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EXHIBIT 10.8
DATED 25TH MARCH 1998
BRITEL FUND TRUSTEES LIMITED
and
GOLDMAN SACHS INTERNATIONAL
and
THE GOLDMAN SACHS GROUP, L.P.
and
ENGLISH PROPERTY CORPORATION plc
and
MEPC plc
AGREEMENT
relating to
One Carter Lane
London EC4
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THIS AGREEMENT made the Twenty Fifth day of March 1998
BETWEEN:
(1) BRITEL FUND TRUSTEES LIMITED (Company number 1687513) whose registered
office is at Standon House 21 Mansell Street London E1 8AA (the "LANDLORD");
(2) ENGLISH PROPERTY CORPORATION plc (Company number 640408) whose registered
office is at 12 St James's Square London SW1Y 4LB (the "DEVELOPER");
(3) GOLDMAN SACHS INTERNATIONAL (Company number 2263951) whose registered office
is at Peterborough Court 133 Fleet Street London EC4A 2BB (the "TENANT");
(4) THE GOLDMAN SACHS GROUP, L.P. whose office is at 85 Broad Street New York
New York 10004 (the "GUARANTOR"); and
(5) MEPC plc (Company number 420575) whose registered office is at 12 St
James's Square London SW1Y 4LB (the "DEVELOPER'S GUARANTOR").
WITNESSES as follows:
1 DEFINITIONS
In this Agreement unless the context otherwise requires:
CATEGORY A SPECIFICATION means the specification annexed to this Agreement
at Appendix A;
COMPLETION DATE means the date which is ten working days after the SL
Completion Date;
CONSTRUCTION MANAGER means Mace Limited of 7 Plough Yard London EC4;
COLLATERAL WARRANTIES means deeds of warranty in the form annexed to this
Agreement at Appendix B;
DEFECT means:-
(i) items or matters set out or referred to in the Snagging List;
(ii) omissions defects shrinkage or other faults arising in the Works
within twelve months of Practical Completion which are not in
accordance with the Works Specification or this Agreement;
(iii) any other defect attributable to defective design workmanship testing
investigations construction or supervision of the Works or the
materials used therein having been defective inadequate unsuitable or
incomplete or otherwise not in accordance with the Works Specification
or this Agreement;
(iv) any latent or inherent defect attributable to a breach of Clause
3.2.6;
DEVELOPMENT AGREEMENT means an agreement dated 31 July 1996 and made between
(1) the Landlord (2) the Developer and (3) the Developer's Guarantor in
respect of the Premises;
DEVELOPMENT OBLIGATIONS means the obligations on the part of the Developer
contained or referred to in Clauses 3, 4, 5, 6, and 7 (except 7.9 and 7.11)
of the Development Agreement a copy of which clauses together with the
relevant definitions, Clause 23 and Schedules 1, 2, 3, 6 and 7 are annexed
to this Agreement at Appendix C provided that as a result of modifications
and alterations during the course of the project the Approved Plans and
Specifications referred to in definition 1.1.2 have become the Works
Specifications.
FIT OUT AGREEMENT means an agreement of even date between the parties to
this Agreement and Goldman Sachs Property Management relating to the
carrying out of the Fit Out Works;
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FIT OUT CATEGORY A WORKS means the works of completing the installation
connection and commissioning of services to and the initial fitting out of the
Premises to the extent necessary to render the Premises suitable and ready for
occupation for the use permitted by the Lease and shall comprise the Category A
Specification or such other works in substitution therefor as approved by the
Landlord pursuant to this Agreement or the Fit Out Agreement or the Licence for
Fit Out Works.
FIT OUT CATEGORY B WORKS means the works which are undertaken for the purposes
of fitting out the Premises and which are approved in accordance with the
provisions of this Agreement or the Fit out Agreement or the Licence for Fit Out
Works.
FIT OUT PLANS means the drawings and specifications annexed to this Agreement at
Appendix D setting out in outline the Tenant's proposed fitting out works.
FIT OUT WORKS means collectively the Fit Out Category A Works and the Fit Out
Category B Works or any of them as the context so requires.
LEASE means the lease of the Premises to be granted in accordance with this
Agreement in the form annexed to this Agreement at Appendix E.
