Exhibit 10.4
LEAVE AND LICENCE AGREEMENT
This Leave and Licence Agreement (the "Agreement") is made at Mumbai on 17
March, 2004
BETWEEN
1. Sofotel Software Services Private Limited, a company incorporated under the
Companies Xxx, 0000, and having its registered office at 00-X, Xxxxxxxxx,
Xxxxxxx Xxxxx, Xxxxxx 000000 (hereinafter referred to as the "Licensor",
which expression shall, unless repugnant to the context or meaning thereof,
be deemed to mean and include its successors and assigns) of One Part;
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AND
2. WNS Global Services Private Limited, a company incorporated under the
Companies Xxx, 0000, and having its office at Xxxx 0, Xxxxxx & Xxxxx
Xxxxxxx, Xxxxxxxxxxxxx, Vikhroli (W) Mumbai 400 079, (hereinafter referred
to as the "Licensee") of the Other Part.
("Party" or "Parties" shall have individual or collective reference to the
Licensor and the Licensee)
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WHEREAS
A. The Licensor has the absolute right to use, occupy, possess, and enjoy the
entire building known as the Commercial Office Building (the "Building")
(along with its common areas and exclusive car parking spaces) situated on
plot No. 192B and which is more particularly described in the Plan annexed
hereto as ANNEXURE A.
B. The Licensee has requested the Licensor to grant to the Licensee the use of
the office premises on the second floor of the Building having, inter-alia,
an aggregate area measuring 35,870 sq.ft. or thereabouts (the "Premises")
on a leave and licence basis and the Licensor has agreed to grant such
permission to the Licensee by way of leave and licence for the period, at
the consideration and upon the terms and conditions as hereinafter
mentioned.
NOW THEREFORE THE PARTIES AGREE AND THIS AGREEMENT WITNESSETH AS FOLLOWS:
1. GRANT OF LICENCE AND TERM OF THE AGREEMENT
The recitals contained herein shall be deemed to constitute an integral
operative part of this Agreement.
1.1 In consideration of the licence fees hereinafter reserved and of the rights
and the covenants of the Licensee hereinafter contained, the Licensor
hereby agrees to grant to the Licensee and the Licensee hereby agrees to
take on leave and licence the Premises for a term of 33 months commencing
from 1 April, 2004 (the "Effective Date") on the terms and conditions
herein contained.
1.2 The Licensor hereby confirms that in view of the licence granted by this
Agreement the directors, employees, servants, staff, agents and the
bonafide visitors of the Licensee shall be permitted and shall be at
liberty to enter and use the Premises for the purposes of the Licensee's
business.
1.3 The Licensor shall, on the Effective Date, hand over to the Licensee,
physical possession of the Premises and a set of duplicate key(s), which
would permit the Licensee to gain access to the Premises and all other
areas in and around the Premises.
2. CONSIDERATION
2.1 In consideration of the licence hereby granted by the Licensor to the
Licensee for the Premises and the Services to be rendered by the Licensor
under Clause 6 hereunder, the Licensee hereby agrees to pay to the Licensor
licence fees at the rate of Rs. 16,32,738 (Rupees Sixteen lakh thirty two
thousand seven hundred and thirty-eight only) per month (the "Licence
Fees"). It is clarified that except for the Licence Fees, the Licensee
shall not be liable to pay any further fees, service charges, rentals,
maintenance, water charges, municipal taxes or any pre-quantified
annual/monthly maintenance charges to the Licensor of any other third party
in relation to the Premises and the Licensor
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acknowledges that the due payment of the Licence Fees forms the sole and
adequate consideration for the licence granted herein and the Services to
be rendered by the Licensor under Clause 6 hereunder. It is hereto agreed
between the Parties that the Licensee shall have the exclusive right to use
only in the manner in which such common areas in any building are normally
put to use and in keeping with the decor / layout of the Building, the
common areas of the Premises that have been demarcated in the plan annexed
hereto as ANNEXURE A (the "Common Areas") without payment of any additional
licence fees or rentals.
