and it is a term of the
Sub-Contract that the Sub-Contractor enters into these presents.
C. The Tenant intends to enter into or has entered into an agreement to
occupy the whole or part of the Works when completed.
D. The Tenant and the Sub-Contractor wish by this Agreement to provide a
direct contractual relationship between the Tenant and the Sub-Contractor
as set out in Clause 1 hereof.
Page 2
NOW IT IS HEREBY AGREED as follows:-
1. In consideration of the Tenant paying to the Sub-Contractor the sum of ,1
(one pound) the Sub-Contractor hereby covenants with the Tenant that is
has performed and will perform each and all of its duties and obligations
under the Sub-Contract strictly in accordance with its terms whether
express or implied.
2. The Sub-Contractor shall not knowingly specify, authorise or cause to be
used the following:
any goods, materials, substances, products or equipment which are:-
(i) in themselves stated in the Specification to be prohibited.
(ii) not in accordance with relevant British or European Standards and
Codes of Practice.
(iii) generally known within the construction or engineering industries at
the time of use or specification (as appropriate) to be deleterious
to (a) health and safety in humans or (b) the durability of the
Building by reference to its likely design life based on the
Specification.
(iv) not in accordance with "Good Practice in the Selection of
Construction Materials" published 1997 by the BCO.
(v) or might in themselves or as a result 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 Works or the eventual
occupants thereof.
(vi) other materials which at the time the Works is being carried out
generally accepted as or reasonably suspected of:-
Page 3
(a) being deleterious in themselves;
(b) becoming deleterious when used in a particular situation or in
combination with other materials;
(c) becoming deleterious with passage of time
(d) becoming deleterious without a level of maintenance which is
higher than that which would normally be expected in a
building of the type under construction; or
(e) being damaged by or causing damage to the structure in which
they are incorporated or to which they are affixed
"deleterious" meaning and including any use of materials or
combination of materials that would or might have the effect of
reducing the normal life expectancy of the materials themselves, any
materials to which they are affixed, the structure in which they are
incorporated or to which they are affixed, of the Works or any part
thereof, to a period less than that which has been specified or
would normally be expected.
vii) Inter alia:-
a) High alumina cement in structural elements
b) Woodwool slabs in permanent formwork to concrete or in structural
elements
c) Calcium Chloride admixtures for use in reinforced concrete
d) Asbestos products (save where natural elements thereof are used in
products which comply with relevant British Standards
Specifications)
Page 4
e) Aggregates for use in reinforced concrete which do not comply with
British Standards Specification 882:1983 and aggregates for use in
concrete which do not comply with British Standard Specification
8100:1985; and
f) Lead or any products containing lead in a form likely to be ingested
or inhaled by humans (but so that copper alloy products containing
lead may nonetheless be used in drinking water pipework); and
g) Urea formaldehyde foam in a form that releases formaldehyde so that
it is likely to be ingested or inhaled by humans in harmful
quantities; and
h) Any other material generally known at the date of its use to be
deleterious (in the form quantity and application actually used) to
(a) human health and safety or (b) the durability of the Works in
which it is used (unless the presence of the material is integral to
and essential for such Works) and/or not in accordance with good
building practice at the date when specified and/or not in
accordance with good building practice at the date when specified
3. The Sub-Contractor acknowledges that the Tenant shall be deemed to have
relied upon the Sub-Contractor's reasonable skill and judgement in the
performance of its duties to the Contractor under the Sub-Contract. The
liability of the Sub-Contractor shall not be released, diminished or in
any other way affected by any independent enquiry into any relevant matter
which may be made or carried out by or on behalf of the Tenant nor by any
act or omission of any firm, company or party carrying out such enquiry,
whether or not such act or omission might give rise to an independent
liability of such firm, company or party to the Tenant.
4. The Sub-Contractor shall be liable to the Tenant in respect of any and all
expenses liabilities costs damages losses claims or proceedings which
arise by reason of any breach of its obligations hereunder save that it
shall have no
Page 5
greater liability and for no longer period than that which would have been
owed to the Tenant if the Tenant had been named as joint Contractor with
the Contractor under the Sub-Contract.
