EXHIBIT (10)(xxviii)
TO 2000 FORM 10-K
Dated November 15, 2000
-----------------------------
(1) HERON QUAYS PROPERTIES LIMITED
(2) THE NORTHERN TRUST COMPANY
(3) CANARY WHARF GROUP PLC
________________________
AGREEMENT FOR LEASE
- relating to -
the development and leasing of B1 B1M and Floors 5-11
of a new building on parcel HQ-4
Canary Wharf London E14
________________________
ASHURST MORRIS CRISP
Broadwalk House
5 Appold Street
London EC2A 2HA
Tel: 020 7638 1111
Fax: 020 7972 7990
MEW474C00049/1953324
CONTENTS
CLAUSE PAGE
PART 1..................................................................... 1
DEFINITIONS AND INTERPRETATION............................................. 1
1. DEFINITIONS............................................................ 1
2. INTERPRETATION......................................................... 14
PART 2..................................................................... 16
CONSULTANTS AND TRADE CONTRACTORS.......................................... 16
3. CONSULTANTS AND TRADE CONTRACTORS...................................... 16
PART 3..................................................................... 17
DEVELOPMENT OBLIGATIONS.................................................... 17
4. APPROVALS AND STATUTORY REQUIREMENTS................................... 17
5. THE DEVELOPMENT........................................................ 18
6. EXECUTION OF THE BASE BUILDING WORKS................................... 20
7. VARIATIONS TO THE BASE BUILDING WORKS.................................. 20
8. TENANT'S REQUESTED MODIFICATIONS....................................... 22
9. SITE VISITS AND MEETINGS AND SUPPLY OF INFORMATION AND DOCUMENTATION... 28
COPYRIGHT.............................................................. 30
PART 4..................................................................... 30
TENANT'S WORKS............................................................. 30
11. APPROVAL OF TENANT'S WORKS............................................. 30
12. EXECUTION OF TENANT'S WORKS AND SUBSEQUENT OCCUPATION.................. 32
13. TENANT'S WORKS AREAS AND EARLY ACCESS.................................. 35
14. ANCILLARY PROVISIONS AS TO TENANT'S WORKS.............................. 37
15. ENTRY BY THE DEVELOPER TO THE DEMISED PREMISES AFTER THE ACCESS DATE... 38
16. NOT USED............................................................... 38
17. AGREEMENT AS TO OPERATION OF LANDLORD AND TENANT ACT 1927.............. 38
PART 5..................................................................... 39
INDEPENDENT MEASUREMENT AND PRACTICAL COMPLETION........................... 39
18. MEASUREMENT............................................................ 39
19. PRACTICAL COMPLETION................................................... 40
PART 6..................................................................... 42
DEFECTS.................................................................... 42
20. DEFECTS................................................................ 42
PART 7..................................................................... 43
INSURANCE.................................................................. 43
21. INSURANCE.............................................................. 43
PART 8..................................................................... 46
GRANT OF THE LEASE......................................................... 46
22. GRANT OF LEASE, CALCULATION OF RENTS AND OTHER TERMS................... 46
23. TITLE.................................................................. 52
24. CONDITIONS AFFECTING THE GRANT OF THE LEASE............................ 53
PART 9..................................................................... 54
TENANT'S COVENANT, EVENTS OF DEFAULT....................................... 54
25. DELAY.................................................................. 54
26. EVENT OF DEFAULT....................................................... 54
27. NOT USED............................................................... 55
28. NOT USED............................................................... 55
PART 10.................................................................... 55
TAX........................................................................ 55
29. VALUE ADDED TAX........................................................ 55
PART 11.................................................................... 56
DISPUTES, NOTICES AND SENIOR MANAGERS...................................... 56
30. DISPUTES............................................................... 56
31. NOTICES................................................................ 57
32. SENIOR MANAGERS........................................................ 58
PART 12.................................................................... 59
GENERAL PROVISIONS......................................................... 59
33. GENERAL PROVISIONS..................................................... 59
34. DEVELOPER'S SURETY GUARANTEE........................................... 63
SCHEDULE 1................................................................. 65
Jewish Holy Days........................................................... 65
SCHEDULE 2................................................................. 67
(Form of Deed of Acknowledgement of certain Developer's obligations to be
provided in respect of each Lease)..................................... 67
SCHEDULE 3................................................................. 69
(Form of Licence re Tenant's Works and Reinstatement TRM's)................ 69
SCHEDULE 4................................................................. 72
Method Statement Matters................................................... 72
SCHEDULE 5................................................................. 74
"Preliminaries"............................................................ 74
INDEX OF ANNEXURES AND EXHIBITS
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Annexure Clause
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A Demised Premises Plans and Development Site Plan
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1. Demised Premises Plans "Demised Premises
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2. Development Site Plan "Development Site Plan"
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B Building Plans Specifications and Schedules
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3. Outline Specification Building HQ4 "Base Building Definition"
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4. Schedule of Base Building Plans "Base Building Plans"
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5. Critical Dates Schedule "Critical Dates Schedule"
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6. Minimum Standard Developer's Finish "MSDF Works"
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7. Infrastructure Works Description and Plan "Infrastructure Works"
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8. Schedule of Early Access Dates "Schedule of Early Access Dates"
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9. Early Access Criteria "Early Access Criteria"
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C List of Material Trade Contractors and Warranties
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10. List of Existing Material Trade Contractors "Existing Material Trade Contractors"
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11. List of Services to be provided by a Material Trade "Material Trade Contractor"
Contractor
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12. Draft form of Existing Contractor's Warranty "Clause 3.3"
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13. Draft form of Material Trade Contractor's Warranty "Clause 3.3"
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14. Draft form of Key Consultant's Warranty "Clauses 3.1.2"
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15. Permitted Amendments to Warranties "Clauses 3.1.2, 3.1.3, 3.3"
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16. Substitute Consultant's Form of Warranty "Substitute's Warranty"
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D Insurance
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17. CAR Policy "CAR Policy"
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E Measurement
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18. Independent Measurer's Appointment "Clause 18.1.1"
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19. Measurement Plans "Measurement Plans"
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F Lease
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20. Lease "Lease"
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G Opinion Letter
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21. Opinion Letter "Letter of Opinion"
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H Sub-underlease
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22. Sub-underlease "Sub-underlease"
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THIS AGREEMENT is made the day of 2000
B E T W E E N:-
(1) HERON QUAY PROPERTIES LIMITED whose registered office is at One Canada
Square Canary Wharf London E14 5AB (Company registration number 2276627)
(the "Developer");
(2) THE NORTHERN TRUST COMPANY an Illinois banking corporation registered in
the State of Illinois whose registered office is 50 South La Salle Street
Chicago Illinois 60675 whose address for service in the U.K. is 155
Bishopsgate London EC2M 3XS (the "Tenant")
(3) CANARY WHARF GROUP PLC whose registered office is at One Canada Square
Canary Wharf London E14 5AB (Company registration number 3114622) (the
"Developer's Surety")
INTRODUCTION
(A) The Developer intends to continue the development of the Development Site
by constructing or procuring the construction on the Site of the Base
Building Works in accordance with the terms of this Agreement
(B) When the Base Building Works have been completed the Developer has agreed
to grant and the Tenant has agreed to accept in accordance with the terms
of this Agreement two leases for a term of 20 years of those parts of the
Building together comprising the Demised Premises
(C) The Tenant is aware that (without prejudice to the Developer's primary
obligations to the Tenant under this Agreement) the design and construction
of the Base Building Works under this Agreement will be carried out
pursuant to the Contract by CWCL
THE PARTIES AGREE as follows:-
PART 1
DEFINITIONS AND INTERPRETATION
1. DEFINITIONS
In this Agreement, unless the context requires otherwise, the following
words and expressions shall have the following meanings:-
1.1 "1927 Act Notice" means a formal notice served by the Tenant pursuant to
and specifying expressly Section 3 of the Landlord and Tenant Act 1927 and
as specified in Clause 17
1.2 "Access Date" means the date which is five (5) Working Days after the date
of issue of Base Building Works Practical Completion Certificate
1.3 "Address" means the address of the party in question shown on the first
page of this Agreement or such other address as the party in question may
from time to time notify in writing to the other parties to this Agreement
as being its address for service for the purposes of this Agreement
1.4 "Approvals" means:-
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1.4.1 all consents, licences, permissions and approvals (including
agreements under Section 52 of the Town and Country Planning Act
1971 and Section 106 of the Town and Country Planning Act 1990) of
any local or other competent authority;
1.4.2 all consents, licences, permissions and approvals arising under or
pursuant to any Statutory Requirements; and
1.4.3 all consents, licences, permissions and approvals required of any
mortgagee or other party having rights, privileges or controls over
the Development Site or the Site
which may from time to time be necessary to enable the Developer or the
Tenant lawfully to commence and carry out and complete the Base Building
Works or the Tenant's Works (as appropriate) and each and every stage or
phase thereof (as appropriate) including, if the same are destroyed or
damaged, the reinstatement of the same and thereafter to grant the Lease
and to enable the Tenant to use the Demised Premises for the purposes of
use as offices for which the same have been designed as at the date of this
Agreement (other than the fire certificate which it shall be the Tenant's
responsibility to obtain) and the term "Approval" shall be construed
accordingly
1.5 "Approved Plans" means the Base Building Definition together with further
amplified and detailed completed versions of it and any variations,
alterations or additions to it made in accordance with the provisions of
this Agreement
1.6 "Base Building" means the building the scope of which is described in the
Base Building Definition
1.7 "Base Building Architect" means Adamson Associates a Partnership of
Corporations of 55 Park Street East Mississauga Ontario L53 4P3 Canada or
such other firm as is appointed to perform the function of issuing the Base
Building Works Practical Completion Certificate
1.8 "Base Building Definition" means the aggregate of:-
1.8.1 the specification dated 10 November 2000 entitled "Outline
Specification Building HQ-4" annexed to this Agreement as Annexure 3
as the same may be modified supplemented or added to from time to
time in accordance with this Agreement; and
1.8.2 the Base Building Plans
so as to provide a state of the art modern office building as the same
would be interpreted as at the date of this Agreement and of no lesser
quality and standard than the building known as 17 Columbus Courtyard
located on Parcel B4 on the Development Site Plan
1.9 "Base Building Plans" means the outline building plans listed in the
drawings schedule annexed to this Agreement as Annexure 4 and identified in
bundles initialled by the parties as the same may be modified, supplemented
or added to from time to time in accordance with this Agreement
1.10 "Base Building Works" means the construction of the Base Building as the
same may be modified from time to time in accordance with this Agreement
1.11 "Base Building Works Finishes" means:-
1.11.1 the entrance lobby finishes
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1.11.2 the toilet finishes
1.11.3 the lift interior finishes
1.12 "Base Building Works Practical Completion" means practical completion of
the Base Building Works
1.13 "Base Building Works Practical Completion Certificate" means the
certificate issued by the Base Building Architect to the effect that Base
Building Works Practical Completion has been achieved
1.14 "Base Building Works Practical Completion Date" means the date specified in
the Base Building Works Practical Completion Certificate as the date upon
which Base Building Works Practical Completion was achieved or in case of
dispute the date determined by the Independent Person in accordance with
Clause 19.1 and references to the date of Base Building Works Practical
Completion shall be construed accordingly
1.15 "Building" means the building comprising (inter alia) the Base Building
Works and the Tenant's Works to be constructed on the Site in accordance
with this Agreement
1.16 "Building Systems" means the mechanical, electrical, sanitary, heating,
ventilating, life safety, air conditioning or other service systems of the
Building
1.17 "CAR Policy" means the Contractors' All Risks Policy annexed to this
Agreement as Annexure 17 including any subsequent revisions or substituted
arrangements therefor which may be made from time to time in accordance
with the provisions of this Agreement
1.18 "CDM Regulations" means the Construction (Design and Management)
Regulations 1994
1.19 "Code of Measuring Practice" means the code of measuring practice published
on behalf of the Royal Institution of Chartered Surveyors and the
Incorporated Society of Valuers and Auctioneers (Fourth Edition dated
November 1993 and not, for the avoidance of doubt, any up-dated edition)
1.20 "Consultancy Services" means the services contracted to be provided in
relation to the carrying out of the Base Building Works by architects,
structural engineers, other engineers, mechanical and electrical
consultants and any other consultants (other than solicitors, selling
agents and letting agents) employed by or on behalf of the Developer and/or
CWCL
1.21 "Consultants" means all or any of those persons providing Consultancy
Services in connection with the Developer's obligations under this
Agreement but shall not include the Key Consultants
1.22 "Contract" means the Design and Construct Contract dated 28 February 1992
and made between (1) Heron Quays Developments Limited and (2) Olympia &
York Contractors Limited (now known as CWCL) as the same has been or shall
be varied in accordance with its terms from time to time and as novated on
16 April 1992 by an agreement made between (1) Heron Quays Developments
Limited (2) Olympia & York Heron Quay Limited (now known as Heron Quays
Properties Limited) and (3) Olympia & York Contractors Limited (now known
as CWCL)
1.23 "Core Works" shall have the meaning given to that expression in Clause
11.1.2(b)
1.24 "Costs Estimate" shall have the meaning given to this expression in Clause
8.4.1(c)
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1.25 "Counter-Notice" shall have the meaning given to that expression in Clause
19.1.3
1.26 "Critical Dates Schedule" means the schedule of dates and periods annexed
to this Agreement as Annexure 5 as modified from time to time in accordance
with this Agreement
1.27 "CWCL" means Canary Wharf Contractors Limited (Company number 2352250)
1.28 "Defects Costs in respect of the Base Building Works" means all reasonable
and proper costs fees and expenses incurred by the Tenant expended or
charged in remedying Latent Defective Works which have become apparent
during the period of ten (10) years commencing on the Base Building Works
Practical Completion Date PROVIDED ALWAYS THAT if it is agreed or
determined that there shall have been Tenant's Delay then the said ten (10)
year period shall commence upon the date which it is agreed or determined
as provided in Clause 19.3 that Base Building Works Practical Completion
would have been achieved but for Tenant's Delay AND PROVIDED FURTHER that
the Developer shall not be liable for any Defects Costs in respect of the
Base Building Works to the extent that any claim which the Developer would
otherwise have had in relation to the defect under any contract,
appointment, warranty, duty of care deed or insurance policy is defeated,
vitiated or avoided in whole or in part as a result of the acts omissions
negligence or default of the Tenant or its servants, agents, consultants,
contractors or any sub-tenant, licensee or occupier of the Demised Premises
or those for whom they are respectively responsible
1.29 "Defects Costs in respect of the Infrastructure Works" means any costs
which are charged to the Tenant as an item comprised in the Estate
Expenditure (as defined in the Lease) and which are expended in remedying
Defects in the Infrastructure Works
1.30 "Defects in the Base Building Works" means all and any defects, shrinkages
and other faults which manifest themselves in the Base Building Works
within 358 days from the earlier of the date of the Base Building Works
Practical Completion Certificate (or, if earlier the date on which it is
agreed or determined as provided in Clause 19.3 that Base Building Works
Practical Completion would have been achieved but for Tenant's Delay) and
the date on which the Tenant takes up occupation of the Demised Premises
for the purposes permitted pursuant to the Lease and which are not caused
by the Tenant's or its servants' agents' consultants' or contractors' or
any subtenants' licensees' or occupiers' or those for whom they are
respectively responsible's act, omission, negligence or default (whether or
not specified by the Tenant (after consultation with the Developer) in a
schedule or schedules of defects which the Tenant may deliver to the
Developer and this shall be no later than the expiration of the relevant
period of 358 days as aforesaid and which the Developer agrees or which the
Independent Person acting as an expert in accordance with Clause 30.5
determines are defects shrinkages or faults as aforesaid)
1.31 "Defects in the Infrastructure Works" means:
1.31.1 defects, shrinkages or other faults which appear in the Development
Site Infrastructure Works which manifest themselves within the
relevant defects periods arising under the Development Site
Infrastructure Contracts; and
1.31.2 any latent or inherent defects in the Development Site
Infrastructure Works which manifest themselves during the period of
ten (10) years commencing on the date of practical completion of
the relevant part of the Development Site Infrastructure Works (as
to which the Developer shall supply a schedule of dates to the
Tenant)
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and which in each case are attributable to or connected with the design
workmanship test investigations or supervision of the construction or
design of the Development Site Infrastructure Works or the materials used
in them having been defective, inadequate, unsuitable or incomplete or
otherwise substandard, judged in accordance with the terms of any Approvals
and any codes of practice applicable in the case of design at the time when
the relevant part of the Development Site Infrastructure Works was designed
and in the case of workmanship at the time when the relevant work was done
and in the case of materials at the time of specification
1.32 "Delay Notices" shall have the meaning given to this expression in Clause
19.3
1.33 "Demised Premises" means the premises to be demised by the Lease as the
same are more particularly described therein (Lease 1 -B1M and Floors 9-11
and Lease 2 - B1 and Floors 5-8) and which are shown for identification
purposes only edged red on the plans annexed to this Agreement as Annexure
1
1.34 "Design Development" means (all within the framework and subject to the
standards set out in the Base Building Definition) the process of
progressively developing the design detail of the Base Building Works and
which design detail development or the need for which design detail
development was capable of being reasonably envisaged at the date of this
Agreement
1.35 "Determination Notice" shall have the meaning given to this expression in
Clause 30.1
1.36 "Developer's Contracting Team" means CWCL and the Trade Contractors
appointed by CWCL to carry out the Base Building Works (or any part of
them) in accordance with this Agreement
1.37 "Developer's Solicitors" means Ashurst Morris Crisp of Broadwalk House 5
Appold Street London EC2A 2HA (Reference: RDV/474C00049) or such other firm
of solicitors as the Developer shall appoint and notify to the Tenant as
having been so appointed
1.38 "Development Site" means:-
1.38.1 the land and water areas shown edged green on the Development Site
Plan and any other land and water areas in which the Developer or a
Group Company of the Developer acquires a freehold or leasehold
interest and which the Developer or a Group Company of the
Developer intends shall form part of the Development Site; and
1.38.2 all buildings and appurtenances on the Development Site and all
additions, alterations and improvements to such buildings and
appurtenances
1.39 "Development Site Infrastructure Contracts" means the management or other
contracts (and as the same may be amended from time to time) providing for
the execution of the Development Site Infrastructure Works or any part of
them
1.40 "Development Site Infrastructure Works" means the design and construction
from time to time of infrastructure works within the Development Site
1.41 "Development Site Plan" means the plan annexed to this Agreement as
Annexure 2
1.42 "Disclosure" shall have the meaning given to this expression in Clause
33.4.1
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1.43 "Early Access Date" means the date for access to the floor or floors of the
Demised Premises specified in a notice served by the Developer in
accordance with Clause 13.2.1 on the Tenant and being at least five (5)
Working Days after issue of the notice
1.44 "Early Access Criteria" means the criteria annexed to this Agreement as
Annexure 9
1.45 "Early Access Method Statement" has the meaning attributed to it in Clause
13.2.1
1.46 "Estimate of Tenant's Delay" shall have the meaning given to this
expression in Clause 8.4.1(b)
1.47 "Estimated Unspent Costs" shall have the meaning given to that expression
in Clause 8.4.1(d)
1.48 "Event of Default" means any of the events listed in Clause 26.1
1.49 "Existing Material Trade Contractors" means those Material Trade
Contractors referred to in Annexure 10
1.50 "Force Majeure" means:-
1.50.1 fire, lightning, explosion, flood, earthquake, exceptionally
inclement weather conditions, war, hostilities, rebellion,
revolution, insurrection, military or usurped power, civil war,
terrorist action, aircraft or other aerial devices or articles
dropped from them, strikes and other industrial disputes, riot,
civil commotion, disorder and Government action
1.50.2 any other matter, cause or circumstances
1.50.3 any combination of the above mentioned causes
in each case to the extent beyond the reasonable control of the Developer
and any Group Company of the Developer and which adversely affects the
performance by the Developer of the terms and provisions of this Agreement
on the basis that there should be no double counting and so that for the
avoidance of doubt in calculating the overall period of Force Majeure
extensions for the purposes of this Agreement there shall also be included
any period or periods of delay (but so that there is to be no double
counting) consequential on any delays caused by any of the above events
1.51 "Group Company" means any company which is for the time being (a) a
subsidiary of the relevant party or (b) the holding company or parent
company of that party or (c) another subsidiary of the holding company or
parent company of that party (whether or not that subsidiary may itself be
a parent or holding company of a sub-group of companies within the whole
group), in each case within the meaning of Sections 258, 259 and 736 of the
Companies Act 1985, as amended by the Companies Act 1989
1.52 "HM Customs & Excise" means HM Customs & Excise or any other person,
authority, body or official which is from time to time responsible for the
care, management or administration of Value Added Tax
1.53 "Holy Days" means the Jewish Sabbath (one hour before sundown on Friday to
one hour after sundown on Saturday) and the Jewish Holy Days specified in
the Schedule 1
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1.54 "Independent Measurer" means Plowman Craven & Associates of 141 Lower Luton
Road, Harpenden, Hertfordshire AL5 5AQ or if they are unable or unwilling
to act such other firm or company with expertise in measuring floors in
premises of a nature similar to the Demised Premises as the parties may
agree (or as may in default of agreement be nominated by the President for
the time being of the Royal Institution of Chartered Surveyors (or his
deputy) on the application of any party) in substitution therefor in
accordance with this Agreement
1.55 "Independent Measurer's Certificate" has the meaning attributed to that
expression in Clause 18.1.2
1.56 "Independent Person" means the independent person appointed to act as
specified in Clause 30
1.57 "Infrastructure Works" means those works as detailed in the description at
Annexure 7
1.58 "Initial Rent" shall have the meaning given to this expression in the Lease
and shall be the amount calculated in accordance with the provisions of
Clause 22.2.2
1.59 "Insured Risks" shall have the meaning given to that expression in Clause
21.2
1.60 "Insured Works" shall have the meaning given to that expression in Clause
21.3
1.61 "Interest Rate" means three (3) per centum per annum above the base rate of
Barclays Bank plc in force from time to time or, if such base rate shall be
incapable of determination three (3) per centum per annum above a rate
reasonably equivalent to such base rate
1.62 "Key Consultants" means:-
1.62.1 Cesar Pelli & Associates Inc of 1056 Chapel Street, Newhaven CT
06510 USA in relation to design and the Base Building Architect in
relation to production
1.62.2 Hilson Moran Partnership Limited of 16 Armstrong Mall Southwood
Farnborough Hampshire GU14 0NR as Building Services Consultants and
Vertical Transportation Consultants
1.62.3 Ove Arup & Partners Limited of 13 Fitzroy Street London W1 as
Structural Engineers
and in each case such other firms as are appointed to perform the relevant
function in connection with the Base Building in substitution for the
foregoing
1.63 "Latent Defective Works" means any latent or inherent defects in the Base
Building Works which:-
1.63.1 directly adversely affect the beneficial use and occupation of the
Demised Premises as offices; and
1.63.2 manifest themselves after the expiry of the initial defects period
referred to in Clause 1.30 and during the period of ten (10) years
commencing on the date on which Base Building Works Practical
Completion of the Base Building Works in question is achieved; and
1.63.3 result from a breach by the Developer in respect of its obligations
under this Agreement relating to the Base Building Works; and
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1.63.4 are present in the Base Building Works as originally designed
and/or constructed; and
1.63.5 are directly or indirectly attributable to or connected with the
design workmanship tests investigations or supervision of the
construction of the Base Building Works or the materials used in
them having been defective, inadequate, unsuitable or incomplete or
otherwise substandard, judged in accordance with the terms of any
Approvals, the standards referred to in Clause 6.1 and any
applicable codes of practice (in the case of design at the time
when the relevant part of the Base Building Works was designed and
in the case of workmanship at the time when the relevant work was
done and in the case of materials at the time of specification);
and
1.63.6 are not caused or aggravated (whether directly or indirectly) by
the carrying out of the Tenant's Works; and
1.63.7 are no greater than would have been caused if the Tenant had given
notice to the Developer as soon as reasonably practicable upon
becoming aware of any latent or inherent defects in the Base
Building Works; and
1.63.8 are not caused or aggravated (whether directly or indirectly) by
any acts or omissions by the Tenant or any sub-tenant licensee or
occupier of the Demised Premises (or any persons acting for or on
behalf of any of them or under their control)
Provided Always that if it is agreed or determined that there shall have
been Tenant's Delay then the said ten (10) year period specified in Clause
1.63.2 shall commence upon the date which it is agreed or determined
pursuant to Clause 19.3 that Practical Completion of the Base Building
Works would have been achieved but for Tenant's Delay
1.64 "Lease" means the two leases of the Demised Premises (herein referred to as
Lease 1 and Lease 2) to be granted to the Tenant in the form of the agreed
draft annexed to this Agreement as Annexure 20 subject to such amendments
as are agreed in writing between the parties or as are otherwise made in
accordance with this Agreement
1.65 "Lease Insurance Date" has the meaning attributed to it in Clause 21.1
1.66 "Letter of Opinion" means the letters of opinion substantially in the form
of the drafts attached as Annexure 21 but amended so as to relate to the
Lease at the date of grant (and with such other amendments reasonably
necessary to reflect any change in law or byelaws or other regulations)
1.67 "Long Stop Date" means 4 years after the Target Date as extended day for
day by Tenant's Delay agreed or determined in accordance with clause 5.4.3
1.68 "Licence" means the licence regulating and approving the manner of
execution of the Tenant's Works and the reinstatement of the Reinstatement
TRM's in the form of the draft set out in Schedule 3 to be entered into as
provided in Clauses 8.12 and 14.3
1.69 "Material Trade Contract" means a Trade Contract which is entered into with
a Material Trade Contractor
1.70 "Material Trade Contractor" means any or all of the trade contractors
providing any or all of the services listed in Annexure 11 in relation to
the Base Building
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1.71 "Measurer's Appointment" has the meaning attributed to it in Clause 18.1.1
1.72 "Measurement Plans" means the plans showing each floor of the Building
annexed to this Agreement as Annexure 19
1.73 "Method Statement" has the meaning attributed to it in Clause 12.4
1.74 "Modification Consents" shall have the meaning given to this expression in
Clause 8.4.1(a)
1.75 "Modification Costs" means (in relation to each element of each Tenant's
Requested Modification) the aggregate of the following sums namely:-
1.75.1 the sums payable to Trade Contractors in relation to or resulting
from that element of the Tenant's Requested Modification including
(but not limited to) in each case (if any) any relevant Trade
Contractor Preliminaries; and
1.75.2 a fixed preliminaries percentage of 12.5 per centum of the sums
referred to in Clause 1.75.1 above; and
1.75.3 all Key Consultants', Consultants' and other third party fees
properly incurred or expended by the Developer and/or CWCL in
connection with each element of the Tenant's Requested
Modification, including but not limited to fees incurred (as
applicable) in:-
(a) determining the extent and scope of each element of the
Tenant's Requested Modification
(b) preparation of the Modification Plans
(c) preparation of the Estimates referred to in Clause 8.4.1
(d) preparation of the drawings referred to in Clauses 1.85.2 and
18.1.3(a)
(e) assessing and determining the final out-turn cost of the
Tenant's Requested Modification
(f) assessing agreeing or preparing the Costs Estimate and
monitoring and agreeing the sums finally payable to the Trade
Contractors in relation to the Tenant's Requested
Modifications
1.75.4 the part or proportion of the sums, fees, costs and expenses
specified in Clauses 1.75.1 to 1.75.3 (inclusive) which represents
Value Added Tax, save to the extent that any party is entitled to
credit or repayment in respect of such Value Added Tax from H.M.
