EXHIBIT 4.4
DATED 2000
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GRANTA PARK LIMITED (1)
CAMBRIDGE ANTIBODY TECHNOLOGY LIMITED (2)
CAMBRIDGE ANTIBODY TECHNOLOGY GROUP PLC (3)
Counterpart
AGREEMENT FOR LEASE
Relating to PHASE I BUILDING
42
Xxxxxx Xxxxxxx
Xxxxxx Xxxxx
Xxxxxx Xxxx
Xxxxxxxxx XX0 0XX
Tel: 00000 000000
Fax: 00000 000000
Our Ref: JMW/CP
43
INDEX
1 Definitions
2 Interpretation
3 Detailed Specifications
4 Planning Consent
5 The Condition
6 Requisite Consents
7 Landlord's obligations with regard to the carrying out of the Works
8 Variations
9 Appointment of Contractors and Consultants and Collateral Warranties
10 CONDAM Regulations
11 Measurement
12 Termination
13 Remedy of Defects
14 Tenant's Fit-Out Works
15 Disputes
16 Development Costs
17 Grant of the Lease
18 Title
19 Encumbrances
20 Disclaimer
21 Agreement not Assignable
22 Non Merger
23 Notices
24 Insurance
25 VAT
26 Guarantee of the Tenant's Covenants
Schedule I: Encumbrances
Schedule II: Form of Building Contractor's Warranty
Schedule III: Form of Consultant's Warranty
Schedule IV: Form of Building Contract
Schedule V: Form of Consultant's Appointment
Schedule VI: Extract of Draft Insurance Policy
Schedule VII: Draft Lease
Schedule VIII: Sub-contractors Warranty
Plan 1: [Estate edged blue Estate Roads coloured xxxxx]
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Plan 2: [Property edged red]
2
T H I S A G R E E M E N T is made the day of
Two thousand B E T W E E N:-
1 GRANTA PARK LIMITED (company registration number 3455563) whose
registered office is at 000 Xxxxxxx Xxxxxx Xxxxxx X0X 0XX ("the
Landlord")
2 CAMBRIDGE ANTIBODY TECHNOLOGY LIMITED of [The Science Park Melbourn near
Xxxxxxx Xxxxxxxxxxxxxx XX0 0XX ("the Tenant") and
3 CAMBRIDGE ANTIBODY TECHNOLOGY GROUP PLC whose registered office is at
[ ] ("the Surety")
NOW IT IS HEREBY AGREED as follows:-
1 Definitions
IN this Agreement where the context so allows:-
1.1 "the Act" means the Town and Country Planning Xxx 0000 as amended by the
Planning and Compensation Xxx 0000 and includes any statute amending
consolidating or replacing it for the time being in force
1.2 "Appeal" means both or either of the following:-
1.2.1 An appeal to the Secretary of State in accordance with the Act against
either refusal or deemed refusal of planning permission or the grant of
a planning permission subject to one or more Onerous Conditions
1.2.2 A calling in of an application under s.77 of the Act
1.3 "the Architect" means Xxxxxx Xxxxx and Partners of 0 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxxxxx Xxxxxx X0X 0XX or such other person firm or company as
may be employed as architect by the Landlord from time to time in
connection with the Development with the approval of the Tenant not to
be unreasonably withheld or delayed
3
1.4 "the Building" means the buildings to be constructed as part of the
Works
1.5 "the Building Contract" means [a JCT 1980 Contract with amendments] for
the carrying out of the Development in the form of the draft Contract
annexed hereto at Schedule IV and all documents drawings and plans
supplemental thereto
1.6 "the Building Contractor" means such building contractor as may be
employed by the Landlord from time to time to carry out the Development
and approved by the Tenant such approval not to be unreasonably withheld
or delayed
1.7 "the Certificate Date" means the date of issue of the Certificate of
Practical Completion
1.8 "the Certificate of Practical Completion" means the certificate to be
issued by the Architect pursuant to the Building Contract confirming
Practical Completion of the Works
1.9 "Completion Date" means the date which is five working days after the
latest to happen of the following:-
1.9.1 the Certificate Date
1.9.2 Agreement or determination of the Gross Internal Area of the Building in
accordance with Clause 11
1.10 "Forecast Construction Cost" means the aggregate cost of the following
items:-
1.10.1 the agreed forecast cost of construction of the Works pursuant to the
Building Contract.