5. The provisions of this Agreement shall be without prejudice to any rights
or remedies which the Tenant may have against the Sub-Contractor whether
in tort or otherwise and shall not be deemed or construed so as to limit
or exclude any such rights or remedies.
6. The copyright in all documents and drawings provided by the Sub-Contractor
in connection with the Works shall remain vested in the Sub-Contractor but
the Tenant shall have a licence to copy and use, though the Sub-Contractor
shall not be liable for any misuse of, such documents and drawings and to
reproduce the designs contained in them for any purpose related to the
Works including, but without limitation, the construction, completion,
maintenance, extension, alteration, letting, promotion, advertisement,
reinstatement and repair of the Works.
7. The benefit of all or any of the Sub-Contractor's obligations under this
Deed and/or any benefit arising under or out of this Deed may be assigned
by the Tenant without the consent of the Sub-Contractor on two occasions
only and thereafter with due Sub-Contractor's consent which consent may
not be unreasonably withheld or delayed.
8. This Agreement shall be governed by and construed in accordance with the
Laws of England. If any dispute or difference arises between the Tenant
and the Sub-Contractor in connection with this Agreement which cannot be
resolved by mutual agreement, it shall be referred to the non-exclusive
jurisdiction of the English Courts.
IN WITNESS whereof the Parties have caused these presents to be executed as a
deed and delivered the day and year first before written.
Page 6
THE COMMON SEAL of ) [SEAL]
RUSHMOOR MECHANICAL )
SERVICES LIMITED )
was hereunto affixed in )
the presence of:- )
Director ) /s/ [ILLEGIBLE]
)
Director/Secretary ) /s/ [ILLEGIBLE]
Signed as a deed by )
MERCATOR SOFTWARE )
LIMITED acting by a )
director and its secretary)
(or two directors) )
Director ) /s/ [ILLEGIBLE]
)
Director/Secretary ) /s/ [ILLEGIBLE]
Page 7
Dated 20 April 2001
GRANFLEX (ROOFING) LIMITED (1)
[Sub-Contractor]
- and -
MERCATOR SOFTWARE LIMITED (2)
[Tenant]
--------------------------------------------
- DEED OF WARRANTY -
Relating to a refurbishment at
City Tower
Podium and Levels 1 and 2
--------------------------------------------
Page 1
DOMESTIC SUB-CONTRACTOR'S COLLATERAL WARRANTY TO TENANT
THIS DEED is made the day of 2000
BETWEEN:-
(1) GRANFLEX (ROOFING) LIMITED (Company Number 1234422) whose registered
office is situated at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇-▇▇▇▇▇ ▇▇▇ ▇▇▇
("the Sub-Contractor")
(2) MERCATOR SOFTWARE LIMITED (Company Number 1293378) whose registered office
is situated at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ("the Tenant" which
expression shall where the context so admits include its successors in
title)
WHEREAS:-
A. BLENHEIM HOUSE CONSTRUCTION LIMITED ("the Contractor") has entered into an
agreement dated the 22nd September 2000 ("the Building Contract") with
City Tower Limited, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ("the
Employer") to carry out the Works as defined therein at City Tower, ▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ("the Development").
B. The Contractor has entered into an agreement with the Sub-Contractor dated
the 28th March 2000 ("the Sub-Contract") to carry out the Works as defined
therein in execution of part of the Works and it is a term of the
Sub-Contract that the Sub-Contractor enters into these presents.
C. The Tenant intends to enter into or has entered into an agreement to
occupy the whole or part of the Works when completed.
D. The Tenant and the Sub-Contractor wish by this Agreement to provide a
direct contractual relationship between the Tenant and the Sub-Contractor
as set out in Clause 1 hereof.
Page 2
NOW IT IS HEREBY AGREED as follows:-
1. In consideration of the Tenant paying to the Sub-Contractor the sum of ,1
(one pound) the Sub-Contractor hereby covenants with the Tenant that is
has performed and will perform each and all of its duties and obligations
under the Sub-Contract strictly in accordance with its terms whether
express or implied.
2. The Sub-Contractor shall not knowingly specify, authorise or cause to be
used the following:
any goods, materials, substances, products or equipment which are:-
(i) in themselves stated in the Specification to be prohibited.