Customs & Excise
1.75.5 3 per centum of the aggregate of the sums referred to in Clauses
1.75.1 to 1.75.4 (inclusive)
as adjusted pursuant to this Agreement and so that (for the avoidance of
doubt) any sum which is recovered under one sub-clause shall not also be
recovered under another sub-clause of this Clause 1.75
1.76 "Modifications" and "Modification Plans" shall each have the meaning given
to the relevant expression in Clause 8.6
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1.77 "MSDF Works" means the fitting out works described and of the minimum
standard detailed in the document forming Annexure 6 hereto and entitled
"Minimum Standard Developer's Finish for Tenant's Works" (the "MSDF Works
Specification")
1.78 "Net Internal Area" means the net internal area expressed in square feet of
the Building (ignoring any losses and gains arising from Tenant's Requested
Modifications) and measured for the purposes of ascertaining the Net
Internal Area under this Agreement in accordance with the Code of Measuring
Practice and so that those areas coloured yellow on the Measurement Plans
shall be excluded from the Net Internal Area and so that for the avoidance
of doubt in the case of any conflict between the Code of Measuring Practice
and this definition it is agreed that this definition shall prevail
1.79 "Planning Acts" means the Town and Country Planning Act 1990, the Planning
(Listed Buildings and Conservation Areas) Act 1990, the Planning (Hazardous
Substances) Act 1990, the Planning (Consequential Provisions) Act 1990 and
the Planning and Compensation Act 1991 the Local Government Planning and
Land Act 1980 and includes any other applicable town and country planning
legislation
1.80 "Preliminaries" means the costs of the items identified in Schedule 5
1.81 "Prohibited Materials" means:
1.81.1 high alumina cement concrete in structural elements;
1.81.2 woodwool slabs in permanent formwork to concrete or in structural
elements;
1.81.3 calcium chloride used as a setting agent in cement;
1.81.4 calcium silicate bricks or tiles;
1.81.5 asbestos or asbestos containing products as defined in The Asbestos
Regulations 1969 or in any statutory modification or re-enactment
thereof current at the date of specification (save where trace
natural elements thereof are used in products which comply with
relevant British Standard Specifications);
1.81.6 naturally occurring aggregates for use in reinforced concrete which
do not comply with British Standard Specification 882 and 110 and
naturally occurring aggregates for use in concrete which do not
comply with British Standard Specification 8110: 1985;
1.81.7 urea formaldehyde;
1.81.8 materials containing fibres which have a diameter of 3 microns or
less and a length of 200 microns or less;
1.81.9 polytetrafluoroethylene (PTFE) except when used as a non-stick
sealing within valves, jointing material between pipes or as an
isolating tape;
1.81.10 mineral fibres (man-made or naturally occurring) which are not
contained or stabilised by materials to prevent fibre migration;
1.81.11 halon;
1.81.12 timber which is not obtained from a managed and regulated
sustainable source;
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1.81.13 lead based paint;
1.81.14 any other substances or materials generally considered in the
United Kingdom construction industry to be deleterious or harmful
to health and safety or not in accordance with relevant British
standards and codes of practice or which have been declared
deleterious in a publication of the Building Research Establishment
at the relevant time
1.82 "Reinstatement TRM's" shall have the meaning given to that term in Clause
8.4.1(e)
1.83 "Relevant Estimates" shall have the meaning given to that term in Clause
8.4.1
1.84 "Rent Commencement Date" means the date calculated in accordance with
Clauses 22.2.3 and 22.2.4
1.85 "Rent Review Specification" means the specification comprising:-
1.85.1 the "as-built" Base Building Works but omitting Tenant Requested
Modifications and substituting for them the relevant Base Building
Definition items; and
1.85.2 the TRM Plans; and
1.85.3 the MSDF Works Specification
to be annexed to the Lease
1.86 "Retained Parking Allocation" means the number of spaces calculated in
accordance with clause 22.8.8
1.87 "Schedule of Early Access Dates" means the schedule annexed to this
Agreement as Annexure 8 as modified from time to time in accordance with
this Agreement
1.88 "Senior Manager" shall have the meaning given to this expression in Clause
32
1.89 "Site" means the land shown edged red on the Development Site Plan
1.90 "Snagging Items" means any minor defects or omitted items or items of
decoration or repair (not including items of or relating to the Tenant's
Works) as specified in the list attached to or created at the same time as
the Base Building Works Practical Completion Certificate which do not, and
the completion of which will not, individually or collectively prevent or
adversely affect (other than to an extent which is not material) the
ability to carry out the Tenant's Works or the beneficial use and
occupation of the Demised Premises as offices
1.91 "Statutory Requirements" means any Act of Parliament and any instrument,
rules, orders, regulations, notices, directions, bye-laws, permissions and
plans for the time being made under or deriving validity from it, all
regulations, laws or directives made or issued by or with the authority of
The European Commission and/or the Council of Ministers (which take effect
in England and Wales) and any rules, regulations, building regulations,
orders, bye-laws or codes of practice of any local authority or any utility
company having jurisdiction in relation to the Base Building Works
1.92 "Substitute's Warranty" means the form of warranty annexed as Annexure 16
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1.93 "Sub-underlease" means the Sub-underlease of the Sub-underlease Premises
to be granted to the Developer or any Group Company of the Developer in
the form of the agreed draft annexed to this Agreement as Annexure 22
1.94 "Sub-underlease Category A Works" means any works undertaken in respect of
the Sub-underlease Premises which shall comprise works of the nature of
(whether or not they are identical to) the MSDF Works
1.95 "Sub-Underlease Consultants" means the consultant or consultants who
provide material advice on the design and construction of the Sub-
underlease Category A Works
1.96 "Sub-underlease Premises" means the premises to be demised by the Sub-
underlease as the same are more particularly described therein
1.97 "Sub-underlease Parking Allocation" means the number of spaces calculated
by deducting the Retained Parking Allocation from the Tenant's Parking
Allocation of which the Developer (or the nominated Group Company) will be
granted the use pursuant to paragraph 6 of the First Schedule of the Sub-
underlease
1.98 "Target Date" means 1 June 2002 as extended day for day by Force Majeure
and Tenant's Delay agreed or determined in accordance with Clause 5.4.3
1.99 "Tenant's Category A Works" means any works undertaken by the Tenant which
shall comprise works of the nature of (whether or not they are identical
to) the MSDF Works and which shall be of no lesser standard or extent than
the MSDF Works and as approved by the Developer pursuant to Clause 11.4
1.100 "Tenant's Category B Works" means the works (if any) which are undertaken
by the Tenant (in addition to the Tenant's Category A Works or in
substitution thereof) as part of the fitting out of the Demised Premises
and which are approved in accordance with the provisions of this Agreement
1.101 "Tenant's Consultants" means all or any of those persons appointed by the
Tenant to provide material advice to the Tenant on the design and
construction of the Demised Premises and/or the Tenant's Works
1.102 "Tenant's Contractors" shall have the meaning given to that expression in
Clause 12.1
1.103 "Tenant's Delay" means any delay to the Base Building Works or any part or
item of them arising out of or attributable to any act or omission or
requirement of the Tenant or the Tenant's Contractors or the Tenant's
Consultants or their respective agents, servants or contractors and any
delays resulting from or properly attributable to any (or a combination)
of the following (but so that there is to be no double counting):-
1.103.1 any written request by the Tenant accepted and acted upon by the
Developer that the Developer delay or procure the delay of the
commencement, progress or completion of work on any part of the
Base Building Works for any reason which is not as a result of
the Developer's breach of its obligations in this Agreement;
1.103.2 failure by the Tenant in accordance with the obligations in this
Agreement to supply details and confirmations within the time
limits or periods provided in the Critical Dates Schedule;
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1.103.3 any Tenant's Requested Modifications or the carrying out of the
Tenant's Works or any works investigations process, actions
claims or proceedings directly or indirectly consequent upon
pursuant to or in connection with any Tenant's Requested
Modification; or
1.103.4 any breach by the Tenant of any of the terms of this Agreement
and any other delay either expressly specified in this Agreement as or
otherwise agreed between the parties to be a Tenant's Delay (but so that
there is no double counting) and so that for the avoidance of doubt in
calculating the overall period of any Tenant's Delay for the purposes of
this Agreement:-
(a) there shall also be included any period or periods of delay
(but so that there shall be no double counting)
consequential on any delays caused by any of the above
events;
(b) on each occasion of Tenant's Delay (but so that there shall
be no double counting) there shall be an automatic addition
on a day by day basis of such period of Tenant's Delay to
all time periods in this Agreement which fall to be adjusted
by Tenant's Delay and to accumulated periods of Tenant's
Delay
and Provided Further that for the avoidance of doubt nothing in this
Agreement shall oblige the Developer to incur additional expenditure to
mitigate Tenant's Delay unless and to the extent that the Tenant agrees in
writing to reimburse the same pursuant to Clause 5.4.4
1.104 "Tenant's Inducement" means the aggregate of (a) the product of
multiplying the Net Internal Area of Floors 6-11 (inclusive) expressed in
square feet by (Pounds)50.00 and (b) the product of multiplying the Net
Internal Area of Floor 5 expressed in square feet by (Pounds)25.00 (in
both cases inclusive of any Value Added Tax which may be chargeable at any
rate)
1.105 "Tenant's Parking Allocation" means the number of spaces calculated in
accordance with clause 22.2.9 of which the Tenant will be granted the use
pursuant to paragraph 6 of the First Schedule of the Lease
1.106 "Tenant's Plans" shall have the meaning ascribed to them in Clause
11.1.2(a)
1.107 "Tenant's Quantity Surveyor" means Beverley Stewart of Allen Stewart
Partnership 15-27 Gee Street London EC1V 3RD or such other person as may
be appointed by the Tenant to perform the function of the Tenant's
Quantity Surveyor pursuant to this Agreement and notified to the Developer
as having been so appointed
1.108 "Tenant's Representative" means Nick Goodwin of Harrington or such other
person as may be appointed by the Tenant to perform the function of the
Tenant's Representative pursuant to this Agreement and notified to the
Developer as having been so appointed
1.109 "Tenant's Requested Modification" means a modification or modifications
requested by the Tenant in accordance with Clause 8.1 and as defined
therein
1.110 "Tenant's Solicitors" means Linklaters of One Silk Street London EC2Y 8HQ
(Ref: CBC) or such other firm of solicitors as the Tenant may appoint and
notify to the Developer
1.111 "Tenant's Works" means, if any, collectively the Tenant's Category A Works
and the Tenant's Category B Works or any of them as the context requires
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1.112 "Tenant's Works Areas" shall have the meaning attributed to that
expression in Clause 13.2.1
1.113 "Tenant's Works Practical Completion" means practical completion of the
Tenant's Works
1.114 "Tenant's Works Practical Completion Certificate" means the certificate of
the Tenant to the effect that Tenant's Works Practical Completion has been
achieved
1.115 "Term Commencement Date" means the date calculated in accordance with
Clause 22.2.1
1.116 "Trade Contractors" means each trade contractor appointed in connection
with the Base Building Works
1.117 "Trade Contractors Preliminaries" means the preliminaries referred to in
any contract entered into with a Trade Contractor
1.118 "TRM Application" shall have the meaning given to that expression in
Clause 8.3
1.119 "TRM Authorisation Request" shall have the meaning given to that
expression in Clause 8.4.1
1.120 "TRM Plans" shall have the meaning given to that expression in Clause
18.1.3(a)
1.121 "Unspent Costs" means in relation to each substitution comprised within a
Tenant's Requested Modification the aggregate of the following sums,
namely:-
1.121.1 the amount (if any) by which the sums due and payable to Trade
Contractors pursuant to the Trade Contract (including (if any)
any relevant Trade Contractor Preliminaries) are reduced as
compared to the sums which would otherwise but for the Tenant's
Requested Modification in question have been so due and payable;
and
1.121.2 a fixed preliminaries percentage of 12.5 per centum of the sums
referred to in Clause 1.121.1; and
1.121.3 the amount (if any) by which the sums due and payable to Key
Consultants and Consultants and other third parties are reduced
as compared to the sums which would otherwise but for the
Tenant's Requested Modification in question have been so due and
payable; and
1.121.4 an additional amount of 3 per centum of the aggregate of the sums
referred to in Clauses 1.121.1 to 1.121.3 (inclusive)
1.122 "Value Added Tax" and "VAT" mean value added tax as provided for in the
Value Added Tax Act 1994 and includes any other tax from time to time
replacing it or of a similar fiscal nature
1.123 "Working Day" means any day (other than a Saturday or a Sunday or any
Holy Day) upon which clearing banks in the United Kingdom are open to the
public for the transaction of business
2. INTERPRETATION
In this Agreement unless the context otherwise requires:-
2.1 Words importing the masculine gender only shall include the feminine
gender and neuter meaning and vice versa and words importing the singular
number shall include the plural
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number and vice versa and all references to a Clause or Schedule shall
mean a Clause of or Schedule to this Agreement;
2.2 References to drawings and documents annexed to this Agreement shall
include the drawings and documents initialled for identification on behalf
of the parties to this Agreement for the purposes of this Agreement
(whether individually or as part of an agreed bundle or bound volume or
otherwise);
2.3 The Clause and paragraph titles and headings are for convenience only and
shall not be construed in or affect the interpretation of this Agreement;
2.4 Every covenant by a party comprising more than one person shall be deemed
to be made by such party jointly and severally;
2.5 Words importing persons shall include firms, companies and corporations
and vice versa and reference to the Tenant or to the Developer shall be
deemed to extend to the Tenant's or the Developer's (as the case may be)
servants and consultants, workmen, contractors, sub-contractors, agents or
any person or persons acting on its or their behalf or under its or their
control;
2.6 Any covenant by any party not to do any act or thing shall include an
obligation not to permit or suffer such act or thing to be done and (so
far as is within its direct control) to procure that it is not done and
any reference to consent or approval or other confirmation not being
unreasonably withheld (or similar expression) shall be deemed to include
reference to such consent or approval or other confirmation not being
unreasonably delayed;
2.7 Any reference to the right of the Developer or the Tenant to have access
to, enter or call for information on the Site shall be construed as
entitling the Developer or the Tenant (as the case may be) to supply the
same to their respective servants, agents, professional advisers,
contractors and workmen for the purposes of and contemplated by and upon
terms (including as to confidentiality) which are consistent with this
Agreement;
2.8 Any reference to a statute (whether specifically named or not) shall
include any amendment or re-enactment of it for the time being in force,
and all instruments, orders, notices, regulations, directions, bye-laws,
permissions and plans for the time being made, issued and or given under
it, or deriving validity from it (in each case a "Change") provided that
where any design has been carried out or work commenced or scheduled under
this Agreement and any relevant Change takes place then the Developer may
(insofar as to do so would not place it or any future occupier of all or
part of the Building in breach of a Statutory Requirement) carry out and
complete the Base Building Works or perform any of its other obligations
hereunder as if such Change had not taken place;
2.9 The words "including" "include" "excluding" and "exclude" shall be deemed
to be followed by the words "without limitation"
2.10 Whenever pursuant to this Agreement a party is required to give consent,
approval or confirmation (in this Clause 2.10 each a "relevant approval")
within a specified time period (in this Clause 2.10 the "time period") it
shall be reasonable for the party requested to give the relevant approval
to withhold, refuse or delay the relevant approval if the information
provided to it (taken together with its existing knowledge) is
insufficient properly to enable it to give its consent, approval or
confirmation and if within the time period such party gives notice to the
party requesting the relevant approval that it requires specifically
identified further information in order to be able properly to consider
the request for the relevant approval
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2.11 Save where provided to the contrary, all sums payable by the Tenant
pursuant to this Agreement shall be deemed to be exclusive of any Value
Added Tax which may be chargeable on the supply or supplies for which such
sums (or any part of such sums) are the whole or part of the consideration
for Value Added Tax purposes; and
2.12 Any reference to any right, entitlement or obligation of any person under
the laws in relation to Value Added Tax, or any business carried on by any
person for Value Added Tax purposes, shall (where appropriate and unless
the context otherwise requires) be construed, at any time when such person
is treated as a member of a group for the purposes of Section 43 of the
Value Added Tax Act 1994 to include a reference to the right, entitlement
or obligation under such loan of, or the business carried on for Value
Added Tax purposes by the representative member of such group at such time
(the term "representative member" to be construed in accordance with the
said Section 43)
PART 2
CONSULTANTS AND TRADE CONTRACTORS
3. CONSULTANTS AND TRADE CONTRACTORS
3.1 Appointment of Key Consultants
3.1.1 The Developer shall appoint the Key Consultants and, insofar as the
same have not already been provided to the Tenant, procure that
there are delivered to the Tenant within twenty (20) Working Days
of the date of this Agreement copies of all completed appointments
of Key Consultants (excluding financial information) and shall
procure the supply to the Tenant of copies of any other Key
Consultants' appointments (excluding financial information) as soon
as reasonably practicable following their completion
3.1.2 The Developer shall procure that each of the Key Consultants
executes a warranty in favour of the Tenant in respect of each
Lease in the form of the draft warranty annexed as Annexure 14 in
each case with non-material variations or pre-agreed permitted
amendments as set out in Annexure 15 only unless the Tenant shall
otherwise approve an amendment (such approval not to be
unreasonably withheld). If approval shall not have been given or
refused (and if refused without stating a properly and fully
reasoned basis for such refusal) by the Tenant in writing within
six (6) Working Days after request for such an approval, the
approval shall be deemed to have been given by the Tenant. The
procedure may be repeated. The Developer shall deliver the
warranties to the Tenant as soon as reasonably practicable
following their completion
3.1.3 In the event that the Developer or CWCL terminates (in whole or in
part) the appointment of a Key Consultant or a Key Consultant
declines to be appointed the Developer shall procure that CWCL
appoints another firm in substitution for the relevant Key
Consultant together with the grant of a warranty in favour of the
Tenant by such firm on the terms of the Substitute's Warranty in
each case with non-material variations or pre-agreed permitted
amendments as set out in Annexure 15 only unless the Tenant shall
otherwise approve an amendment (such approval not to be
unreasonably withheld). If approval shall not have been given or
refused (and if refused without stating a properly and fully
reasoned basis for such refusal) by the Tenant in writing within
six (6) Working Days after request for such an approval, the
approval shall be deemed to have been given by the Tenant. The
procedure may be repeated. The Developer shall deliver the
Substitute's Warranty to the Tenant as soon as reasonably
practicable following its completion
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3.1.4 Any dispute arising out of the matters referred to in this Clause
3.1 shall be referred to an Independent Person who shall act as an
expert in accordance with Clause 30.5
3.1.5 If the Tenant shall unreasonably refuse or delay any approval
pursuant to this Clause 3.1 in any case where the Tenant is not
entitled to so unreasonably withhold or refuse an approval the
period of delay and any resulting delays to the Base Building Works
properly attributable thereto shall be a Tenant's Delay for the
purposes of this Agreement
3.2 Material Trade Contracts
The Developer shall, insofar as the same have not already been provided to
the Tenant, procure that there are delivered to the Tenant within twenty
(20) Working Days of the date of this Agreement copies of all completed
Material Trade Contracts (excluding financial information) and shall
procure the supply to the Tenant of copies of any other Material Trade
Contracts (excluding financial information) as soon as reasonably
practicable following their completion
3.3 Developer to procure Material Trade Contractors enter into a Warranty
The Developer shall procure that each of the Material Trade Contractors