1.10.2 an allowance for Building Contractors Preliminaries
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as agreed or determined pursuant to Clauses 16.3 and 16.4 hereof but
excluding contingencies day works and design fees
1.11 "Consultants" means the Architects the Structural Engineers and
Mechanical and Electrical Engineers Planning Supervisor and Cost
Consultant
1.12 "Cost Consultant" means Xxxxxx Xxxxxxx of 00 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx XX0 0XX or such other firm or company of cost consultants as
may be appointed by the Landlord in connection with the Development and
approved by the Tenant such approval not to be unreasonably withheld or
delayed
1.13 "Court Application" means both or either of the following as the case
may be namely:-
1.13.1 Any application for judicial review under Order 53 of the Rules of the
Supreme Court in respect of any planning permission; and/or
1.13.2 An application by a person aggrieved under s.288 of the Act in respect
of any planning permission
1.14 "the CONDAM Regulations" means the Construction (Design and Management)
Regulations 1994
1.15 "Defects Liability Period" means the period of 12 months commencing on
the Certificate Date
1.16 "the Development" means the carrying out of the Works in order to
provide upon the Site two separate buildings for use respectively to
accommodate a molecular biology laboratory and as an office and amenity
facility to support such use together with car parking
1.17 "the Estate" means the entirety of the property known as and comprising
Granta Park Abington Cambridge as designated by the Landlord from time
to time the present extent of which is shown for identification by blue
edging on Plan 1 annexed to the Lease
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1.18 "Event of Insolvency" means in respect of any party to whom it
refers:-
1.18.1 If that party is a company that
1.18.1.1 It is deemed unable to pay its debts as defined in s.123 of the
Insolvency Xxx 0000 ("the Act") or goes into liquidation as defined in
s.247(2) of the Act or is otherwise wound up (except voluntarily for
the purpose of reconstruction and/or amalgamation with a solvent
concern) or that a provisional liquidator is appointed under s.135 of
the Act
1.18.1.2 A petition is presented for an administration order under Part II of
the Act
1.18.1.3 A receiver or manager is appointed whether under Part III of the Act
or otherwise
1.18.1.4 A proposal is made for a voluntary arrangement under Part I of the Act
or
1.18.2 If the person is an individual:-
1.18.2.1 That a bankruptcy petition is presented to the Court or the
circumstances of that person are such that a bankruptcy petition could
be presented under Part IX of the Act
1.18.2.2 That an application is made for an interim order or a proposal is made
for a voluntary arrangement under Part VIII of the Act
1.18.2.3 That the person otherwise compounds with his creditors or
1.18.3 If any execution of distress shall be levied on any goods or chattels
of the party concerned
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1.19 "Force Majeure" means:-
1.19.1 Fire storm tempest other extreme adverse weather conditions
hostilities labour lock out strikes and other industrial disputes
riot; non-availability of materials or equipment; and/or
1.19.2 Any other cause or circumstances outside the control of the Landlord
provided that any such cause or circumstance:-
1.19.2.1 Materially and adversely affects the performance of the terms and
provisions of this Agreement; and
1.19.2.2 Cannot reasonably be avoided or provided against by the Landlord
1.20 "Gross Internal Area" shall have the meaning attributed to it in the
Measuring Code but calculated on the basis that the areas set out in
paragraph 2.6 of the Measuring Code are excluded and not included
1.21 "Independent Cost Consultant" means a quantity surveyor who is
competent and experienced in dealing with cost consultancy matters
arising out of agreements such as this Agreement and nominated by
agreement between the parties or nominated upon the application of
either party by the President for the time being of the Royal
Institution of Chartered Surveyors or his duly appointed deputy
1.22 "Independent Expert" means a Fellow of the Royal Institution of
Chartered Surveyors of no less than 10 years calling and with
experience in the construction and valuation of premises of a similar
nature to the Property to be agreed upon by the Landlord and the
Tenant or in default of agreement appointed by the President of the
time being of the Royal Institution of Chartered Surveyors on the
application of either of them acting as an expert and not as an
arbitrator
1.23 "Insured Risks" means the risks specified in the extract of the draft
policy annexed hereto as Schedule VI
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1.24 "Interest" means interest at the rate of 3% per annum above the base
rate of Lloyds TSB Bank plc from time to time (as well after as before
judgement) or such other comparable rate as the Landlord may
reasonably designate if the base rate ceases to be published
compounded at quarterly rests on the 31st March 30th June 30th
September and 31st December in each year
1.25 "the Landlord" includes the Landlord's successors in title to the
Estate and any other person who is at any time entitled to the
reversion immediately expectant on the term agreed to be granted by
this Agreement
1.26 "Landlord's Capital Contribution" means a sum equivalent to that
arrived at by multiplying the number of square metres comprised in the
Gross Internal Area of the Building (as measured in accordance with
Clause 11) by (Pounds)400 ("the Provisional Sum") but provided that
such sum shall be subject to the following adjustments
1.26.1 If the Forecast Construction Cost shall exceed the Target Construction
Cost then the Provisional Sum shall be decreased by the amount of the
increase in the Forecast Construction Cost but shall not fall below a
figure equivalent to (Pounds)375 per square metre of Gross Internal
Area
1.26.2 If the Forecast Construction Cost shall be less than the Target
Construction Cost then the Provisional Sum shall be increased by the
amount of the decrease in the Forecast Construction Cost but shall not
rise above a figure equivalent to (Pounds)425 per square metre of
Gross Internal Area
1.27 "Landlord's Percentage" means [45]%
1.28 "the Landlord's Solicitors" means Taylor Vinters of Merlin Place
Xxxxxx Road Cambridge or any other firm of solicitors which the
Landlord may from time to time notify to the Tenant as being its
solicitors for the purposes of this Agreement
1.29 "the Lease" means the Lease of the Property in the form of the draft
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annexed hereto as Schedule VII to be granted by the Landlord to the
Tenant pursuant to this Agreement
1.30 "Lease Commencement Date" means the Certificate Date
1.31 "the Long Stop Date" means the date falling 24 months after the date
of grant of the Planning Consent
1.32 "Material Variation" means any alteration or addition to or omission
from the Specification or the use of any materials in substitution for