(ii) not in accordance with relevant British or European Standards and
Codes of Practice.
(iii) generally known within the construction or engineering industries at
the time of use or specification (as appropriate) to be deleterious
to (a) health and safety in humans or (b) the durability of the
Building by reference to its likely design life based on the
Specification.
(iv) not in accordance with "Good Practice in the Selection of
Construction Materials" published 1997 by the BCO.
(v) or might in themselves or as a result 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 Works or the eventual
occupants thereof.
(vi) other materials which at the time the Works is being carried out
generally accepted as or reasonably suspected of:-
Page 3
(a) being deleterious in themselves;
(b) becoming deleterious when used in a particular situation or in
combination with other materials;
(c) becoming deleterious with passage of time
(d) becoming deleterious without a level of maintenance which is
higher than that which would normally be expected in a
building of the type under construction; or
(e) being damaged by or causing damage to the structure in which
they are incorporated or to which they are affixed
"deleterious" meaning and including any use of materials or
combination of materials that would or might have the effect of
reducing the normal life expectancy of the materials themselves, any
materials to which they are affixed, the structure in which they are
incorporated or to which they are affixed, of the Works or any part
thereof, to a period less than that which has been specified or
would normally be expected.
vii) Inter alia:-
a) High alumina cement in structural elements
b) Woodwool slabs in permanent formwork to concrete or in structural
elements
c) Calcium Chloride admixtures for use in reinforced concrete
d) Asbestos products (save where natural elements thereof are used in
products which comply with relevant British Standards
Specifications)
Page 4
e) Aggregates for use in reinforced concrete which do not comply with
British Standards Specification 882:1983 and aggregates for use in
concrete which do not comply with British Standard Specification
8100:1985; and
f) Lead or any products containing lead in a form likely to be ingested
or inhaled by humans (but so that copper alloy products containing
lead may nonetheless be used in drinking water pipework); and
g) Urea formaldehyde foam in a form that releases formaldehyde so that
it is likely to be ingested or inhaled by humans in harmful
quantities; and
h) Any other material generally known at the date of its use to be
deleterious (in the form quantity and application actually used) to
(a) human health and safety or (b) the durability of the Works in
which it is used (unless the presence of the material is integral to
and essential for such Works) and/or not in accordance with good
building practice at the date when specified and/or not in
accordance with good building practice at the date when specified
3. The Sub-Contractor acknowledges that the Tenant shall be deemed to have
relied upon the Sub-Contractor's reasonable skill and judgement in the
performance of its duties to the Contractor under the Sub-Contract. The
liability of the Sub-Contractor shall not be released, diminished or in
any other way affected by any independent enquiry into any relevant matter
which may be made or carried out by or on behalf of the Tenant nor by any
act or omission of any firm, company or party carrying out such enquiry,
whether or not such act or omission might give rise to an independent
liability of such firm, company or party to the Tenant.
4. The Sub-Contractor shall be liable to the Tenant in respect of any and all
expenses liabilities costs damages losses claims or proceedings which
arise by reason of any breach of its obligations hereunder save that it
shall have no
Page 5
greater liability and for no longer period than that which would have been
owed to the Tenant if the Tenant had been named as joint Contractor with
the Contractor under the Sub-Contract.
5. The provisions of this Agreement shall be without prejudice to any rights
or remedies which the Tenant may have against the Sub-Contractor whether
in tort or otherwise and shall not be deemed or construed so as to limit
or exclude any such rights or remedies.
6. The copyright in all documents and drawings provided by the Sub-Contractor
in connection with the Works shall remain vested in the Sub-Contractor but
the Tenant shall have a licence to copy and use, though the Sub-Contractor
shall not be liable for any misuse of, such documents and drawings and to
reproduce the designs contained in them for any purpose related to the
Works including, but without limitation, the construction, completion,
maintenance, extension, alteration, letting, promotion, advertisement,
reinstatement and repair of the Works.
7. This Agreement shall be governed by and construed in accordance with the
Laws of England. If any dispute or difference arises between the Tenant
and the Sub-Contractor in connection with this Agreement which cannot be
resolved by mutual agreement, it shall be referred to the non-exclusive
jurisdiction of the English Courts.
