EX-10.20 6 mime-ex1020_630.htm EX-10.20 mime-ex1020_630.htm

 

Exhibit 10.20

 

EXECUTION VERSION

2 January 2018

 

B.L.C.T. (PHC 15A) LIMITED

and

BLUEBUTTON DEVELOPER COMPANY (2012) LIMITED

and

BLUEBUTTON PROPERTIES UK LIMITED

and

MIMECAST SERVICES LIMITED

and

MIMECAST LIMITED

 

AGREEMENT FOR UNDERLEASE

of

THE 3RD, 4TH AND 5TH FLOORS OF

1 FINSBURY AVENUE, LONDON EC2

 

 

 

 

 

 

 

Herbert Smith Freehills LLP

 

 

 

 

 


 

TABLE OF CONTENTS

 

Clause

 

Headings

 

Page

 

 

 

 

 

1.

 

DEFINITIONS

 

1

2.

 

INTERPRETATION

 

9

3.

 

AGREEMENT FOR LEASE

 

10

4.

 

MARKETING CONTRIBUTION

 

10

5.

 

SPECIFICATION

 

10

6.

 

THE DEVELOPER’S WORKS

 

11

7.

 

COMPLETION OF OTHER WORKS

 

13

8.

 

VARIATIONS TO DEVELOPER’S WORKS

 

13

9.

 

SITE VISITS, MEETINGS AND IP LICENCES

 

14

10.

 

TENANT’S VARIATIONS

 

15

11.

 

SECTIONAL COMPLETION

 

19

12.

 

DEFECTS

 

22

13.

 

PROFESSIONAL TEAM APPOINTMENTS, CONSTRUCTION MANAGEMENT AGREEMENT, TRADE CONTRACTS AND THIRD PARTY RIGHTS

 

24

14.

 

TENANT’S WORKS

 

25

15.

 

OCCUPATION

 

28

16.

 

MEASUREMENT

 

28

17.

 

OPTIONS

 

29

18.

 

LEASE GRANT

 

29

19.

 

SECOND FLOOR OPTION

 

31

20.

 

LOCAL LAND CHARGES ETC

 

32

21.

 

CIL INDEMNITY

 

32

22.

 

TITLE

 

32

23.

 

GROUND FLOOR RETAIL AND LEISURE

 

32

24.

 

ADJACENT OFFICE SPACE

 

33

25.

 

TERMINATION

 

33

26.

 

ALIENATION

 

34

27.

 

INSURANCE

 

34

28.

 

CONFIDENTIALITY

 

36

29.

 

DISPUTES

 

37

30.

 

CAPITAL ALLOWANCES

 

38

31.

 

VALUE ADDED TAX

 

39

32.

 

NOTICES

 

40

33.

 

NON-MERGER

 

41

34.

 

GUARANTEE OF TENANTS OBLIGATIONS

 

41

35.

 

GUARANTEE OF DEVELOPER’S OBLIGATIONS

 

42

36.

 

INDEMNITIES

 

42

37.

 

INTEREST

 

43

38.

 

LAW AND JURISDICTION

 

43

39.

 

EXCLUSION OF THIRD PARTY RIGHTS

 

43

40.

 

ENTIRE AGREEMENT, REPRESENTATIONS AND DECLARATIONS

 

43

41.

 

SEVERANCE

 

43

SCHEDULE 1 TENANT OPTION

 

44

 

ANNEXURES:

Annexure A: [not used]

Annexure B: Third Party Rights in Agreed Form

Annexure C: Floor Plans

Annexure D: Third Floor Lease in Agreed Form

 


 

Annexure E: Fourth Floor Lease in Agreed Form

Annexure F: Fifth Floor Lease in Agreed Form

Annexure G: Licence for Alterations in Agreed Form

Annexure H: Site Plan

Annexure I: Specification

Annexure J: List of Trade Contractors

Annexure K: Reception Desk Side Letter in Agreed Form

Annexure L: Terrace Side Letter in Agreed Form

Annexure M: Programme

Annexure N: [not used]

Annexure O: Landlord Legal Opinion in Agreed Form

Annexure P: Tenant’s Guarantor Legal Opinion in Agreed Form

Annexure Q: Measurement Plans

Annexure R: [not used]

Annexure S: Call Option Deed

Annexure T: Professional Team Appointments

Annexure U: Template Trade Contract

Annexure V: Verification Engineer Appointment

Annexure W: Fit-out Guide

Annexure X: Delivery Area plans

 

 

 


 

THIS AGREEMENT is made on the 2nd day of January 2018

BETWEEN:

(1)

B.L.C.T. (PHC 15A) LIMITED whose registered office is at 47 Esplanade, St Helier, Jersey JE1 OBD c/o York House, 45 Seymour Street, London W1H 7LX (Co. Regn. No: 76075) (the “Landlord”);

(2)

BLUEBUTTON DEVELOPER COMPANY (2012) LIMITED whose registered office is at York House, 45 Seymour Street, London, W1H 7LX (Co. Regn. No: 08034527) (the “Developer”);

(3)

BLUEBUTTON PROPERTIES UK LIMITED whose registered office is at York House, 45 Seymour Street, London, W1H 7LX (Co. Regn. No: 08034527) (the “Developer’s Guarantor”);

(4)

MIMECAST SERVICES LIMITED whose registered office is at 6th Floor, CityPoint, One Ropemaker Street, London EC2Y 9AW (Co. Regn. No: 04901524) (the “Tenant”); and

(5)

MIMECAST LIMITED whose registered office is at 22 Grenville Street, St Helier, Jersey JE4 8PX c/o 6th Floor, CityPoint, One Ropemaker Street, London EC2Y 9AW (Co. Regn. No: 119119) (the “Tenant’s Guarantor”).

WHEREBY IT IS AGREED as follows:

1.

DEFINITIONS

The following expressions have the respective specified meanings:

“Agreed Form” means in relation to any document, the form of that document or the draft of it which is agreed between the parties and signed by them (or by their respective solicitors on their behalf);

“All Risks Insurance” means the policy of insurance kept or caused to be kept by the Developer in the joint names of the Landlord and the Developer against loss or damage to the Developer’s Works, the Tenant’s Works (to the extent clause 27.3 applies) and all other materials, fixtures, fittings, plant, machinery and apparatus from time to time in and upon the Premises by such risks as may from time to time usually be covered by a comprehensive construction “all risks” policy (including terrorism to the extent available on normal commercial terms and at reasonable cost). Such insurance shall be in an amount not less than the full reinstatement value for the time being (including professional fees the cost of debris removal and value added tax where applicable and taking account of inflation during the period of insurance from the period from the date of damage or destruction to the likely date of reinstatement) of the Developer’s Works, the Tenant’s Works (to the extent clause 27.3 applies) and all other materials, fixtures, fittings, plant, machinery and apparatus from time to time in and upon the Premises;

“Architect” means Allford Hall Monaghan Morris Limited (company number 07155322) of Morelands, 5-23 Old Street, London, EC1V 9HL appointed by the Developer for the purposes of the Developer’s Works or such other reputable architect of similar experience and standing appointed by the Developer from time to time in relation to the Developer’s Works in accordance with clause 13.5 and notified to the Tenant in writing;