LICENCE FOR FIT OUT WORKS means a licence in the form annexed to this Agreement
at Appendix F to be entered into pursuant to Clause 4.4.
MILLENNIUM COMPLIANT means the ability of plant machinery and equipment and
related computer systems and/or related hardware and/or software to provide all
the following functions:
(a) handle date information before, during and after January 1, 2000,
including, but not limited to, accepting date input, providing date
output, handling leap years after 1999 and performing calculations on
dates or portions of dates;
(b) function accurately and without interruption before, during and after
January 1, 2000, without any change in operations associated with the
advent of the year 2000 and the new century;
(c) respond to two-digit year input in a way that resolves the ambiguity as
to century in a disclosed, defined and predetermined manner;
(d) process two-digit year date information in ways that are similarly
unambiguous as to century; and
(e) store and provide output of date information in ways that are similarly
unambiguous as to century.
PRACTICAL COMPLETION DATE means 12 December 1997.
PREMISES means One Carter Lane London EC4 more particularly described in the
Lease as the Premises;
PROFESSIONAL APPOINTMENTS means the appointments of the Professional Team;
PROFESSIONAL TEAM means the professional advisers appointed in connection with
the Works and listed in Part 2 of the Schedule;
PROHIBITED MATERIALS means such materials as were required by the terms of the
Trade Contracts or the appointments of the Professional Team not to be used in
the Works save as mentioned in a letter from Rolfe Judd to the Developer a copy
of which is annexed to this Agreement at Appendix G
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RENT COMMENCEMENT DATE means the date 15 months after 19 March 1998;
SITE means the land on which the Works have been constructed;
SL COMPLETION DATE means the date of completion of the Superior Lease as
defined in the Lease;
SNAGGING LIST means the list of omissions imperfections defects or other
faults annexed to this Agreement at Appendix H;
TENANT'S FIT OUT WORKS means the works defined as such in the Fit Out
Agreement;
TRADE CONTRACTS means the contracts with the Trade Contractors;
TRADE CONTRACTORS means the trade contractors appointed in connection with
the Works and listed in Part 1 of the Schedule;
VAT means Value Added Tax and any similar tax substituted for it or levied
in addition to it;
WORKS means the works which have been carried out by the Developer to
construct the Premises;
WORKS SPECIFICATION means the specifications and drawings (as listed)
describing the Works all as annexed to this Agreement at Appendix I and
provided by the Developer to the Tenant pursuant to Clause 3.5.
2 INTERPRETATION
In this Agreement unless the context otherwise requires:
2.1 Any reference to a statute includes any modification, extension or
re-enactment of it and any orders, regulations, directions, schemes and
rules made under it;
2.2 Any covenant by the Tenant not to do any act or thing includes an
obligation not to permit or suffer such act or thing to be done;
2.3 The clause headings in this Agreement are for ease of reference only;
2.4 The TENANT means the person so named in the Particulars and includes its
successors in title;
2.5 References to Clauses Schedules or Appendices are to clauses schedules or
appendices of this Agreement.
3 THE WORKS
3.1 DELIVERY OF COLLATERAL WARRANTIES AND CERTIFICATES
3.1.1 The Developer shall within three months of the date of this Agreement
procure the delivery of Collateral Warranties from the Trade
Contractors and Professional Team.
3.1.2 The Developer shall with the delivery of the Collateral Warranties
referred to in Clause 3.1.1 deliver to the Tenant certificates from
each member of the Professional Team addressed to the Tenant
certifying that the Works were constructed without Prohibited
Materials.
3.2 DEVELOPER'S WARRANTIES
The Developer hereby warrants to the Tenant that:-
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3.2.1 the ground and soil conditions of the Site were appropriately
investigated and tested and prior to the Commencement of the Works
the Site was thoroughly prepared and made ready for the carrying out
of the Works;
3.2.2 the Developer is not aware of any ground or soil substance or
condition which might have prejudiced the Works;
3.2.3 the Works were constructed without Prohibited Materials provided
that the Tenant shall rely on any certificate produced by the
Developer pursuant to Clause 3.1.2 in relation to that element of
the Works the subject of such certificate instead of relying on the
Developer's warranty contained in this Clause 3.2.2;
3.2.4 so far as the Developer is aware having made due and careful enquiry
all plant and machinery forming part of the Works is and will remain
Millennium Compliant;
3.2.5 the Developer has performed and will continue to perform its duties
to the Landlord under the Development Obligations;
3.2.6 the Works set out in the Works Specification were designed in
accordance with the standards of design practice required by the
appointments of the Professional Team and the Trade Contracts.