IN WITNESS whereof the Parties have caused these presents to be executed as a
deed and delivered the day and year first before written.
Page 6
THE COMMON SEAL of )
GRANFLEX (ROOFING) LIMITED)
was hereunto affixed in )
the presence of:- )
Director ) /s/ [ILLEGIBLE]
)
Director/Secretary ) /s/ [ILLEGIBLE]
Signed as a deed by )
MERCATOR SOFTWARE )
LIMITED acting by a )
director and its secretary)
(or two directors) )
Director ) /s/ [ILLEGIBLE]
)
Director/Secretary ) /s/ [ILLEGIBLE]
Page 7
Dated 20 April 2001
▇▇▇▇▇▇▇▇▇ (UK) LIMITED (1)
[Sub-Contractor]
- and -
MERCATOR SOFTWARE LIMITED (2)
[Tenant]
--------------------------------------------
- DEED OF WARRANTY -
Relating to a refurbishment at
City Tower
Podium and Levels 1 and 2
--------------------------------------------
Page 1
DOMESTIC SUB-CONTRACTOR'S COLLATERAL WARRANTY TO TENANT
THIS DEED is made the day of 2000
BETWEEN:-
(1) ▇▇▇▇▇▇▇▇▇ (UK) LIMITED (Company Number 1418100) whose registered office is
situated at White ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇ ("the Sub-Contractor")
(2) MERCATOR SOFTWARE LIMITED (Company Number 1293378) whose registered office
is situated at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ("the Tenant" which
expression shall where the context so admits include its successors in
title)
WHEREAS:-
A. BLENHEIM HOUSE CONSTRUCTION LIMITED ("the Contractor") has entered into an
agreement dated the 22nd September 2000 ("the Building Contract") with
City Tower Limited, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ("the
Employer") to carry out the Works as defined therein at City Tower, ▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ("the Development").
B. The Contractor has entered into an agreement with the Sub-Contractor dated
the 6th April 2000 ("the Sub-Contract") to carry out the Works as defined
therein in execution of part of the Works and it is a term of the
Sub-Contract that the Sub-Contractor enters into these presents.
C. The Tenant intends to enter into or has entered into an agreement to
occupy the whole or part of the Works when completed.
D. The Tenant and the Sub-Contractor wish by this Agreement to provide a
direct contractual relationship between the Tenant and the Sub-Contractor
as set out in Clause 1 hereof.
Page 2
NOW IT IS HEREBY AGREED as follows:-
1. In consideration of the Tenant paying to the Sub-Contractor the sum of ,1
(one pound) the Sub-Contractor hereby covenants with the Tenant that is
has performed and will perform each and all of its duties and obligations
under the Sub-Contract strictly in accordance with its terms whether
express or implied.
2. The Sub-Contractor shall not knowingly specify, authorise or cause to be
used the following:
any goods, materials, substances, products or equipment which are:-
(i) in themselves stated in the Specification to be prohibited.
(ii) not in accordance with relevant British or European Standards and
Codes of Practice.
(iii) generally known within the construction or engineering industries at
the time of use or specification (as appropriate) to be deleterious
to (a) health and safety in humans or (b) the durability of the
Building by reference to its likely design life based on the
Specification.
(iv) not in accordance with "Good Practice in the Selection of
Construction Materials" published 1997 by the BCO.
(v) or might in themselves or as a result 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 Works or the eventual
occupants thereof.
(vi) other materials which at the time the Works is being carried out
generally accepted as or reasonably suspected of:-
Page 3
(a) being deleterious in themselves;
(b) becoming deleterious when used in a particular situation or in
combination with other materials;
(c) becoming deleterious with passage of time
(d) becoming deleterious without a level of maintenance which is
higher than that which would normally be expected in a
building of the type under construction; or
(e) being damaged by or causing damage to the structure in which
they are incorporated or to which they are affixed
"deleterious" meaning and including any use of materials or
combination of materials that would or might have the effect of
reducing the normal life expectancy of the materials themselves, any
materials to which they are affixed, the structure in which they are
incorporated or to which they are affixed, of the Works or any part
thereof, to a period less than that which has been specified or
would normally be expected.