those specified in the Specification and/or the Building Contract
1.32.1 which would materially alter the design layout nature capacity or
standard of construction of the Works or which would have a materially
adverse effect on the use of the Property for the purposes specified
in the Lease or
1.32.2 which would cause a material delay in the construction period under
the Building Contract
1.33 "Mechanical and Electrical Engineers" means Xxxxx Xxxxx of Xxxxxxxxxxx
Xxxxx Xxxxx Xxxxxxxxxxx Xxxx Xx Xxxxxx Xxxxxxxxxxxxx XX0 0XX or such
other firm or company of engineers as may be appointed by the Landlord
in connection with the Development with the approval of the Tenant not
to be unreasonably withheld or delayed
1.34 "Measuring Code" means the Code of Measuring Practice (Fourth Edition
RICS/ISVA 1993)
1.35 "Onerous Condition" means a condition imposed in a planning permission
applied for under this Agreement or imposed or to be imposed in any
planning agreement regulating the Development or use of the Property
and which contains an obligation or restriction of any one or more of
the following kinds:-
1.35.1 It requires the payment or expenditure of money or other consideration
by way of planning gain or on works outside the Estate or
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1.35.2 It prevents or unduly restricts the occupation of the Property for the
Permitted Use or
1.35.3 It prevents the carrying out of the Development without the agreement
or co-operation of an independent third party which cannot be obtained
on a basis at a cost or within a time that in any such case is
reasonably acceptable to the Landlord and the Tenant
1.36 "Permitted Use" means the use permitted by the Lease
1.37 "Planning Consent" means a full planning permission authorising the
carrying out of the Development in accordance with the Specification
and the carrying out of the Tenants Fit Out Works and the use of the
Property for the Permitted Use and which does not contain any Onerous
Conditions
1.38 "the Planning Supervisor" means Xxxxxxxxx Consultants of Xxxxxxxxx
Xxxxx Xxxxxxxx Xxx Xxxxx Xxxxxxxxx Xxxxxxxxxxxxx XX0 0XX or such other
firm or company of planning supervisors as may be appointed by the
Landlord in connection with the Development and approved by the Tenant
such approval not to be unreasonably withheld or delayed
1.39 "Practical Completion" means the Practical Completion of the
Development in accordance with the Building Contract
1.40 "the Property" means the land together with the Building constructed
thereon as part of the Development and as more particularly described
in Part I of Schedule I to the Lease
1.41 "Relevant Date" means 1st May 2001
1.42 "Rent Commencement Date" means the date which is the earlier of the
date upon which the Tenant takes up beneficial occupation of the
Building for the Permitted Use or nine months from the Certificate
Date
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1.43 "Requisite Consents" means those permissions consents approvals
licences certificates and permits which may be necessary in order to
lawfully carry out maintain and complete the Development and to permit
the Tenant's occupation of the Property for the Permitted Use but
excluding those relating to the Tenant's business
1.44 "Secretary of State" means the Secretary of State for the Environment
or other Minister or authority for the time being having the right to
exercise the powers now conferred upon the Secretary of State for the
Environment by s.77 78 and 79 of the Act
1.45 "Settlement Date" means the date falling 10 Working Days after the
later of the issue of a Certificate of Practical Completion in respect
of the Tenant's Fit Out Works or the determination of the amount of
the Landlord's Capital Contribution pursuant to Clause [16.4] hereof
1.46 "Site Meeting" means any of the pre-arranged meetings between the
Building Contractor and the Consultants relating to the Works
1.47 "the Specification" means the plans drawings and specification of the
Works to be agreed pursuant to Clause 3 hereof
1.48 "Structural Engineers" means Xxxxxxxxx Consultants of Xxxxxxxxx Xxxxx
Xxxxxxxx Xxx Xxxxx Xxxxxxxxx Xxxxxxxxxxxxx XX0 0XX or such other firm
or company of engineers as may be appointed by the Landlord for
construction of the Works with the approval of the Tenant not to be
unreasonably withheld or delayed
1.49 "Target Completion Date" means the date of expiry of the period of 12
months from the date of grant of the Planning Consent or 31 December
2001 whichever is the later
1.50 "Target Construction Cost" means the sum equal to (Pounds)850
multiplied by the number of square metres comprised in the Gross
Internal Area of the Building as determined in accordance with Clause
[11] hereof
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1.51 "the Tenant" does not include any successors in title of the Tenant
1.52 "the Tenant's Architect" means Xxxxxx Xxxxx and Partners of 0 Xxxxxx
Xxxxxx Xxxxxxxxx Xxxxxx Xxxxxx X0X 0XX or such other person firm or
company as may be employed as architect by the Tenant from time to
time in connection with the Tenant's Fit Out Works with the approval
of the Landlord nor to be unreasonably withheld or delayed
1.53 "Tenant's Consultants" means the Tenant's Architect] the Tenant's
Mechanical and Electrical Engineers appointed by the Tenant in
connection with the carrying out of the Tenant's Fit-Out Works
1.54 "Tenant's Fit Out Specification" means the plans drawings and
specifications of the Tenant's Fit Out Works to be agreed pursuant to
Clause 3.1 hereof
1.55 "Tenant's Fit Out Works" means the works more particularly described
in the Tenant's Fit Out Specification to be agreed pursuant to Clause
3 hereof (which specification may be subject to further variations or
additions in accordance with Clause 8 hereof)
1.56 "Tenant's Interim Certificate" means an interim certificate issued by
the Tenant's Representative and confirming the due completion of part
or parts of the Tenant's Fit Out Works
1.57 "Tenant's Mechanical and Electrical Engineers" means Xxxxx Xxxxx of
Xxxxxxxxxxx Xxxxx Xxxxx Xxxxxxxxxxx Xxxx Xx. Xxxxxx Xxxxxxxxxxxxx XX0
0XX or such other firm or company of engineers as may be appointed by
the Tenant in connection with the Tenant's Fit Out Works with the
approval of the Landlord not to be unreasonably withheld or delayed
1.58 "Tenant's Representative" means Xxxxx Xxxxxx of Xxxxxx Xxxx and
Associates Limited or such other firm or company or surveyors as may
be appointed by the Tenant and notified to the Landlord
1.59 "Tenant's Solicitors" means Eversheds of Xxxxxxxx Xxxxx Xxxxxxx Xxxx
00
Xxxxxxxxx XX0 0XX or such other firm of solicitors as the Tenant may
from time to time notify to the Landlord as being its solicitors for
the purposes of this Agreement
1.60 "Tenant's Contractors" means those contractors appointed by the Tenant
to carry out the Tenant's Fit-Out Works and whose identity shall be
approved by the Landlord such approval not to be unreasonably withheld
1.61 "Term Commencement Date" mean the quarter day prior to the Certificate
Date
1.62 "Variations" means any changes to the materials used in connection
with the Works or any amendment to or departure from the Specification