3.3 REMEDYING OF DEFECTS
3.3.1 The Developer shall free of cost to the Tenant as soon as reasonably
practicable (or immediately in case of emergency) and using its best
endeavours to complete the same by 31 March 1998 remedy or cause to
be remedied the items or matters set out or referred to in the
Snagging List.
3.3.2 Without prejudice to the foregoing the Developer shall procure the
preparation of a schedule as provided for under the relevant Trade
Contracts listing any omissions defects shrinkages or other faults
appearing in the Works or any part thereof within 12 months after
the Practical Completion Date and promptly supply a copy thereof to
the Tenant and the Tenant shall procure that within seven days after
the expiry of the relevant defects period it shall provide the
Developer with a list of any omissions defects shrinkages or other
faults which it has observed and the Developer shall free of cost to
the Tenant as soon as reasonably practicable make good or procure to
be made good all such omissions defects shrinkages or other faults.
3.3.3 Without prejudice to any other rights or remedies of the Tenant
under this Agreement if any Defect manifests itself and is notified
in writing by the Tenant to the Developer by the third anniversary
of the Practical Completion Date then the Developer and the Tenant
shall agree a method and programme for carrying out remedial work in
accordance with Clause 3.3 and the Developer shall free of cost to
the Tenant procure the carrying out of such works as may be
necessary to remedy such Defect and any physical damage thereby
caused in accordance with such method and programme.
3.3.4 If any remedial works referred to in this Clause 3.3 are in the
reasonable opinion of the Tenant urgently required having regard to
the programme for the Tenant's Fit Out Works or the Tenant's
occupation of the Premises then the Tenant and the Developer shall
promptly consult as to the most expeditious means of remedying the
same and the Developer shall take such reasonable steps as are
within its control to make good or procure the same to be made good
where appropriate in the case of emergency as urgently as possible
provided that notwithstanding the foregoing the Tenant may, by using
the Trade Contractors and with the consent of the Landlord and the
Developer (which consents shall not be respectively unreasonably
withheld), carry out itself such
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of the remedial works which the Developer is liable to procure under
this Clause 3.3.4 where entry by the Developer is likely to
interfere materially with the Fit-Out Works subject to the Tenant
indemnifying the Developer and the Landlord in respect of such
carrying out against any losses or claims which may arise in
relation to a breach of the warranties given by any of the Trade
Contractors or against any defences set offs or counterclaims which
the Trade Contractors may have in connection with such remedial
works.
3.3.5 The provisions of this Clause 3.3 shall apply mutatis mutandis in
respect of the Additional Works (as defined in the Development
Obligations) and without limitation the Developer shall carry out
such maintenance or other works as may be required in relation
thereto.
3.4 ACCESS TO REMEDY DEFECTS
In circumstances where the Developer has liability to remedy Defects in
accordance with Clause 3.3:
3.4.1 The Developer shall make prior arrangements with the Tenant as to
the times of access and the Developer and the Tenant shall endeavour
to agree a programme for carrying out any such remedial works.
3.4.2 The Tenant shall be entitled to request such works to be carried out
outside usual business hours and (subject to the Tenant indemnifying
the Developer in respect of any reasonable and proper additional
cost in respect of such request) the Developer shall comply with
such request.
3.4.3 The Developer shall manage and instruct each person so entering to:
(i) cause the minimum amount of interference and disruption as is
reasonably possible to the carrying out of the Fit Out Works
or any other works by the Tenant in the Premises and to the
Tenant's business;
(ii) comply with any reasonable directions and security precautions
for the Premises so long as these shall not prevent the
carrying out of the relevant works; and
(iii) be accompanied if the Tenant so requires by a representative
of the Tenant;
3.4.4 The Developer shall procure that each person so entering shall make
good as soon as reasonably practicable to the reasonable
satisfaction of the Tenant any loss damage of injury thereby caused
to the Premises the Fit Out Works or the property of the Tenant or
any other lawful occupiers or visitors in the Premises.