executes a warranty in favour of the Tenant in respect of each Lease in the
case of the Existing Material Trade Contractors in the form of the draft
warranty contained within Annexure 12 and in the case of all other Material
Trade Contractors in the form of the draft warranty contained within
Annexure 13 in either case with non-material variations or pre-agreed
permitted variations as set out in Annexure 15 only unless the Tenant shall
otherwise approve an amendment (such approval not to be unreasonably
withheld). If the approval required shall not have been given or refused
(or if refused without stating a properly and fully reasoned basis for such
refusal) by the Tenant in writing within six (6) Working Days after receipt
of the request for such an approval, the approval will be deemed to have
been given. The procedure may be repeated. If the Developer and the Tenant
are unable to agree whether the Tenant is acting reasonably in withholding
its approval then either party may refer such dispute to an Independent
Person acting as an expert in accordance with Clause 30.5. The Developer
shall deliver the warranty to the Tenant as soon as reasonably practicable
after the execution of the relevant Material Trade Contract
3.4 Developer fit-out Warranty
The Developer shall use reasonable endeavours to procure the execution and
delivery to the Tenant of a collateral deed of warranty from each of the
Sub-underlease Consultants in the form set out in Annexure 16 in each case
with non-material variations or pre-agreed permitted amendments as set out
in Annexure 15 in such form (having regard to the scale and nature of the
services to be provided by the Sub-underlease Consultants) as the Developer
proposes and the Tenant approves (such approval not to be unreasonably
withheld or delayed)
PART 3
DEVELOPMENT OBLIGATIONS
4. APPROVALS AND STATUTORY REQUIREMENTS
4.1 Required Consents and Approvals
4.1.1 Subject to Clause 4.1.2, the Developer shall (to the extent that it
has not already obtained the same and the same remain in force) at
its own cost and expense use all
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reasonable endeavours to obtain all Approvals (other than the Fire
Certificate in respect of the Demised Premises which it shall be the
Tenant's responsibility to obtain) required for the carrying out and
completion of the Base Building Works as shown on the Approved Plans
disregarding any Tenant's Requested Modifications and for the
beneficial use and occupation of the Demised Premises as offices
4.1.2 The Developer shall use its reasonable endeavours to obtain any
Approvals required in relation to any Tenant's Requested
Modifications and the costs properly incurred by the Developer in
doing so shall constitute Modification Costs for the purposes of
this Agreement
4.1.3 Where the cost of obtaining Approvals cannot be apportioned (both
parties acting reasonably) between items under Clauses 4.1.1 and
4.1.2 then the cost shall be shared equally between the Developer
and the Tenant
4.2 The Developer to comply with CDM Regulations
The Developer shall in respect of the Base Building Works act as client for
the purposes of the CDM Regulations and procure that CWCL shall comply with
its obligations under the CDM Regulations and shall use its reasonable
endeavours to procure compliance by the Trade Contractors and the Key
Consultants and Consultants and the planning supervisor and principal
contractor with their respective obligations under the CDM Regulations
until the Base Building Works have been completed and all relevant
certificates of making good defects have been issued
5. THE DEVELOPMENT
5.1 Period allowed for completion of Base Building Works
5.1.1 The Developer shall use reasonable endeavours to procure that Base
Building Works Practical Completion occurs no later than the Target
Date as such Target Date is extended by Force Majeure and Tenant's
Delay
5.1.2 No part of the Base Building Works shall be scheduled or performed
on any of the Holy Days
5.2 Termination
If Base Building Works Practical Completion does not occur by the Long Stop
Date the Tenant may terminate this Agreement by notice to the Developer
5.3 Critical Dates Schedule and Schedule of Early Access Dates
5.3.1 If (for whatever reason including, for the avoidance of doubt, Force
Majeure and Tenant's Delay) the progress of the Base Building Works
at any time is not in accordance with the Developer's construction
programme as it exists at that time the Developer may revise the
Critical Dates Schedule and/or the Schedule of Early Access Dates in
such manner as may be reasonable in all the circumstances
5.3.2 The Developer (acting reasonably) may propose additions to the
Critical Dates Schedule for any reason save as mentioned in clause
5.3.1 but these shall require the prior written approval of the
Tenant (which shall not be unreasonably withheld or delayed)
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5.3.3 The Developer shall supply to the Tenant promptly a copy of any
revision of or addition to the Critical Dates Schedule and/or any
revision of the Schedule of Early Access Dates
5.3.4 Save to the extent prevented from doing so by the Developer failing
to comply with its obligations in this Agreement the Tenant shall
provide to the Developer the information and other matters referred
to in the Critical Dates Schedule and specified to be provided by
the Tenant by the relevant date or within the relevant period
specified in the Critical Dates Schedule
5.4 Quantification of permitted extensions of time and the Developer's
mitigation
5.4.1 If, in the Developer's opinion, at any time during the course of the
execution of the Base Building Works, the Developer has been or is
being or is likely to be delayed in its ability to commence or
continue with the carrying out of the Base Building Works or to
complete the same in accordance with the provisions of this
Agreement by reason of Force Majeure and/or Tenant's Delay and/or
any delays consequential thereon then the Developer shall notify the
Tenant accordingly giving the Tenant as much early warning of such
delay or potential delay as is reasonably practicable
5.4.2 The Developer and the Tenant shall discuss the best methods for
minimising any such delay or potential delay and mitigating its
effects and shall wherever practicable (acting reasonably) seek to
agree upon a plan or strategy for minimising the same and mitigating
such effects and (subject always to Clauses 5.4.4 and 5.4.5) both
the Developer and the Tenant shall (acting reasonably and at the
cost of the Developer save where a result of Tenant's Delay) assist
each other to overcome and/or minimise and/or mitigate the same with
all due speed
5.4.3 The Developer and the Tenant in accordance with the terms of this
Agreement shall together seek to agree a fair and reasonable
extension of time for the completion of the Base Building Works in
respect of each delay which arises out of or is attributable to
Force Majeure and/or Tenant's Delay and/or any delays consequential
thereon and when each such extension has been agreed or (in the
event of dispute) is determined by an Independent Person acting as
an expert in accordance with Clause 30.5 each such extension of time
shall be granted to the Developer and all the dates and periods in
this Agreement which are expressed to be extendable by reason of
such delay shall be treated as deferred (or further deferred if
extensions of time have already been granted) by such agreed or
determined extension of time and, for the avoidance of doubt, if the
Developer fails to comply with its obligations to achieve the
matters the subject of this Agreement by the date specified in this
Agreement referable to such matters but would have so complied but
for Tenant's Delay and/or Force Majeure, then for the purposes of
this Agreement the Developer shall be treated as having so complied
with such obligation but without prejudice to the Developer's
obligations under this Agreement to achieve the matters the subject
of this Agreement by the date specified in this Agreement referable
to such matters as extended by agreement or determination under this
Clause 5.4.3
5.4.4 The Developer shall constantly (but without being obliged to incur
any additional expenditure (unless and to the extent the Tenant
requests and agrees in writing to reimburse the Developer for the
same)) use best endeavours to mitigate delays caused by Force
Majeure and/or Tenant's Delay and/or for whatever other reason (save
for the Developer's default)
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5.4.5 The Tenant shall constantly (but without being obliged to incur any
additional expenditure (unless and to the extent that the Developer
requests and agrees in writing to reimburse the Tenant for the
same)) use best endeavours to mitigate delays caused by Force
Majeure and/or Tenant's Delay and/or for whatever other reason
5.4.6 The Developer shall constantly use reasonable endeavours to mitigate
delays caused by the Developer's default
6. EXECUTION OF THE BASE BUILDING WORKS
6.1 Execution of Base Building Works
The Developer shall (save to the extent it is delayed from so doing by
Force Majeure and/or Tenant's Delay and subject to the obtaining of all
Approvals) at its own cost and expense (subject to the provisions of Clause
8) procure or (as appropriate) continue the execution of the Base Building
Works (including for the avoidance of doubt any approved Tenant's Requested
Modifications or other variations to the Base Building Works) and each and
every part of them:-
6.1.1 in a good and workmanlike manner;
6.1.2 using the standard of skill and care in procuring the design and
execution of the Base Building Works as would be expected of a
developer which is experienced in the development and construction
of buildings of the size and type of the Building;
6.1.3 using materials of sound quality; and
6.1.4 in accordance with and subject to:-
(a) the Approvals
(b) all Statutory Requirements current at the time of execution of
such works which shall affect the execution and carrying out of
the Base Building Works
(c) the Base Building Definition
(d) the terms of this Agreement
Provided That the Developer shall have no liability to the Tenant pursuant
to this Agreement to the extent that any defects arise in the Base Building
Works as a result of any of the Tenant's Works
6.2 Construction Materials
The Developer confirms that it shall not specify or knowingly authorise and
shall procure that CWCL shall not specify or knowingly authorise any of the
Prohibited Materials for use in the Base Building Works and that it has
used and will continue to use the skill and care required by clause 6.1.2
to see that none of the Prohibited Materials are specified or knowingly
authorised or used by the Trade Contractors or the Consultants in the Base
Building Works
7. VARIATIONS TO THE BASE BUILDING WORKS
7.1 Base Building Works Finishes Design Development
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The Developer shall within the relevant time limits specified in the
Critical Dates Schedule submit to the Tenant architectural and engineering
working drawings and specifications (as appropriate) prepared by the
relevant Consultant or Key Consultant or any other party detailing Design
Development of the Base Building Works Finishes from the stage shown on the
Base Building Plans listed in the drawings schedule annexed to this
Agreement as Annexure 4 in sufficient detail to enable the Tenant properly
to assess and consider the Design Development being proposed. The Developer
shall have regard to (but shall not be bound by) any reasonable
representations made by the Tenant with regard to the Design Development of
Base Building Works Finishes
7.2 Permitted Variations
7.2.1 On giving the Tenant prior written notice (which may be by the
provision of drawings) the Developer shall be entitled to make
alterations, additions or variations to the Base Building Works
without the Tenant's consent where:-
(a) such are lawfully required after the commencement of the Base
Building Works in order to comply with Statutory Requirements;
or
(b) any materials specified in the specifications relating to the
Base Building Works are in short supply or are or become
unobtainable or continuous supply thereof cannot be reasonably
expected guaranteed or are subject to delay and if awaited
would demonstrably impede the progress of the Base Building
Works (in which event the Developer may use alternative
materials of a similar nature, type, character, design and of
no lesser quality to those specified in the specification
forming part of the Base Building Definition); or
(c) the same will not materially adversely affect the Tenant's
beneficial use and enjoyment of the Demised Premises as offices
and do not relate to the Base Building Works Finishes; or
(d) the same constitute Design Development
7.2.2 The Developer shall be entitled to make alterations, additions or
variations to the Base Building Works with the Tenant's approval
(such approval not to be unreasonably withheld) where the same
relate to the Base Building Works Finishes or do not otherwise fall
within Clause 7.2.1
7.2.3 If within a period of six (6) Working Days following receipt by the
Tenant of a written notice from the Developer requesting the Tenant
to consent to an alteration, variation or amendment or the details
of the same pursuant to Clause 7.2.2 (such request being accompanied
by such technical drawings and information as are available and the
Tenant shall reasonably require in order to evaluate the request)
the Tenant has not in writing approved or reasonably objected to any
such alterations, additions or variations or objected to the details
of them giving its reasons or requested such further technical
drawings and information as it may reasonably require in order to
evaluate the request then consent shall be deemed to have been given
by the Tenant
7.2.4 The Developer shall as soon as reasonably practicable and in advance
where possible supply to the Tenant details of any such alterations,
additions or variations as are referred to in this Clause 7 (whether
or not the Tenant's approval is required
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or given to such) together with copies of any plans drawings and
specifications relating to them
7.2.5 If the Tenant makes a written objection following a request for
consent pursuant to the provisions of Clause 7.2.2 such written
objection shall specify in reasonable detail the grounds for such
objection and in the event of dispute as to whether or not the
Tenant is acting reasonably in objecting then either party may refer
the matter to the Independent Person acting as an expert pursuant to
the provisions of Clause 30.5
8. TENANT'S REQUESTED MODIFICATIONS
8.1 Tenant's notification of Modifications
8.1.1 The Tenant shall be entitled in accordance with the provisions of
this Clause 8 and subject to clauses 8.1.2 and 8.1.3 and subject to
the request being practicable to implement at the time of the
request and subject to compliance with Clause 8.2, at the Tenant's
sole cost and expense and by application in writing to request the
Developer to approve (such approval not to be unreasonably withheld)
additions and/or substitutions to the Base Building Works (in each
case a "Tenant's Requested Modification"). In the event that there
is disagreement between the parties as to whether this Clause 8.1
applies either party may apply for the matter to be determined by an
Independent Person acting as an expert pursuant to Clause 30.5
8.1.2 The Tenant shall only be entitled to request a Tenant's Requested
Modification within six (6) months before the Target Date:-
(a) which is not reasonably likely to cause delay to the Base
Building Works; or
(b) which is reasonably likely to cause delay to the Base Building
Works which relate to the Demised Premises but which is capable
of being disregarded for the purposes of issuing the Base
Building Works Practical Completion Certificate
8.1.3 The Tenant shall not be entitled to request a Tenant's Requested
Modification within six (6) months before the Target Date:-
(a) which in the Developer's opinion is likely to cause delay to
any part of the Base Building Works which do not relate to the
Demised Premises; or
(b) where in the Developer's opinion the requested additions and/or
substitutions to the Base Building Works are likely to render
the issue of the Base Building Works Practical Completion
Certificate impracticable
8.2 Restrictions on Proposals
Tenant's Requested Modifications shall not contain facilities, materials or
work which, if implemented (when looked at together with any previously
requested Tenant's Requested Modifications including those requested but
not yet agreed and taking into account any payments made or to be made
between the parties pursuant to this Clause 8), would:-
8.2.1 alter the exterior (including the appearance) of the Building except
the roof; or
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8.2.2 materially alter the roof of the Building; or
8.2.3 adversely affect the structural integrity of the Building; or
8.2.4 reduce the lettable area of the Demised Premises (other than to an
immaterial extent); or
8.2.5 reduce the lettable area of the Building; or
8.2.6 reduce the open market value or open market rent of the Building
otherwise than by reducing its lettable area; or
8.2.7 negate or adversely affect the validity or enforceability of or the
availability or quantum of remedies or damages under any
appointment contract or warranty entered into by any Key Consultant
or any Consultant or any Trade Contractor (unless the Key
Consultant or Consultant or Trade Contractor agrees otherwise); or
8.2.8 place (or prospectively place) the Developer in breach of its
obligations to any third parties; or
8.2.9 be incompatible with any of the Base Building Works already carried
out or to be carried out by the Developer; or
8.2.10 be such as are intended to form any part of the MSDF Works (or
works of that type) or any part of the Tenant's Works provided that
this shall not exclude alterations to the Base Building Works in
order to facilitate the Tenant's Works; or
8.2.11 adversely affect the usage or the functioning of the Building
Systems or the cost of operating the Building Systems; or
8.2.12 violate any laws or (subject to the provisions of clause 8.6.4) the
requirements of any Approvals or the requirements from time to time
of any insurers or be such that any Approval or any insurance
effected or to be effected by the Developer pursuant to Clause 21
is reasonably likely to be unobtainable or is adversely affected;
or
8.2.13 in the Developer's reasonable judgement not be reasonably capable
of being reinstated at the end or sooner determination of the
contractual term of the Lease (if such reinstatement is required in
accordance with Clause 8.4.1(e)); or
8.2.14 involve the carrying out of works or the installation of items
which in the Developer's reasonable opinion are relatively untried
and untested and which in the Developer's reasonable opinion
increase (otherwise than to an immaterial extent) the risks
accepted by the Developer concerning defective works; or
8.2.15 prevent or be likely to prevent any supply or supplies made
pursuant to the grant of the Lease pursuant to this Agreement being
treated as an exempt supply or supplies of land under Group 1 of
Schedule 9 to the Value Added Tax Act 1994; or
8.2.16 cause or be likely to cause a Tenant's Delay which (when taken
together with any other Tenant's Delays which have already occurred
or which are reasonably foreseeable) would exceed 120 days in the
aggregate
Any dispute as to whether a Tenant's Requested Modification is prohibited
by this Clause 8.2 or whether the Developer is reasonably withholding
consent pursuant to Clause 8.1 or this
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Clause 8.2 shall be agreed between the Developer and the Tenant or in the
event they cannot so agree determined by the Independent Person acting as
an expert in accordance with Clause 30.5
8.3 Approval of Modifications
The Tenant shall furnish with any such application (a "TRM Application")
the reasons for it and sufficient information to enable the Developer
(acting reasonably) to determine the extent and scope of the Tenant's
Requested Modifications, the cost of the same, any proposed changes to
lettable area, any anticipated impact on the construction programme, the
letting, running or management of the Building or any part of it or the
Developer's interest in it. The Developer shall not be obliged, where it
has given initial consideration to a TRM application but has found that any
such reasons and/or information as referred to above have not been provided
or the Developer reasonably requires other information, to give further
consideration to the TRM application until the Tenant has (following
written request from the Developer identifying the missing further
information that is required such request to be given within five (5)
Working Days of receipt of the TRM Application) provided that further
information which the Developer reasonably requires
8.4 Authorisation Requests and Estimates
8.4.1 As soon as reasonably practicable following receipt of the
information specified in Clause 8.3 and (subject as set out in
Clauses 8.1 and 8.2) if the Developer approves a TRM Application the
Developer shall as soon as reasonably practicable work closely with
the relevant Tenant's Consultant (and, in particular, the Tenant's
Quantity Surveyors) and shall furnish to the Tenant in duplicate a
memorandum which sets out details of the Tenant's Requested
Modification in question, the duplicate of which will include an
acceptance section for completion by the Tenant if it wishes to
proceed with such Tenant's Requested Modification (the "TRM
Authorisation Request") and to which is annexed a statement setting
out:-
(a) the Approvals and the third party consents required in respect
of the Tenant's Requested Modification (the "Modification
Consents")
(b) an estimate of any Tenant's Delay which is likely to result by
reason of such Tenant's Requested Modification and which shall
include any estimated period of delay in respect of seeking and
obtaining the Modification Consents ("Estimate of Tenant's
Delay") and in the case of a Tenant's Requested Modification
requested within six (6) months before the Target Date an
estimate of the likely delay to the Base Building Works
Practical Completion and whether it is likely to render the
issue of the Base Building Works Practical Completion
Certificate impracticable
(c) a statement (the "Costs Estimate") setting out in reasonable
detail the Developer's good faith estimate of the Modification
Costs in relation to such Tenant's Requested Modification
(d) in the case of substitutions to the Base Building Works the
Unspent Costs attributable to the substitution (the "Estimated
Unspent Costs")
(e) whether the Developer (acting reasonably) will require
reinstatement of the Tenant's Requested Modification at the end