2.2 The Licence Fees shall be payable in advance by the Licensee monthly, on or
before the 5th (fifth) day of each month for that month's use. The Licensor
hereby covenants with the Licensee that upon the Licensee paying the
Licence Fees on or before the date mentioned herein, in the manner herein
provided and by observing and performing the covenants, conditions and
stipulations herein contained, the Licensee shall be permitted unimpeded
use and occupation of the Premises during the period of the Licence herein
created.
2.3 The Licensee shall withhold taxes on all amounts due and payable to the
Licensor as may be required under the Income Tax Act, 1961 or any other law
as may be applicable and shall make payments to the Licensor subject to
such taxes being withheld. The Licensee shall periodically and always
within a reasonable time provide the Licensor with the relevant TDS
certificates in respect of the aforesaid tax deductions.
2.4 The Licensee shall, during the term of this Agreement, pay all regular
outgoings in respect of the Premises. These shall include the charges for
electricity consumed based on the reading of the meter installed in that
behalf within the period stipulated in the xxxx issued by the supplier of
electricity to whom the payment shall be directly remitted by the Licensee.
The Licensor undertakes to forward to the Licensee the bills for such
electricity supply, if at all the Licensor receives such bills. It shall
however not be the Licensor's responsibility to track and ensure the
receipt of the bills by the Licensee whose responsibility it shall be to
ensure that the electricity bills are always paid regularly.
3. SECURITY DEPOSIT
3.1 On or before the execution of this Agreement, the Licensee shall deposit
with the Licensor a sum of Rs. 16,32,738 (Rupees Sixteen lakh thirty two
thousand seven hundred and thirty eight only) as an interest free security
deposit (hereinafter referred to as the "Security Deposit").
3.2 The Licensor shall repay to the Licensee the Security Deposit in full
within one month of the expiry or sooner determination of the licence
period as provided herein or on the settlement of any outstanding bills in
respect of the Premises payable by the Licensee hereunder, whichever is
earlier, provided that the Licensee removes themselves, their belongings,
equipment, furniture and fixtures from the Premises and hands over vacant
possession of the Premises (duly debonded) to the Licensor forthwith upon
such expiry/determination.
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3.3. If the Licensor fails to refund the Security Deposit or any part thereof
for any reason whatsoever, the Licensee shall, without prejudice to its
right to recover the Security Deposit or any part thereof or to any legal
remedy available to it, be entitled to claim from the Licensor interest
calculated at the rate of 2% per month on outstanding Security Deposit or
any part thereof, calculated till the date of actual payment of the said
amount.
4. LICENSEE'S COVENANTS
The Licensee hereby agrees, undertakes and covenants with the Licensor as
follows:
(a) that within the Premises, including the Common Areas within the
Building the Licensee shall keep the interior walls, floors, ceiling,
doors, windows, electric fittings and installations and water
connections in good order and condition (reasonable wear and tear and
loss or damage by fire, accident, irresistible force or act of God
excepted);
(b) that upon the expiration or sooner determination of this Agreement,
the Licensee shall remove from the Premises, all such furniture and
fittings belonging to the Licensee without in any way damaging the
Premises;
(c) that upon expiry of the period of the licence or sooner determination
of this Agreement, the Licensee shall forthwith vacate the Premises
and hand over vacant and peaceful possession of the Premises (duly
debonded) to the Licensor;
(d) that the Licensee shall promptly notify the Licensor of any notice
received by the Licensee in respect of the Premises;
(e) that subject to Clause 10.1 hereto, the Licensee shall not have any
right to transfer, assign, mortgage or part with possession of the
Premises or create any third party rights therein any manner
whatsoever;
(f) that the Licensee shall keep all articles, furniture, fixtures,
vehicles or valuables in the Premises at its own risk in all respects
and the Licensee shall not hold the Licensor responsible or liable for
any damage to the same or any loss due to theft etc. provided that
such damage, loss or theft is not caused by the negligence of the
Licensor, its employees or agents;
(g) that the Licensee shall permit the Licensor's authorised
representatives to inspect the Licensed Premises during the day upon
providing reasonable prior notice in that behalf of at least 3 (three)
working days to the Licensee;
(h) that the Licensee agrees that it shall not undertake any activity
which would be contrary to the terms and conditions of this Agreement
or which would otherwise adversely affect the Licensor's right, title
or interest in respect of the Premises;
(i) that the Licensee shall bear all running costs incurred in the
operation of all back to back standby diesel generators installed by
the Licensor pursuant to Clause 5 (e) of this Agreement.