“Building” means the building to be refurbished during the Developer’s Works of Which the Premises form part known as 1 Finsbury Avenue, London EC2 the location Of which is shown for the purpose of identification edged red on the Site Plan;

“Building Services” means the mechanical and electrical plant, equipment and services and systems in and serving the Premises as described in the Specification;

1


 

“Building Services Engineer” means Ove Arup & Partners International Limited (company number 00952468) of 13 Fitzroy Street, London, W1T 4BQ appointed by the Developer for the purposes of the Developer’s Works or such other reputable building services engineer of similar experience and standing appointed by the Developer from time to time in relation to the Developer’s Works in accordance with clause 13.5 and notified to the Tenant in writing;

“Call Option Deed” means the call option deed in the Agreed Form at Annexure S;

“Certificate of Sectional Completion” means the certificate of sectional completion which the Construction Manager is required to sign and issue as soon as each Section has achieved Sectional Completion in accordance with the Construction Management Agreement and the Trade Contracts in respect of the Developer’s Works;

“Cinema Unit” means the parts of the ground and basement of the Building designated from time to time by the Landlord as intended to be let to a cinema operator;

“CIL” means the community infrastructure levy introduced by sections 205-225 of the Planning Act 2008 or any successor provisions;

“CIL Requirement” means a requirement to pay CIL in connection with the Developer’s Works or any other works to the Building;

“CIS” means the current Construction Industry Scheme under the Finance Act 2004 and the CIS Regulations;

“CIS Regulations” means the Income Tax (Construction Industry Scheme) Regulations 2005;

“CDM Regulations” means the Construction (Design and Management) Regulations 2015;

“Construction Management Agreement” means the construction management agreement dated 8 November 2017 entered into by the Developer and the Construction Manager for managing the carrying out of the Developer’s Works or any replacement contract or contracts entered into from time to time in accordance with clause 13.5 and notified to the Tenant in writing;

“Construction Manager” means Sir Robert McAlpine Limited (company number 00566823) of Eaton Court, Maylands Avenue, Hemel Hempstead, Hertfordshire HP2 7TR or any reputable replacement construction manager of similar experience and standing appointed by the Developer to manage the carrying out of the Developer’s Works or any part thereof in accordance with clause 13.5 and notified to the Tenant in writing;

“Cost Consultant” means Equals Consulting Limited (company number 06960814) of Third Floor, 126-134 Baker Street, London, England, W1U 6UE appointed by the Developer for the purposes of the Developer’s Works or such other reputable cost consultant of similar experience and standing appointed by the Developer from time to time in relation to the Developer’s Works in accordance with clause 13.5 and notified to the Tenant in writing;

“Date of Permitted Entry” means the date of the first Working Day following the Date of Sectional Completion of Section One;

“Date of Notional Sectional Completion” means the date the Construction Manager certifies as the date on which Sectional Completion relating to Section One would have been achieved but for any Tenant Delay;

“Date of Sectional Completion” means the date on which each Certificate of Sectional Completion is issued;

2


 

“Defects Period” means in respect of each Section the period of 12 months from the Date of Sectional Completion;

“Delivery Areas” means the delivery areas and ramps shown edged blue oh the plans at Annexure X;

“Design Option Items” means the finishes of certain parts of the Developer’s Works as set out in part C of the Specification;

“Design Team” means the Architect, the Building Services Engineer and the Structural Engineer;

“Developer’s Works” means the works to be carried out by the Developer to deliver the Premises and the Office Common Parts in accordance with the Specification and for the avoidance of doubt includes the Terrace Works;

“Duty of Care Letter” means a duty of care letter addressed to the Tenant and the Guarantor issued by the Independent Measurement Surveyor in relation to the report referred to in clause 16.1.3 in a form to be reasonably approved by the Tenant;

“EPC” means the Energy Performance Certificate for the Building produced in accordance with The Energy Performance of Buildings (England and Wales) Regulations 2012;

“Executives” means, in respect of the Landlord, Tim Roberts, and in respect of the Tenant, Ulf Maske;

“Fit-Out Guide” means the handbook produced by or on behalf of the Landlord containing procedures and regulations governing tenants’ fitting out works at the Building at Annexure W;

“Fitting-Out Contribution” means the contribution to be made by the Landlord towards the cost to the Tenant of the Tenant’s Works, to be determined pursuant to clause 14.9;

“Floor Plans” means the plans of the relevant floors of the Building at Annexure C;

“Fifth Floor Lease” means an underlease of the Fifth Floor Premises in the Agreed Form at Annexure F;

“Fifth Floor Premises” means the premises known as the 5th Floor, 1 Finsbury Avenue and more particularly described in the Fifth Floor Lease shown for the purposes of identification only edged in red on the relevant Floor Plans;

“Fourth Floor Lease” means an underlease of the Fourth Floor Premises in the Agreed Form at Annexure E;

“Fourth Floor Premises” means the premises known as the 4th Floor, 1 Finsbury Avenue and more particularly described in the Fourth Floor Lease shown for the purposes of identification only edged in red on the relevant Floor Plans;

“Health and Safety File” means the health and safety file required to be prepared and maintained in relation to the Developer’s Works or the Tenant’s Works, as the case may be, pursuant to the CDM Regulations;

“Independent Measurement Surveyor” means an appropriately qualified and experienced firm or company of surveyors as may be appointed by the Landlord or the Developer as independent measurement surveyors for the purposes of this agreement;

3


 

“Landlord Legal Opinion” means the legal opinion in the Agreed Form at Annexure O;

“Leases” means, together, the Third Floor Lease and the Fourth Floor Lease and (subject to clause 17 and Schedule 1) the Part Fifth Floor Lease or the Fifth Floor Lease and “Lease” shall mean any one of them;

“Licence for Alterations” means the licence in the Agreed Form at Annexure G approving retrospectively the as-built Tenant’s Works;

“Listed Building Consent” means the listed building consent dated 1 June 2017 reference 17/00231/LBC as varied by the listed building consent dated 21 September 2017 reference 17/00832/LBC both issued by the City of London together will all requisite approvals already issued in connection with it;

“Material Alteration” means any variation, alteration or addition to the Developer’s Works not being a Permitted Variation which shall:

 

(a)

reduce the performance characteristics and/or quality of the specification of the materials being replaced save where the effect of such reduction shall be negligible;

 

(b)

reduce the Measured Area by more than 3 per cent below the target Measured Area when considered in aggregate with any previous Material Alteration or otherwise;

 

(c)

omit or adversely affect the delivery of the following items:

 

(i)

reception area of a size and location as per the plan included in the Specification;

 

(ii)

2 x ground floor office entrances on and serving Wilson Street and Finsbury Avenue Square;

 

(iii)

8 x passenger lifts (2 of which double as goods lifts and one of which serves the Roof Terraces). Each bank of 4 lifts to be secure and served by turnstiles;

 

(iv)

1 x DDA lift connecting basement shower and bike facilities to the ground floor;

 

(v)

1 x staircase connecting basement shower and bike facilities to the ground floor;

 

(vi)

1 x central kiosk/reception beacon;

 

(vii)

1 x dedicated Mimecast reception desk shown on the plan attached to the Reception Desk Side Letter;

 

(viii)

triple height central reception area with exposed beams and light feature;

 

(ix)

floor finish to be one or a combination of polished concrete screed and oiled timber boarding;

 

(x)

reduce the available electricity capacity for the exclusive use of the Premises to less than is detailed in the Specification or reduce the available emergency electrical generator capacity to less than is detailed in the Specification; and

 

(xi)

access to the Roof Terraces;

 

(d)

adversely affect the quality of the external envelope of the Developer’s Works as described in the Specification; or

 

(e)

adversely affect the supply of services to the Developer’s Works or the means of connection of any such utility to the relevant public supply (if appropriate) from that set out in the Specification; or

 

(f)

affect the basic floor configuration of the floors of the Premises (including the location and size of the structural columns), reduce the floor to ceiling heights or alter the positions of lift shafts and stairwells as shown in the Specification as at the date of this agreement;

4


 

 

(g)

materially affect the performance of the Building Services as detailed in the Specification; or

 

(h)

materially affect the ability of the Tenant to carry out the Tenant’s Works after the Date of Sectional Completion of the relevant Section.