vii) Inter alia:-
a) High alumina cement in structural elements
b) Woodwool slabs in permanent formwork to concrete or in structural
elements
c) Calcium Chloride admixtures for use in reinforced concrete
d) Asbestos products (save where natural elements thereof are used in
products which comply with relevant British Standards
Specifications)
Page 4
e) Aggregates for use in reinforced concrete which do not comply with
British Standards Specification 882:1983 and aggregates for use in
concrete which do not comply with British Standard Specification
8100:1985; and
f) Lead or any products containing lead in a form likely to be ingested
or inhaled by humans (but so that copper alloy products containing
lead may nonetheless be used in drinking water pipework); and
g) Urea formaldehyde foam in a form that releases formaldehyde so that
it is likely to be ingested or inhaled by humans in harmful
quantities; and
h) Any other material generally known at the date of its use to be
deleterious (in the form quantity and application actually used) to
(a) human health and safety or (b) the durability of the Works in
which it is used (unless the presence of the material is integral to
and essential for such Works) and/or not in accordance with good
building practice at the date when specified and/or not in
accordance with good building practice at the date when specified
3. The Sub-Contractor acknowledges that the Tenant shall be deemed to have
relied upon the Sub-Contractor's reasonable skill and judgement in the
performance of its duties to the Contractor under the Sub-Contract. The
liability of the Sub-Contractor shall not be released, diminished or in
any other way affected by any independent enquiry into any relevant matter
which may be made or carried out by or on behalf of the Tenant nor by any
act or omission of any firm, company or party carrying out such enquiry,
whether or not such act or omission might give rise to an independent
liability of such firm, company or party to the Tenant.
4. The Sub-Contractor shall be liable to the Tenant in respect of any and all
expenses liabilities costs damages losses claims or proceedings which
arise by reason of any breach of its obligations hereunder save that it
shall have no
Page 5
greater liability and for no longer period than it would have had to the
Contractor under the Sub-Contract.
5. The provisions of this Agreement shall be without prejudice to any rights
or remedies which the Tenant may have against the Sub-Contractor whether
in tort or otherwise and shall not be deemed or construed so as to limit
or exclude any such rights or remedies.
6. The copyright in all documents and drawings provided by the Sub-Contractor
in connection with the Works shall remain vested in the Sub-Contractor but
the Tenant shall have a licence to copy and use, though the Sub-Contractor
shall not be liable for any misuse of, such documents and drawings and to
reproduce the designs contained in them for any purpose related to the
Works including, but without limitation, the construction, completion,
maintenance, alteration, letting, promotion, advertisement, reinstatement
and repair of the Works.
7. This Agreement shall be governed by and construed in accordance with the
Laws of England. If any dispute or difference arises between the Tenant
and the Sub-Contractor in connection with this Agreement which cannot be
resolved by mutual agreement, it shall be referred to the non-exclusive
jurisdiction of the English Courts.
IN WITNESS whereof the Parties have caused these presents to be executed as a
deed and delivered the day and year first before written.