3.5 HANDOVER
The Developer shall as soon as reasonably practicable following the date
hereof at its own cost supply the Tenant with the following:
3.5.1 one complete reproducible set of the final as-built scale drawings
of the Works and one set of files on computer disc (where
available);
3.5.2 full and complete sets of all manuals maintenance documents product
guarantees and other information relating to all mechanical and
electrical equipment comprised within the Premises and the Works;
and
3.5.3 a full and complete copy of the health and safety file for the Works
prepared in accordance with the CDM Regulations.
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3.6 COPYRIGHT
In so far as the copyright to any drawings or other intellectual property
relevant to the Works is owned by the Developer the Developer hereby
irrevocably grants to the Tenant a non-exclusive licence to use and
reproduce the same.
3.7 VACANT POSSESSION
The Developer will ensure that:
3.7.1 all furniture and carpets from the fourth floor marketing suite are
removed from the Premises within 5 days of the date of this
Agreement; and
3.7.2 the existing contractor's site accommodation in the basement and
ground floors of the Premises is left in situ (provided that the
Tenant shall make available one office for the Construction Manager
to use in connection with clearing snagging items)
and that otherwise the Premises shall be handed to the Tenant on the date
of this Agreement with vacant possession.
4 FIT OUT WORKS
4.1 The Tenant has provided the Landlord with the Fit Out Plans and the
Landlord has approved in principle the categories (but not the details) of
those of the Fit Out Works shown in them.
4.2 The Tenant or one of its Group Companies (as defined in the Lease) shall at
its own cost prepare and submit to the Landlord further details of the
proposed Fit Out Works for approval (such approval not to be unreasonably
withheld if and to the extent that such further details shall in all
material respects be consistent with and in conformity with the Fit Out
Plans).
4.3 APPROVAL AND LICENCE
4.3.1 The Tenant shall not commence any part of the Tenant's Fit Out Works
until the details in relation to that part have been approved under
Clause 4.2;
4.3.2 The Tenant shall observe and perform its obligations set out in the
Licence for Fit Out Works pending its completion pursuant to Clause
4.4.
4.4 The Landlord the Tenant and the Guarantor shall enter into a Licence for
Fit Out Works:
4.4.1 within one month after practical completion of the Fit Out Works or
4.4.2 (if later) on the Completion Date or
4.4.3 (if such practical completion shall not have arisen 12 months after
the date of this Agreement) upon written demand by the Landlord
and four sets of as built approved plans and specifications for the Fit Out
Works shall be supplied by the Tenant to the Landlord and annexed thereto.
4.5 If Clause 4.4.3 applies, a further licence in the same form shall be
entered into by the same parties once the outstanding Fit Out Works have
been brought to practical completion.
4.6 AGREEMENT AS TO OPERATION OF LANDLORD AND TENANT ACT 1927
4.6.1 EFFECT OF SERVICE OF 1927 ACT NOTICE
The Tenant hereby agrees with the Landlord that if the Tenant services a
notice pursuant to Section 3 of the Landlord and Tenant Act 1927 ("Section
3 Notice") upon the Landlord in relation to the Fit Out Works or any part
or parts thereof the Tenant shall within 28 days following the service of
the Section 3 Notice or (if later) within 7 days after determination of the
cost (hereinafter
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called "the Cost") of the carrying out of the works and alterations the
subject of the Section 3 Notice pay to the Landlord a sum equal to 105% of
the Cost.
4.6.2 DISPUTES AS TO THE COST
The Landlord and the Tenant shall use all reasonable endeavours to agree
the Cost but in default of agreement between them as to the amount of the
Cost then either party may at any time following the expiration of a period
of 14 days following the service of a Section 3 Notice refer the matter for
settlement to an independent expert appointed at the request of either
party by the President of the Royal Institution of Chartered Surveyors and
the costs of the parties and of such expert shall be in his award.