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5. LICENSOR'S COVENANTS
The Licensor hereby agrees, undertakes and covenants with the Licensee as
follows:
(a) that upon the Licensee observing and performing the stipulations and
covenants herein contained to be observed and performed by it, the
Licensee shall during the period of this Agreement, use and occupy the
Premises without interference from the Licensor or any person or
persons claiming under or through it;
(b) that the Licensor has the sole and absolute possession of the
Premises, has proper title to the Premises and has the full power and
absolute right and authority to grant unto the Licensee the Premises
to use the same for its business activities;
(c) that there is no mortgage, charge, encumbrance, impediment or
restraint or injunction against the Licensor or in respect of the
Premises that would in any way affect the Licensee's rights under this
Agreement. Further, the Licensor undertakes that it shall not, during
the subsistence of this Agreement, create any charge, mortgage or
other encumbrance over the Premises or assign, transfer or otherwise
deal with the Premises in such a manner so as to prejudice the rights
of the Licensee hereunder;
(d) that it has obtained comprehensive insurance policy/ies designed to
cover all risks associated with the Premises and shall provide a copy
of such insurance policy/ies to the Licensee on the date of execution
hereof. The Licensor further undertakes that it shall duly and
promptly pay all premiums/fees in connection with the said insurance
policy/ies during the subsistence of this Agreement;
(e) that the Licensor shall, on or before the Effective Date install 225
KVA (or its equivalent) back to back standby diesel generators to
enable the said generators to generate adequate power and support for
the entire Premises including the electricity requirements of the
Licensee. The Licensor shall also provide an additional diesel
generator within the Building premises to support the air-conditioning
at the Premises. The Licensor agrees to install the said diesel
generators only after planning the installation of the said diesel
generators in consultation with the Licensee. The cost and expense for
the installation of the aforementioned generators shall be borne by
the Licensor;
(f) subject to Clause 6, that the Licensor shall bear all the expenses
towards maintenance and upkeep in relation to the air-conditioning
provided by the Licensor;
(g) subject to applicable local and municipal regulations, that the
Licensee shall be entitled to put up nameplates and signages in
respect of its business at such places in the Premises as may seem
appropriate to the Licensee;
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(h) that the Licensor shall, in the event of termination/expiry of this
Agreement, and simultaneously upon the peaceful vacation of the
Premises (duly debonded) by the Licensee, refund to the Licensee the
whole of the Security Deposit subject to and as provided in Clause 3.2
above;
(i) that the Licensor has obtained all the requisite statutory approvals
in relation to the Premises and that the occupation and use of the
Premises by the Licensee is in consonance with such approvals.
Further, the Licensor represents and warrants that it shall ensure
that the requisite statutory approvals and permits in relation to the
Premises and use and occupation thereof remain in force at all times
during the subsistence of this Agreement;
(j) that the Licensor, has obtained all requisite corporate and other
approvals in relation to the licence of the Premises to the Licensee
as contemplated herein and further that the execution of this
Agreement shall not result in any violation of any law or any
agreement between the Licensor and any third party or otherwise
contravene any third party rights;
(k) that the Licensor shall keep the Building's exterior and the Common
Areas around the Building in good repair and condition (reasonable
wear and tear and loss or damage by fire, accident, irresistible force
or act of God excepted);
(l) that the car parking spaces within the Building but separately
demarcated for the Premises shall be reserved exclusively for the
Licensee and that it shall take all necessary steps to ensure that no
third party uses or encroaches upon the same.
6. SERVICES
6.1 The Licensor shall with effect form the Effective Date provide the Licensee
and their employees during the tenure of the Agreement, the following
facilities and amenities (the "Services"):
(a) Security arrangements in respect of the common areas outside the
Building and in the parking areas.