“Measured Area” means the net internal area calculated in accordance with the principles of the Measurement Standard expressed in square feet;

“Measurement Plans” means the plans at Annexure Q showing the target net internal area of the Premises;

“Measurement Standard” means the RICS Code of Measuring Practice, 6th edition 2007;

“Method Statement” means a statement prepared by or on behalf of the Tenant setting out the appropriate timing and methods by which the Tenant intends to commence and execute the Tenant’s Works in accordance with the Fit-Out Guide;

”Office Common Parts” means the Delivery Areas, bicycle racks, ground floor reception, lifts, risers, Roof Plant Areas, showers and toilets;

“Part Fifth Floor Premises” is as defined in Schedule 1;

“Permitted Variation” means any variation, alteration or addition to the Developer’s Works which is not a Material Alteration;

“Planning Permission” means the planning permission dated 1 June 2017 reference 17/00230/FULL issued by the City of London as varied by the planning permission dated 21 September 2017 reference 17/00831/FULL together with all requisite approvals already issued in connection with it;

“Practical Completion” means completion of the relevant Section of the Developer’s Works save for any items that would normally be included on a snagging list to be attached to the Certificate of Sectional Completion;

‘‘Premises” means, together, the Third Floor Premises and the Fourth Floor Premises and (subject to clause 17 and Schedule 1) the Fifth Floor Premises or the Part Fifth Floor Premises;

“Programme” means the programme for the Developer’s Works at Annexure M;

“Prohibited Materials” means

 

(a)

any materials which at the time of specification or use are generally considered by construction industry professionals as:

 

(i)

being deleterious in themselves;

 

(ii)

becoming deleterious when used in a particular situation or in combination with other materials;

 

(iii)

becoming deleterious without a level of maintenance which is higher than that which would normally be expected in a building of a comparable type: or

 

(iv)

being damaged by or causing damage to the structure in which they are incorporated or to which they are affixed.

5


 

For the purpose of this defined term the word “deleterious” shall be deemed to include the use of materials or combinations of materials that would or might be hazardous to health or would or might have the effect of reducing the normal life expectancy or performance:

 

(i)

of the materials themselves;

 

(ii)

of any materials to which they are affixed or connected or to which they relate; or

 

(iii)

of the structure and/or systems in which they are incorporated or to which they are affixed or connected or to which they relate;

to a period less than that which would normally be expected of such materials structure and/or systems in the circumstances in which used; and/or

 

(b)

any materials identified in the Publication “Good Practice in the Selection of Construction Materials” (2011) (British Council for Offices) otherwise than in accordance with the guidance contained in such publication;

“Professional Team” means each member of the Design Team and the Cost Consultant;

“Professional Team Appointment” means the appointment entered into by each member of the Design Team and the Cost Consultant prior to the date of this agreement in the forms attached at Annexure T and to be entered into by the Verification Engineer following the date of this agreement in the form attached at Annexure V;

“Reception Desk” means the reception desk to be installed as part of the Developer’s Works in the location elected pursuant to clause 5.2, the options for which are set out at Part B of the Specification;

“Reception Desk Side Letter” means the letter in the Agreed form at Annexure K;

“Relevant Event” means any event which is beyond the Landlord’s and the Developer’s control and any extensions of time to complete the Developer’s Works under the Trade Contracts properly granted by the Construction Manager but only if, and to the extent that, such event is not the result of any impediment, prevention or default whether by act or omission by the Landlord and/or the Developer and/or the Construction Manager or the Landlord’s or the Developer’s failure to comply with any of its obligations under this agreement or the Construction Manager’s failure to comply with any of its obligations under the Construction Management Agreement or any negligence of the Landlord or the Developer or the Construction Manager;

“Rent Commencement Date” means, subject to clause 6.6, the date of the first day after the expiry of twelve months commencing on the earlier of:

 

(a)

the Date of Sectional Completion of Section One; and

 

(b)

(if appropriate) the Date of Notional Sectional Completion;

“Requisite Permissions” means the Planning Permission, the Listed Building Consent and all requisite building regulation requirements and all other consents, approvals, licences, orders, certificates and agreements required from any competent authority (or proper and valid waivers made by the relevant competent authority) necessary to commence, carry out and complete the Developer’s Works or, as appropriate, the Tenant’s Variations and the Tenant’s Works;

“RICS” means. the Royal Institution of Chartered Surveyors;

“Roof Plant Areas” means the roof plant areas defined in the Leases;

6


 

“Roof Terraces” means the communal roof terrace on Level 8 of the Building and the roof terrace on Level 8 of the Building for the Tenant’s exclusive use as shown on the plan attached to the Terrace Side Letter;

“Section” means:

 

(a)

Section One; and

 

(b)

Section Two;

“Sectional Completion” means Practical Completion of a Section as certified by the Construction Manager;

“Section One” means the Developer’s Works other than Terrace Works, the Roof Plant Areas and the Delivery Areas;

“Section Two” means the Terrace Works;

“Site Plan” means the plan at Annexure H;

“Snagging List” means the list of defects, shrinkages or other faults specified in the list attached to or issued with each Certificate of Sectional Completion which would not ordinarily be regarded as sufficiently material to prevent the issue of the relevant Certificate of Sectional Completion;

“Specification” means the specifications, plans and drawings at Annexure I describing the Developer’s Works and the Terrace Works as the same may be varied pursuant to this agreement;

“Structural Engineer” means Ove Arup & Partners International Limited (company number 00952468) of 13 Fitzroy Street, London W1T 4BQ appointed by the Developer for the purposes of the Developer’s Works or such other reputable structural engineer of similar experience and standing appointed by the Developer from time to time in relation to the Developer’s Works in accordance with clause 13.5.1(A) and notified to the Tenant in writing;

‘‘Target Access Date” means, in relation to Section One, 5 February 2019 or such later date as may be determined pursuant to this agreement, and in relation to Section Two, three (3) months from 5 February 2019 or such later date as may be determined pursuant to this agreement;

“Tenant Default” means any impediment, prevention or default, whether by act or omission, by the Tenant or any of its agents, contractors or employees or any member of the Tenant’s Professional Team with the consequence that a delay is caused to the Developer’s Works;