5 AGREEMENT TO GRANT LEASE
5.1 The Landlord shall grant and the Tenant shall accept the Lease on the
Completion Date but if the Completion Date shall not take place by six
months after the date hereof other than due to the default of the Tenant
the grant shall be made forthwith by the Developer out of its leasehold
interest in the Premises and the provision of Clauses 4, 5 and 6 shall
apply as if the Developer had been named therein as Landlord.
5.2 Completion shall take place at the London Offices of the Landlord's
solicitor and the Landlord (or the Developer as the case may require)
shall deliver the duly executed Lease to the Tenant and the Tenant shall
deliver a duly executed counterpart of the Lease to the Landlord (or the
Developer as aforesaid).
5.3 The Term Commencement Date under the Lease shall be the date of this
Agreement.
5.4 Rent due under the Lease shall be payable on and from the Rent Commencement
Date.
5.5 The Landlord and the Developer shall place their Land Certificates in
respect of the Premises on deposit at H M Land Registry for the purpose of
enabling the Tenant to register a notice of its interest in the Premises
arising under this Agreement.
6 OCCUPATION OF THE PREMISES
6.1 The Landlord shall allow the Tenant to take occupation of the Premises
on the date of this Agreement.
6.2 The Tenant shall pay to the Landlord:
6.2.1 a licence fee on and from Rent Commencement Date equal to the
Principal Rent; and
6.2.2 a licence fee on and from the date of this Agreement equal to the
insurance premiums, which would have been payable by the Tenant if
the Lease had been completed and the term granted by the Lease had
commenced;
6.2.3 sums at the same times and in the same manner as would have been
payable under Clause 6.2 of the Lease if it had been completed and
the term granted by it had commenced.
6.3 Any amount paid to the Landlord under Clause 6.2 shall be deducted by the
Landlord following the grant of the Lease from the rents or insurance
premiums (as the case may be) which would otherwise have been due under the
Lease in respect of the same period.
6.4 The Tenant shall occupy the Premises subject to the provisions contained in
the Lease and Licence for Fit Out Works as if the Lease and Licence for
Fit Out Works had been granted. Each
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party shall comply with the convenants on its part contained in the Lease
and shall be entitled to all remedies by distress, action or otherwise for
recovering rent in arrear and for any breach of the other's obligations as
if the Lease had been granted and the licence fees were rent.
6.5 Until the grant of the Lease the Tenant shall be a licensee only.
7 VAT
7.1 Where pursuant to the terms of this Agreement, any party (the "SUPPLIER")
makes a supply to any other party (the "RECIPIENT") for VAT purposes and
VAT is chargeable on such supply, the Recipient shall pay to the Supplier
(in addition to any other consideration for such supply) a sum equal to the
amount of such VAT, such payment to be made no later than three working
days before the last day (as notified to the Recipient by the Supplier in
writing) on which the Supplier can account to H M Customs & Excise for such
VAT without incurring any interest or penalties, and the Supplier shall
provide the Recipient with a valid tax invoice for VAT purposes.
7.2 Any obligation to reimburse or pay another party's expenditure extends to
irrecoverable VAT on that expenditure and the person liable to pay shall
also reimburse or pay such VAT.
7.3 If either party (the "PAYER") has paid any amount in respect of VAT under
this Clause 7 to the other party (the "PAYEE") on the basis that:
7.3.1 The Transaction in respect of which such amount was paid gave rise
to a supply made by the Payee to the Payer for VAT purposes; and
7.3.2 such supply was a taxable supply for VAT purposes
and it subsequently transpires that no supply was made, or that such supply
was not a taxable supply, for VAT purposes, the Payee shall forthwith repay
such amount to the Payer PROVIDED THAT, if the payee has already accounted
to H M Customs & Excise for VAT in respect of the said transaction on the
basis that such transaction gave rise to a taxable supply for VAT purposes,
the Payee shall only be obliged to repay such amount to the Payer if and to
the extent that it is able to obtain repayment or credit from H M Customs &
Excise in respect of the VAT it has accounted to them, and in such a case,
the Payee shall use all reasonable endeavours to obtain such repayment or
credit from H M Customs & Excise, and the Payee shall only be obliged to
repay such amount to the Payer as aforesaid within three working days
following receipt by the Payee of the said repayment from H M Customs &
Excise or three working days following the date on which the Payee has
fully utilised the said credit (as the case may be).