or the Tenant's Fit Out Specification
1.63 "VAT" means any value added tax at the relevant rate from time to time
in force or any tax of similar nature that may be substituted for it
or levied in addition to it
1.64 "Working Day" means any day from Monday to Friday (inclusive) which is
not Christmas Day Good Friday or a statutory Bank Holiday
1.65 "the Works" means the works to be carried out by the Landlord and set
out in the Specification as the same may be subject to further
detailing variations or additions pursuant to Clauses [3] and [8]
hereof
1.66 "Yearly Rent" means the sum of (Pounds)18.50 plus VAT multiplied by
the number of square feet comprised in Gross Internal Area of the
Building as agreed or determined in accordance with Clause [11]
2 Interpretation
IN this Agreement:-
2.1 Any reference to a Clause sub-clause or paragraph is a reference to
the corresponding Clause sub-clause or paragraph of this Agreement and
any Clause headings shall not affect its construction
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2.2 Words importing the singular meaning where the context so admits include
the plural meaning and vice versa
2.3 Words of one gender include both other genders and words denoting
persons shall include operations and firms and vice versa
2.4 If any party to this Agreement comprises more than one person the
obligations and liabilities of that party under this Agreement shall be
joint and several obligations and liabilities of those persons
3 Agreement of the Specification and the Tenant's Fit Out Specification
3.1 THE parties shall forthwith after the date hereof each use their
respective reasonable endeavours to reach agreement on the Specification
within the period of two months and the Tenant's Fit Out Specification
within the period of four months from the date hereof and such
Specification and the Tenant's Fit Out Specification shall take into
account any requirements of the planning authority and any conditions
annexed to the Planning Consent and shall ensure that the total Forecast
Construction Cost is no greater than (Pounds)825 per square metre nor
less than (Pounds)875 per square metre of Gross Internal Area which area
shall be calculated for the purposes of this Clause from a measurement
of the drawings forming part of the Specification
3.2 Once the Specification and the Tenant's Fit Out Specification have been
agreed between the parties a copy of each shall be signed by or on
behalf of the parties hereto
3.3 If the Specification or the Tenant's Fit Out Specification have not been
agreed within the period referred to in Clause 3.1 either party may
refer the matter to the Independent Cost Consultant for determination in
accordance with Clause 15
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4 Planning Consent
4.1 THE Landlord will apply for and use all reasonable endeavours to obtain
the Planning Consent by the Relevant Date Provided Always that if at
that date an Appeal has been lodged but remains undetermined the
Relevant Date shall be extended to a date three months following
determination of the Appeal if at that later date there has been no
Court Application or (if a Court Application has been made) to a date
one month after all proceedings pursuant to the Court Application have
been exhausted and (if applicable) any further decision required to be
made by the Secretary of State or the local planning authority or any
other relevant authority pursuant to such proceedings have been made
4.2 The grant of a planning permission containing one or more Onerous
Conditions shall be treated for the purposes of this Agreement as a
planning refusal unless both the Landlord and the Tenant shall elect to
treat the grant of such planning permission as the grant of the Planning
Consent
4.3 Notwithstanding the provisions of Clause 4.1 hereof the Landlord shall
not be obliged to appeal against the refusal of Planning Consent or
against the grant of planning permission subject to one or more Onerous
Conditions
4.4 The Landlord will immediately upon receipt of the same supply a copy of
any planning permission which is granted as a result of an application
made pursuant to Clause 4.1 and shall within 10 Working Days of receipt
of any planning permission notify the Tenant in writing if it considers
any of the conditions attached to such planning permission to be an
Onerous Condition
4.5 The Tenant shall within five Working Days from receipt of the copy
planning permission notify the Landlord in writing whether it considers
on reasonable grounds that any condition attached to such planning
permission is an Onerous Condition (time being of the essence for the
purposes of this subclause 4.5)
4.6 If the Landlord shall disagree with any notice served upon it by the
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Tenant pursuant to subclause 4.5 it shall have five Working Days from
receipt of that notification (time being of the essence for the purposes
of this subclause 4.6) to serve on the Tenant notice in writing ("an
Objection Notice") invoking the provisions of Clauses 4.8 to 4.10
4.7 If the Tenant shall disagree with any notice served upon it by the
Landlord pursuant to Clause 4.4 it shall have five Working Days from
receipt of that notification (time being of the essence for the purposes
of this subclause 4.7) to serve on the Landlord notice in writing ("an
Objection Notice") invoking the provisions of Clause 4.8 to 4.10
4.8 If an Objection Notice is served in accordance with subclause 4.6 or 4.7
and within the time limit therein specified the Landlord shall refer the
question of whether the condition or conditions in question are Onerous
Conditions to the Independent Expert such referral to be made within ten
Working Days of receipt of an Objection Notice
4.9 The Independent Expert shall invite the parties to submit to him within
such time as he may direct such written representations concerning the
condition or conditions in question as they may respectively wish to
make and shall have such regard (if any) to such representations (if
any) as he shall consider appropriate
4.10 The Independent Expert shall determine whether the condition or
conditions in question or any of them are Onerous Conditions and shall
give to each of the parties a notice of his determination and his fees
and expenses shall be borne equally by the Landlord and the Tenant
4.11 The Landlord will keep the Tenant informed of the progress of its
application for the Planning Consent and at the written request and cost
of the Landlord the Tenant will use all reasonable endeavours to assist
the Landlord in obtaining the same but shall not act independently of
the Landlord
4.12 Without prejudice to the generality of the foregoing the Tenant will if
it is necessary to procure the grant of the Planning Consent at the
written request of the Landlord promptly enter into a planning agreement
in such
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form as the Landlord or the local planning authority may reasonably
require and as the Tenant shall approve (such approval not to be
unreasonably withheld or delayed) and the Tenant shall be responsible