or sooner determination of the term of the Lease (the
"Reinstatement TRM's")
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Provided That the Estimate of Tenant's Delay, the Costs
Estimate, and the Estimated Unspent Costs (the "Relevant
Estimates") shall not be binding on the Developer or the Tenant
and no warranty as to the accuracy of such statements is given
or shall be implied
8.4.2 Prior to receiving the Tenant's countersigned TRM Authorisation
Request and Relevant Estimates the Developer shall continue to
progress or procure the progress of the Base Building Works as if no
application for a Tenant's Requested Modification had been received
8.5 Acceptance by the Tenant
8.5.1 If, having received the TRM Authorisation Request and the Relevant
Estimates provided by the Developer pursuant to Clause 8.4.1, the
Tenant wishes to have the Tenant's Requested Modification made it
shall within six (6) Working Days after receipt of such TRM
Authorisation Request and Relevant Estimates countersign (by way of
acknowledgement) and return the duly countersigned duplicate
(without amendment or qualification) of the TRM Authorisation
Request to the Developer
8.5.2 The countersigning and returning of the duplicate TRM Authorisation
Request unamended and unqualified by the Tenant authorises the
Developer to proceed with or procure that CWCL proceeds with the
Tenant's Requested Modification and confirms that the actual
Modification Costs referable to the Tenant's Requested Modification
incurred by the Developer and/or CWCL whether or not in excess of
those set out in the Costs Estimate shall (inter alia) constitute
Modification Costs for the purposes of this Agreement and that the
Tenant shall be responsible for all the consequences of any actual
resulting period of Tenant's Delay whether or not in excess of the
Estimate of Tenant's Delay and shall have the benefit of any actual
Unspent Costs referable to the Tenant's Requested Modification in
question
8.6 Preparation of plans
If the Tenant has countersigned and returned a TRM Authorisation Request
unamended and unqualified to the Developer then:-
8.6.1 The Developer shall, subject to Clause 8.6.2, prepare or procure the
preparation of scaled and dimensioned architectural and engineering
working drawings and specifications showing in detail and in scope
the Tenant's Requested Modification which drawings and
specifications are in this Agreement together called "Modification
Plans" Provided That if it is apparent that a Modification Consent
is required the Developer shall first prepare or procure the
preparation of the plans which are necessary in order to apply for
the Modification Consent and only prepare or procure the preparation
of full Modification Plans either when the Modification Consent has
been obtained or, if earlier, when the parties agree (acting
reasonably) that it is appropriate to do so
8.6.2 The Tenant shall bear the proper costs and expenses incurred by the
Developer and/or CWCL in preparation of the Modification Plans and
the plans necessary to apply for the Modification Consent
8.6.3 Any facilities or materials supplied by and any work performed or
procured by the Developer by reason of Tenant's Requested
Modification which are described in the Modification Plans are
called "Modifications" in this Agreement and shall be deemed to be
part of the Base Building Works
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8.6.4 At the request of the Tenant the Developer shall at the Tenant's
cost and expense seek and use its best endeavours to obtain the
Modification Consents and shall notify the Tenant whether the same
have been granted or otherwise forthwith on receiving notification
of the same
8.6.5 If the Modification Consents are refused the Tenant's request for
the Tenant's Requested Modification shall be deemed to be withdrawn
and the provisions of Clause 8.9 shall apply
8.6.6 Subject to the Tenant having received copies of the Modification
Consents, the Tenant shall notify the Developer within six (6)
Working Days of their receipt by the Tenant whether the Modification
Consents are satisfactory to it and if they are the provisions of
Clause 8.8 shall apply and if they are not or if the Tenant shall
fail to give such notice within such period the Tenant's request for
the Tenant's Requested Modification shall be deemed to be withdrawn
and the provisions of Clause 8.9 shall apply
8.6.7 Any delay to the Base Building Works resulting from the need for and
the obtaining of Modification Consents shall be a Tenant's Delay for
the purposes of this Agreement
8.7 Calculation of actual Modification Costs referable to Tenant's Requested
Modifications and Unspent Costs
8.7.1 The Developer shall calculate the amount of the actual Modification
Costs referable to the Modifications utilising (inter alia)
initially for estimation purposes the pricing information provided
by each Trade Contractor appointed or to be appointed in respect of
the relevant element of the Base Building Works and eventually
utilising (inter alia) the sums finally payable to Trade Contractors
in relation to the relevant Tenant's Requested Modifications
8.7.2 Subject to clause 8.7.3 in the case of Unspent Costs the Developer
shall calculate the costs saved in relation to the relevant
substitution using the same method of calculation used in Clause
8.7.1 and shall allow the amount of the Unspent Costs as a credit
against the total Modification Costs
8.7.3 The Developer and the Tenant's Quantity Surveyor (acting on behalf
of the Tenant) shall (acting reasonably) seek to agree the amount of
the Unspent Costs applicable to the Modifications and if the parties
fail to agree either party may refer the dispute for determination
by the Independent Person acting as an expert in accordance with
Clause 30.5
8.8 Execution of the Modifications
Subject to:-
8.8.1 the Tenant countersigning and returning an unamended and unqualified
TRM Authorisation Request in accordance with Clause 8.5.1;
8.8.2 preparation of the relevant Modification Plans;
8.8.3 obtaining all requisite Approvals (to include any necessary
Modification Consents);
8.8.4 a Trade Contractor having been selected or an existing Trade
Contract having been varied;
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8.8.5 the Tenant paying to the Developer the Modification Costs
referable to the relevant Tenant's Requested Modifications in
accordance with Clause 8.10
the Developer shall procure the carrying out of the relevant Tenant's
Requested Modifications as part of the Base Building Works in accordance
with the provisions of this Agreement
8.9 Tenant's Withdrawal of a Tenant's Requested Modification
8.9.1 If the Tenant fails to countersign and return a TRM Authorisation
Request unamended and unqualified to the Developer in accordance
with Clause 8.5.1 then the Developer shall have no further
obligation to implement the Tenant's Requested Modification in
question and all Modification Costs and other costs and expenses
incurred by the Developer and/or CWCL pursuant to clause 8.4 of
this Agreement shall constitute Modification Costs
8.9.2 If the Tenant withdraws a Tenant's Requested Modification prior to
the Developer commencing the relevant Base Building Works (any
later withdrawal being treated as a request for a Tenant's
Requested Modification pursuant to Clause 8.1) or is deemed to do
so in accordance with the provisions of Clause 8.6.5 or 8.6.6 then
the Developer shall have no further obligation to implement the
Tenant's Requested Modification in question and all Modification
Costs and other costs and expenses incurred by the Developer
and/or CWCL pursuant to this Agreement in respect of such
withdrawn Tenant's Requested Modification (including, for the
avoidance of doubt, any costs which will need to be incurred in
reverting to designing and constructing the relevant parts of the
Base Building Works (as designed prior to the variations proposed
by the Tenant's Requested Modification)) shall constitute
Modification Costs and any actual delays resulting from the
Developer complying with its obligations pursuant to this
Agreement in respect of such withdrawn Tenant's Requested
Modification shall constitute a Tenant's Delay for the purposes of
this Agreement and (for the avoidance of doubt) any saved sums
shall be treated as Unspent Costs
8.10 Tenant responsible for Modification Costs
8.10.1 Subject to Clauses 8.10.2 and 8.11 the Developer shall deliver to
the Tenant's Representative from time to time a statement or
statements specifying all Modification Costs actually committed by
the Developer and/or CWCL (which shall for the avoidance of doubt
be treated for the purposes of this Agreement as including the
fixed preliminaries percentage and additional percentage specified
in Clauses 1.75.2 and 1.75.5 respectively) and the Tenant shall
pay to the Developer within ten (10) Working Days after the
receipt thereof the amount specified in such statement or
statements
8.10.2 In respect of any single Tenant's Requested Modification where the
Cost Estimate is greater than the sum of (Pounds)50,000
(exclusive) the Developer (acting reasonably) shall in addition
deliver to the Tenant's Representative from time to time with the
statement specifying all Modification Costs a schedule of stage
payments thereof and the Tenant shall pay to the Developer the
amounts specified in such schedule on the dates specified in such
schedule
8.10.3 The Tenant agrees for the avoidance of doubt that where the
Developer continues with the execution of any relevant aspects of
the Base Building Works prior to incorporation of a Tenant's
Requested Modification and/or the preparation of designs or
specifications or the placing or negotiation of any contracts
orders or
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other matters following submission of a TRM Application then any
costs which are wasted as a result shall nonetheless be included
in the Modification Costs
8.11 Disputes as to Modification Costs
The Developer and the Tenant shall (where any Modification Costs are in
dispute) procure that the Developer and the Tenant's Quantity Surveyors
use all reasonable endeavours to agree (both acting reasonably) the actual
Modification Costs but in the event of disagreement either party may at
any time refer the matter in dispute to an Independent Person (acting as
an expert) in accordance with the provisions of Clause 30.5
8.12 Reinstatement of Tenant's Requested Modifications
The Tenant shall be required to reinstate the Reinstatement TRM's at the
end or sooner determination of the term of the Lease and the Tenant agrees
to enter into the Licence obliging the Tenant to undertake such
reinstatement
8.13 Reinstatement TRM's
The parties hereby agree that the Licence shall record all Tenant's
Requested Modifications and separately identify the Reinstatement TRM's
8.14 Time of the essence
Time shall be of the essence for all the purposes of this Clause 8
9. SITE VISITS AND MEETINGS AND SUPPLY OF INFORMATION AND DOCUMENTATION
9.1 Site visits
During the period up to Practical Completion of the Base Building Works
the Developer shall permit the Tenant and the Tenant's Consultants and
Tenant's Contractors (but limited to such number of people as is
reasonable in the circumstances) at all reasonable times to enter onto the
Site (accompanied by a representative of the Developer if the Developer
shall so reasonably require) to view the progress and state of the Base
Building Works and the materials used or intended for use therein (but not
to test any of the materials) to check compliance by the Developer, the
Developer's Contracting Team, the Key Consultants and the Consultants with
their obligations, the quality of the work, to prepare plans, drawings and
specifications for the carrying out of the Tenant's Works or for any other
proper reason SUBJECT nevertheless to:-
9.1.1 reasonable prior notice being given to the Developer
9.1.2 the Tenant and others as aforesaid reporting to the works office on
the Site before making any inspection and acting in accordance with
the instructions of the Developer's representative
9.1.3 compliance with such reasonable safety and security precautions and
insurance requirements as may be in force from time to time on the
Site
9.1.4 the Tenant and others as aforesaid not giving instructions or
making representations to the persons engaged in the carrying out
of the Base Building Works
9.1.5 the progress of the Base Building Works not being impeded
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and the Developer shall procure that any defects, faults or failures to
comply with Clause 6.1 in respect of which the Tenant serves written notice
following such entry and which the Developer agrees acting reasonably are
defects, faults or failures to comply with Clause 6.1 are remedied and made
good at the appropriate time according to the nature of the work in
question and the Developer shall procure prompt and appropriate answers to
all reasonable and relevant questions asked by the Tenant during the course
of or following any such inspection
9.2 Meetings
The Tenant shall have reasonable access to Developer meetings and not less
frequently than once every month the Developer shall convene and give not
less than four (4) Working Days' prior written notice to the Tenant of the
time, date and place of a formal progress meeting relating to the Base
Building Works and representatives of the Tenant shall be entitled to
attend such meeting for the purpose of reviewing the progress of the Base
Building Works and making representations concerning progress and standards
of workmanship
9.3 Minutes and other information
9.3.1 As the same become available the Developer shall send to the Tenant
(or to such party on behalf of the Tenant as the Tenant may in
writing direct) copies of the following:-
(a) minutes of all such meetings as are mentioned in Clause 9.2;
and
(b) the Approved Plans as the same are varied, altered or added to
in accordance with the terms of this Agreement; and
(c) the latest issue of
(i) programmes; and
(ii) reports on cost for which Tenant is responsible; and
(d) Approvals; and
(e) in any event within one month of the date of Base Building
Practical Completion all systems commissioning data and
certificates
9.3.2 The Tenant acting reasonably and in order to obtain information
which it requires for the purposes of designing the Tenant's Works
may require the Developer to supply a set of DWG format CAD discs of
particular documents or classes of documents which are on the
Developer's/CWCL's document control system at that time
9.3.3 The Developer shall procure that Tenant is provided with evidence at
Base Building Works Practical Completion of satisfactory
commissioning and testing of all Building Systems
9.4 The Tenant shall be provided on request with copies of or access to such
information as the Tenant may reasonably require in connection with the
Base Building Works as necessary for the purpose of CDM Regulations
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10. COPYRIGHT
10.1 Grant of Non-exclusive Licence
Insofar as the copyright to any drawings or other intellectual property
relevant to the Base Building Works is owned by the Developer or the
Developer has power to grant licence or sub-licence (as the case may be)
to use or reproduce the same, the Developer hereby irrevocably grants to
the Tenant non-exclusive royalty free licence (and insofar as the
Developer has the power to provide those licences shall be capable of
sublicensing and transfer) to use and reproduce the same for the purposes
set out in Clause 10.2
10.2 Tenant's Undertaking
The Tenant undertakes that it shall observe all restrictions on copyright
and other intellectual property rights of which it is duty informed
applicable to and treat as supplied in confidence all drawings, plans,
specifications, costs, trade contract documents consultant appointments
and calculations supplied or made available to it by the Developer, the
Developer's Contracting Team or its Key Consultants or its Consultants or
agents in connection with or related to the Base Building Works and will
not use or permit to be used any of the same otherwise than:-
10.2.1 in connection with the Tenant's Works (including but not limited
to the construction completion maintenance extension alteration
letting promotion advertisement reinstatement and repair during
the period of the Lease); or
10.2.2 for any other purposes authorised or required under this
Agreement
and that the Tenant will use reasonable endeavours to procure compliance
with this Clause 10.2 by the Tenant's Consultants and the Tenant's
Contractors or any third party engaged, instructed or retained by the
Tenant in connection with the Base Building Works and/or the Tenant's
Works
10.3 Developer's Liability
The Developer, the Developer's Contracting Team, its Key Consultants and
its Consultants will have no liability for the use and reproduction of
such drawings etc for any other purpose than that for which they were
prepared and provided
PART 4
TENANT'S WORKS
11. APPROVAL OF TENANT'S WORKS
11.1 Tenant to submit details of Tenant's Works
11.1.1 The Tenant shall prior to commencing any element of the Tenant's
Works and at the Tenant's sole cost and expense submit to the
Developer co-ordinated outline proposals for decision in principle
followed by details of such reasonable elements of the Tenant's
Works for approval including as from time to time appropriate:-
(a) architectural working drawings and specifications;
(b) engineering working drawings and specifications;
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(c) a statement clearly distinguishing between the proposed
Tenant's Category A Works (if any) and the proposed Tenant's
Category B Works; and
(d) a copy of the completed application and conditions of supply
of electricity to business customers in the form from time to
time stipulated by London Electricity plc (or any successor
body to its undertaking)
in respect of the facilities materials and work for the various
elements of the Tenant's Works and such proposals and subsequent
details must be at least equivalent in scope and quality to those
pertaining in respect of the MSDF Works and such working drawings
and specifications shall be fully co-ordinated with each other and
with the Base Building and shall incorporate all information which
the Developer reasonably requires including details of all such
Tenant's Works and the dimensional locations thereof with
reference to the building column centre line or the face of
finished column enclosures
11.1.2
(a) If (and to the extent only) the same are approved by the
Developer pursuant to Clause 11.4 the working drawings and
specifications prepared by the Tenant pursuant to the
provisions of this Clause 11.1 and any changes therein
permitted under this Clause 11 are herein collectively called
the "Tenant's Plans"
(b) In relation to those portions of the Tenant's Works which
comprise the connection or interface with the electronic
elements of the fire protection system, the building
management system, the risers and other systems serving the
Building or which affect the structure of the Building (the
"Core Works") the Tenant shall either (a) retain the same Key
Consultants, Consultants or Trade Contractors who prepared
such structural mechanical or electrical engineering aspects
of the Base Building Works provided that such Key
Consultants, Consultants or Trade Contractors shall agree to
provide their services to the Tenant at reasonable rates and
terms or (b) reimburse on demand to the Developer the
reasonable costs incurred by the Key Consultants, Consultants
or Trade Contractors on reviewing and approving the Core
Works as set out in Clause 11.5 (without double-counting)
11.2 Limitations of Tenant's Plans
The Tenant's Plans (including any changes thereto) shall not:-
11.2.1 provide for works which are of a lesser standard or extent than
the MSDF Works; without the Developer's approval (not to be
unreasonably withheld); or
11.2.2 adversely affect the integrity of the structure of the Building or
the operation of the Building Systems; or
11.2.3 contain matters which are absolutely prohibited under the terms of
the Lease or which would be prohibited by Clause 8.2 (other than
Clause 8.2.10); or
11.2.4 violate any laws or the requirements of any Approvals or the
requirements from time to time of any insurers notified to the
Tenant (or its representatives or advisors) or be such that any
Approval or any insurance effected or to be effected by the
Developer pursuant to Clause 21.2 and/or Clause 21.3 is reasonably
likely to
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be unobtainable or adversely affected Provided that if any of the
Tenant's Plans require a modification of any of the Developer's
Approvals the Developer's consent shall be required
11.3 DWG Files
One set of DWG format CAD discs shall be submitted to the Developer on
each occasion that the Tenant supplies details of its proposals to the
Developer for approval
11.4 Developer's Approval
The Tenant's Plans and any changes thereto which the Tenant may request
shall be subject to the Developer's prior approval such approval (subject
to compliance with Clause 11.2) not to be unreasonably withheld. If the
Developer shall disapprove of any aspects of the applicable drawings and
specifications then the Developer shall within six (6) Working Days of
receipt of such drawings or specifications give notice in writing
specifying the grounds for such disapproval and the Tenant shall return to
the Developer appropriate corrections thereto within six (6) Working Days
after receipt of such notice. If the Developer shall still decline to
approve the Tenant's Plans as amended, then (subject in the case of the
Tenant to the same being in compliance with Clause 11.2) either party may
refer the matter or matters in dispute to the Independent Person acting as
expert in accordance with the provisions of Clause 30.5
11.5 Developer's Costs
The Developer shall deliver to the Tenant a statement or statements
specifying any engineering architectural or other costs reasonably
incurred by the Developer in reviewing the Tenant's Plans and any changes
thereto (including, for the avoidance of doubt, any costs incurred in
connection with the modification of any Developer's Approvals) and the
Tenant shall pay to the Developer within ten (10) Working Days after the
receipt thereof the amount specified in such statement
11.6 Approvals
The Tenant shall use all reasonable endeavours to obtain all necessary
Approvals required for the Tenant's Works following approval of the
Tenant's Plans and shall promptly supply copies of the same to the
Developer 11.7 Tenant's Delay
If the Base Building Works or any part or item of the Base Building Works
are or is delayed as a result of and properly attributable to the Tenant
carrying out the Tenant's Works or as a result of any errors or omissions
in the Tenant's Plans or delay in submitting the Tenant's Plans to the
Developer for approval then any such delay shall be deemed a Tenant's
Delay.