8 INTEREST ON OVERDUE SUMS
If the person entitled so to do does not receive any sum due to it by the
due date the person liable to pay it shall pay on demand interest on such
sum at 4 per cent above the current base rate of Barclays Bank Plc from the
due date until payment (both before and after any judgment).
9 NOTICES
Section 196 of the Law of Property Act 1925 shall apply to any notice which
may be served under this Agreement as if the final words of Section 196(4)
"and that service........ be delivered" were deleted and replaced by "and
that service shall be deemed to be made on the third Working Day after
posting".
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10 ENTIRE AGREEMENT
10.1 The Tenant acknowledges that it has not relied on any representation other
than any given by the Landlord's Solicitors or the Developer's Solicitors
in any written reply to any enquiry made by the Tenant's or the
Developer's solicitors before the date of this Agreement.
10.2 The parties acknowledge that:-
10.2.1 this Agreement;
10.2.2 the Fit Out Agreement; and
10.2.3 any plan or other documents referred to in this Agreement and/or
annexed to it
contain all the terms of the contract agreed between the parties and
between some of the parties and Goldman Sachs Property Management
11 DEVELOPER'S GUARANTEE
11.1 The Developer's Guarantor covenants with the Tenant as principal debtor
that:
11.1.1 The Developer will pay the sums due from it under and perform its
obligations contained in this Agreement.
11.2 The liability of the Developer's Guarantor shall not be affected by:
11.2.1 Any time given to the Developer or any failure by the Tenant to
enforce compliance with the Developer's covenants and obligations
11.2.2 Any variation of the terms of this Agreement
11.2.3 Any change in the constitution structure or powers of the
Developer's Guarantor or the Developer or the administration
liquidation or bankruptcy of the Developer or the Developer's
Guarantor
11.2.4 Any act which is beyond the powers of the Developer
11.2.5 The transfer of the reversion expectant on the term to be granted
by the Lease
11.2.6 Any other act or thing by which (but for this provision) the
Developer's Guarantor would have been released
12 THE GUARANTOR
12.1 The Guarantor covenants with the Landlord as principal debtor that:
12.1.1 The Tenant will pay the sums due from it under and perform its
obligations contained in this Agreement
12.1.2 If within 21 days after the Completion Date the Tenant has failed
to take up the lease the Guarantor will either duly execute and
deliver a counterpart and accept a lease in the same form but with
the Guarantor named as tenant therein or procure the execution of
a counterpart by another company in the Goldman Sachs group of
companies as tenant with the Guarantor guaranteeing the Tenant's
obligations contained in the Lease provided that the Landlord
shall first have approved in writing the identity of such
alternative company such approval not to be unreasonably withheld
and the Landlord shall take account of the guarantee in
considering such alternative within 21 days after written demand
and at the cost in all respects of the Guarantor
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12.2 The liability of the Guarantor shall be no greater than it would have been
if the Guarantor had been the Tenant (except for additional costs arising
from the enforcement of the guarantee) but shall not be affected by:
12.2.1 Any time given to the Tenant or any failure by the Landlord to
enforce compliance with the Tenant's covenants and obligations
12.2.2 Any variation of the terms of this Agreement
12.2.3 Any change in the constitution structure or powers of the
Guarantor the Tenant or the Developer or the administration
liquidation or bankruptcy of the Tenant the Guarantor or the
Developer
12.2.4 Any act which is beyond the powers of the Tenant
12.2.5 The transfer of the reversion expectant on the term to be granted
by the Lease
12.2.6 Any other act or thing by which (but for this provision) the
Guarantor would have been released
12.3 The Guarantor may not assign its rights or delegate its obligations under
this Guarantee in whole or in part (and any purported assignment or
delegation is void) except for an assignment and delegation of all of the
Guarantor's rights and obligations hereunder in whatever form the
Guarantor determines may be appropriate to a partnership, corporation,
trust or other organisation in whatever form (the "SUCCESSOR") that
succeeds to all or substantially all of the Guarantor's assets and
business and that assumes such obligations by contract, operation of law
or otherwise. Upon any such assignment and or assumption of obligations
the Guarantor shall give written notice thereof to the Landlord and
subject to the Landlord having received in a form reasonably satisfactory
to the Landlord, a deed executed by the Successor (accompanied by a legal
opinion in a form reasonably satisfactory to the Landlord addressed to the
Landlord from a reputable firm of lawyers in the relevant jurisdiction
confirming inter alia enforceability and due execution) whereby the
Successor assumes and covenants with the Landlord to perform all
outstanding and future obligations of the Guarantor under this Agreement,
whether such assumption is by operation of law or by virtue of such deed,
the Guarantor shall be relieved of and fully discharged from all
obligations hereunder, whether such obligations arose before or after such
delegation and assumption, but without prejudice to any antecedent breach.