“Tenant Delay” means any delay to the Developer’s Works as a consequence of Tenant Default or as a consequence of a Tenant’s Variation (including a request for a Tenant’s Variation even if it is not approved or implemented) pursuant to clause 10 certified in writing by the Construction Manager in accordance with clause 6.5;

“Tenant’s Guarantor Legal Opinion” means the legal opinion in the Agreed Form at Annexure P;

“Tenant’s Professional Team” means

 

(a)

the professional consultants including the architect, services engineer, structural engineer, employer’s agent and any other consultant with material design responsibility whose services are from time to time engaged in connection with the Tenant’s Works; and

7


 

 

(b)

the main contractor engaged by the Tenant in connection with the Tenant’s Works,

and references to a “member of the Tenant’s Professional Team” shall be construed as relating to any one or more of them (as appropriate);

“Tenant’s Surveyors” means Cushman & Wakefield Debenham Tie Leung Limited company number 02757768 or such other firm or company of surveyors as may be appointed by the Tenant for the purposes of this agreement and notified to the Landlord;

“Tenant’s Variation” means any works requested by the Tenant additional to or in modification of any part of the Developer’s Works undertaken by the Developer on behalf of the Tenant pursuant to clause 10;

“Tenant’s Works” means all the works to be carried out by the Tenant for the purpose of fitting out the Premises including the installation of services in the risers of the Building and the provision of a digital connection to the Reception Desk;

“Term Commencement Date” means the date which is the earlier of:

 

(a)

the Date of Sectional Completion of Section One; and

 

(b)

(if appropriate) the Date of Notional Sectional Completion;

‘‘Terrace Side Letter” means the letter in the Agreed Form at Annexure L;

“Terrace Works” means the part of the Developer’s Works to construct the Tenant’s exclusive terrace on the 8th floor of the Building as described in the relevant part of the Specification;

‘‘Third Floor Lease” means an underlease of the Third Floor Premises in the Agreed Form at Annexure D;

“Third Floor Premises” means the premises known as the 3rd Floor, 1 Finsbury Avenue and more particularly described in the Third Floor Lease shown for the purposes of identification only edged in red on the relevant Floor Plans;

‘‘Third Party Rights” means third party rights in substantially the Agreed Form at Annexure B to be provided by each member of the Landlord’s Professional Team, the Construction Manager and the Trade Contractors on a floor by floor basis in accordance with clause 13 and Third Party Right” shall be construed accordingly;

“Trade Contractors” means the trade contractors identified in the list at Annexure J appointed or to be appointed by the Developer;

“Trade Contract” means the Trade Contract to be entered into by the Developer and each Trade Contractor substantially in the form annexed at Annexure U subject to such reasonable amendments as may be agreed between the Developer and the Trade Contractor in accordance with clause 13.3;

“Total Project Costs” means all costs, fees and expenses incurred (whether or not actually paid) by the Landlord, the Developer or any Group Company of either of them in respect of the redevelopment and refurbishment of the Building, and includes all professional and consultants’ fees and expenses;

8


 

“Verification Engineer” means a verification engineer approved by the Tenant and the Landlord and appointed jointly by the Landlord and the Tenant in the form attached at Annexure V to monitor the commissioning of the Building Services prior to the issue of each Certificate of Sectional Completion in connection with the Developer’s Works and the interface with the Tenant’s Works by carrying out the functions referred to in clause 11.8;

“Warranties” means any deed of collateral warranty or equivalent third party rights to be provided to the Landlord by the Tenant in respect of the Tenant’s Works pursuant to clause 14.11 of this agreement; and

“Working Day” means any day from Monday to Friday (inclusive) other than Christmas Day, Good Friday and any statutory bank holiday in England or Jersey.

2.

INTERPRETATION

2.1

Any words and expressions common to this agreement and the Leases (whether in the particulars set out at the beginning of the Leases or in the body of the Leases (including any schedules thereto)) shall have the same meaning ascribed to them in the Leases, and for the purposes of this clause 2.1 “Lease” means the lease in the Agreed Form at Annexure D.

2.2

Where a party is more than one person, their obligations are joint and several.

2.3

An obligation:

 

2.3.1

not to do or omit anything is also an obligation not to permit or tolerate it being done or omitted by anyone deriving title from the person owing the obligation or by its or their employees or agents and to prevent or, as appropriate, to require it being done;

 

2.3.2

to do or not omit anything is also an obligation to procure it; and

 

2.3.3

to make any payment requires it to be made so that the payee receives full value in cleared sterling funds on the date the payment is due.

2.4

References in this agreement to:

 

2.4.1

any clause or schedule are to those of this agreement and references to any paragraph are to those of the clause or schedule in which the reference appears;

 

2.4.2

a person entering the Premises extend to anyone authorised by that person (subject to any contrary provision in this agreement) and to remaining on the Premises for so long as is reasonably necessary with equipment;

 

2.4.3

a demand mean a written one;

 

2.4.4

any consent or approval of any party mean a written one signed on thatparty’s behalf before the act requiring it and any consent or approval will not be unreasonably withheld or delayed unless stated to be at the discretion of a party;

 

2.4.5

the Premises extend, where the context permits, to any part of them;

 

2.4.6

a specific Act include every modification, consolidation and re-enactment and extension of it;

 

2.4.7

any payment being due from any party to any other mean that It is exclusive of any VAT;

 

2.4.8

anything which is stated to include anything else does not, by the inclusion, limit the generality of the matter referred to;

 

2.4.9

the RICS extend to its President or acting President for the time being.

 

2.5

Clause and paragraph headings do not affect the construction of this agreement.

9


 

3.

AGREEMENT FOR LEASE

3.1

In consideration of the Tenant’s obligations under this agreement, the Landlord will grant to the Tenant and the Tenant will accept from the Landlord each Lease on the terms set out in this agreement.

3.2

No purchase price, premium or deposit is payable under this agreement.

4.

MARKETING CONTRIBUTION

4.1

Parties to collaborate

The Landlord and the Tenant agree to work together in good faith to find and implement a change management strategy for the Tenant’s employees with regards to the Premises with reference to (but not exclusively) location, transport connectivity, culture, business design and amenity.

4.2

Landlord’s contribution

On the date of this agreement the Landlord has paid to the Tenant (receipt of which the Tenant hereby acknowledges as an inducement to execute and enter into the Leases) the sum of £100,000 (exclusive of any VAT) as the Landlord’s total contribution towards the cost of any initiatives to be carried out pursuant to clause 4.1 above.

5.

SPECIFICATION

5.1

Design development

 

5.1.1

The parties acknowledge that as at the date of this agreement the detailed design of each part of the Developer’s Works as set out in the Specification is not yet finalised.

 

5.1.2

The Developer will keep the Tenant informed on progress made in developing the design beyond RIBA Stage 4, and shall procure that the Construction Manager and the Design Team are instructed to make available to the Tenant (including where possible access on CAD and on line) status ‘A’ drawings and other design information in relation to the Developer’s Works throughout the design process.

5.2

Tenant design

 

5.2.1

The Landlord and the Tenant agree that the Tenant shall have the ability to choose the final design in respect of the Design Option Items.

 

5.2.2

The Landlord shall provide the Tenant with the options for each Design Option Item as soon as reasonably practicable once the design options are available and in any event at least two weeks prior to the date set out against each Design Option Item in Part C of the Specification.