12. EXECUTION OF TENANT'S WORKS AND SUBSEQUENT OCCUPATION
12.1 Entry as Licensee
Subject to the provisions of Sub-Clauses 12.2, 12.5 and 12.6 of this
Clause 12 and Cause 11 the Developer shall grant the Tenant its
contractors agents advisers workmen and others engaged in the execution of
the Tenant's Works (the "Tenant's Contractors") access to the Demised
Premises (excluding the Sub-underlease Premises) by way of licence only in
common with the Developer and others at all times (subject as hereinafter
mentioned) with effect from the Access Date for the purpose only of the
commencement and execution of any of the Tenant's Works
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12.2 Completion of Tenant's Works
The Tenant's Works (to the extent carried out) shall be carried out and
completed:-
12.2.1 in a good and workmanlike manner; and
12.2.2 using materials of sound quality of their several kinds and (where
specified) as set out in any specifications relating to the
Tenant's Works; and
12.2.3 so that such works are free of Prohibited Materials; and
12.2.4 in accordance with:-
(a) the Tenant's Plans which have been approved by the Developer;
(b) the Approvals (as these may have been modified pursuant to
clause 11.2.4); and
(c) the terms of this Agreement
12.3 Access Restrictions
The Tenant shall itself, and shall procure that the Tenant's Consultants
and the Tenant's Contractors and all other parties instructed by the
Tenant comply with all reasonable rules restrictions and regulations in
relation to access to the Demised Premises and which may reasonably be
imposed by the Developer and have been notified in writing to the Tenant
and/or which shall be promulgated by the Developer for ensuring the
integrity of the Building Systems
12.4 Method Statement
Not less than one month prior to commencement of the Tenant's Works, the
Tenant shall submit to the Developer for and obtain the Developer's
approval to a method statement (a "Method Statement") in writing which
Method Statement shall contain the information specified in Schedule 4
insofar as it is reasonably practicable and appropriate for the same to be
included Provided That:-
12.4.1 notwithstanding the Developer's approval to the Method Statement
if in the carrying out of the Tenant's Works in accordance with
the Method Statement it transpires that the method of carrying out
of the Tenant's Works is having a material adverse effect on the
progress or completion of any part of the Base Building Works or
any other works or the ability of Canary Wharf Management Limited
(or any substitute therefor) to provide any of the Estate Services
or Building Services (all as defined in the Lease) the Developer
may require such amendments or variations to the Method Statement
as are reasonably necessary to mitigate the effect on the progress
or completion of the relevant part of the Base Building Works or
such other works or ability to provide such Services as aforesaid;
12.4.2 entry to the Demised Premises pursuant to the access to be granted
under Clause 12.1 shall not be permitted until the Method
Statement shall have been approved by the Developer (such approval
not to be unreasonably withheld or delayed); and
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12.4.3 insofar as it shall not be reasonably practicable to provide the
information detailed in this Clause 12.4 within the time specified
the Developer shall approve its omission from the Method Statement
but such information shall nonetheless be submitted to the
Developer as soon as possible thereafter
12.5 Tenant's obligations
Upon entering the relevant Demised Premises the Tenant will itself and
will procure that its contractors agents advisers and workmen will at all
times
12.5.1 comply in all respects with the provisions of the Method Statement
approved pursuant to the provisions of Sub-Clause 12.4 as the same
may be added to amended or varied from time to time as permitted
by this Agreement and comply in all respects with the Regulations
(as defined in the Lease) as updated from time to time and
produced on behalf of the Landlord as an addition or substitute
therefor);
12.5.2 (save to the extent and degree expressly authorised under this
Agreement by reason of the approval of the Tenant's Works) not
damage or cause or permit its servants agents or contractors or
any other persons to damage the Base Building Works and in
particular not to interfere or permit such persons to interfere
with or do or permit to be done by any such persons any act or
thing which may adversely affect any installation forming part of
the Base Building Works or the carrying out or completion thereof
and not to make or instruct to be made by any such persons any
connections with or to such installation (other than any which
form part of the Tenant's Works) without the prior approval of the
Developer to such connections (which approval shall not be
unreasonably withheld or delayed)
12.6 Terms of Occupation
From the Access Date until the date of completion of the Lease the Tenant
shall (save where inconsistent with the express terms of this Agreement)
be subject to and shall observe and perform and be bound by the covenants
conditions and provisions in the Lease notwithstanding that the same has
not been executed
12.7 Developer's right to inspect and require remedy
The Tenant shall throughout the period of the carrying out of the Tenant's
Works permit the Developer to inspect the progress and manner of execution
of the Tenant's Works at all reasonable times on reasonable prior notice
and subject to the proper safety requirements imposed by the Tenant and/or
the Tenant's Contractors without such inspection causing any undue delay
to the Tenant's programme for the carrying out of the Tenant's Works and
so that (save as expressly required for compliance with the CDM
Regulations) no instructions shall be given or represented as made to the
persons engaged in carrying out the Tenant's Works and the Tenant shall
procure that any defects, faults or failures to comply in respect of which
the Developer serves written notice following such inspection and which
the Tenant acting reasonably agrees are defects, faults or failures are
remedied and made good at the appropriate time according to the nature of
the work in question
12.8 Developer to have no responsibility for Tenant's Works
The Tenant's Works shall at all times be at the Tenant's risk and the
Developer shall have no responsibility or liability in respect thereof or
(subject to the provisions of Clause 21) be under any obligations to
insure the same
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13. TENANT'S WORKS AREAS AND EARLY ACCESS
13.1 Early Access Dates
The Developer shall use reasonable endeavours to offer the Tenant early
access to perform the Tenant's Works to the floor or floors of the Demised
Premises (excluding the Sub-underlease Premises) and both by the dates as
set out in the Schedule of Early Access Dates and in accordance with the
Early Access Criteria
13.2 Tenant's Works Areas and Method Statement
13.2.1 The Developer shall promptly notify the Tenant about the floor or
floors of the Demised Premises (excluding the Sub-underlease
Premises) (the "Tenant's Works Areas") to which the Developer may
be able to offer the Tenant early access to perform the Tenant's
Works prior to the date of Base Building Works Practical
Completion and such notice shall identify the relevant areas and
confirm the date or dates by which the Developer needs to know
whether the Tenant would like the opportunity to do so. If the
Tenant wishes to take-up the opportunity in relation to any part
or parts of the Demised Premises identified by the Developer in
its notice then the Tenant shall give reasonable notice to the
Developer prior to the relevant date specified in the Developer's
notice for each relevant area. If the Tenant shall serve such a
notice the Tenant shall following consultation with the Developer
submit to the Developer for approval (such approval not to be
unreasonably withheld) a method statement (the "Early Access
Method Statement") in writing which Early Access Method Statement
shall contain such of the information specified in Schedule 4
insofar as it is reasonably practicable and appropriate for the
same to be included
13.2.2 Provided That:-
(a) notwithstanding the Developer's approval to the Early Access
Method Statement if in the carrying out of the Tenant's Works
in accordance with the Early Access Method Statement it
transpires that the method of carrying out of the Tenant's
Works is having an adverse effect on the progress or
completion of the Base Building Works the Developer may
require appropriate modification of the Early Access Method
Statement and the method of carrying out the Tenant's Works
or temporary suspension of the Tenant's Works until the same
may be recommenced without adversely affecting the progress
or completion of the Base Building Works;
(b) insofar as it shall not be reasonably practicable to provide
the information detailed in this Clause 13.2 within the time
specified the Developer may approve (such approval not to be
unreasonably withheld) its omission from the Early Access
Method Statement but such information shall nonetheless be
submitted to the Developer as soon as possible thereafter;
(c) such occupation shall only be for the purposes of enabling
the Tenant to carry out the Tenant's Works and for no other
purpose;
(d) such occupation shall be entirely at the Tenant's own risk;
(e) any delay to the completion of the remainder of the Base
Building Works which results from such occupation shall
constitute Tenant's Delay for the purposes of this Agreement;
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(f) any proper additional costs which are properly incurred by or
on behalf of the Developer and/or CWCL over and above those
which the Developer would have otherwise incurred but for
this Clause 13 as a result of such occupation shall
constitute Modification Costs for the purposes of this
Agreement
13.3 Commencement of Work
The Tenant and the Tenant's Contractors shall not enter the Tenant's Works
Area or commence the Tenant's Works within to any Tenant's Work Area until
the Early Access Date relevant for such Tenant's Work Area and until the
Early Access Method Statement has been approved
13.4 Licence to have access
Subject to the provisions of this Clause 13 and unless prevented from so
doing by Force Majeure the Tenant its contractors agents advisers workmen
and others engaged in the execution of the Tenant's Works shall be
permitted access to each Tenant's Work Area as licensee in common with the
Developer and others at all times (subject as hereinafter mentioned) with
effect from the relevant Early Access Date relating to such Tenant's Work
Area for the purpose only of the commencement and execution of any
Tenant's Works in that Tenant's Work Area
13.5 Compliance with Early Access Method Statement and the CDM Regulations
The Tenant shall itself, and shall procure that the Tenant's Consultants
and the Tenant's Contractors and all other parties instructed by the
Tenant comply with:-
13.5.1 the Early Access Method Statement approved pursuant to the
provisions of Clause 13.2 (as the same may be added to or varied
from time to time as permitted by this Agreement) and
13.5.2 the CDM Regulations and co-operate fully with the Developer's
Contracting Team and the Key Consultants consultants, the planning
supervisor and principal contractor in carrying out their duties
and responsibilities under the CDM Regulations and the Tenant
shall execute and deliver to the Health and Safety Executive a
declaration in accordance with paragraph 4(4) of the CDM
Regulations that it will act as client in respect of the Tenant's
Works for the purposes of the CDM Regulations
13.6 Tenant's Work Area Obligations
Upon entering each Tenant's Work Area and any other parts of the Building
to which access is permitted prior to the date of Base Building Works
Practical Completion the Tenant will and will procure that its respective
contractors, agents, advisers and workmen will at all times not damage or
cause or permit its servants, agents or contractors or any other persons
to damage the Base Building Works and in particular not to interfere or
permit such persons to interfere with or do or permit to be done by any
such persons any act or thing which may adversely affect or delay any
installation forming part of the Base Building Works or the carrying out
or completion of the Base Building Works and not to make or instruct to be
made by any such persons any connections with or to such installation
without the prior approval of the Developer to such connections (which
approval shall not be unreasonably withheld).
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14. ANCILLARY PROVISIONS AS TO TENANT'S WORKS
14.1 As-built Drawings
As soon as practicable after Tenant's Works Practical Completion the
Tenant shall supply to the Developer
14.1.1 a set of as-built drawings showing the works actually carried out
by the Tenant together with a set of DWG format CAD discs showing
the same and
14.1.2 a copy of the health and safety file kept available for inspection
pursuant to the Construction (Design and Management) Regulations
1994 and any subsequent legislation of a similar nature
14.2 Memorandum of Category A and Category B Works
14.2.1 Within ten (10) Working Days following Tenant's Works Practical
Completion the Tenant shall supply to the Developer a memorandum
separately identifying the Tenant's Category A Works and the
Tenant's Category B Works (if any) and as soon as practicable
thereafter the Developer and the Tenant shall each sign and
exchange a memorandum which shall (if necessary to distinguish
accurately the Tenant's Category A Works and Tenant's Category B
Works) annex the relevant marked up or as-built drawings
14.2.2 If the Tenant shall fail to comply with Clause 14.2.1 the
Developer may (but shall not be obliged to) prepare such a
memorandum itself and the Tenant shall provide the Developer with
all necessary access, facilities and information to do so and
shall pay the Developer's costs of doing so on demand
14.3 Licences for Alterations
Within fifteen (15) Working Days of Tenant's Works Practical Completion
(or on completion of the Lease if later) the Developer shall execute and
deliver to the Tenant the executed Licence and the Tenant shall execute
and deliver a counterpart thereof to the Developer and for such purposes
the Tenant shall supply to the Developer as soon as practicable after
Completion of the Tenant's Works a specification prepared by or on behalf
of the Tenant which shall identify the relevant works insofar as the
extent of the same is not apparent from the as-built drawings
14.4 Indemnity
The Tenant shall in respect of the Tenant's Works and without prejudice to
any other obligation on its part herein keep the Developer and/or CWCL
fully and effectually indemnified against:-
14.4.1 any breach by the Tenant or its servants agents consultants
contractors or any sub-tenant licensee or occupier of the Demised
Premises or those for whom they are respectively responsible of
the conditions or requirements imposed or implied by the Licences
and any other permission or licence granted (on the application of
or on behalf of the Tenant) for or otherwise pursuant to the terms
of this Agreement for the execution of the Tenant's Works and
14.4.2 all claims actions damages demands losses expenses costs and other
liabilities whatsoever suffered by the Developer and/or CWCL which
arise out of the
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carrying out of the Tenant's Works otherwise than in accordance
with the terms of this Agreement
and will make good forthwith to the satisfaction of the Developer any
damage or injury caused by the Tenant (or by anyone for whom the Tenant is
responsible) to the Building or to the Base Building Works or other part
of the Development Site or to the property of the Developer and/or CWCL or
any of their respective servants agents licensees or workmen
14.5 Copy Appointments and Contracts and Provision of Collateral Deeds of
Warranty
14.5.1 The Tenant shall procure that there are delivered to the Developer
within twenty (20) Working Days of their completion copies of all
appointments of Tenant's Consultants (in each case excluding
financial information)
14.5.2 The Tenant shall as soon as reasonably practicable procure the
execution and delivery to the Developer of a collateral deed of
warranty from each of the Tenant's Consultants in the form set out
in Annexure 16 in each case with non-material variations or pre-
agreed permitted amendments as set out in Annexure 15 in such form
as the Tenant proposes and the Developer approves, such approval
not to be unreasonably withheld or delayed and to have regard to
the scale and nature of the services to be provided by the
Tenant's Consultant
14.6 Plans drawings etc
The Developer shall have an irrevocable and assignable licence free from
any copyright claim to use and reproduce all plans drawings specifications
models and other information required to be furnished by the Tenant to the
Developer under this Agreement but so that the Developer shall use the
same only in connection with the use ownership operation maintenance and
alteration of the Building and Demised Premises
15. ENTRY BY THE DEVELOPER TO THE DEMISED PREMISES AFTER THE ACCESS DATE
(Subject to clause 8.17 of the Lease once beneficial occupation has been
taken by the Tenant) with effect from the Access Date (and whether before
or after the date of grant of the Lease) the Tenant shall upon receipt of
reasonable prior notice (save in the case of emergency) permit the
Developer the Key Consultants the Consultants and the Developer's
Contracting Team to enter upon the Demised Premises in order to enable the
Developer to complete the Base Building Works and/or to measure the
Demised Premises and/or the Building the persons so entering causing as
little interference interruption to or restriction of the Tenant's Works
as reasonably practicable and making good to the reasonable satisfaction
of the Tenant any physical damage caused thereby to the Demised Premises
or to the Tenant's Works
16. NOT USED
17. AGREEMENT AS TO OPERATION OF LANDLORD AND TENANT ACT 1927
17.1 Service of 1927 Act Notice
The Tenant hereby agrees with the Developer that if the Tenant serves a
1927 Act Notice upon the Developer in relation to the Tenant's Works or
any part or parts of them the Tenant shall within twenty-eight (28) days
following the service of the 1927 Act Notice or within seven days after
determination of the cost (hereinafter called the "Cost") to the Tenant of
the carrying out of the works and alterations the subject of the 1927 Act
Notice (time being of the
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essence) pay to the Developer a sum equal to One hundred and five per
cent. (105%) of the Cost
17.2 Determination of Cost
The Developer and the Tenant shall use all reasonable endeavours to agree
the Cost but in default of written agreement between them as to the amount
of the Cost then either party may at any time following the expiration of
a period of fourteen (14) days following the service of the 1927 Act
Notice refer the matter for settlement to an Independent Person acting as
an expert pursuant to the provisions of Clause 30.5
PART 5
INDEPENDENT MEASUREMENT AND PRACTICAL COMPLETION
18. MEASUREMENT
18.1 Joint Measurement
18.1.1 As soon as reasonably practicable after the date of this Agreement
the Developer and the Tenant shall appoint the Independent
Measurer in the form of appointment forming Annexure 18 to this
Agreement (the "Measurer's Appointment")
18.1.2 Within fifteen (15) Working Days following the date when the
Developer reasonably considers the Demised Premises is capable of
measurement in accordance with the Code of Measuring Practice and
in any event prior to Base Building Works Practical Completion the
Developer and the Tenant shall jointly instruct the Independent
Measurer on the terms of the Measurer's Appointment to measure the
Demised Premises and the Building in accordance with the
instructions set out in the Measurer's Appointment and issue a
certificate confirming the Net Internal Area of the Demised
Premises and the Building (the "Independent Measurer's
Certificate")
18.1.3 In measuring the Net Internal Area the Independent Measurer shall
be instructed to:-
(a) assume that the Base Building Works have been completed in
accordance with the Base Building Definition disregarding the
effect upon Net Internal Area of all Tenant's Requested
Modifications and for this purpose the Independent Measurer
will be provided with copies of plans showing (i) areas
coloured blue which would have been Net Internal Area save
for the effect of Tenant Requested Modifications which areas
he shall treat as part of the Net Internal Area and (ii)
areas coloured orange which would not have been Net Internal
Area save for the effect of Tenant Requested Modifications
("TRM Plans"), such plans to be agreed or determined pursuant
to Clause 22.6; and
(b) assume that the Tenant's Works have not been carried out
18.2 The Independent Measurer's Certificate shall be final and binding on the
parties save in the case of manifest error
18.3 Responsibility for the fees of the Independent Measurer shall be shared
equally between the Developer and the Tenant
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19. PRACTICAL COMPLETION
19.1 Issue of the Base Building Works Practical Completion Certificate
19.1.1 The Developer shall procure that the Tenant shall be given not
less than five (5) Working Days' notice in writing of the
intention of the Base Building Architect to carry out an
inspection of the Base Building Works with a view to the issue of
the Base Building Works Practical Completion Certificate. Such
notice shall state the proposed date and time of such inspection
and the Tenant and/or the Tenant's Representative will be
permitted to accompany the Base Building Architect on such
inspection. The Base Building Architect shall have regard to but
shall not be bound by any representations made by the Tenant
and/or the Tenant's Representative during such inspection or made
forthwith in writing thereafter as to the state and condition of
the Base Building Works and the Base Building Architect shall
disregard any Tenant's Requested Modification and any
consequential effect on the Base Building Works requested in
accordance with Clause 8.1.2(b)
19.1.2 The Developer shall forthwith supply to the Tenant a copy of the
Base Building Works Practical Completion Certificate when issued
and this may be issued by the Developer subject to a list of
Snagging Items
19.1.3 If the Tenant disputes the correctness of the Base Building Works
Practical Completion Certificate or maintains that the Base
Building Works were not practically complete at the date of the
Base Building Works Practical Completion Certificate (subject as
set out in Clause 19.1.2) the Tenant may serve a Counter-Notice
(the "Counter-Notice") in writing upon the Developer within five
(5) Working Days after the receipt by the Tenant of the Base
Building Works Practical Completion Certificate specifying the
respects in which in the opinion of the Tenant the Base Building
Works have not been practically completed as aforesaid or in which
it is contended that the Base Building Works Practical Completion
Certificate is incorrect and giving such written reasons as can be
given at that time for any contentions to the Developer and
attaching copies of all notes, reports, memoranda or other matters
in the possession of or available to the Tenant and which are
relevant to its contentions. If the Tenant fails to serve such a
Counter-Notice within the said five (5) Working Day period the
Tenant shall be deemed to have accepted the relevant Certificate
which shall be final and binding for the purposes of this
Agreement
19.1.4 The Developer may accept a Counter-Notice from the Tenant but if
the Developer (by notice in writing to the Tenant within five (5)
Working Days after the Counter-Notice) disputes the correctness of
the Tenant's Counter-Notice the dispute shall be referred for
determination by an Independent Person acting as an expert in
accordance with Clause 30.5 to determine whether the Base Building
Works have been practically completed or whether the Base Building
Works Practical Completion Certificate is correct or the Base
Building Works were not practically complete at the date of the
Base Building Works Practical Completion Certificate and, if not,
what works still remain to be carried out in order to achieve Base
Building Works Practical Completion or what steps are necessary to
correct the Base Building Works Practical Completion Certificate
19.1.5 If the Independent Person (taking account of Clause 19.1.2)
determines that there is work remaining to be carried out as set
out in Clause 19.1.4 he shall specify such work and the Developer
shall procure the same to be carried out as soon as reasonably
practicable to the reasonable satisfaction of the Independent
Person who shall thereupon certify the date upon which such work
was completed to his
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reasonable satisfaction and the date so certified shall be the
date upon which Base Building Works Practical Completion shall be
deemed to have taken place for the purposes of this Agreement and
the Base Building Works Practical Completion Certificate validly
issued
19.1.6 If the Independent Person determines that the Base Building Works
Practical Completion Certificate is incorrect then he shall
specify the errors which were made in issuing the Base Building
Works Practical Completion Certificate and the Developer shall
ensure that such errors are corrected as soon as reasonably
practicable to the satisfaction of the Independent Person who
shall thereupon certify the date upon which in his opinion the
Base Building Works Practical Completion Certificate would have
been validly issued and subject to Clause 19.3 such date shall be
the date upon which Base Building Works Practical Completion is
deemed to have taken place for the purposes of this Agreement and
the Base Building Works Practical Completion Certificate treated
as issued
19.2 Tenant's Works Practical Completion
The Tenant will notify the Developer promptly of Practical Completion of
the Tenant's Works and promptly provide a copy of the relevant certificate
and an opportunity to inspect as soon as practicable following the issue
of such certificate
19.3 Tenant's Delay
The Developer shall give notice to the Tenant certifying the dates on
which the Base Building Works Practical Completion Certificate would have
been issued but for Tenant's Delay taking into account all periods of
Tenant's Delay and all extensions of time already agreed or determined in
respect of Tenant's Delay pursuant to Clause 5.4.3 and the other
provisions of this Agreement each applied in accordance with the
definition of Tenant's Delay ("Delay Notice"). In the event that the
Tenant disputes the date referred to in such certificate within six (6)
Working Days (failing which the Tenant shall be deemed to have accepted
the relevant Delay Notice which shall be final and binding for the
purposes of this Agreement) the matter shall be referred to an Independent
Person acting as an expert in accordance with Clause 30.5. If the
Independent Person determines that the Tenant's Delay Notice is incorrect
then he shall certify the date upon which he considers the Base Building
Works Practical Completion Certificate would have been issued but for
Tenant's Delay taking account of all extensions of time already agreed or
determined in respect of Tenant's Delay pursuant to Clause 5.4.3 and the
other provisions of this Agreement
19.4 Damage caused by Tenant
For the avoidance of doubt and notwithstanding that any Certificate may be
issued subject to Snagging Items any damage caused to the Base Building
Works by the Tenant or the Tenant's Contractors or anyone under their
respective control shall be ignored and deemed to have been made good for
the purposes of certifying Base Building Works Practical Completion
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PART 6
DEFECTS
20. DEFECTS
20.1 Snagging Items
The Developer shall, as soon as reasonably practicable after Base Building
Works Practical Completion remedy or cause to be remedied the Snagging
Items
20.2 Defects in the Base Building Works
Without prejudice to Clause 20.1, the Developer shall as soon as
reasonably practicable and at times to be agreed with the Tenant as
provided in Clause 20.3 (whether or not upon receiving notice in writing
of the same from the Tenant) procure to be remedied and made good to the
reasonable satisfaction of the Tenant all Defects in the Base Building
Works and the Tenant shall give notice to the Developer as soon as
reasonably practicable upon becoming aware of any Defects in the Base
Building Works without obligation on the Tenant to investigate and for the
avoidance of doubt failure to so notify shall not relieve the Developer of
any of its obligations in this clause 20.2
20.3 Access to the Demised Premises to remedy Snagging Items and/or Defects in
the Base Building Works
The Tenant shall, whether before or following the grant of the Lease (the
Tenant acknowledging that certain works will inevitably take place after
the Lease is granted but subject as set out in Clause 20.2), permit the
Developer and/or the Developer's Contracting Team and all persons
authorised by them at all reasonable times during normal working hours (or
at any time in the event of emergency) and on giving reasonable prior
written notice (consulting with the Tenant as to the timing of entry) to
enter the Demised Premises in order to remedy any Snagging Items and/or
any Defects in the Base Building Works and the persons so entering shall
comply with clause 8.17 of the Lease and cause the minimum of disturbance
reasonably practicable and shall make good to the reasonable satisfaction
of the Tenant any physical damage caused thereby to the Demised Premises
20.4 Defects Costs in respect of Base Building Works
The Developer shall (subject as set out in Clause 20.6) indemnify the
Tenant in respect of any and all Defects Costs in respect of the Base
Building Works and shall reimburse the same to the Tenant within ten (10)
Working Days of demand
20.5 Defects Costs in respect of the Infrastructure Works
The Developer shall indemnify the Tenant in respect of any and all Defects
Costs in respect of the Infrastructure Works and shall reimburse the same
to the Tenant within ten (10) Working Days of demand.