13 LANDLORD'S LIABILITY
13.1 The Landlord shall be under no liability or obligation under or pursuant
to this Agreement as the other parties hereto each admit and acknowledge
save only the express obligations on the part of the Landlord contained in
or resulting from this Agreement.
13.2 The obligations of the Tenant and the Guarantor to the Landlord shall not
be affected by any breach by the Developer.
14 TENANT'S LIABILITY
To the extent that any want of repair arises from a Defect for which the
Developer is responsible to the Tenant under this Agreement the Landlord,
subject to the provisions of this Clause 14 agrees that it and its
successors in title will at the written request of the Tenant, defer
taking action to enforce the Tenant's repairing obligations contained in
the Lease in relation to that want of repair provided that:
14.1 Such deferral shall subsist only for so long as the Tenant is actively
pursuing and enforcing its rights and remedies against the Developer under
this Agreement.
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14.2 The Landlord shall not be obliged to defer such action or continue any such
deferral in the event that the Superior Landlord (as defined in the Lease)
shall require the Landlord either to take such action or to remedy the want
of repair and the Developer shall (subject always to the provisions of
Clause 15) indemnify the Landlord from and against all liability from
claims by the Superior Landlord and the tenant of the Restaurant in
relation to such want of repair and/or deferral.
14.3 The Landlord shall not be obliged to defer such action or continue such
deferral if the want of repair requires urgent attention or where any
deferral would or would be likely to materially adversely affect the
Premises.
14.4 The Tenant shall keep the Landlord fully informed in writing as to the
progress of its pursuit and enforcement of its rights against the Developer
at regular intervals as required by the Landlord.
14.5 Throughout the period of such deferral the Tenant shall keep the Landlord
fully informed in writing as to any deterioration in the Premises arising
as a result of the defect or such deferral.
14.6 No such deferral nor any time composition release or indulgence afforded to
the Tenant by the Landlord following the commencement of such deferral
shall constitute or be deemed to constitute any waiver or release by the
Landlord or its successors in title of any of its or their rights and
remedies against the Tenant or the Guarantor under the Lease or prejudice
the exercise by the Landlord or its successors of any other right and
remedies available to it under the Lease.
14.7 Immediately upon cessation of such deferral, the Tenant shall remedy the
want of repair in question with all due speed and to the reasonable
satisfaction of the Landlord and such liability shall not be limited
reduced or negated nor shall the Landlord's rights and remedies be
adversely affected by any failure by the Tenant to obtain judgment against
or otherwise recover from the Developer to the full extent of its claim.
14.8 The Landlord notwithstanding that the Tenant may be actively pursuing and
enforcing its rights against the Developer may cease such deferral and take
action to enforce the Tenant's repairing obligations, for the purpose of
preventing the Landlord's claim against the Tenant being barred by
limitation in the last year of any period for claim.
15 LIMIT OF DEVELOPER'S LIABILITY
15.1 The Developer shall be under no liability or obligation to the Tenant or
the Guarantor or any other Tenant pursuant to Clause 12.1.2 or its or their
successors in title under or pursuant to this Agreement or in respect of
the Works or the Premises save only the express obligations on the part of
the Developer contained in or resulting from this Agreement.