 

5.2.3

The Tenant shall make its selection in respect of each Design Option Item by notifying the Landlord in writing of its choices no later than the date set out against each Design Option Item in Part C of the Specification.

 

5.2.4

If the Tenant does not notify the Landlord of its choices (in respect of any or all of the Design Option Items) prior to the specified deadlines, the Landlord shall deliver the default design in respect of any such Design Option Items as set out in Part C of the Specification.

5.3

Final Specification

 

5.3.1

Once the detailed design for all aspects of the Specification has been finalised in accordance with clauses 5.1 and 5.2, the Landlord shall provide a copy of the final-form specification to the Tenant and such document shall become the Specification for the purposes of this agreement. Once finalised, the Specification is not to be altered, modified or omitted unless in accordance with clause 8.

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5.3.2

The parties agree that the development of the design in accordance with this clause 5 shall not constitute a change for the purposes of clause 8 and the provisions of clause 8 shall not apply in relation to the development of the Specification and to further iterations of the Specification which may be agreed between the Developer and the Tenant under this clause 5, except to the extent that the development of the Specification under this clause 5 would amount to a Material Alteration.

6.

THE DEVELOPER’S WORKS

6.1

Execution of Developer’s Works

As soon as practicable after all Requisite Permissions required to enable the Developers Works to be commenced have been obtained (which the Developer shall use reasonable endeavours to obtain) the Developer shall procure that the Developer’s Works are carried out and completed:

 

6.1.1

at its own expense;

 

6.1.2

in compliance with all Requisite Permissions;

 

6.1.3

in a good and workmanlike manner, using good quality materials and without using Prohibited Materials;

 

6.1.4

using reputable contractors;

 

6.1.5

in accordance with the Specification;

 

6.1.6

in accordance with all Acts and any enforceablerequirements of any competent authority which in either case shall affect the execution and completion of the Developer’s Works, including the lawful requirements of the local fire authority;

 

6.1.7

in compliance with all lawful requirements of any water, gas or electricity authority and any applicable codes of practice affecting the construction industry; and

 

6.1.8

in accordance with its obligations under the GDM Regulations,

save that in relation to matters of design, the Developer shall only be liable to the extent that it has not exercised reasonable skill, care and diligence.

6.2

BREEAM rating

The Developer shall use reasonable endeavours to target achieving a BREEAM rating of not less than “Very Good” in respect of the completed Developer’s Works.

6.3

Timetable

Subject to clause 6.5, the Developer shall use all reasonable and commercially prudent endeavours to procure that Sectional Completion for each Section shall be achieved by the relevant Target Access Date.

6.4

Delays to programme

 

6.4.1

The Developer shall report regularly to the Tenant as to the progress of the Developer’s Works as against the Programme and shall promptly advise the Tenant if the Developer’s Works are subject to material delay (being a delay which the Developer considers, acting reasonably, that will cause the completion of the Developer’s Works to be delayed more than five (5) Working Days), including any Tenant Delay.

 

6.4.2

The Developer shall use all reasonable and commercially prudent endeavours to manage, reduce and mitigate any delay to the Developer’s Works.

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6.4.3

If the Developer is of the opinion that the Developer’s Works or any Section will not be completed or are unlikely to be completed by the relevant anticipated date as specified in the then current programme for the Developer’s Works then the Landlord shall so advise the Tenant in writing and identify the new anticipated completion date.

6.5

Extensions of time

 

6.5.1

The Target Access Date shall be subject to such extensions of time as may be due to delays caused to the progress of the Developer’s Works or any part thereof by:

 

(A)

any Relevant Event; or

 

(B)

any Tenant Delay;

in each case as certified in writing by the Construction Manager.

 

6.5.2

Without prejudice to clause 6.4.2, if there is any delay in the Developer’s Works caused by a Relevant Event then the Landlord and the Developer shall use all reasonable and commercially prudent endeavours to mitigate such delay and details of such delay shall be provided to the Tenant as soon as reasonably practicable and the Target Access Date shall be extended by a period equal to the period of delay caused by the Relevant Event as properly certified in writing by the Construction Manager acting fairly and reasonably.

6.6

Adjustment of Rent Commencement Date

 

6.6.1

If Sectional Completion of Section One has not occurred by the Target Access Date, the Rent Commencement Date shall be adjusted as follows:

 

(A)

for the first three months immediately following the Target Access Date, the Rent Commencement Date shall be deferred on a day-for-day basis for each day of delay beyond the Target Access Date;

 

(B)

for the fourth, fifth, sixth, seventh and eighth months following the Target Access Date, the Rent Commencement Date shall be deferred by two days for each day of delay beyond the first month following the Target Access Date; and

 

(C)

from the end of the eighth month following the Target Access Date, the Rent Commencement Date shall be deferred by three days for each day of delay beyond the end of the fourth month following the Target Access Date.

6.7

CDM Regulations

In respect of the Developer’s Works, the Developer agrees to:

 

6.7.1

be the only client for the purposes of the CDM Regulations;

 

6.7.2

comply with its obligations as a client for the purposes of the CDM Regulations; and

 

6.7.3

appoint a principal designer and a principal contractor in respect of the Developer’s Works and take all reasonable steps to ensure that each is provided with the relevant information to enable them to perform their duties under the CDM Regulations.

6.8

Provision of information to Tenant

The Landlord shall make available to the Tenant and the Tenant’s Surveyors on a secure extranet site copies of material plans, drawings, specifications, outstanding Requisite Permissions (once obtained), test certificates and minutes of material site meetings.

6.9

Wiredscore

The Landlord shall undertake a “Wired Certification for Development and Redevelopment” prior to the date of completion of the Leases and shall target achieving a “Platinum” rating in respect of the Premises.

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6.10

EPC

The Developer will provide or procure the EPC with a rating of at least Grade E on the date the Certificate of Sectional Completion for Section One is issued.

7.

COMPLETION OF OTHER WORKS

7.1

The Developer shall use all reasonable and commercially prudent endeavours to procure that practical completion of any Developer’s works to the communal roof terrace on level 8 of the Building and the ground floor retail areas visible from the office common parts, including:

 

7.1.1

the external facades on Wilson Street, Finsbury Avenue Square and White Cross Place; and

 

7.1.2

the internal frontages facing into the office reception,

shall be achieved by 1 November 2019 subject to such extensions of time as may be due to delays caused to the progress of such works or any part thereof by ant Relevant Event or any Tenant Delay, in each case as certified by the Construction Manager.

7.2

If the works referred to in clause 7.1 are not practically complete by Sectional Completion of Section One, the Developer will provide suitable temporary finishes and hoardings so that the Office Common Parts are accessible and available for use by the Tenant.

7.3

The Developer shall procure that practical completion of the Delivery Areas and the Roof Plant Areas shall be achieved by 1 September 2019.

8.

VARIATIONS TO DEVELOPER’S WORKS

8.1

Permitted Variations

 

8.1.1

The Landlord may without obtaining approval from the Tenant make any Permitted Variations.

 

8.1.2

The Landlord shall notify the Tenant of any Permitted Variation and the reason for it, and shall as soon as reasonably practicable provide details, drawings and other appropriate information to identify the change (save as aforesaid).

8.2

Material Alterations

 

8.2.1

The Landlord shall not make any Material Alteration without obtaining the prior written approval of the Tenant (which shall not be unreasonably withheld).