Page 6
THE COMMON SEAL of )
▇▇▇▇▇▇▇▇▇ (UK) LIMITED )
was hereunto affixed in )
the presence of:- )
Director ) /s/ [ILLEGIBLE]
)
Director/Secretary ) /s/ [ILLEGIBLE]
THE COMMON SEAL of )
MERCATOR SOFTWARE )
LIMITED )
was hereunto affixed in )
the presence of:- )
Director ) /s/ [ILLEGIBLE]
)
Director/Secretary ) /s/ [ILLEGIBLE]
Page 7
Dated 20 April 2001
BLENHEIM HOUSE CONSTRUCTION LIMITED (1)
(Contractor)
- and -
MERCATOR SOFTWARE LIMITED (2)
(Tenant)
---------------------------------------
- DEED OF WARRANTY -
Relating to a refurbishment at
City Tower
Podium and Levels 1 and 2
---------------------------------------
Page 1
THIS DEED is made the day of
2000
BETWEEN:-
(1) BLENHEIM HOUSE CONSTRUCTION LIMITED (Company Number 3259020) whose
registered office is situate at ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ 8JS("the Contractor")
(2) MERCATOR SOFTWARE LIMITED (Company Number 1293378) whose registered office
is situate at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ("the Tenant" which
expression shall include its successors in title transferees and assigns)
WHEREAS:
(A) CITY TOWER LIMITED (Company Number 1824826) whose registered office is
situate at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ n 2NH ("the Developer") has
entered into a contract ("the Contract") dated 22nd September 2000 with
the Contractor to complete the design and the refurbishment of the Podium,
Levels 1 and 2 and the cladding to the London Wall elevation upon the
terms and conditions therein mentioned at a building known as ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
(B) By an agreement dated 18th August 2000 made between the Developer (1) and
the Tenant (2) the Tenant has agreed on or following practical completion
of the Works to take a full repairing lease of certain parts of the Works
as more particularly described in the agreement
(C) The Contractor has agreed to enter into this Deed in favour of the Tenant
NOW THIS DEED W1TNESSETH in consideration of the sum, 10 (ten pounds) receipt
of which the Contractor hereby acknowledges AS FOLLOWS:-
1. Warranties/Undertakings
The Contractor hereby WARRANTS and UNDERTAKES to the Tenant that it has carried
out and will continue to carry out the construction and completion of the Works
in a good and workmanlike manner and in compliance with the terms of the
Contract and all associated drawings and specifications (as amended from time to
time) and without prejudice to the generality of the foregoing the Contractor
WARRANTS and UNDERTAKES to the Tenant as follows:
(a) that the Contractor has exercised and will continue to exercise all
reasonable skill and care in:
Page 2
(i) the design of the Works insofar as the Works has been or will be
designed by the Contractor its servants agents sub-contractors or
suppliers and
(ii) the selection of materials and goods for the Works insofar as such
materials and goods have been or will be selected by the Contractor
its servants agents sub-contractors or suppliers
(b) that the Works will when completed satisfy any performance specification
or requirement included or referred to in the Contract
(c) that the Works and the materials and goods used therein will correspond as
to description quality and condition with the requirements of the Contract
and be of sound manufacture and workmanship
(d) that it has performed and shall continue properly and diligently to
perform all of its obligations under the Contract and will owe the same
contractual duties (including without limitation duties of care) to the
Tenant as those owed by the Contractor to the Developer
(e) that it shall not knowingly specify, authorise or cause to be used the
following:
any goods, materials, substances, products or equipment which are:-
(i) in themselves stated in the Specification to be prohibited.
(ii) not in accordance with relevant British or European Standards and
Codes of Practice.
(iii) generally known within the construction or engineering industries at
the time of use or specification (as appropriate) to be deleterious
to (a) health and safety in humans or (b) the durability of the
Building by reference to its likely design life based on the
Specification.
(iv) not in accordance with "Good Practice in the Selection of
Construction Materials" published 1997 by the BCO.
(v) or might in themselves or as a result 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 Works or the eventual
occupants thereof.
(vi) other materials which at the time the Works is being carried out
generally accepted as or reasonably suspected of:-
(a) being deleterious in themselves;
(b) becoming deleterious when used in a particular situation or in
combination with other materials;
(c) becoming deleterious with passage of time
Page 3
(d) becoming deleterious without a level of maintenance which is
higher than that which would normally be expected in a
building of the type under construction; or
(e) being damaged by or causing damage to the structure in which
they are incorporated or to which they are affixed
"deleterious" meaning and including any use of materials or
combination of materials that would or might have the effect of
reducing the normal life expectancy of the materials themselves,
any materials to which they are affixed, the structure in which
they are incorporated or to which they are affixed, of the Works or
any part thereof, to a period less than that which has been
specified or would normally be expected.