(b) Maintenance and upkeep of the common area around the Premises and the
Building. Without prejudice to the generality of the foregoing, the
Licensor shall, at all times during the subsistence of the Agreement,
keep the common area around the Premises and the Building clean and
hygienic and in a good state of repair including but not limited to
provision of water disposal services, repainting the exterior of the
Premises, maintenance and upkeep of the common areas around the
Premises, maintenance and upkeep of the lift, arranging for regular
pest control, water tank cleaning, upkeep and maintenance of the
garden around the Premises and subject to Clause 6.1 (c) hereunder
undertaking any major repairs or structural changes/modifications to
the Premises as may be required.
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(c) The Licensor shall obtain the prior written permission of the Licensee
before undertaking any major repairs or structural
changes/modifications to the Premises, which are likely to interfere
with the peaceful enjoyment and day-to-day activities of the Licensee.
(d) The Licensor shall ensure that all water and electricity connections
and sewage and waste disposal facilities in the common areas, as
described in Annexure A hereto, are kept in a good state of repair.
(e) The Licensor shall at the request of the Licensee demarcate slots for
the purpose of car parking and paint the said facility so that the
slots are clearly visible. The Licensor shall also maintain the
car-parking slots and ensure that no third party encroaches upon the
same. The access to the car park facility shall be available
exclusively to the Licensee and their employees, representatives,
designees and bonafide visitors at all times during the tenure of the
Agreement.
(f) The Licensor shall permit lorries and other vehicles for transporting
the Licensee's goods and material to enter the Building premises.
(g) The Licensor shall provide suitable space in the Building for the
installation of any satellite antenna or microwave tower and ancillary
equipment that the Licensee may be desirous of erecting and duct space
enabling the connection of the said antenna or tower or ancillary
equipment to any area within the Premises. It is hereby clarified that
any statutory or regulatory approvals required for the erection or
operation of the aforesaid antenna or tower shall be obtained by the
Licensee at its cost and the Licensor shall render to the Licensee all
reasonable assistance that Licensee may request in that behalf;
(h) The Licensor shall be responsible for the provision of satisfactory
fire fighting facilities including but not limited to the provision
and maintenance of fire hydrants within/around the Premises and
periodical statutory testing/certification of equipment in accordance
with the local rules/regulations as may be prevalent/issued by the
Pune Municipal Corporation;
(i) The Licensor shall ensure that it provides adequate water storage
facilities for the Premises, meeting the total requirements and for
the exclusive utilisation of the Licensee.
6.2 The Licensor shall ensure that the Services shall not interfere or impede
the Licensee's peaceful enjoyment and use of the Premises.
7. NOTICES
7.1 Any notice and other communications provided for in this Agreement shall be
in writing and shall be first transmitted by facsimile/electronic
transmission, and then confirmed by postage, prepaid registered airmail or
by nationally recognised courier service, in the manner as elected by the
Party giving such notice to the following addresses:
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(a) In the case of notices to the Licensor:
Address : Sofotel Software Services Pvt. Ltd.
00X, Xxxxxxxxx, Xxxxxxx Xxxxx
Xxxxxx 400 021
Fax : 0000 0000
Attn. : Xx. Xxxxxx Xxxxx
E-mail : xxxxxxx@xxxx.xxx
(b) In case of notices to the Licensee:
Address : WNS Global Services Pvt. Ltd.
Plant 10, Godrej & Xxxxx Complex
Pirojshanagar, Vikhroli (W)
Mumbai 400 079
Fax : 0000 0000
Attn. : Xx. Xxxxxx Xxxxxxxx
E-mail : xxxxxx.xxxxxxxx@xxxxx.xxx
7.2 All notices shall be deemed to have been validly given on (i) the business
date immediately after the date of transmission with confirmed answer back,
if transmitted by facsimile/electronic transmission, or (ii) the business
date of receipt, if transmitted by courier or registered mail.
7.3 Either Party may, from time to time, change its address or representative
for receipt of notices provided for in this Agreement by giving to the
other Party not less than 30 days prior written notice.