 

8.2.2

If the Landlord proposes to make any Material Alteration it shall provide to the Tenant details of such proposed alteration together with copies of all drawings, plans and specifications relating thereto and the reason for such alteration.

 

8.2.3

The Tenant and the Landlord both acting reasonably shall work together to achieve agreement to any Material Variation notified under this clause 8.2 within 10 Working Days of submission of information provided by the Landlord pursuant to clause 8.2.2.

 

8.2.4

If the Tenant does not respond to the Landlord’s request for approval within the timetable stated in this clause 8.2 the change shall be deemed to have been approved by the Tenant and the Landlord shall be entitled (but not obliged) to make the relevant change.

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9.

SITE VISITS, MEETINGS AND IP LICENCES

9.1

Entry onto Premises to view Developer’s Works

 

9.1.1

The Landlord shall permit the Tenant and its advisers (but limited to four or such greater number of people as is reasonable in the circumstances) at all reasonable times and at reasonable intervals, to enter onto the Premises (accompanied by a representative of the Landlord if the Landlord shall so require and whom the Landlord shall make available) to view the progress of the Developer’s Works or a Section or to prepare designs and tenders for the Tenant’s Works subject nevertheless to:

 

(A)

reasonable (and in any event not less than 48 hours’) notice being given to the Landlord and the Developer;

 

(B)

compliance with:

 

(1)

the proper and reasonable safety and site management requirements imposed by each of the Developer and the Construction Manager; and

 

(2)

any insurance requirements imposed by the insurers of the Developer’s Works;

 

(C)

the progress of the Developer’s Works not being materially impeded; and

 

(D)

any photographs taken by or on behalf of the Tenant not being provided or released to any third party other than arty of the Tenant’s advisers for the purposes of the Tenant’s Works or its employees in connection with clause 4 without the Landlord’s approval (which shall be at the Landlord’s discretion).

 

9.1.2

The Landlord shall procure that the Tenant is given not less than five (5) Working Days’ notice of any proposed testing and commissioning in respect of any element of the Building Services comprised within the Developer’s Works and installed within the Premises and shall permit the Tenant and its advisers (but limited to four) to attend any such testing or commissioning subject to compliance with the same conditions as are set out in clauses 9.1.1(B) and 9.1.1(D).

9.2

Progress meetings and updates

Not less frequently than once every month the Developer shall convene giving not less than five (5) Working Days’ notice to the Tenant of the date, time and place of a progress meeting relating to the Developer’s Works and the Tenant and other representatives of the Tenant (not exceeding four in number) shall be entitled to attend any such meeting and the Developer shall provide monthly progress updates to the Tenant.

9.3

Representations by Tenant

The Landlord and the Developer shall take proper account of (but shall not be bound by) any representations made by or on behalf of the Tenant in connection with the Developer’s Works and the progress thereof raised during such progress meetings and in connection with any testing or commissioning of Building Services witnessed by the Tenant but:

 

9.3.1

nothing in this clause 9.3 shall interfere in any way with the rights or obligations of the Developer under the Construction Management Agreement; and

 

9.3.2

any representations made by or on behalf of the Tenant shall be made in writing direct to the Landlord and the Developer within two Working Days after the relevant meeting or testing and commissioning as appropriate and shall not be made to the Construction Manager or any other party (except for the Verification Engineer) involved in the carrying out. testing, commissioning or completion of the Developer’s Works or any element of them.

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9.4

Licence to Tenant to use drawings etc

Insofar as the copyright to any drawing or any other intellectual property relevant to the Developer’s Works is owned by or licensed to the Landlord or the Developer, the Landlord or the Developer (as the case may be) has power to grant licence to use or reproduce the same the Landlord and the Developer hereby irrevocably grant to the Tenant and its Professional Team a non-exclusive licence to use and reproduce the same for the purposes set out in clause 9.5.

9.5

Restrictions on copyright to be observed

 

9.5.1

The Tenant shall, and shall use reasonable endeavours to procure that each member of the Tenants Professional Team shall, observe all restrictions on copyright and other intellectual property rights applicable to and treat as supplied in confidence all drawings, plans, specifications, cost information, contracts, documents and calculations supplied by the Landlord, the Developer, the Construction Manager or any member of the Professional Team in connection with or related to the Developer’s Works.

 

9.5.2

The Tenant shall not use or permit to be used any of the documentation referred to in clauses 9.4 and 9.5.1 otherwise than exclusively in connection with the planning and execution of the Tenant’s Works and any other purposes authorised or required under this agreement including but not limited to clause 4.

 

9.5.3

The Tenant shall indemnify the Landlord and the Developer against all claims, losses, damages, costs and expenses incurred by the Landlord and/or the Developer as a result of any breach by the Tenant of this clause 9.5.

10.

TENANT’S VARIATIONS

10.1

Request for Tenant’s Variations

The Tenant shall be entitled at any time prior to the date falling 3 months prior to the Target Access Date but not thereafter by written application to the Developer to request that the Developer incorporate a Tenant’s Variation in the Developer’s Works so far as they have an impact on the Premises or the Terrace Works in accordance with the provisions of this clause 10.

10.2

Scope of Tenant’s Variations

A Tenant’s Variation shall not include any fitting out works nor any other Tenant’s Works.

10.3

Developer’s ability to reject request for Tenant’s Variations

The Developer or the Landlord shall (subject to compliance with this clause 10) be entitled to approve or (acting reasonably) reject any request made by the Tenant to incorporate any Tenant’s Variation into the Developer’s Works, but, without limiting the foregoing, it shall be reasonable for the Developer or the Landlord to reject such a request where the Tenant’s Variation or its carrying out:

 

10.3.1

affects or might reasonably be expected to affect the structural integrity of the Developer’s Works or any other works the Developer is carrying out at the Building;

 

10.3.2

gives rise to or require changes to the quality, appearance or finish of the external envelope of the Developer’s Works or any other works the Developer is carrying out at the Building or might give rise or require any such change;

 

10.3.3

would, or in the Developer’s reasonable opinion might reasonably be expected to, cause any delay to any other works the Developer is carrying out at the Building;

 

10.3.4

could be incorporated into the Tenant’s Works in a reasonably economic and efficient manner;

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10.3.5

would involve to an unreasonable extent the dismantling, removal, alteration or demolition of Developer’s Works or any other works the Developer is carrying out at the Building in the course of construction or completed;

 

10.3.6

would involve the cancellation of any order already placed unless the Tenant agrees fully to indemnify the Developer in respect of such cancellation on terms reasonably required by the Developer;

 

10.3.7

would in the Landlord’s opinion result in a diminution of the market rental value of the Premises on review;

 

10.3.8

would prevent the Landlord or the Developer from complying with its obligations under this agreement (except for the Landlord’s obligation in clause 6.3); or

 

10.3.9

would not comply with the Planning Permission or any other Act if the Developer is required to undertake the Tenant’s Works as part of the Developer’s Works as relevant to the Developer’s Works.