15.2 The liability of the Developer to the Tenant under this Agreement or in
respect of the Works or the Premises shall be limited to:
15.2.1 claims notified in writing to the Developer before the third
anniversary of the Practical Completion Date;
15.2.2 the cost of carrying out such works in such reasonable manner and
to such reasonable standards as shall be reasonably required so
that any Defect in the Works shall be remedied.
15.3 Without prejudice to any of the foregoing the Developer shall not be liable
to the Tenant or the Guarantor or any other Tenant pursuant to Clause
12.1.2 or its or their successors in title for any losses of an indirect or
consequential nature arising as a result of breach of the provisions of
this Agreement in addition to the cost of remedying any Defect in the
Works.
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16 FIT OUT AGREEMENT
16.1 For the avoidance of any doubt the parties to this Agreement and to the Fit
Out Agreement acknowledge that the Developer has no liability under or in
respect of the Fit Out Agreement except for the payment of the Maximum Sum.
16.2 The Tenant shall promptly provide or procure to be provided as soon as
practicable and in any event within 3 months of practical completion of the
Fit Out Works a reasonably detailed statement setting out the items
installed with a view to the Developer claiming the benefit of such capital
allowances for plant and machinery as are generated in respect of the
payment by the Developer of the Maximum Sum pursuant to the Fit Out
Agreement.
16.3 The Guarantor and the Tenant shall procure that no claim shall be made by
them or by Goldman Sachs Property Management or any of the Tenant's Group
Companies (as defined in the Lease) in respect of capital allowances for
plant and machinery forming part of the Developer's Fit Out Works as
defined in the Fit Out Agreement.
17 JURISDICTION AND SERVICE
The provisions of Clause 7.11 of the Lease shall apply mutatis mutandis to
this Agreement.
SIGNED by the parties or their duly authorised representatives the day and
year first before written
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THE SCHEDULE
TRADE CONTRACTORS AND PROFESSIONAL TEAM
PART 1 - TRADE CONTRACTORS
Coverite Limited - Waterproofing
PC Harrington Contractors Limited - Concrete Structure
Swift Structures Limited - Structural Steelwork
Cooperative Industriale Romagnola - Cladding Supply
S.C.A.R.L.
Sabrecastle - Cladding installation
T W Ide Limited - Entrance Glazing and Canopy
Coverite Limited - Roof Finishes
Irvine Whitlock Limited - Masonry
B R Hodgson Limited - Dry lining
H L Smith Construction Limited - Toilet Fit Out
R Glazzard (Dudley) Limited - Metalwork
Henderson Bostwick Limited - Metal Doors, Roller Shutters
A Davies Limited - Entrance Hall Fit Out
H L Smith Construction Limited - Marketing Suite Fit Out
Facade Hoists Limited - Facade Maintenance Equipment
Andrews Weatherfoil plc - Mechanical Services
Sychronised Systems Limited - Controls/BMS
Abbey Thermal Insulation Limited - Thermal Insulation and Fire Stopping
N G Bailey Limited - Electrical Services
R C Cutting Limited - Lightning protection
McNicholas plc - Hard landscaping
Otis plc - Lifts
Cerberus Limited - Fire detection/alarm
PART 2 - PROFESSIONAL TEAM
Mace Limited - Construction Manager
Rolfe Judd Architecture Limited - Architects
Ove Arup & Partners - Services
Ove Arup & Partners - Structural engineers
Charles Funke Associates - Landscape consultants
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Appendix A: Category A Specification
Appendix B: Forms of Collateral Warranty
Appendix C: Development Obligations
Appendix D: Fit Out Plans
Appendix E: Lease
Appendix F: License for Fit Out Works
Appendix G: Prohibited Materials Letter
Appendix H: Snagging List
Appendix I: Works Specification
SIGNED by on } /s/ [signature]
behalf of the Landlord ---------------------------
Authorised Signing Officer
SIGNED by [name] on } /s/ [signature]
behalf of the Developer
SIGNED by on }
behalf of the Tenant
SIGNED by on }
behalf of the Guarantor
- -------------------------------------------------------------------------------
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SIGNED by [name] on } /s/ [signature]
behalf of the Developer's Guarantor
- -------------------------------------------------------------------------------
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