for its own legal and surveyor's costs in connection with any such
planning agreement
5 The Condition
5.1 THIS Agreement is conditional upon the grant of the Planning Consent by
the Relevant Date
5.2 If on the expiry of the period of 4 months after the Relevant Date the
Condition referred to in Clause 5.1 remains unsatisfied either party
wishing to determine this Agreement may do so by serving on the other
not less than one month's notice in writing of such wish
5.3 If at the expiry of such notice the condition referred to in Clause 5.1
still remains unsatisfied or has not been waived by the Tenant (with the
Landlord's agreement) this Agreement shall immediately determine and the
provisions of Clause 12.4 shall apply
5.4 The provisions of Clauses 7 to 19 of this Agreement shall be and remain
executory and shall only become operative on or with effect from the
date upon which the condition in Clause 5.1 has been satisfied
6 Requisite Consents
6.1 SUBJECT to the provisions of Clause 4 hereof the Landlord will apply for
and use all reasonable endeavours to obtain at its own cost all
Requisite Consents necessary for the carrying out of the Works as may
from time to time be appropriate both before and throughout the course
of the Works
6.2 The Tenant will apply for and use all reasonable endeavours to obtain at
its own cost all Requisite Consents for the Tenant's Fit Out Works as
may from time to time be appropriate both before and throughout the
course of such works
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6.3 If a Requisite Consent is refused the Landlord or the Tenant as
appropriate will take such action as may be appropriate in order to
proceed with the relevant works
6.4 The Landlord and the Tenant will each notify the other of the grant of a
Requisite Consent and will deliver a copy thereof to the other
6.5 The Landlord and the Tenant will each obtain the other's approval of its
list of trade contractors from whom tenders will be invited for the
Works and the Tenant's Fit Out Works respectively
7 Landlord's Obligations with regard to the carrying out of the Works
7.1 THE Landlord will enter into the Building Contract as soon as
practicable after the grant of the Planning Consent and will require the
Building Contractor to commence the Works as soon as practicable
thereafter
7.2 The Landlord will enforce the obligations on the part of the Building
Contractor contained in the Building Contract
7.3 The Landlord will enforce the obligations on the part of the Consultants
contained in their respective appointments
7.4 The Landlord will at its own cost but subject to the obtaining of all
Requisite Consents use all reasonable endeavours to procure the carrying
out and completion of the Works:-
7.4.1 In a good and workmanlike manner with good quality materials
7.4.2 In accordance with the Requisite Consents
7.4.3 In accordance with the CONDAM Regulations
7.5 The Landlord will use all reasonable endeavours to procure that the
Works are brought to Practical Completion by the Target Completion Date
[save insofar as the Works cannot be completed until completion of the
Tenant's Fit Out Works] Provided Always that if any delay in commencing
or completing the Works shall arise from Force Majeure
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then provided that the Landlord has used all reasonable endeavours to
minimise delay it shall be allowed such extension of time for the
carrying out of the Works as may be reasonable and proper having regard
to the delay in question and shall be under no liability to the Tenant
whether for compensation damages costs or otherwise in respect of such
delays
7.6 The Landlord will:-
7.6.1 Keep the Tenant informed of the progress of the Works and of any
material problems or delays affecting the same
7.6.2 Give reasonable prior notice of all Site Meetings to enable the Tenant
or its professional advisers to attend and to make representations which
the Landlord will act reasonably in taking into account and will
following such meetings supply copies of the minutes thereof to the
Tenant
7.6.3 Allow the Tenant or its professional advisers on the giving of
reasonable prior notice to enter on the Property in order to view the
state and progress of the Works provided that in doing so the Tenant and
its professional advisers shall not impede or obstruct the progress of
the Works nor issue any instructions to the Building Contractor or to
any workmen employed in the carrying out of the Works
7.6.4 Give not less than [10] Working Days' notice of the anticipated date of
issue of the Certificate of Practical Completion
7.6.5 Permit the Tenant and its professional advisers to inspect the Works
prior to the issue of the Certificate of Practical Completion and make
representations to the [Architect] as to whether or not it considers
Practical Completion of the Works to have taken place provided that the
[Architect's] professional discretion shall not be fettered thereby
7.6.6 Provide to the Tenant as soon as reasonably practicable and in any event
not later than the Completion Date copies of all service drawings and
operating manuals required for the operation of the services within the
Building and within one month thereafter with three sets of as-built
drawings
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7.6.7 On or before the Completion Date procure the removal from the Property
of all plant equipment machinery tools materials vehicles and other
chattels together with any rubbish belonging to the Landlord or the
Trade Contractors and will make good any damage caused to the Property
by such removal
8 Variations
8.1 THE Landlord shall be entitled to make Variations without the Tenant's
consent where such Variations do not constitute Material Variations but
shall not make any Material Variation to the specification of the Works
without the written consent of the Tenant such consent not to be
unreasonably withheld or delayed
8.2 The Tenant shall not make any Material Variation to the Tenant's Fit Out
Works or any Variation which would require the Landlord's consent under
the terms of the Lease without the written consent of the Landlord such
consent not to be unreasonably withheld or delayed but Provided That the
Landlord may refuse to consent to Variations which would not be
permitted under the terms of the Lease or would detrimentally affect the
value of the Landlord's reversionary interest in the Property
8.3 Where either party wishes to make a Material Variation it shall give not
less than ten Working Days' notice to the other [addressed to Xxxxxxx
Xxxxx at Granta Park Limited Granta Park Great Xxxxxxxx Xxxxxxxxx XX0
0XX for the Landlord and Xxxxx Xxxxxx of Xxxxxx Xxxx Associates at
Xxxxxxx Xxxxx Xxxxxxxx Xxxxxxxxx XX0 0XX for the Tenant of such
intention and the recipient party shall be deemed to have given consent
to such variation if it shall not have served written notice of
objection upon the other within [five] Working Days after receipt of the
said notice
8.4 Any notice of objection given pursuant to Clause 8.3 shall state the
reasons for such objections and any dispute between the Landlord and the
Tenant as to whether such objection is reasonable shall be referred by