10.4

Approval of Tenant’s Variations

If the Tenant shall make a request to the Developer to carry out any Tenant’s Variation, the Tenant shall:

 

10.4.1

if the Tenant’s Variation relates to the Specification, furnish the Developer with sufficient outline and concept information; or

 

10.4.2

otherwise, furnish the Landlord with sufficient information, including scaled architectural and engineering drawings and specifications showing the scope of the Tenant’s Variation,

in each case to enable the Developer to determine the extent and scope of the Tenant’s Variation, and the Developer shall be entitled to request the Tenant to provide further information as the Developer reasonably requires in order to enable it to make its determination.

10.5

Developer’s preparation of detailed design of the Tenant’s Variation

Within ten (10) Working Days following receipt of a request from the Tenant pursuant to clause 10.4.1 above (unless the complexity of the Tenant’s Variation is such that ten (10) Working Days is not reasonably considered achievable by the Developer in which case the Developer shall notify the Tenant within 3 Working Days of receipt of a request of an appropriate timefame), the Developer shall, at the Tenant’s request and cost, prepare scaled architectural and engineering drawings and specifications showing the full designed scope of the Tenant’s Variation.

10.6

Estimate of costs

As soon as reasonably practicable after the receipt of a request for any Tenant’s Variation, but not later than ten (10) Working Days following receipt of such request (unless the complexity of the Tenant’s Variation is such that ten (10) Working Days is not reasonably considered achievable by the Developer in which case the Developer shall notify the Tenant within 3 Working Days of receipt of a request of an appropriate timefame), the Developer shall provide to the Tenant a statement from the Cost Consultant setting out in respect of each Tenant’s Variation if more than one:

 

10.6.1

an estimate of the impact of incorporating each Tenant’s Variation on the Target Access Date; and

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10.6.2

an estimate of the additional costs and expenses likely to be incurred by the Developer or (as the case may be) any costs and expenses likely to be saved by reason of the modification of the Developer’s Works to include each Tenant’s Variation including:

 

(A)

all reasonable professional fees and disbursements arising from any request by the Tenant for each Tenant’s Variation (whether or not such request is ultimately implemented);

 

(B)

the cost of any consequential reprogramming or resequencing of any element of the Developer’s Works;

 

(C)

the cost of any abortive works, including the cost of cancellation of any order already placed; and

 

(D)

any other costs incurred or likely to be incurred by the Developer resulting from the integration of each Tenant’s Variation into the Developer’s Works.

10.7

Tenant’s decision

 

10.7.1

The Tenant shall give notice to the Developer within 10 Working Days after receiving the Cost Consultant’s statement pursuant to clause 10.5 either that it does not wish to proceed with any Tenant’s Variation or that it wishes to proceed with all or some only of the Tenant’s Variations (and if some only, which ones).

 

10.7.2

If the Tenant does not give any notice to the Developer pursuant to clause 10.7.1 it shall be deemed to have served notice that it does not wish to proceed with any Tenant’s Variation.

 

10.7.3

If the Tenant either serves a notice that it wishes to proceed with some only of the Tenant’s Variations or serves or is deemed to have served a notice that it does not wish to proceed with any Tenant’s Variation, the Tenant shall pay or reimburse to the Developer within 10 Working Days of demand (accompanied by evidence of expenditure incurred) the reasonable and proper abortive costs and fees of the Developer in relation to the consideration of the Tenant’s request and the provision of the statement pursuant to clause 10.5.

10.8

Costing of Tenant’s Variations

 

10.8.1

Subject to the Tenant having notified the Developer that it wishes to proceed with some or all of the Tenant’s Variations pursuant to clause 10.7.1 the Developer shall procure that the Cost Consultant prepares a revised estimate of the cost of implementing each Tenant’s Variation which shall:

 

(A)

use an “open book” basis together with overheads and profits at a rate of 4%;

 

(B)

incorporate a more detailed assessment of any additional fees and costs (including design fees, statutory fees or charges, any internal costs of the Developer or additional fees which it reasonably and properly incurs in preparing such revised estimate and in implementing each Tenant’s Variation (including applying for and obtaining any Requisite Permissions));

 

(C)

incorporate a more detailed assessment of any impact of incorporating each Tenant’s Variation on the programme for the Developer’s Works and of any delay to the Target Access Date and the financial implications to the Developer of any such impact and delay;

 

(D)

incorporate a more detailed assessment of the cost of reprogramming or resequencing any elements of the Developer’s Works as a result of implementing any Tenant’s Variation;

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(E)

incorporate a more detailed estimate of the cost of any abortive works, including the cost of cancellation of any order previously placed; and

 

(F)

incorporate any other costs incurred or likely to be incurred by the Developer resulting from the integration of each Tenant’s Variation into the Developer’s Works.

 

10.8.2

The Tenant shall give notice to the Developer within 10 Working Days of receiving the revised estimate pursuant to clause 10.8.1 whether it wishes to proceed with any Tenant’s Variation on the basis of the revised estimate and if it does not give such notice within 10 Working Days it shall be deemed to have decided not to proceed with the Tenant’s Variations and the provisions of clause 10.7.3 shall apply to any costs and fees incurred by the Developer in relation to the preparation of the revised estimate.

10.9

Developer to proceed with Tenant’s Variations

Subject to the Tenant having given notice to the Developer pursuant to clause 10.8 and subject to the Tenant having approved the cost of each Tenant’s Variation pursuant to clause 10.8 the Developer shall:

 

10.9.1

use reasonable endeavours to obtain at the Tenant’s sole cost any Requisite Permissions required for the relevant Tenant’s Variation; and

 

10.9.2

subject to having obtained all Requisite Permissions proceed diligently and expeditiously to implement each Tenant’s Variation and vary the Developer’s Works accordingly.

10.10

No suspension of Developer’s Works

The Developer shall not be required to delay, suspend or postpone any aspect of the Developer’s Works whilst any request for any Tenant’s Variation remains outstanding (including whilst the Tenant is considering the Developer’s estimate or revised estimate) but for the avoidance of doubt the Developer may, where the Developer considers it prudent to do so, choose to delay, suspend or postpone any aspect of the Developer’s Works in such circumstances and whether the Developer chooses to do so or not, the provisions of clauses 10.7.3 and 10.8.2 (as applicable) as to payment or reimbursement by the Tenant of the costs and fees incurred by the Developer shall apply.

10.11

Payment for Tenant’s Variations

 

10.11.1

The Tenant will pay to the Developer the aggregate costs and expenses reasonably and properly incurred or suffered by the Developer in implementing any Tenant’s Variation as notified by the Developer pursuant to clause 10.8, such payment to be paid by instalments within 10 Working Days after receipt of each and every certificate issued by the Cost Consultant specifying the sums expended in relation to each Tenant’s Variation up to the date specified in such certificate.

 

10.11.2

The parties agree and acknowledge that the payments made by the Tenant to the Developer pursuant to clause 10.11.1 above are consideration for standard rated supplies for VAT purposes made to the Tenant. The Parties therefore agree that the Tenant shall, in addition to the amounts payable under clause 10.11.1, pay amounts in respect of VAT in accordance with clause 31.2 below.

 

10.11.3

The Developer warrants as at the date of this agreement to the Tenant that it is registered for gross payment under the CIS and the CIS Regulations and undertakes to notify the Tenant forthwith in writing if at any time prior to the payment of the final instalment under clause 10.11.1 it should cease to be registered for gross payment under CIS and the CIS Regulations and the Tenant shall be entitled to make all such deductions and withholdings as may be required to be made by law under CIS and the CIS Regulations from payments due to the Developer in respect of Tenant’s Variations.