(vii) Inter alia:-
a) High alumina cement in structural elements
b) Woodwool slabs in permanent formwork to concrete or in
structural elements
c) Calcium Chloride admixtures for use in reinforced concrete
d) Asbestos products (save where natural elements thereof are
used in products which comply with relevant British Standards
Specifications)
e) Aggregates for use in reinforced concrete which do not comply
with British Standards Specification 882:1983 and aggregates
for use in concrete which do not comply with British Standard
Specification 8100:1985; and
f) Lead or any products containing lead in a form likely to be
ingested or inhaled by humans (but so that copper alloy
products containing lead may nonetheless be used in drinking
water pipework); and
g) Urea formaldehyde foam in a form that releases formaldehyde so
that it is likely to be ingested or inhaled by humans in
harmful quantities; and
h) Any other material generally known at the date of its use to
be deleterious (in the form quantity and application actually
used) to (a) human health and safety or (b) the durability of
the works in which it is used (unless the presence of the
material is integral to and essential for such works) and/or
not in accordance with good building practice at the date when
specified and/or not in accordance with good building practice
at the date when specified
Page 4
2. Liability of Contractor
The obligations of the Contractor under or pursuant to clause 1 hereof shall be
in addition to and without prejudice to any other present or future liability of
the Contractor to the Tenant (including without prejudice to the generality of
the foregoing any liability in negligence) and shall not be released diminished
or in any other way affected by any independent enquiry into any relevant matter
which may be made or carried out by or on behalf of the Tenant by any person nor
by any action or omission of any person whether or not such action or omission
might give rise to an independent liability of such person to the Tenant
3. Professional Indemnity Insurance
Without prejudice to its obligations under this Deed or otherwise at law the
Contractor shall effect and use its best endeavour to maintain the appropriate
cover provided such cover is available at commercially viable rates for the
duration of the Contract and for a period of twelve years from the date of issue
of the Certificate of Practical Completion of the Works has been achieved (with
a well established insurance office or underwriter of repute carrying on
business in the United Kingdom) insurance with a limit of indemnity of not less
than FIVE MILLION POUNDS ((pound)5,OOO,0O0.OO) for any one occurrence or a
series of occurrences arising out of any one event in respect of any negligence
(which for the avoidance of doubt shall include any negligent act error omission
or default) on the part of the Contractor in the performance of its duties under
this Deed and in relation to the duty of care owed to the Tenant hereunder and
shall produce to the Tenant on demand from time to time such evidence as the
Tenant may reasonably require to satisfy itself that the terms of this clause
have been complied with.
4. Licence
The Contractor as beneficial owner hereby GRANTS to the Tenant an irrevocable
royalty-free non-exclusive licence to use and reproduce, though shall not be
liable for any misuse of, all drawings details plans specifications schedules
report calculations and other work and designs contained in them which have been
or are hereafter written originated or made by or on behalf of the Contractor
for any purpose whatsoever connected with the Works including but without
limitation the execution completion maintenance letting management sale
advertisement extension alteration, reinstatement and repair thereof. Such
licence shall carry the right to grant sub-licences and shall be transferable
to third parties.
5. Assignment
The benefit of all or any of the Contractor's obligations under this Deed and/or
any benefit arising under or out of this Deed may be assigned by the Tenant
without the consent of the Contractor on two occasions only and thereafter with
due Contractor's consent which consent may not be unreasonably withheld or
delayed.
Page 5
6. The Contract
The Contractor UNDERTAKES to the Tenant not to vary or depart from the terms and
conditions of the Contract without the prior written consent of the Tenant and
agrees that any variation or departure made without such consent shall not be
binding on the Tenant or affect or prejudice the Tenant's rights hereunder or
under the Contract or in any other way
7. Continuing Effect
Notwithstanding the completion of the Works or any part thereof this Deed shall
continue to have effect
8. Law
This Deed shall be governed by and construed in accordance with the laws of
England and Wales
IN WITNESS whereof this Deed has been executed by the Contractor and the Tenant
and is intended to be and is hereby delivered on the day and year first above
written
Page 6
THE COMMON SEAL of )
BLENHEIM HOUSE )
CONSTRUCTION LIMITED )
was hereunto affixed in )
the presence of:- )
Director: /s/ [ILLEGIBLE]
Director/Secretary: /s/ ▇. ▇. [ILLEGIBLE]
Signed as a deed by )
MERCATOR SOFTWARE )
LIMITED acting by a )
director and its Secretary )
(or two directors) )
Director: /s/ [ILLEGIBLE]
Director/Secretary: /s/ [ILLEGIBLE]
Page 7