either party for determination by the Independent Expert
8.5 The parties shall make any submissions that they wish to be considered
20
by the Independent Expert within two working days of the date of
appointment
8.6 The Independent Expert shall use his best endeavours to issue his
decision within five Working Days of appointment and his decision shall
be final and binding
8.7 Fees of the Independent Expert shall be payable as he shall direct or in
the absence of direction shall be borne equally by the parties
9 Appointment of Consultants and Contractors and Collateral Warranties
9.1.1 THE Landlord will appoint the Consultants for the design of the Works
pursuant to appointments substantially in the form of the draft
appointments annexed to this Agreement
9.1.2 The Landlord will let the Building Contract to the Building Contractor
substantially in the form of the draft contract annexed to this
Agreement
9.2 The Landlord shall procure and deliver to the Tenant as soon as
practicable and in any event prior to the Certificate Date
9.2.1 Duly executed warranties under seal substantially in the form of the
draft annexed to this Agreement as Schedule II by the Building
Contractor
9.2.2 Duly executed warranties under seal in the form or substantially in the
form of the relevant drafts annexed to this Agreement as Schedule [5]
from the Architect Mechanical Electrical Engineers and Structural
Engineers and
9.2.3 Shall use all reasonable endeavours to procure duly executed warranties
under seal substantially in the form of the draft annexed to this
Agreement as Schedule VIII by the Sub-Contractors with design
responsibilities involved in the construction or installation of the
roof and wall cladding glazed curtain xxxxxxx mechanical and electrical
services and lift
21
9.3 The Landlord and the Tenant shall co-operate with each other in any
proceedings taken by either party to enforce their rights under the
collateral warranties given by the Building Contractor the Consultants
or the Tenant's Consultants or the Tenant's Trade Contractors in
accordance with Clause 14.2.4 and the above provisions and shall if
reasonably so required join in as party to such action
9.4 Where any party shall request the co-operation of the other pursuant to
Clause 9.3 it shall indemnify the other against all reasonable and
proper costs incurred as a result of such co-operation
10 Condam Regulations
IN respect of the CONDAM Regulations the following shall apply:-
10.1 The Tenant appoints the Landlord to act as the only client in respect of
the Works and the Landlord appoints the Tenant to act as the only client
in respect of the Tenant's Fit Out Works
10.2 The Landlord shall prior to commencement of the Works make a declaration
in respect of the appointment as client and send it to the health and
safety executive in accordance with the provisions of the CONDAM
Regulations and the Tenant shall do likewise prior to the commencement
of the Tenant's Fit Out Works
10.3 The Landlord shall as soon as practicable after Practical Completion but
in any event prior to completion of the Lease deliver to the Tenant a
copy of the health and safety file relating to the Works
11 Measurement
11.1 PRIOR to or as soon as practicable immediately after the Certificate
Date the Landlord and the Tenant shall cause a joint measurement (both
in square feet and in square metres) of the Gross Internal Area of the
Building to be made
11.2 If the parties cannot agree the Gross Internal Area they shall invite
the Independent Expert to measure the Building and immediately
thereafter to notify his measurement to the parties
22
11.3 The Independent Expert shall act as an expert and not as an arbitrator
and his measurement of the Gross Internal Area shall be conclusive and
binding on the parties (save for manifest error) and his costs shall be
born by them in such proportions as he shall direct and in the absence
of direction equally
12 Termination
12.1 IF the Certificate Date has not occurred by the Long Stop Date the
Tenant may at any time within four weeks thereafter rescind this
Agreement by giving written notice to the Landlord to that effect
whereupon this Agreement shall terminate
12.2 If the Certificate Date has not occurred by a date which falls six
months after the Long Stop Date then the Landlord may at any time within
four weeks thereafter rescind this Agreement by giving written notice to
the Tenant to that effect whereupon this Agreement shall terminate
12.3 If at any time there shall be an Event of Insolvency in relation to the
Tenant then the Landlord may at any time thereafter rescind this
Agreement by giving written notice to the Tenant (or as appropriate any
Receiver or Liquidator) to that effect whereupon this Agreement shall
terminate but without prejudice to the rights of the Landlord in respect
of any antecedent breach by the Tenant of its obligations herein
contained
12.4 Upon termination pursuant to Clauses 5.3 12.1 or 12.2 neither party
shall have a claim against the other for damages compensation or costs
in respect of any antecedent breach of any obligation herein contained
13 Remedy of Defects
13.1 THE Landlord will procure that the Architect prior to the expiry of the
defects liability period under the Building Contract inspect the
Property and prepare a detailed schedule of defects and will no later
than 5 Working Days prior to the expiry of the defects liability period
deliver a copy of such schedule to the Tenant
13.2 Following receipt of such schedule the Tenant shall consider the same
23
and shall notify to the Architect any additional defects for which the
Building Contractor is liable pursuant to the Building Contract no later
than 5 Working Days prior to the expiry of the Defects Liability Period
13.3 The Landlord will procure that the Architect will deliver such schedule
of defects together with any additions properly notified by the Tenant
to the Building Contractor within the applicable time limits for doing
so under the Building Contract
13.4 The Landlord will use all reasonable endeavours to enforce the
obligations of the Building Contractor in relation to all defects
notified to it in accordance with Clause 13.2 hereof as soon as
reasonably practicable AND on failure by the Building Contractor to
comply with its obligations will enforce any parent company guarantee
and will use any retention or performance bond available to it for the
purpose of remedying such defects so far as the same shall be sufficient
for that purpose and in the event that they are not sufficient will make
such retention or bond monies available to the Tenant
13.5 The Tenant will on reasonable prior notice from the Landlord allow the
Landlord and all persons authorised by the Landlord all such rights of
entry as are necessary to enable the schedule of defects to be prepared
and to enable the remedy of all defects set out therein
13.6 Provided that the Landlord complies with its obligations in Clauses 13.1
and 13.3 hereof the Tenant shall have no right to require the remedy
under the defects liability provisions in the Building Contract of any
defect which has been omitted from the schedule of defects
13.7 The Landlord will give to the Tenant not less than 5 Working Days'