8. ARBITRATION
8.1 If any dispute arises amongst Parties hereto during the subsistence of this
Agreement or thereafter, in connection with the validity, interpretation,
implementation or alleged material breach of any provision of this
Agreement or regarding a question, including the questions as to whether
the termination of this Agreement has been legitimate, the Parties shall
endeavor to settle such dispute amicably.
8.2 In the case of failure by the Parties to resolve the dispute in the manner
set out above within 30 days from the date when the dispute arose, the
dispute shall be referred to arbitration of a sole arbitrator to be
appointed by the Parties or in case of disagreement as to the appointment
of the sole arbitrator to a panel of three arbitrators with each Party
nominating one arbitrator and the arbitrators so appointed appointing the
third arbitrator. The place of the court of arbitration shall be Mumbai.
The arbitration proceeding shall be governed by the Arbitration and
Conciliation Act, 1996 and shall be in the English language. The
arbitrator/arbitral panel shall also decide on the costs of the arbitration
proceedings.
8.3 The arbitrator's/arbitral panel's award shall be substantiated in writing
and the Parties shall submit to the arbitrator's/arbitral panel's award
which shall be enforceable in the court of law in Mumbai.
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8.4 The provisions of this Clause shall survive termination of this Agreement.
9. TERMINATION
This Agreement shall be terminated only in the manner provided herein and
on no other ground.
9.1 Either Party ("Non-defaulting Party") may terminate this Agreement in the
event of a material breach by the other Party ("Defaulting Party") of any
of its obligations under this Agreement, provided that a 90 day's written
notice in that behalf is given to the Defaulting Party. Notwithstanding the
foregoing, if the Defaulting Party remedies the breach to the satisfaction
of the Non-defaulting Party within the said period of 90 days, the notice
shall stand withdrawn and this Agreement shall continue to be valid and
binding. Provided however, and notwithstanding anything to the contrary
contained herein, if the Defaulting Party contends that no such breach has
occurred and/or such breach has been remedied, and if the Defaulting Party
invokes the arbitration clause contained herein, then and in such event,
this Agreement shall not be terminated by the Non-Defaulting Party until
the arbitral panel constituted under the provisions of Clause 8 above has
held that the Defaulting Party did commit such material breach and/or did
not remedy the same.
9.2 Notwithstanding anything contained in Clause 9.1 above, it is hereby agreed
that if any of the following events occur:
(i) If either Party passes a resolution for voluntary winding up;
(ii) If a receiver is appointed by a court of law in respect of either
Party's property;
(iii) If an order is passed by a competent court of law for winding up of
either Party;
(iv) If either Party takes or suffers any action for dissolution or
liquidation;
this Agreement may be forthwith terminated at the option of the other Party
which option is to be exercised in writing.
9.3 Upon the expiry or earlier termination of this Agreement, the Licensee
shall vacate the Premises together with all its employees, agents and
representatives who may be in occupation of the Premises and hand over
vacant possession thereof (duly debonded) to the Licensor.
10. RIGHT TO USE
10.1 Nothing contained herein shall be construed as creating any right, interest
or tenancy in favour of the Licensee in, over or upon the Premises or any
part thereof or transferring any interest therein in favour of the Licensee
other than the rights and permissions granted herein to use and occupy the
Premises as a licensee for the term of this Agreement. This licence is
purely temporary for the period provided herein.
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10.2 It is expressly agreed to between the Parties hereto that the Licensee
shall not have any right whatsoever in respect of the Premises of the area
surrounding thereto or any part thereof and it shall not at any time claim
any rights whatsoever in respect of the Premises or the area surrounding
thereto or any part thereof other than the right to enter upon and enjoy
the use of the Premises or any part thereof as herein prescribed.
10.3 Upon the expiry or earlier termination of this Agreement the Licensee shall
vacate the Premises together with all its employees, agents and
representatives who may be in occupation of the Premises and hand over
vacant possession thereof (duly debonded) to the Licensor. The Licensee
agrees and undertakes for itself and each of the persons aforesaid not to
enter upon the Premises or commit trespass after the expiry or earlier
revocation of this Agreement.