20.6 Tenant to notify Developer of Latent Defective Works
20.6.1 Save in the case of emergency, prior to the Tenant incurring any
expenditure (provided that this shall not include any claim under
the service charge provisions contained in the Lease) which may
constitute Defects Costs in respect of the Base Building Works the
Tenant shall first notify the Developer of the defect concerned
and shall give the Developer a reasonable and proper period
(taking into account
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the nature and effect of the defect and assuming prompt action
diligently pursued by the Developer) to inspect and investigate
the same
20.6.2 If the Developer acknowledges that the defect is Latent Defective
Works and brings forward reasonably acceptable proposals for
remedying items and implements the same promptly the Tenant shall
allow the Developer and all workmen contractors servants or other
persons required by the Developer access to the Demised Premises
at reasonable times (or at any time in the event of emergency) for
the purpose of making good the Latent Defective Works, subject to
clause 8.17 of the Lease and complying with all reasonable
security and safety requirements of the Tenant and the Developer
causing as little disruption and damage as is reasonably
practicable to the Demised Premises and making good all physical
damage whatsoever thereby caused
20.6.3 If the Developer fails to comply with its obligations in Clause
20.6.2 the Developer will within ten (10) Working Days of demand
and provision of adequate evidence of expenditure reimburse the
Tenant the Defects Costs in respect of the Base Building Works
20.6.4 Disputes and differences arising under this Clause 20.6 shall be
determined by an Independent Person acting as an expert pursuant
to Clause 30.5
20.7 Developer to have no other liability
Subject to remedy or payment as set out in Clauses 20.2, 20.4, 20.5 and
20.6.3 the Developer shall have no other liability to the Tenant under
this Agreement for costs, losses, damages and expenses resulting from
Latent Defective Works
PART 7
INSURANCE
21. INSURANCE
21.1 "Lease Insurance Date"
For the purposes of this Clause 21 the "Lease Insurance Date" shall mean
the later of the following:-
21.1.1 the date of completion of the Lease
21.1.2 the date of Tenant's Works Practical Completion
and for the avoidance of doubt the parties agree that until such date
notwithstanding the grant of the Lease the satisfaction of the Developer's
obligations pursuant to Clause 21.2 shall be deemed to be performance of
the lessor's obligations pursuant to Clause 7 of the Lease
21.2 Developer to insure
Subject to Clause 21.6, as soon as reasonably practicable following the
date of this Agreement until the Lease Insurance Date the Developer shall
insure or cause to be insured
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21.2.1
(a) the Base Building Works, the Building, the Site and all
fixtures, plant, machinery and apparatus intended for
incorporation within the Base Building Works and the Site
insofar as any of the same are from time to time built
(wherever the same are stored within UK territorial limits);
and
(b) subject to compliance by the Tenant with Clause 21.7 the
Tenant's Works (so far as the same are from time to time
built and excluding Tenant's furniture and contents)
against loss or damage by the risks (the "Insured Risks") covered
by the CAR Policy in such sum as shall in relation to the Base
Building Works in the Developer's opinion be the full
reinstatement cost thereof including amounts representing Value
Added Tax, architects' surveyors' and other professional fees and
expenses incidental thereto the costs of shoring up demolition and
site clearance and similar expenses subject to all exclusions
excesses and limitations imposed by the insurers or underwriters
21.2.2 such other insurances (including property owner's liability) as
the Developer may from time to time deem necessary to effect
21.3 Insured Works
All works insured pursuant to Clause 21.2 are, in this Clause 21, referred
to as the "Insured Works"
21.4 Restriction on Tenant insuring
The Tenant shall not take out any insurances in respect of the Demised
Premises or in respect of any other matters which the Developer is
required to insure under Clause 21.2
21.5 No Variation and Noting
21.5.1 The Developer shall not vary the terms and conditions of the CAR
Policy insofar as it relates to the Tenant's Works in any material
respect without the consent of the Tenant (such consent not to be
unreasonably withheld)
21.5.2 The Developer shall procure that the Tenant's interest is either
noted or that the Tenant is shown as an insured party. If the
Tenant's interest is noted the Developer shall use reasonable
endeavours to procure that the insurer shall have agreed to waive
all rights of subrogation against the Tenant
21.6 Reimbursement of premiums
Within five (5) days after written demand the Tenant shall pay to the
Developer the full amount of the sums the Developer expends in effecting
insurance pursuant to Clause 21.2:-
21.6.1 for a period from the date hereof until the Lease Insurance Date
insofar as they relate to the Tenant's Works and/or Tenant's
Requested Modifications; and/or
21.6.2 for the period from Base Building Works Practical Completion or if
earlier the date upon which the Base Building Works would have
been practically complete but for any Tenant's Delay until the
Lease Insurance Date
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21.7 Tenant to notify Developer of Reinstatement Value
Prior to the Tenant commencing the Tenant's Works the Tenant shall notify
the Developer of the estimated reinstatement value of such Tenant's Works
including professional fees cost of debris removal and value added tax
(such value to be revised as appropriate and the final value at practical
completion thereof notified to the Developer as soon as practicable
following the date of Tenant's Works Practical Completion) and the
Developer shall be entitled to rely without further enquiry on such
notified values in effecting the relevant insurance pursuant to this
Clause 21 and shall not be liable to the Tenant for any alleged breach of
its obligations under this Clause insofar as such alleged breach relates
to the following the Tenant's requirements as to the notified value and
nor shall the Developer be obliged to insure any such parts of the
Tenant's Works unless it shall have been notified of the reinstatement
value of such parts
21.8 Destruction/damage of Insured Works
In the event that the Insured Works (or any part of them) are destroyed or
damaged by any of the Insured Risks during the course of construction
prior to the Lease Insurance Date then unless payment of the insurance
monies shall be refused wholly or partly by reason of any act or default
of the Tenant or the Tenant's Consultants or Tenant's Contractors or any
sub-tenant or other occupier or their respective agents licensees or
visitors or others under the control of any of them and subject to the
Developer being able to obtain any necessary planning permission and all
other necessary licences approvals and consents the Developer shall:-
21.8.1 rebuild and reinstate that part of the Insured Works so destroyed
or damaged which comprises the Base Building Works substantially
as the same were prior to any such destruction or damage (but not
necessarily to provide accommodation identical in layout if it
would not be reasonably practicable to do so given the
circumstances at the relevant time and subject to the Tenant's
approval (such approval not to be unreasonably withheld)) and if
such destruction or damage occurs prior to completion of the Lease
then the Rent Commencement Date shall be postponed for the length
of any rebuilding period; and
21.8.2 (if any Tenant's Works shall have been destroyed or damaged) pay
to the Tenant the insured value received for the Tenant's Works
destroyed or damaged (such value in default of agreement to be
settled by an Independent Person acting as arbitrator pursuant to
Clause 30.4) to enable the Tenant to apply the same towards the
reinstatement of the Tenant's Works and the Tenant shall reinstate
the Tenant's Works to the Developer's reasonable satisfaction and
in case such moneys shall be insufficient for that purpose the
Developer shall incur no liability to the Tenant in respect of
such deficiency where the Developer has complied with its
obligation under Clause 21.2.1(b) and the Tenant shall then make
up any such deficiency out of its own moneys
21.9 Payment of insurance moneys refused
If the payment of any insurance moneys is refused or reduced as a result
of some act or default of the Tenant or the Tenant's Consultants or the
Tenant's Contractors or any undertenant or other occupier or their
respective agents licensees or visitors or others under the control of any
of them the Tenant shall pay to the Developer on written demand the amount
so refused or reduced except to the extent that it relates to the Tenant's
Works
21.10 Developer's and Tenant's obligations
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The Developer and Tenant shall and shall procure that each of their
Consultants or Contractors or any undertenant or other occupiers or their
respective agents licensees or visitors or others under the control of any
of them shall:-
21.10.1 not do or omit to do anything that could cause any policy of
insurance (details of which have been supplied to the Tenant) in
respect of or covering the Demised Premises to become void or
voidable wholly or in part nor (unless the Tenant has previously
notified the Developer and agreed to pay the increased premium)
anything whereby any increased or loaded premium may become
payable and the Tenant shall on written demand pay to the
Developer such increased premium and tax thereon; and
21.10.2 at all times comply with the terms of the CAR Policy the Joint
Code of Practice for the Protection from Fire of Construction
Sites and all other requirements of the Developer's insurers so
far as regarding the Tenant's compliance such requirements are
known by the Tenant and relate to the Demised Premises or the
conduct of persons using any part of the Buildings or the
Development Site
21.11 Notice by Tenant
Following entry to the Building by the Tenant the Tenant shall give notice
to the Developer forthwith upon the happening of any event or thing of
which it is aware which might affect or give rise to a claim under any
insurance policy (details of which have been supplied to the Tenant)
relating to the Demised Premises or any other part of the Building
21.12 Benefit of other insurances
If the Tenant shall become entitled to the benefit of any insurance in
relation to the Demised Premises or the Building which is not effected or
maintained in pursuance of the obligations herein contained then the
Tenant shall apply all monies received from such insurance (insofar as the
same shall extend) in making good the loss or damage in respect of which
the same shall have been received
PART 8
GRANT OF THE LEASE
22. GRANT OF LEASE, CALCULATION OF RENTS AND OTHER TERMS
22.1 Grant of Lease
22.1.1 Within ten (10) Working Days following the later to occur of the
following dates:-
(a) the date of Practical Completion of the Base Building Works;
and
(b) the determination of the Net Internal Area ; and
(c) unless the Developer (or the Developer's successor in title)
otherwise elects by notice in writing to the Tenant in which
case the Rent Review Specification shall be agreed or
determined subsequently and shall be referred to in the Lease
as being contained in a deed supplemental to the Lease which
the parties hereby agree to enter into when the Rent Review
Specification has been agreed or determined) agreement or
determination of the Rent Review Specification to be attached
to the Lease as provided in Clause 22.6
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the Developer (or if relevant the Developer's successor in title)
shall cause to be delivered to the Tenant or the Tenant's
Solicitors the Lease executed by the Lessor and Canary Wharf
Management Limited (or its successors) and the Tenant (meaning The
Northern Trust Company only) shall forthwith execute and deliver
the counterpart of it to the Developer (or if relevant the
Developer's successors in title) released for completion.
Completion of the Lease shall take place within ten (10) Working
Days of receipt (or when receipt should have occurred but for
Developer's default in relation to this clause 22.1.1) by the
Tenant's Solicitors or the Tenant of the executed Lease as
aforesaid) at the offices of the Developer's solicitors or at such
other place in the United Kingdom as the Developer (or if relevant
the Developer's successor in title) shall reasonably require
22.1.2 If for whatever reason the Tenant's credit rating is such that the
Tenant would not be an Acceptable Assignee (as defined in the
Lease) the Tenant shall forthwith notify the Developer and if so
requested by the Developer (or its successor in title) shall
procure that a Group Company of the Tenant which has that rating
(or a better one) immediately prior to the date of grant of the
Lease or if there is not one another entity with such a rating
(the "Additional Party") shall execute and join in the Lease as
the Tenant or as a guarantor of the Tenant
22.1.3 In the circumstances described in Clause 22.1.2:
(a) the Additional Party shall if so requested by the Developer
(or its successor in title) as quickly as reasonably
practicable enter into a deed of novation in such form as the
Developer (or its successor in title) shall reasonably
require of the Tenant's obligations under this Agreement and
shall expressly confirm that its liability extends to events
or matters arising from the date of this Agreement; and
(b) if the Additional Party is not a limited company or public
limited company incorporated in England and Wales the Tenant
shall procure that a Letter of Opinion is provided in
relation to the Additional Party
22.2 Length of Lease term, Initial Rents, Service Charges and Insurance Rent
The following provisions shall apply (inter alia) to the computation and
the commencement date for payment of the rents payable under and the
calculation of the commencement and length of the term of the Lease:-
22.2.1 The Term Commencement Date as defined in the Lease shall be the
Quarterly Day (as defined in the Lease) immediately preceding the
Base Building Works Practical Completion Date and the term of the
Lease shall be for a period of 20 years commencing upon the Term
Commencement Date
22.2.2 The Initial Rent shall be the aggregate of:-
(a) the product of multiplying the Net Internal Area of the
Demised Premises (Lease 1 - Floors 9-11 and Lease 2 - Floors
5-8) expressed in square feet by forty two pounds
((Pounds)42.00) but not exceeding in any event 18,890 square
feet per floor
(b) the product of multiplying the Net Internal Area of the
Demised Premises (Lease 1 -B1M and Lease 2 - B1) expressed in
square feet by fourteen pounds ((Pounds)14.00)
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(c) The car parking rent payable under clause 3(a)(i) of the
Lease shall be the product (expressed in pounds sterling) of
multiplying (Pounds)2,500 by the number of car parking spaces
included in the Tenant's Parking Allocation and such figure
shall be inserted in clause 3(a)(i) of the Lease
each of the amounts in (a) to (c) (inclusive) being deemed to be
exclusive of VAT (if any) thereon
22.2.3 The part of the Initial Rent referred to in Clauses 22.2.2(a) and
22.2.2(b) shall be due and shall commence forthwith on the date 15
months following the later of (a) the Base Building Works
Practical Completion Date and (b) completion of the Infrastructure
Works
PROVIDED THAT until the Initial Rent has been ascertained such
payment shall be based upon the Developer's estimate of the same
(which estimate shall be final and binding on the Tenant) with any
necessary adjustment in respect of an underpayment or overpayment
being made as soon as practicable after the ascertainment of the
exact figures involved pursuant to Clause 22.2.2
22.2.4 The part of the Initial Rent referred to in Clause 22.2.2(c) shall
be due and shall commence forthwith on the date following the Base
Building Works Practical Completion Date
22.2.5 The insurance rent and service charges as reserved in Clauses 3(b)
and 3(c) respectively of the Lease shall be due and shall commence
on the Base Building Works Practical Completion Date
22.2.6 the service charge percentages to be inserted in Clause 9.4 of the
Lease shall be calculated using the formula set out in Clause
9.1(e) of 9.1(j) (as the case may be) of the Lease with the
numerator X being the Net Internal Area referred to in the
Independent Measurer's Certificate
22.2.7 In computing all periods and dates for the purposes of this Clause
22.2 the period or date shall be deemed to be that which would
have occurred but for any Tenant's Delay subject to the decision
of the Independent Person
22.2.8 Value Added Tax chargeable by the Developer in respect of supplies
made pursuant to the Lease shall be reserved and become payable as
rent under the Lease as described in Clause 3 of the Lease
22.2.9 The Tenant's Parking Allocation shall be the number of car spaces
(rounded up or down to the nearest whole number) calculated as
follows:-
A
- x Total number of car parking spaces in the car park within the
B Building
Where :-
"A" = the Net Internal Area of Floors 5-11 (inclusive) as set out
in the Independent Measurer's Certificate
"B" = the Net Internal Area of the Building as set out in the
Independent Measurers Certificate
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Provided that such figure shall be included in paragraph 6 of the
First Schedule of the Lease
22.2.10 The plan referred to in the definition of Mechanical Space Area in
the Lease shall show an area calculated as follows:-
A
- x Total mechanical space area available on Floor 12 of the
B Building
Where :-
"A" = the Net Internal Area of Floors 5-11 (inclusive) as set out
in the Independent Measurer's Certificate
"B" = the Net Internal Area of the Building as set out in the
Independent Measurer's Certificate
22.2.11 The area on the roof of the Building available for use by the
Tenant for Telecommunications Equipment (as defined in the First
Schedule of the Lease) shall be an area calculated as follows:-
A
- x Total area available for telecommunications equipment on the
B roof of the Building
Where :-
"A" = the Net Internal Area of Floors 5-11 (inclusive) as set out
in the Independent Measurer's Certificate
"B" = the Net Internal Area of the Building as set out in the
Independent Measurer's Certificate
22.3 Sums paid as Licence Fees
Where in consequence of the calculations made under Clause 22.2 sums and
amounts become due and payable by the Tenant to the Developer or to the
Management Company (as defined in the Lease) in respect of any period or
periods prior to the commencement of the term of the Lease or the
completion of the Lease such sums and amounts shall instead be due and
shall commence to be paid by the Tenant as licence fees under the terms of
this Agreement until the Lease has been completed
22.4 Rent Review Dates
The Initial Rent will be reviewed upwards only every five years, the first
review to take place on the fifth anniversary of the Term Commencement
Date
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22.5 Opinion Letter
The Tenant shall procure the provision to the Developer (or the
Developer's successor in title) on completion of the Lease and the Licence
of a Letter of Opinion in relation to the Lease and the Licence
22.6 Rent Review Specification
22.6.1 The Developer shall as soon as reasonably practicable following
Base Building Works Practical Completion submit to the Tenant a
draft of the Rent Review Specification for its approval, such
approval not to be unreasonably withheld or delayed
22.6.2 In the event the Developer and the Tenant (using best endeavours)
are unable to agree the Rent Review Specification within six (6)
months the matter may be referred by either of them at any time to
the Independent Person acting as an expert pursuant to Clause 30.5
22.7 Payment of Tenant's Inducement
The Developer shall pay to the Tenant the Tenant's Inducement as an
inducement to enter into the Lease such sum to be paid by means of one
instalment upon the date of completion of the Lease and subject, if a
taxable supply is made, to the receipt by the Developer of a valid Value
Added Tax invoice therefor
22.8 Grant of Sub-Underlease
22.8.1 Within the ten (10) Working Day period referred to in clause
22.1.1 above the Developer (or if relevant the Developer's
successors in title) shall cause to be delivered to the Tenant or
the Tenant's Solicitors the Sub-underlease executed by the
Developer (or such other Group Company of the Developer as the
Developer shall nominate) (as tenant) and the Tenant shall
forthwith execute and deliver the original of it to the Developer
(or if relevant the Developer's successors in title). Completion
of the Sub-underlease shall take place simultaneously with
completion of the Lease
22.8.2 The Term Commencement Date (as defined in the Sub-underlease)
shall be the same date as calculated in accordance with Clause
22.2.1 and the term of the Sub-underlease shall be for a period of
5 years 6 months commencing upon the Term Commencement Date
22.8.3 The Initial Rent (as defined in the Sub-underlease) shall be the
product of multiplying the Net Internal Area of the Sub-underlease
Premises expressed in square feet by forty two pounds
((Pounds)42.00)
22.8.4 The Initial Rent reserved by the Sub-underlease shall be due and
shall commence to be payable on the Rent Commencement Date (as
calculated in accordance with clause 22.2.3)
22.8.5 The car parking rent payable under clause 3(a)(i) of the Sub-
underlease shall be the product (expressed in pounds sterling) of
multiplying (Pounds)2,500 by the number of car parking spaces
included in the Sub-underlease Parking Allocation and such figure
shall be inserted in clause 3(a)(i) of the Sub-underlease
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22.8.6 The car parking rent insurance rent and service charges as
reserved in clauses 3(a)(i) 3(b) and 3(c) respectively of the Sub-
underlease shall be due and shall commence on the date following
the Base Building Works Practical Completion Date
22.8.7
(a) The Developer and the Tenant shall as soon as possible make
an application to the Mayor's and City of London Court
pursuant to Section 38 of the Landlord and Tenant Act 1954
(as amended by section 5 of the Law of Property Act 1969) for
an order (the "Court Order") effectually authorising an
agreement excluding in relation to the Sub-underlease the
provisions of Sections 24 to 28 of the said Act such
agreement to be in the form of clause 11 of the Sub-
underlease
(b) The Developer and the Tenant warrants and undertakes to the
other that they will not withdraw the application to obtain
the Court Order and that they will use their best endeavours
(including lodging an amended application) to obtain the
Court Order
22.8.8 The Retained Parking Allocation shall be the number of car spaces
(rounded up or down to the nearest whole number) calculated as
follows:-
A
- x Total number of car parking spaces in the car park within
B the Building
Where :-
"A" = the Net Internal Area of Floors 6-11 (inclusive) as set out
in the Independent Measurer's Certificate
"B" = the Net Internal Area of the Building as set out in the
Independent Measurer's Certificate
22.8.9 Prior to carrying out or permitting to be carried out any MSDF
Works to the Sub-underlease Premises the Developer shall consult
with the Tenant with regard to the details of the proposed fit-
out (without obligation on the Developer to implement any of the
Tenant's preferences)
22.8.10 The plan referred to in clause 1.22 of the Sub-underlease shall
shown an area calculated as follows:-
A
- x the Mechanical Space Area (as calculated pursuant to clause
B 22.2.10)
Where :-
"A" = the Net Internal Area of Floor 5 as set out in the
Independent Measurer's Certificate
"B" = the Net Internal Area of Floors 5-11 (inclusive) as set out
in the Independent Measurer's Certificate
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22.8.11 The area on the roof of the Building available for use by the
tenant under the Sub-underlease for Telecommunications Equipment
(as defined in the First Schedule of the Sub-underlease) shall be
an area calculated as follows:-
A
- x The area calculated pursuant to clause 22.2.1
B
Where :-
"A" = the Net Internal Area of Floor 5 as set out in the
Independent Measurer's Certificate
"B" = the Net Internal Area of Floors 5-11 (inclusive) as set out
in the Independent Measurer's Certificate
22.8.12 Nothing shall preclude the Developer from entering into an
agreement for letting in respect of the whole or any part of the
Sub-underlease Premises in accordance with clause 8.18 of the
Sub-underlease as if the Sub-underlease had been completed
22.9 Capital Allowances
The Developer shall be entitled to claim the capital allowances in respect
of the first (Pounds)25.00 per square foot attributable to the Tenant's
Category A Works
23. TITLE
23.1 Tenant to raise no requisitions
The Developer's title to grant the Lease having been deduced to the Tenant
prior to the date of this Agreement the Tenant shall raise no objection or
requisition in respect of it
23.2 HM Land Registry
The Developer shall place its Land Certificate in respect of Title Number
EGL387043 on deposit at H.M. Land Registry and shall notify the Tenant or
its Solicitors of the deposit number allocated for the purposes of