notice of the anticipated date of issue of the certificate of making
good defects and will allow the Tenant and its professional advisers to
inspect the Works and to make representations to the Architect as to
whether such certificate should be issued or with what qualifications
but provided that the Architect's professional discretion shall not be
fettered thereby
13.8 The Landlord shall cease to be liable and the Tenant shall make no
24
claim against the Landlord in respect of any breach of the Landlord's
obligations in respect of the carrying out of the Works after the expiry
of the period of 6 years from the date of Practical Completion unless
the Tenant shall have made a specific claim against the Landlord before
the expiry of that period
13.9 It is hereby agreed that nothing in this Agreement shall be construed as
imposing upon the Landlord obligations which are greater than those
imposed upon the Building Contractor and Consultants by virtue of their
respective contracts or appointments
14 Tenant's Fit Out Works
14.1 THE Tenant will at its own cost use all reasonable endeavours to procure
the carrying out and completion of the Tenant's Fit Out Works:-
14.1.1 In a good and workmanlike manner with good quality materials
14.1.2 In accordance with Requisite Consents
14.1.3 In accordance with the CONDAM Regulations
Provided Always that the Tenant shall not be permitted to commence the
carrying out of the Tenant's Fit Out Works until the Certificate Date
14.2 The Tenant will:-
14.2.1 Obtain the Landlord's approval of the identity of the Tenant's
Consultants such approval not to be unreasonably withheld
14.2.2 Obtain the Landlord's approval of its list of Trade Contractors from
whom tenders will be invited for the Tenant's Fit Out Works such
approval not to be unreasonably withheld
14.2.3 Allow the Landlord or its professional advisers on the giving of
reasonable prior notice to enter on the Property in order to view the
state and progress of the Tenant's Fit Out Works provided that in so
doing the Landlord or its professional advisers shall not impede or
obstruct the
25
progress of the Tenant's Fit Out Works nor issue any instructions to the
building contractor or to any workmen employed for the carrying out of
the Tenant's Fit Out Works
14.2.4 Allow the Landlord or its professional advisers to make representations
to the Tenant or such person or body as the Tenant shall direct as to
whether or not it considers that the Tenant's Fit Out Works have been
carried out and completed in accordance with the Tenant's covenants
contained in Clause 14.1 hereof
14.2.5 Appoint the Tenant's Consultants and the Tenant's Trade Contractors
pursuant to appointments and Contracts in a form approved by the
Landlord such approval not to be unreasonably withheld or delayed
14.2.6 Procure and deliver to the Landlord duly executed warranties under seal
substantially in the form of the drafts annexed hereto as Schedules II
and III by any contractor or consultant involved in the design or
carrying out of the Tenant's Fit Out Works such warranties to be
provided prior to the Practical Completion of such works
14.2.7 Put right to the Landlord's reasonable satisfaction any defect in the
Tenant's Fit Out Works which the Landlord shall properly notify to the
Tenant within the defects liability period under the contract for the
carrying out of such works
26
15 Disputes
15.1 ANY disputes between the parties relating to the agreement of the
Specification or the Tenant's Fit Out Specification pursuant to clause 3
hereof or as to the amount of the Landlords Capital Contribution
pursuant to clause 16 hereof shall be referred at the instigation of
either party for determination by the Independent Cost Consultant who
shall act as an expert and not as an arbitrator and whose decision shall
be conclusive and binding on the parties save in case of manifest error
and whose costs shall be borne by the parties in such proportions as he
shall direct or in the absence of direction equally
15.2 If any dispute or question shall arise between the Landlord and the
Tenant in relation to this Agreement it shall save where otherwise
provided in this Agreement be submitted to arbitration within the
meaning of the Arbitration Xxx 0000 or any act amending or replacing the
same
15.3 The arbitrator shall be appointed by the Landlord and the Tenant jointly
or failing such appointment by the President of the Royal Institution of
Chartered Surveyors on the application of either the Landlord or the
Tenant
16 Development Costs
16.1 THE Landlord will bear the cost:-
16.1.1 Of obtaining all Requisite Consents in respect of the Works
16.1.2 Of the carrying out of the Works
16.2 The Tenant will bear the cost:-
16.2.1 Of obtaining all Requisite Consents in respect of the Tenant's Fit Out
Works
16.2.2 Of the carrying out of the Tenant's Fit Out Works
16.2.3 Of any Variations to the Works requested by the Tenant to the extent
27
that this increases the costs of carrying out the Development as
certified by the Architect
16.3 Following the date of issue of the cost plan for the Works produced by
the Cost Consultant the parties will endeavour to agree the Forecast
Construction Cost
16.4 If the parties shall fail to reach agreement pursuant to Clause 16.3
that figure will be ascertained immediately following the letting of the
Building Contract for the Works and in case of dispute the matter may be
referred by either party for determination by the Independent Cost
Consultant who shall act as an expert and not as an arbitrator and whose
decision shall be conclusive and binding on the parties save in case of
manifest error and whose costs shall be borne by the parties in such
proportion as he shall direct and in the absence of direction equally
16.5 The Landlord will pay the Landlord's Capital Contribution to the Tenant
in the following manner
16.5.1 Within 10 Working Days of the date of issue of each Tenant's Interim
Certificate the Landlord will pay the Landlord's Percentage of the sum
set out in such Certificate provided that such amounts shall not when
aggregated exceed the Landlord's Capital Contribution and that no
payment shall be made prior to the grant of the Lease
16.5.2 On the Settlement Date the Landlord will pay to the Tenant any balance
of the Landlord's Capital Contribution which shall not have been paid
pursuant to Clause 16.5.1
17 Grant of the Lease
17.1 THE Landlord will grant and the Tenant will accept the grant of the
Lease on the Completion Date
17.2 Engrossments of the Lease shall be prepared by the Landlord's Solicitors
and both parties will promptly execute such engrossments preparatory to
the grant of the Lease
28
17.3 The rent initially reserved by the Lease shall be the Yearly Rent
17.4 The date of commencement of the term granted by the Lease shall be the
Term Commencement Date
17.5 The date upon which rents and service charge shall commence to be
payable pursuant to the Lease shall be the Rent Commencement Date
18 Title
THE Landlord has deduced its title to the Property and the Tenant
accepts it and shall not raise any requisition or objection to the
Landlord's title
19 Encumbrances