10.4 Upon the expiry or earlier termination of this Agreement and in the event
the Licensee fails to vacate the Premises or any part thereof upon refund
of the Security Deposits together with its employees, agents and
representatives who may be in occupation of the Premises and hand over
vacant possession thereof (duly debonded) to the Licensor, it is agreed
that the Licensee shall pay to the Licensor Rs. 55,513 per day from the
date of such default until such time as the Licensee vacates the Premises
together with its employees, agents and representatives and their
belongings and has handed over vacant possession thereof to the Licensor.
This is in addition to all other legal rights and remedies of the Licensor
including the right of the Licensor to use reasonable force to prevent the
Licensee or any person claiming under it from entering the Premises.
11. MISCELLANEOUS PROVISIONS
11.1 ASSIGNMENT AND SUB-LICENSE
It is expressly agreed by and between the Parties that juridical possession
of the Premises shall be always that of the Licensor. The Licensee is
granted a personal, non-transferable and non-assignable licence to use the
Premises on the terms and conditions stated herein. Notwithstanding the
foregoing, the Licensee shall subject to prior written permission from the
Licensor (which permission shall not be unreasonably withheld by the
Licensor) be free to sublicense the Premises, provided granting of such a
sub-license shall not discharge the Licensee of its obligations hereunder.
11.2 RELATIONSHIP
Nothing contained herein shall be construed as creating any right, interest
or tenancy in favour of the Licensee in, over or upon the Premises or any
part thereof or transferring any interest therein in favour of the Licensee
other than the rights and permissions granted herein to use and occupy the
Premises as the Licensee for the term of this Agreement.
11.3 AMENDMENTS
No modification or amendment to this Agreement and no waiver of any of the
terms or conditions hereto shall be valid or binding unless made in writing
and duly executed by both Parties.
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11.4 ENTIRETY
The Parties hereto acknowledge, declare and confirm that this Agreement
represents the entire agreement between them regarding the subject matter
hereof and no alterations, additions or modifications hereto shall be valid
and binding unless the same are reduced to writing and signed by both the
Parties after the execution of this Agreement and the understanding reached
in view of the Previous Agreements and/or any other letters, agreements,
addendums, supplemental agreements shall stand terminated from the
Effective Date.
11.5 PARTIAL INVALIDITY
If any provision of this Agreement is held to be invalid or unenforceable
to any extent, the remainder of this Agreement shall not be affected and
each provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law. Any invalid or unenforceable provision of
this Agreement shall be replaced with a provision that is valid and
enforceable and most nearly reflects the original intent of the
unenforceable provision.
11.6 COSTS
All costs, charges and expenses including but not limited to stamp duty,
registration charges etc. payable in respect of this Agreement shall be
borne by the Licensor, provided that as consideration for bearing the stamp
duty and registration charges payable in respect of this Agreement, the
Licensee shall pay such amount to the Licensor and in such manner as
mutually agreed in writing by the Parties. Each Party shall bear and pay
the professional costs of their respective consultants.
11.7 GOVERNING LAW
This Agreement and all other transactions executed in pursuance hereof
shall be governed and construed in accordance with the laws of India.
IN WITNESS WHEREOF the Parties hereto have hereunto set and subscribed their
respective hands the day and year first hereinabove written.
SIGNED AND DELIVERED BY
The within named 'LICENSOR'
By the hand of Xx. X. X. Xxxxx /s/ X. X. Xxxxx
Director pursuant to Board Resolution
dated 17 November, 2003
IN THE PRESENCE OF: XX XXXXXX XXXXXXXX
SIGNED AND DELIVERED BY
The within named 'LICENSEE'
By the hand of Xx. Xxxxxx Xxxxxxxx /s/ Xxxxxx Xxxxxxxx
Director pursuant to Board Resolution
dated 03 December, 2003
IN THE PRESENCE OF: XX XXXXXX XXXX
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ANNEXURE A
(SECOND FLOOR PLAN OF COMMERCIAL OFFICE BUILDING SITUATED ON XXXX XX. 000X)