enabling the Tenant to register a notice of the Tenant's interest arising
out of this Agreement relating to the Demised Premises
23.3 Title Entry Removal
The Developer shall procure that Clifford Chance LLP or itself shall apply
as soon as reasonably practicable to HM Land Registry with a request that
any irrelevant entries on the registers of title numbers EGL387040 and
EGL387043 shall be removed and shall use reasonable endeavours to procure
such removal
23.4 Waiver Letter
On the completion of the Lease, the Developer shall procure from Canary
Wharf Investments Limited (or its successors or assigns) a waiver
confirming that the Tenant (and its successors in title and assigns and
those deriving title under the Tenant and such successors and assigns)
shall not be obliged to comply with the obligations on the tenant under
the Superior Lease as
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defined in the Lease and any other lease with any other superior landlord
(where such are part of the same group of companies as the Developer)
23.5 Public Open Space
From the date hereof until completion of the Lease the Developer shall
comply with the provisions contained in clause 6.8 of the Lease
24. CONDITIONS AFFECTING THE GRANT OF THE LEASE
24.1 Subjections
The Lease will be granted subject to:-
24.1.1 all charges notices orders directions regulations restrictions and
other matters whatsoever arising under the Town and Country
Planning Act 1990 the Planning (Listed Buildings and Conservation
Areas) Act 1990 the Planning (Hazardous Substances) Act 1990 the
Planning (Consequential Provisions) Act 1990 the Planning and
Compensation Act 1991 and any subsequent legislation of a similar
nature and the Tenant shall be deemed to accept the Lease with
full knowledge thereof and of the authorised use of the Building
for the purpose of such Acts and shall not raise any requisition
enquiry or objection with regard thereto
24.1.2 the matters contained or referred to in the deeds or documents
referred to in the Fifth Schedule to the Lease
24.2 Variation to Lease
The parties to this Agreement acknowledge that the provisions in the Lease
and the Sub-underlease may need to be adjusted to reflect the
circumstances which affect the Demised Premises as and when fully
constructed Provided that no adjustment shall materially prejudice the
Tenant. In the event that the Developer reasonably requests the Tenant to
agree to any such variation then the parties to this Agreement shall use
all reasonable endeavours to agree in good faith the terms and document
such proposed variation and any related provisions and in the event of a
dispute as to the content of any such variations or provisions such
dispute may be referred for settlement by either party to the Independent
Person and the parties shall execute any deed or do any other thing
necessary to give any variation agreed or settled as aforesaid
24.3 No representations
The Tenant hereby admits that save for this Agreement and its Annexures no
representation whether oral or written (save in any written reply to
preliminary enquiries given by the Developer's Solicitors) has been made
to the Tenant prior to the execution of this Agreement by or on behalf of
the Developer concerning the Development Site or the Building or the Base
Building Works or any part of them which has influenced, induced or
persuaded the Tenant to enter into or which forms part of this Agreement
or of any agreement collateral with this Agreement
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24.4 Continuation of Agreement
Notwithstanding the grant of the Lease or the completion of the Base
Building Works, this Agreement shall continue in full force and effect so
long as any of its provisions remain to be performed or observed by the
Developer or the Tenant
PART 9
ENANT'S COVENANT, EVENTS OF DEFAULT
25. DELAY
Subject to all the provisions and limitations in this Agreement the Tenant
shall indemnify the Developer against all actions, proceedings, claims,
demands, losses, costs, expenses, damages and liability arising out of any
Tenant's Delay
26. EVENT OF DEFAULT
26.1 Events of Default
An Event of Default shall occur in any of the following circumstances:-
26.1.1 if the Tenant (being a body corporate) passes a winding-up
resolution (other than a resolution with the Developer's prior
written consent which shall not be unreasonably withheld or
delayed for the purposes of an amalgamation or reconstruction
resulting in a solvent corporation) or resolves to present its own
winding-up petition or is wound-up or the directors of the Tenant
resolve to present a petition for an administration order in
respect of the Tenant or an Administrative Receiver or a Receiver
or a Receiver and Manager is appointed in respect of the property
or any part thereof of the Tenant; or
26.1.2 if the Tenant (being a body corporate) calls or a nominee calls on
its behalf a meeting of its creditors or any of them or makes an
application to the Court under Section 425 of the Companies Act
1985 other than an application for the purposes of an amalgamation
or reconstruction resulting in a solvent corporation or submits to
its creditors or any of them a proposal pursuant to Part I of the
Insolvency Act 1986 or enters into any arrangement, scheme,
compromise, moratorium or composition with its creditors or any of
them (whether pursuant to Part I of the Insolvency Act 1986 or
otherwise); or
26.1.3 if any event analogous to those described in Clauses 26.1.1 and
21.6.2 occurs in relation to the Tenant in the jurisdiction of its
incorporation; or
26.1.4 the Tenant ceases for any reason to maintain its corporate
existence; or
26.1.5 the Tenant shall irremediably and materially breach this Agreement
or (if the breach is capable of remedy) shall fail to commence to
remedy and thereafter diligently proceed with remedying such
material breach within twenty-eight (28) days of being required in
writing by the Developer so to do; or
26.1.6 a breach of Clause 22.1.2 or Clause 22.1.3; or
26.1.7 the Tenant shall cease for any other reason to be or to remain
liable under this Agreement
26.2 Determination of Agreement
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If an Event of Default occurs then the Developer may at any time
thereafter (whilst the Event of Default subsists to any extent) by notice
in writing to the Tenant forthwith determine this Agreement (but without
prejudice to any right of action by the Developer in respect of any
antecedent breach of any of the obligations on the part of the Tenant
herein contained)
26.3 Repayment upon Determination
If this Agreement is determined pursuant to this Clause 26 there shall
immediately become payable to the Developer a sum equivalent to the
aggregate of all Modification Costs which have already fallen to be taken
into account pursuant to this Agreement [and all parts of the Tenant's
Inducement which have already been paid to the Tenant] together with
Interest thereon from the date upon which the same were incurred or paid
(as appropriate) until the date of payment under this Clause
27. NOT USED
28. NOT USED
PART 10
TAX
29. VALUE ADDED TAX
29.1 Payment of VAT
Where, pursuant to the terms of this Agreement, the Developer (for the
purposes of this Clause 29.1, being the "Supplier") makes or is deemed to
make a supply to the Tenant (for the purposes of this Clause 29.1, being
the "Recipient") for Value Added Tax purposes and Value Added Tax is or
becomes chargeable on such supply, the Recipient shall on demand pay to
the Supplier (in addition to any other consideration for such supply) a
sum equal to the amount of such Value Added Tax and the Supplier shall
provide the Recipient with a Value Added Tax invoice in respect of such
supply
29.2 Reimbursement of VAT
Where, pursuant to the terms of this Agreement, the Developer (for the
purposes of this Clause 29.2, being the "Payer") is required to pay, repay
or reimburse the Tenant (for the purposes of this Clause 29.2, being the
"Payee") for any cost, fee, charge, disbursement or expense (or any
proportion of it), the Payer shall also reimburse the Payee for any part
of such cost, fee, charge, disbursement or expense (or proportion of it)
which represents Value Added Tax, save to the extent that the Payee is
entitled to credit or repayment in respect of such Value Added Tax from HM
Customs & Excise
29.3 No election by Developer
The Developer hereby warrants that it has not made and will not make prior
to completion of the Lease an election to waive exemption from VAT
pursuant to paragraph 2 of Schedule 10 to the Value Added Tax Act 1994
which has effect in relation to the Site or either of the Buildings. For
the purposes of this Clause 29.3, references to the Developer making an
election to waive exemption from VAT shall be deemed to include references
to a "relevant associate" of the Developer (as that term is defined for
the purposes of Schedule 10 to the Value Added Tax Act 1994)
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PART 11
DISPUTES, NOTICES AND SENIOR MANAGERS
30. DISPUTES
30.1 Reference to Independent Person
If any dispute or difference shall arise between the parties to this
Agreement as to the construction or meaning of this Agreement or their
respective rights, duties and obligations under this Agreement or as to
any matter arising out of or in connection with the subject matter of this
Agreement such dispute or difference shall (unless this Agreement
otherwise expressly provides) if any party to this Agreement so requires
at any time by notice served on the others (the "Determination Notice") be
referred to and determined by an independent person (the "Independent
Person") who shall have been qualified in respect of the general subject
matter of the dispute or difference for not less than ten (10) years and
who shall be a specialist in relation to such subject matter
30.2 Appointment of Independent Person
The Independent Person shall be appointed by agreement between the parties
to this Agreement or (if within ten (10) Working Days after service of the
Determination Notice the parties have been unable to agree) on the
application of any of the parties by such one of the following persons as
the parties shall agree to be appropriate having regard to the nature of
the dispute or difference in question:-
30.2.1 the Chairman for the time being of the Bar Council
30.2.2 the President for the time being of the Royal Institute of British
Architects
30.2.3 the President for the time being of the Royal Institution of
Chartered Surveyors
30.2.4 the President for the time being of the Chartered Institute of
Arbitrators
30.2.5 the President for the time being of the Institute of Chartered
Accountants in England and Wales
30.2.6 the President for the time being of the Law Society
or (in each such case) the duly appointed deputy of such President or any
other person authorised by him to make appointments on his behalf
30.3 Failure to agree Independent Person
If within fifteen (15) Working Days after service of the Determination
Notice the parties have been unable to agree which of the persons referred
to in Clause 30.2 is appropriate to appoint the Independent Person then
the Independent Person shall be appointed on the application of any of the
parties by the President for the time being of the Law Society or his duly
appointed deputy or any other person authorised by him to make
appointments on his behalf
30.4 Independent Person to act as arbitrator
Except as mentioned in Clause 30.5 any person appointed under this Clause
shall act as an arbitrator in accordance with the provisions of the
Arbitration Act 1996 and shall have the power to order a provisional award
but the parties agree that any arbitrator appointed under this clause
shall not have the powers set out in Section 48(5) of the Arbitration Act
1996 and
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shall not be entitled to order the rectification setting aside or
cancellation of this Agreement or any part of it
30.5 Independent Person to act as an expert
Whenever the parties have agreed in writing prior to his appointment that
the Independent Person to be appointed under this Clause 30 shall act as
an expert or this Agreement expressly so provides then the following
provisions shall have effect: -
30.5.1 the Independent Person shall act as an expert and not as an
arbitrator and his decision shall be final and binding upon the
parties to the dispute
30.5.2 the Independent Person shall consider (inter alia) any written
representations made on behalf of any party (if made reasonably
promptly) but shall not be bound thereby
30.5.3 the Independent Person shall be independent and shall act
impartially and fairly between the parties
30.5.4 the parties to this Agreement shall use all reasonable endeavours
to procure that the Independent Person shall give his decision as
speedily as reasonably possible
30.5.5 the parties hereby consent to any hearing in connection with any
such independent determination not being held in public and the
decision of the Independent Person not being pronounced in public
30.5.6 the costs of appointing the Independent Person and his costs and
disbursements in connection with his duties under this Agreement
shall be shared between the parties to the dispute in such
proportion as the Independent Person shall determine or in the
absence of such determination then equally between the parties and
30.5.7 if the Independent Person shall be or become unable or unwilling
to act then the procedure contained in this Clause 30.5 for the
appointment of an expert may be repeated as often as necessary
until a decision is obtained
30.6 Independent Person to determine delay
Where the dispute or difference between the parties which was the subject
of the Determination Notice shall have resulted in delay to the carrying
out of the Base Building Works the Independent Person shall be entitled
(inter alia) to award such extension of time for the fulfilment of the
obligation in question in respect of such delay as shall in all
circumstances be fair and reasonable
31. NOTICES
31.1 Service of Notices
Save as provided in Clause 31.2, any notice, approval, election or other
communication given or made in accordance with this Agreement shall be in
writing and shall be:-
31.1.1 sent by registered (or its then equivalent) or recorded delivery
post to the relevant party at such party's Address and if so sent
shall be deemed to have been delivered, given or made on the date
occurring 72 hours after the date it was sent; or
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31.1.2 shall be personally delivered to the relevant party at such
party's Address as defined in Clause 31.1 and if so delivered
shall be deemed to have been delivered given or made on the date
of delivery; or
31.1.3 Notices to the Developer shall be marked for the attention of
Michael Ashley-Brown Esq at Canary Wharf Group plc One Canada
Square Canary Wharf London E14 5AB with a further copy sent to The
Company Secretary at Canary Wharf Group plc One Canada Square
Canary Wharf London E14 5AB
31.1.4 Requests and notices to the Tenant shall be marked for the
attention of David Blowers of The Northern Trust Company of 155
Bishopsgate London EC2M 3XS with further copies sent to Doug
Maclennan of The Northern Trust Company aforesaid Nick Goodwin of
Harrington Consulting c/o The Northern Trust Company aforesaid and
the Tenant's Solicitors until such time as any change in addressee
for this purpose shall be notified to the Developer
31.2 Senior Managers' Notices
The parties to this Agreement agree that any notice, approval, election or
other communication given or made in accordance with this Agreement and
relating to:-
31.2.1 amendments to the warranties provided by any Key Consultant,
Substitute Consultant, Material Trade Contractor, Tenant's
Consultant or Tenant's Contractor
31.2.2 alterations or additions to the Critical Dates Schedule
31.2.3 Tenant's Delay
31.2.4 Force Majeure events
31.2.5 approval of the Tenant's Works
31.2.6 alterations additions or variations to the Base Building Works
31.2.7 Tenant's Requested Modifications
31.2.8 Site visits and Site meetings
31.2.9 early access to Tenant's Works Areas
31.2.10 disclosures of the type set out in Clause 33.4.1(h)
need only be served upon any of the receiving party's Senior Managers or
the addressee referred to in Clause 31.1 pursuant to the provisions of
Clause 31.1
32. SENIOR MANAGERS
32.1 Designation of Senior Managers
The Developer and the Tenant each shall by notice in writing given to the
other party from time to time designate not more than three (3) senior
managers (each being herein referred to as a "Senior Manager" which
expression shall include any persons appointed in place of the initial
persons so designated) each of whom shall have authority to represent the
relevant party for the purposes of any negotiations or discussions between
the Developer and the Tenant, to approve all matters requiring the
approval of the relevant party pursuant to this Agreement and
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to have involvement at the necessary times in the performance of the
obligations contained in this Agreement and all matters associated or
ancillary thereto at all relevant times for so long as any provision of
this Agreement remains to be performed
32.2 Identity of Senior Managers
It is hereby acknowledged that the Developer has designated John Pagano
and Tony Jordan and that the Tenant has designated Nick Goodwin of
Harrington Consulting aforesaid and David Brown of Allen Stewart
Partnership aforesaid as their respective Senior Managers and that no
further designation of a Senior Manager is required to be made by either
the Developer or the Tenant and the Developer and the Tenant respectively
covenant for the benefit of the other to use reasonable endeavours to
ensure that one or more of the individuals named in this Clause 32.2 as a
Senior Manager for the relevant party shall remain designated as a Senior
Manager until the date which is twelve months after the date of Tenant's
Works Practical Completion
32.3 Reliance upon Senior Managers
The Developer and the Tenant each acknowledges and represents to the other
that the other may rely upon the directions of any one or more of its
Senior Managers and that each such person has authority to act on behalf
of the Developer or the Tenant (as the case may be) and to bind the
Developer or the Tenant (as the case may be) in connection with this
Agreement. Without prejudice to the generality of the foregoing written
approvals TRM Authorisation Requests (and duplicates) and notices signed
by a Senior Manager of the Developer or the Tenant (as appropriate) shall
bind the relevant party for the purposes of this Agreement. Directions and
other communications given to or received from any one or more of the
Senior Managers shall be deemed given to and received from all of the
Senior Managers
32.4 Change of Senior Managers
The Developer and the Tenant may by written notice to the other at any
time hereafter change its designation of any of the Senior Managers
appointed by it with effect from the date of such notice
PART 12
GENERAL PROVISIONS
33. GENERAL PROVISIONS
33.1 Invalidity of Certain Provisions
If any term of this Agreement or the application of it to any person or
circumstances shall to any extent be invalid or unenforceable the same
shall be severable from the remainder of this Agreement and the remainder
of this Agreement or the application of such term or provision to persons
or circumstances other than those as to which it is held invalid or
unenforceable shall not be affected thereby and each term and provision of
this Agreement shall be valid and be enforced to the fullest extent
permitted by the law
33.2 Proper Law and Jurisdiction
This Agreement shall be governed by and construed in accordance in all
respects with English law and (without prejudice to Clause 30) the parties
to this Agreement hereby submit to the non-exclusive jurisdiction of the
High Court of Justice of England in relation to any claim dispute or
difference which may arise under this Agreement and in relation to the
enforcement of any judgement rendered pursuant to any such claim dispute
or difference and for the
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purpose of Part 6.15 of Civil Procedure Rules 1998 the Tenant and the
Developer hereby irrevocably agree that any process may be served on any
of them by leaving a copy of it at the relevant party's Address
33.3 Social Contract Provisions
The Tenant acknowledges that the Developer has drawn the attention of the
Tenant to the desirability of:-
33.3.1 recruiting employees who reside in the Docklands area, advertising
of job vacancies in the local press and the notification of
vacancies to The Docklands Recruitment Centre who are located at
316 Poplar High Street London E14 0BB (Telephone: 020 7364 1118)
and the Local Business Liaison Office who are located at 5/th/
Floor One Canada Square Canary Wharf London E14 5AB (Telephone:
020 7537 5123/5124);
33.3.2 patronising tradesmen, suppliers, retailers and other businesses
who carry out business in the Docklands area; and
33.3.3 the fostering of training facilities for residents of the
Docklands area to secure as many people as may be practical to be
suitably qualified for the range of job opportunities being
created at the Development Site
33.4 Confidentiality Provisions
33.4.1 None of the parties to this agreement shall without the prior
written consent of all the other parties to this agreement
disclose or publish to any third party ("Disclosure") or make
public announcement of wilfully or negligently permit or cause
Disclosure of any financial or other details whatsoever naming the
parties hereto or otherwise relating to the transaction hereby
effected except:-
(a) any particular extracts or details which must be the subject
of Disclosure to comply with any Stock Exchange or any
statutory requirements or the lawful requirements of any
regulatory, governmental or official body
(b) to group companies or professional advisers of each of the
parties who need to know such details and who have first
agreed to be bound by the provisions of this Clause 33.4
(c) to the extent necessary to comply with any legal obligation
or legal requirement
(d) to the extent necessary to comply with or give effect to the
terms of this agreement
(e) to the Inland Revenue or any other governmental, public or
official body for taxation, rating or registration purposes
(f) to the extent they are already in the public domain,
otherwise than as a result of a breach of this Clause 33.4
(g) that the Developer shall be entitled to issue a press release
announcing this agreement in a form which has been approved
by the Tenant (such approval not to be unreasonably withheld)
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(h) in the case of the Trade Contractors and Key Consultants and
Consultants to whom the Developer may disclose an edited
version of this agreement which has been previously approved
by the Tenant (such approval not to be unreasonably withheld
where such edited version does not include any financial
details) provided that if the Tenant does not approve or
reasonably refuse to permit such Disclosure within five (5)
Working Days of request by the Developer the Tenant shall be
deemed to have approved such Disclosure
33.4.2 This Clause 33.4 shall remain in effect until the expiry of a
period of three (3) years from Base Building Works Practical
Completion
33.4.3 This Clause 33.4 shall not apply to Disclosure by or on behalf of
any party to this Agreement to any third parties and/or their
professional advisers in pursuance of rent review arbitrations or
determinations or negotiations or legal proceedings adjudications
or other bona fide negotiations or dealings with and/or relating
to the Development Site and/or the Building or any part thereof
(including for the avoidance of doubt disclosures by the Developer
to any financier or the mortgagee or prospective financier or
mortgagee of the Development Site and/or Building or any part of
them) or the disposal of or acquisition of an interest in the
whole or any part of the relevant party or any Group Company of
the relevant party or any financing by the relevant party or any
Group Company of the relevant party or any Disclosure to any
insurers or prospective insurers of the Development Site and/or
Building or any part of them or works in connection with or items
on the same
33.5 Limitation of the Developer's Liability
33.5.1 The Developer's obligations and duties in respect of the design,
supervision, carrying out and completion of the Base Building
Works and the fitness of the Base Building Works for the purposes
of the Tenant shall be expressly limited to the express
contractual obligations contained in this Agreement and any other
right of action by either the Tenant, its successors in title or
persons deriving title under it against the Developer whether in
tort or otherwise is hereby excluded
33.5.2 The Tenant hereby waives all of its rights (if any) in respect of
any claims for loss of profits loss of business or indirect losses
or consequential damages of any kind arising from any breach by
the Developer of its obligations contained in this Agreement
33.5.3 The obligations and liabilities of the Developer under this
Agreement (other than to grant the Lease) are personal and shall
not bind successors in title and any covenants on the part of the
Developer which would otherwise be implied by law are hereby
expressly excluded
33.6 Assignment of this Agreement
33.6.1 Prior to the completion of the Lease the benefit of this Agreement
shall be personal to the Tenant and shall be non-assignable by it