19.1 THE Property shall be demised subject to the matters (if any) contained
or referred to in the documents set out in Schedule II so far as the
same relate to the Property and are still subsisting and the Tenant or
its Solicitors having been supplied with copies or details of all such
matters shall be deemed to purchase with full notice and shall raise no
objection or requisition in respect thereof
19.2 The Property is also demised subject to:-
19.2.1 Any matter or thing registered or capable of registration in the local
Land Charges Registry
19.2.2 All rights of way drainage or other rights easements quasi-easements and
privileges which may affect the Property or any part thereof without any
obligation on the part of the Landlord to define the same
19.2.3 All charges and other outgoings which affect or are charged on the
Property other than financial charges
29
20 Disclaimer
20.1 THE Tenant hereby acknowledges that this Agreement has not been entered
into in reliance wholly or partially upon any statement or
representation made by or on behalf of the Landlord save in so far as
any such statement or representation is expressly set out in this
Agreement or has been made in writing by the Landlord's Solicitors to
the Tenant's Solicitors and that in the event of any such statement
being made this shall not obviate the need for the Tenant to make the
appropriate searches and enquiries and/or inspections of the Property
and/or any relevant authority
20.2 No statement whether made orally or in writing or contained in any
advertisement notice or otherwise issued by the Landlord or its agents
or otherwise issued on the Landlord's behalf shall be deemed to be a
term or condition of this Agreement which constitutes the entire
contract between the parties and may only be varied or modified (whether
by way of collateral contract or otherwise) in writing under the hands
of the parties or their Solicitors
21 Agreement not Assignable
UNLESS the Landlord shall otherwise agree it shall not be required to
grant the Lease of the Property other than to the Tenant
22 Non Merger
SAVE in so far as they have been fully performed the provisions of this
Agreement shall remain in effect after and notwithstanding the
completion of the grant of the Lease
23 Notices
WHERE this Agreement shall require any notice or notification to be
given it shall be given in writing and shall be treated as properly
given if made in accordance with s.196 of the Law of Property Act 1925
(as amended by the Recorded Delivery Service Act 1962)
24 Insurance
24.1 UNTIL Practical Completion the Landlord shall procure that the Building
and the Works shall be insured against the Insured Risks to full
30
reinstatement value
24.2 From and including the Certificate Date the Landlord shall insure the
Property in accordance with the provisions of the Lease
24.3 If prior to the Certificate Date any part of the Building or the Works
is damaged or destroyed by a risk which is covered by the insurance
taken out in accordance with subclause 1 hereof the Landlord shall use
all reasonable endeavours to procure that the damage is reinstated
24.4 In respect of any damage or destruction which shall occur on or after
the Certificate Date the Landlord will observe and perform obligations
in the same form as those contained in the Lease
25 VAT
25.1 ALL payments provided for by this Agreement shall be deemed to be
exclusive of VAT and the Tenant shall on receipt of a VAT invoice pay
any VAT which shall be properly chargeable thereon
25.2 Where the Landlord or the Tenant is entitled to recover the cost of
goods and services supplied but in respect of which no taxable supply
is made to the party paying such costs that party shall indemnify the
other against any such VAT thereon as is not recoverable as input tax
26 Guarantee of the Tenant's Covenants
26.1 THE Surety guarantees to the Landlord that the Tenant will duly
observe and perform all the stipulations and obligations on the
Tenant's part contained in this Agreement ("Tenant's Obligations") and
in default by the Tenant of the Tenant's Obligations the Surety will
observe and perform the Tenant's Obligations Provided Always that the
obligations of the Surety hereunder shall not exceed those imposed
upon the Tenant
26.2 In the case of amendment to or variation of the terms of this
Agreement or any document referred to herein the Surety's guarantee
will apply to the Tenant's Obligations as so amended or varied
26.3 If the Tenant fails to duly observe and perform the Tenant's
Obligations
31
or any of them the Surety will on demand make good to the Landlord all
losses damages costs and expenses arising as a result of such failure
and the Surety will indemniy the Landlord against all losses costs
expenses and liability arising or incurred by the Landlord as a direct
result of such failure
26.4 If any liquidator or trustee in bankruptcy of the Tenant shall
disclaim this Agreement the Surety will on written demand by the
Landlord within one month of such disclaimer enter into an agreement
with the Landlord on the same terms as this Agreement save that the
Surety shall be the Tenant thereunder and the Surety's separate
guarantee obligations shall be excluded. The Surety will also pay the
Landlord's proper and reasonable costs (including VAT) in connection
with such agreement
26.5 No neglect or forbearance on the part of the Landlord in enforcing
observance and performance by the Tenant of any of the Tenant's
Obligations and no time or other indulgence given by the Landlord to
the Tenant shall release or discharge or in any way affect the
liability of the Surety under this Clause 26
26.6 No legal limitation disability incapacity or any other circumstances
relating to the Tenant nor any amendment to or variation of the terms
of this Agreement or any document to which it refers shall release
discharge or in any way limit or affect the liability of the Surety
under this Clause 26
26.7 The Surety's Obligations under this Clause 26 shall not be released or
affected by any other act or omission or thing which but for this
Clause 26.7 would cause the Surety's obligations under this Clause 26
to be released wholly or partly other than a release given under seal
by the Landlord
26.8 On the Completion Date the Surety will enter into the Lease as
guarantor of the Tenant's covenants thereunder and in the
circumstances set out in Clause 26.4 herein or if the Tenant fails to
complete the Lease shall if the Landlord so requires take up the Lease
in its own name as Tenant thereunder and the Lease shall in such
circumstances be amended to
32
exclude the Surety Obligations
33
SCHEDULE I
Encumbrances
34
SCHEDULE II
Form of Building Contractors' Warranty
35
SCHEDULE III
Form of Consultants' Warranty
36
SCHEDULE IV
Form of Building Contract
SCHEDULE V
Form of Consultants Agreement
37
SCHEDULE VI
Extract of Draft Insurance Policy
38
SCHEDULE VII
Draft Lease
39
SCHEDULE VIII
Sub-contractors Warranty
40
A S W I T N E S S the hands of the parties hereto the day and year first
before written
SIGNED by the duly authorised )
person for and on behalf of )
the Tenant:- )
SIGNED by the duly authorised )
person for and on behalf of )
the Surety:- )
41