33.6.2 Subject to the provisions of Clause 33.6.1 following completion of
the Lease the Tenant and any tenant under the Lease shall be
entitled to assign the benefit of the provisions of this Agreement
to any assignee of either Lease and the Developer and the
Developer's Surety shall if so required by any such tenant enter
into a deed (at the request and cost of such tenant) under which
the Developer and the
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Developer's Surety acknowledges to such assignee its obligations
under this Agreement such deed to be in the form set out in
Schedule 2
33.6.3 Nothing contained in this Agreement shall prevent:-
(a) The Developer from dealing with its interest in and with the
benefit of the Agreement in order to seek and obtain
financing for the purposes of enabling it to perform its
obligations pursuant to this Agreement and/or for the
purposes of entering into finance leasing or securitisation
arrangements relating to this Agreement or the Site or any
part of the Development Site; or
(b) any mortgagee, chargee or assignee by way of security of the
benefit of this Agreement from assigning the benefit of this
Agreement following enforcement of its security or from
requiring the Tenant in accordance with the provisions of
this Agreement to accept the Lease
33.6.4 The Tenant confirms and agrees that following enforcement of
security by any mortgagee, chargee or assignee by way of security
of the Developer's interest in this Agreement the Tenant shall owe
identical obligations to such mortgagee, chargee or assignee
33.7 Interest on Late Payments
If and so often as any of the sums payable hereunder by the Tenant to the
Developer or by the Developer to the Tenant shall be unpaid after becoming
due and payable the party from whom such payment shall be due shall pay on
demand interest on such unpaid sums from the due date until payment in
cleared funds at the Interest Rate
33.8 Further Assurance
Each of the parties to this Agreement hereby agrees to do or cause to be
done all acts and things and enter into any deed or document, either
severally or jointly with third parties, which the Tenant or the Developer
may reasonably consider necessary or desirable to give effect to this
Agreement
33.9 Terms of Contract and Incorporation of other Agreements
33.9.1 The parties acknowledge that:-
(a) this Agreement;
(b) the Annexures;
(c) any plan, inventory or agreed form of document annexed to
this Agreement or signed or initialled for identification
with, and on the entering into of, this Agreement (whether
individually or as part of a bundle or volume so signed or
initialled); and
(d) any additional provision or variation of any term of this
Agreement agreed in writing between the parties (or, with
their authority, their respective solicitors) on the entering
into of this Agreement (any such additional provision or
variation being incorporated into this Agreement by this
provision)
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contain all of the terms of the contract between them for the
construction of the Demised Premises forming part of the
Building to be constructed on the Site and the leasing of
them to the Tenant
33.9.2 To the extent necessary to ensure the legal validity of this
Agreement there are incorporated in this Agreement the Option
Agreement dated today's date made between the Developer (1) the
Tenant (2) the Developer's Guarantor (3) relating to Floor 3 and
Floor 4 of the Building
33.10 Modifications of Agreement
No modification, alteration or waiver of any of the provisions of this
Agreement, except as otherwise provided in it, shall be effective unless
the same is in writing and signed by the party against which the
enforcement of such modification, alteration or waiver is sought
33.11 No Waiver
The failure of any party at any time to require performance by any other
party of any provision of this Agreement shall in no way affect the right
of such party to require performance of that provision
33.12 Merger of Prior Agreements
This Agreement, the documents incorporated in this Agreement and the
Annexures contain the entire agreement between the parties relating to
the transactions contemplated by it or them and all other prior or
contemporaneous agreements, understandings, representations and
statements, whether oral or written relating to the transactions so
contemplated, are merged in this Agreement
33.13 Costs
It is hereby agreed that each party to this Agreement shall bear its own
costs in connection with the drafting, negotiation and completion of this
Agreement and the transactions contemplated by it
33.14 Third Party Rights
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce any term of this
Agreement but this does not affect any right or remedy of a third party
which exists or is available apart from that Act
34. DEVELOPER'S SURETY GUARANTEE
34.1 Indemnity by Developer's Surety
The Developer's Surety hereby covenants with the Tenant as a primary
obligation that the Developer or the Developer's Surety shall at all
times duly perform and observe all the covenants on the part of the
Developer contained in this Agreement and the Developer's Surety shall
indemnify and keep indemnified the Tenant against all claims demands
losses damages liability costs fees and expenses whatsoever sustained by
the Tenant by reason of or arising out of any default by the Developer in
the performance and observance of any of its obligations provided that
the Tenant shall take such steps as shall be reasonable to mitigate such
loss having regard to the nature of the breach
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34.2 Developer's Surety jointly and severally liable with Developer
The Developer's Surety hereby further covenants with the Tenant that the
Developer's Surety is jointly and severally liable with the Developer
(whether before or after any disclaimer by a liquidator or trustee in
bankruptcy) for the fulfilment of all the obligations of the Developer
under this Agreement and agrees that the Tenant in the enforcement of its
rights hereunder may proceed against the Developer's Surety as if the
Developer's Surety were named as the Developer in this Agreement
34.3 Waiver by Developer's Surety
The Developer's Surety hereby waives any right to require the Tenant to
proceed against the Developer or to pursue any other remedy whatsoever
which may be available to the Tenant before proceeding against the
Developer's Surety and the terms of this Clause 34.3 shall be a continuing
guarantee and shall remain in full force and effect until each and every
part of the obligations and covenants on the part of the Developer shall
have been discharged and performed in full
34.4 No release of Developer's Surety
None of the following or any combination thereof shall release discharge
or in any way lessen or affect the liability of the Developer's Surety
under this Agreement:-
34.4.1 any neglect delay or forbearance of the Tenant in endeavouring to
obtain payment of amounts required to be paid by the Developer or
in enforcing the performance or observance of any of the
obligations of the Developer under this Agreement
34.4.2 any extension of time given by the Tenant to the Developer
34.4.3 any variation of the terms of this Agreement with or without the
consent of the Developer's Surety or the transfer of the Tenant's
reversion or the assignment of this Agreement
34.4.4 any change in the identity constitution structure or powers of any
of the Developer the Developer's Surety the Tenant or the
liquidation administration or bankruptcy (as the case may be) of
either the Developer or the Developer's Surety
34.4.5 any legal limitation or immunity disability or incapacity of the
Developer (whether or not known to the Tenant or the fact that any
dealings with the Tenant by the Developer may be outside or in
excess of the powers of the Developer
34.4.6 any other act omission matter or thing whatsoever whereby but for
this provision the Developer's Surety would be exonerated either
wholly or in part (other than a release under seal given by the
Tenant)
I N W I T N E S S whereof the parties have executed this Agreement as a deed
and intend the same to be delivered on the day and year first before written
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SCHEDULE 1
Jewish Holy Days
Year 2000
First Day Passover Thursday, April 20
Second Day Passover Friday, April 21
Seventh Day Passover Wednesday, April 26
Eighth Day Passover Thursday, April 27
First Day Shavuoth Friday, June 9
Second Day Shavuoth Saturday, June 10
First Day Rosh Hashanah Saturday, September 30
Second Day Rosh Hashanah Sunday, October 1
Yom Kippur Monday, October 9
First Day Sukkoth Saturday, October 14
Second Day Sukkoth Sunday, October 15
Shemini Azereth Saturday, October 21
Simchath Torah Sunday, October 22
Year 2001
First Day Passover Sunday, April 8
Second Day Passover Monday, April 9
Seventh Day Passover Saturday, April 14
Eighth Day Passover Sunday, April 15
First Day Shavuoth Monday, May 28
Second Day Shavuoth Tuesday, May 29
First Day Rosh Hashanah Tuesday, September 18
Second Day Rosh Hashanah Wednesday, September 19
Yom Kippur Thursday, September 27
First Day Sukkoth Tuesday, October 2
Second Day Sukkoth Wednesday, October 3
Shemini Azereth Tuesday, October 9
Simchath Torah Wednesday, October 10
Year 2002
First Day Passover Thursday, March 28
Second Day Passover Friday, March 29
Seventh Day Passover Wednesday, April 3
Eighth Day Passover Thursday, April 4
First Day Shavuoth Friday, May 17
Second Day Shavuoth Saturday, May 18
First Day Rosh Hashanah Saturday, September 7
Second Day Rosh Hashanah Sunday, September 8
Yom Kippur Monday, September 16
First Day Sukkoth Saturday, September 21
Second Day Sukkoth Sunday, September 22
Shemini Azereth Saturday, September 28
Simchath Torah Sunday, September 29
Year 2003
First Day Passover Thursday, April 17
Second Day Passover Friday, April 18
Seventh Day Passover Wednesday, April 23
Eighth Day Passover Thursday, April 24
First Day Shavuoth Friday, June 6
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Second Day Shavuoth Saturday, June 7
First Day Rosh Hashanah Saturday, September 27
Second Day Rosh Hashanah Sunday, September 28
Yom Kippur Monday, October 6
First Day Sukkoth Saturday, October 11
Second Day Sukkoth Sunday, October 12
Shemini Azereth Saturday, October 18
Simchath Torah Sunday, October 19
Year 2004
First Day Passover Tuesday, April 6
Second Day Passover Wednesday, April 7
Seventh Day Passover Monday, April 12
Eighth Day Passover Tuesday, April 13
First Day Shavuoth Wednesday, May 26
Second Day Shavuoth Thursday, May 27
First Day Rosh Hashanah Thursday, September 16
Second Day Rosh Hashanah Friday, September 17
Yom Kippur Saturday, September 25
First Day Sukkoth Thursday, September 20
Second Day Sukkoth Friday, October 1
Shemini Azereth Thursday, October 7
Simchath Torah Friday, October 8
Year 2005
First Day Passover Sunday, April 24
Second Day Passover Monday, April 25
Seventh Day Passover Saturday, April 30
Eighth Day Passover Sunday, May 1
First Day Shavuoth Monday, June 13
Second Day Shavuoth Tuesday, June 14
First Day Rosh Hashanah Tuesday, October 4
Second Day Rosh Hashanah Wednesday, October 5
Yom Kippur Thursday, October 13
First Day Sukkoth Tuesday, October 18
Second Day Sukkoth Wednesday, October 19
Shemini Azereth Tuesday, October 25
Simchath Torah Wednesday, October 26
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SCHEDULE 2
(Form of Deed of Acknowledgement of certain Developer's obligations to be
provided in respect of each Lease)
T H I S D E E D is made
B E T W E E N:-
(1) HERON QUAYS PROPERTIES LIMITED (Company Registration Number 2276627) whose
registered office as at One Canada Square Canary Wharf London E14 5AB
(hereinafter called "the Developer"); and
(2) [ ] (hereinafter called the "Assignee")
(3) CANARY WHARF GROUP PLC (Company Registration Number 3114622) whose
registered office is at One Canada Square Canary Wharf London E14 5AB
(hereinafter called "the Developer's Surety")
W H E R E A S
(A) Pursuant to Clause 4.21 of the Underlease (as hereinafter defined) the
Tenant has assigned the benefit of the Underlease to the Assignee and the
Tenant has further assigned the benefit of the Agreement for Lease to the
Assignee
(B) Pursuant to the Agreement for Lease (as hereinafter defined) the Developer
and the Developer's Surety have agreed to acknowledge that their respective
obligations under the Agreement for Lease continue to subsist for the
benefit of the Assignee
N O W T H I S D E E D W I T N E S S E T H:
1. In this Deed where the context otherwise requires the following words and
expressions shall have the meanings hereunder assigned to them
"Agreement for Lease" means an agreement for lease dated [ ] made between
the Developer (1) The Northern Trust Company (2) and the Developer's Surety
(3) in relation to B1 B1M and Floors 5-11 HQ-4 Canary Wharf London E14
"the Tenant" means The Northern Trust Company
"the Underlease" means a lease dated [ ] made between the
Developer (1) Canary Wharf Management Limited (2) and the Tenant (3) in
relation to B1M and Floors 9-11 and B1 and Floors 5-8 HQ-4 Canary Wharf
London E14
2. The Developer and the Developer's Surety hereby acknowledge (for the
purposes of enforcement) that with effect from [ ] references
to the Tenant in the Agreement for Lease shall be deemed to be references to
the Assignee and that the Assignee (in substitution for the Tenant) shall be
entitled to rely upon and enforce the terms of the Agreement against the
Developer and the Developer's Surety to the same extent as the Tenant would
have been so entitled
I N W I T N E S S whereof the parties have executed this Deed as their deed
the day and year first above written
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Executed as a Deed by )
HERON QUAYS PROPERTIES LIMITED] )
acting by:- )
Director
Director/Secretary
The Common Seal of )
[ASSIGNEE] was hereunto )
affixed in the presence of:- )
Director
Secretary
Executed as a Deed by )
CANARY WHARF GROUP PLC )
acting by:- )
Director
Director/Secretary
-68-
SCHEDULE 3
(Form of Licence re Tenant's Works and Reinstatement TRM's)
THIS LICENCE is made the day of Two thousand
BETWEEN (1) the Developer and (2) the Tenant
WITNESSETH as follows:-
1. IN this Licence save where the context otherwise requires the following
words and expressions have the meanings hereunder assigned to them:-
1.1 "Developer" and "Tenant" respectively mean the parties whose name and
registered office are set forth in the First Schedule and their successors
in title
1.2 "Premises" means the premises described in the Second Schedule
1.3 "Lease" means the lease of the Premises made between the parties hereto and
dated [ ] for a term of [ ] years from [ ]
1.4 "Reinstatement TRM's" means the Tenant's Requested Modifications set out in
Part 2 of the Fourth Schedule
1.5 "Drawings" means the drawings specified in Part 1 the of Third Schedule
copies of which are annexed to this Licence
1.6 "Specifications" means the specifications specified in Part 2 of the Third
Schedule copies of which are annexed to this Licence
1.7 "Works" means the alterations to the Premises carried out in conformity with
the Drawings and Specifications
1.8 "Tenant's Requested Modifications" means the modifications set out in Part 1
of the Fourth Schedule
2. THE Developer has granted to the Tenant licence and consent for the
carrying out of the Works
3. THE Tenant covenants with the Developer:-
3.1 to pay any increased insurance premiums that may be occasioned by reason of
the Works
3.2 to comply with clause 4.10 of the Lease in respect of the Works
3.3 on the expiration or sooner determination of the Lease to reinstate and make
good the Reinstatement TRM's substituting where relevant the [Base Building
Definition items - details to be inserted prior to completion of the
Licence]
4. IT is agreed and declared that:
4.1 The covenants on the part of the Tenant and the conditions contained in the
Lease shall take effect subject to and with the benefit of this Licence
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4.2 The proviso for re-entry in the Lease shall be exercisable on breach of any
of the covenants in this Licence on the part of the Tenant as well as on the
happening of any of the events mentioned in the said proviso
4.3 Save as varied by this Licence the covenants and conditions in the Lease
shall remain in full force and effect
IN WITNESS whereof the parties hereto have executed this Licence as a deed and
intend the same to be delivered on the day and year first above written
-70-
THE FIRST SCHEDULE
(The Parties)
(a) "the Developer" :
whose registered office is at
(b) "the Tenant" :
whose registered office is at
THE SECOND SCHEDULE
(The Premises)
THE THIRD SCHEDULE
PART 1
(The Drawings)
Number Title Prepared by
PART 2
(The Specifications)
THE FOURTH SCHEDULE
PART 1
(Tenant's Requested Modifications)
PART 2
(Reinstatement TRM's)
Executed as a Deed by )
[Developer] acting by:- )
Director
Secretary
Executed as a Deed by )
[Tenant] acting by:- )
Director
Secretary
-71-
SCHEDULE 4
Method Statement Matters
1. details of the professional team and contractors for the design and
carrying out of each part of the Tenant's Works
2. details of the proposed construction schedule for the Tenant's Works
3. proposals for the liaison, co-ordination and co-operation between the
Developer and/or CWCL and the Tenant's Consultants and the Tenant's Senior
Managers (as defined in Clause 32) and the Tenant's Contractors and the
Tenant's Representative
4. proposals for the means and times of access to the proposed Tenant's Work
Areas and other parts of the Building and the Site and the restrictions and
regulations relative to such access
5. proposals for the date and times of delivery to the Site of materials and
equipment intended for incorporation or use in the Tenant's Works
6. proposals for the storage on-site of the materials and equipment intended
for incorporation in the Tenant's Works
7. proposals for the method by which, on a regular basis, surplus materials
and refuse and rubbish of the Tenant, its contractors, servants and agents
are to be removed from the areas of the Development Site, the Site and the
Building to which such persons shall have access to the areas reasonably
and properly designated by the Developer and/or CWCL as collection points
or to areas outside the Development Site
8. proposals for keeping free and unobstructed all escape routes in relation
to the Building and procuring that all vehicles visiting the Building in
connection with the Tenant's Works go directly to the unloading points
designated in writing to the Tenant for such purpose from time to time by
the Developer and/or CWCL and leave the Building, the Site and the
Development Site promptly upon unloading being completed to the extent
reasonably able to do so
9. proposals complying in all respects with the requirements and procedures of
the Developer and/or CWCL notified in writing to the Tenant in respect of
the delivery of materials for use in connection with the Tenant's Works
including the days and hours on and within which deliveries may be made
provided always that no restriction shall be placed in respect of
deliveries solely by reason of a day being a Holy Day
10. where appropriate proposals for consulting and thereafter complying in all
proper respects with the proper requirements of the police and all relevant
statutory authorities in respect of the delivery of materials for use in
connection with the Tenant's Works
11. proposals for complying in all respects with the safety and floor loading
requirements of the Developer and/or CWCL notified in writing to the Tenant
in respect of the storage of materials in connection with the Tenant's
Works
12. proposals for complying in all respects with the requirements of the
Developer and/or CWCL notified in writing to the Tenant in respect of the
security and protection of the Building and the Site and make arrangements
satisfactory to the Developer and/or CWCL for the security and protection
of the Tenant's Works and the materials being used in relation to the same
-72-
13. proposals for complying in all respects with the CDM Regulations, with
legislation in respect of Safety Health and Welfare and the reasonable
safety requirements of the Developer and/or CWCL
14. proposals for complying in all reasonable respects with the reasonable
requirements and procedures of the Developer and/or CWCL promulgated and
notified in writing to the Tenant from time to time in respect of security
industrial relations and hours or working (other than any limitations
imposed in respect of Holy Days)
15. proposals for not obstructing or causing or permitting or suffering to be
obstructed (save during the proper carrying out of any part of any
Tenant's Works to the same) the means of access to:-
15.1 the vertical surfaces of the remainder of the Base Building Works;
15.2 plant machinery and equipment installed as part of the remainder of the
Base Building Works;
15.3 any service ducts and risers;
15.4 any part of the Building, the Site and the Development Site
16. proposals for keeping noise levels to a minimum so as not to cause
nuisance to any occupiers of the remainder of the Development Site
-73-
SCHEDULE 5
"Preliminaries"
1. All management and site supervision staff directly and properly engaged by
the Developer to carry out the overall management of the construction of
the Base Building Works (whether employees of the Developer or CWCL or
not)
2. Temporary office accommodation and welfare facilities for the Developer's
and/or CWCL's own management and site supervision staff
3. Provision of office equipment for use by the Developer's and/or CWCL's own
management and site supervision, staff comprising; furniture, stationery,
telephones, facsimile machines, I.T. equipment including construction
information systems, postage, couriers, document management systems and
associated consumables
4. Provision of and payment of costs and charges in respect of:-
4.1 Telephone and fax calls, incurred by the Developer's and/or CWCL's own
management staff;
4.2 Water, electricity and gas used on Site;
4.3 Reproduction of drawings and documents
5. Provision of central/shared and/or common use facilities for the
Developer's and/or CWCL's and Trade Contractors' use and overall site
safety limited to:-
5.1 Fixed location tower cranes including all associated operatives for
durations appropriate for the fitting out programme (for the avoidance of
doubt all other cranage/lifting equipment is provided by the relevant
Trade Contractors)
5.2 Material and/or personnel hoists including all associated operatives
appropriate to the fitting out programme, (temporary use may be made of
the permanent lift installation)
5.3 Site welfare facilities comprising toilets, washrooms, drying rooms and
canteen
5.4 Site first aid facilities
5.5 Temporary power and lighting comprising:
5.5.1 Background Health & Safety lighting to all necessary areas
5.5.2 110v power supply
5.5.3 temporary heating and plumbing
(for the avoidance of doubt task lighting and special power supplies
beyond 110v are provided by the Trade Contractors)
5.6 temporary water supply
5.7 temporary barriers, construction barricades and/or scaffolding required to
comply with current legislation in respect of current Health & Safety and
CDM Regulations. (For the avoidance of doubt scaffolding/access equipment
directly required for access to construct the works will be provided by
the Trade Contractors)
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5.8 general purpose labour gangs for removal of rubbish off site from a
central site location including disposal
5.9 central loading/unloading area and the generation of loading areas/docks.
(For the avoidance of doubt, plant and equipment for unloading of Trade
Contractors materials will be provided by the Trade Contractors)
5.10 site survey and equipment for the provision of main control points for
setting out the works
5.11 space within the Canary Wharf and Canary Wharf South Development for Trade
Contractors to locate their own temporary offices, storage containers and
the like. (Such temporary offices, storage containers and the like to be
provided direct by the Trade Contract)
6. Providing safety measures to comply with Health & Safety at Works Act
1974, Environmental Protection Act 1990, CDM Regulations and any statutory
modification or re-enactment thereof
7. Other sundry costs and charges incurred by the Developer and/or CWCL
including:-
7.1 Maintenance, repairs and cleaning to facilities and services referred tin
in Clauses 2 - 5 of this Schedule
7.2 Provision of independent witness/inspection services
7.3 Refreshments at project/site meetings
7.4 Provision of the Developer's and the Tenant's progress photographs
7.5 Travelling and hotel expenses and reasonable out of pocket expenses
incurred by the Developer's own management and site supervision staff
7.6 Provision of site communication and/or radio systems for use by the
Developer's own management and site supervision staff
7.7 Site security
-75-
Executed as a Deed by )
HERON QUAYS PROPERTIES LIMITED )
acting by )
/s/ George Iacodescu
----------------------
George Iacodescu
Director
/s/ John Garwood
----------------------
John Garwood
Secretary
Executed as a Deed by )
THE NORTHERN TRUST COMPANY )
acting by )
/s/ David C. Blowers
-----------------------
David C. Blowers
Authorised Signatory
/s/ Douglas MacLennan
-----------------------
Douglas MacLennan
Authorised Signatory
Executed as a Deed by )
CANARY WHARF GROUP PLC )
acting by )
/s/ George Iacodescu
----------------------
George Iacodescu
Director
/s/ John Garwood
----------------------
John Garwood
Secretary
-76-