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10.12

Savings

Any cost savings achieved by the Developer or the Landlord (as the case may be) as a consequence of the implementation of any Tenant’s Variation (as determined by the Cost Consultant) shall be paid to the Tenant on the date the final Certificate of Sectional Completion is issued or as soon as practicable thereafter, once the final costs of the Developer’s Works including each Tenant’s Variation, have been settled with the Construction Manager.

10.13

Time of essence

Time shall be of the essence in relation to all dates and periods referred to in this clause 10.

11.

SECTIONAL COMPLETION

11.1

Tenant notice of inspection

The Developer shall use reasonable endeavours to procure that the Tenant is given not less than 10 Working Days’ notice, and in any event shall procure that the Tenant is given not less than five Working Days’ notice, of the Construction Manager’s intention to inspect any Section in anticipation of issuing each Certificate of Sectional Completion.

11.2

Joint inspection

 

11.2.1

The Tenant and its advisers (but limited to four) shall be entitled to accompany the Construction Manager on its inspection of the relevant Section prior to the issue of any Certificate of Sectional Completion at which time the Tenant may make representations to the Construction Manager initially orally and subsequently in writing (with a copy to the Landlord and the Developer) and (provided that they are made within 48 hours after the ending of the inspection in writing and that the Construction Manager’s discretion is not fettered) the Developer shall request the Construction Manager to have due regard to such representations.

 

11.2.2

The Tenant acknowledges that any representations it makes pursuant to clause 11.2.1 shall be made initially only to the Construction Manager (and subsequently in writing with a copy to the Landlord and the Developer) and not to any other person involved in the execution of the Developer’s Works.

 

11.2.3

The Tenant also acknowledges that the Construction Manager’s independence and discretion in issuing any Certificate of Sectional Completion shall not be fettered (subject only to clause 10.7) and that such statement may be issued subject to any defects, shrinkages or other faults set out in the Snagging List.

11.3

Certificate of Sectional Completion not issued

If following an inspection pursuant to clause 11.2.1 the relevant Certificate of Sectional Completion is not issued, the Developer shall procure that the Tenant is given not less than two Working Days’ notice of the Construction Manager’s intention to re-inspect the relevant Section with a view to the issue of the Certificate of Sectional Completion and the provisions of clause 11.2 shall apply in relation to any re-inspection and subsequent issue of the Certificate of Sectional Completion.

11.4

Copy of Certificate of Sectional Completion

The Developer shall procure that a copy of any Certificate of Sectional Completion (including any Snagging List) is delivered to the Tenant within five (5) Working Days of its issue (and shall use reasonable endeavours to procure it earlier if possible).

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11.5

Certificate of Sectional Completion final and binding

Each Certificate of Sectional Completion shall be final and binding on the parties as to the date on which Sectional Completion of the relevant Section was achieved (save in case of manifest error).

11.6

Condition at Sectional Completion

 

11.6.1

The Developer shall procure that at the Date of Sectional Completion the relevant part of the Premises shall be left:

 

(A)

in a clean and tidy condition;

 

(B)

cleared of all unused building materials and plant and equipment used in the Developer’s Works for the Section in question;

 

(C)

capable of being made secure from the rest of the Building; and

 

(D)

with means of escape signage complete.

 

11.6.2

The Developer shall procure that as at the Date of Sectional Completion of Section One:

 

(A)

the Delivery Areas and routes of access thereto from and to the Premises can be properly and safely accessed by the Tenant and properly used in connection with the carrying out of the Tenant’s Works in accordance with the Fit-Out Guide; and

 

(B)

the Roof Plant Areas together with connecting risers can be properly and safely accessed by the Tenant and properly used for the installation of the Tenant’s plant together with the installation of conduits in the connecting risers.

11.7

Information to be supplied to the Tenant

 

11.7.1

Upon the Date of Sectional Completion for each Section, the Developer shall deliver to the Tenant one hard copy and one electronic copy of the following documents (where applicable to that Section):

 

(A)

the latest draft versions of the as built/record drawings, test and commissioning records, certificates, test data and operating and maintenance manuals for the Developer’s Works;

 

(B)

the latest draft version of the Health and Safety File for the Developer’s Works required by and compliant with the CDM Regulations;

 

(C)

available commissioning data for the Developer’s Works;

 

(D)

copies of the Third Party Rights Notices referred to in clause 13.4;

 

(E)

copy of the commissioning activity schedule from the Verification Engineer addressed to the Landlord and the Tenant confirming that the Building Services in relation to the Developer’s Works are functioning in accordance with the Specification pursuant to the final commissioning and testing procedure set out in clause 11.8.2 to enable commencement of the Tenant’s Works;

 

(F)

email confirmation from the District Surveyor confirming the Developer’s Works are appropriately compliant with the building regulations to enable commencement of the Tenant’s Works;

 

(G)

measurement report prepared pursuant to clause 16.1.3 of this Agreement;

 

(H)

meter readings;

 

(I)

evidence of the discharge or compliance with the relevant conditions attached to the Planning Permission and / or the Listed Building Consent which are required to be complied with before the Tenant can occupy and use the Premises and the Office Common Parts,

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PROVIDED THAT the Tenant may waive the Landlord’s obligation to provide any of the information referred to in clause 11.7.1.

 

11.7.2

Keys to the Premises shall be delivered to the Tenant in accordance with the Fit Out Guide.

 

11.7.3

The Developer shall procure the production to the Tenant of the final versions of the documentation referred to in:

 

(A)

clause 11.7.1(C) within three Working Days of the Date of Sectional Completion of the relevant Section:

 

(B)

clause 11.7.1(F) within five Working Days of the Date of Sectional Completion of the relevant Section; and

 

(C)

clause 11.7.1(A) and 11.7.1(B) within eight weeks of the Date of Sectional Completion of each Section;

(where such documentation is relevant to such Section) (either as one copy or an electronic copy).

 

11.7.4

As soon as practicable after they are obtained by the Developer, the Developer shall procure the production to the Tenant of such of the Requisite Permissions as are relevant to the Developer’s Works.

11.8

Verification Engineer

 

11.8.1

The Developer and the Tenant shall jointly appoint the Verification Engineer (with the Developer and the Tenant each being responsible for a fair and reasonable proportion of the cost of the Verification Engineer) to document, witness and validate the final commissioning and performance testing process in accordance with the specifications relating thereto for such of the Building Services the supply and fixing of which is included in the Developer’s Works and the Tenant’s Works respectively both separately and together and the Verification Engineer shall be appointed on terms substantially in accordance with the draft appointment at Annexure V (with such amendments as may be agreed by the Developer and the Tenant both acting reasonably)

 

11.8.2

The Developer and the Tenant shall procure that the Verification Engineer is present and that the other is given not less than five (5) Working Days’ notice of and that each of them and their representatives are entitled to attend the proposed commencement of any procedures for documenting, witnessing and validating the final commissioning of and performance testing process of any relevant plant and machinery.

 

11.8.3

The Developer and the Tenant shall co-operate so as to procure the efficient testing and commissioning of the plant and machinery relating to each of the Developer’s Works and the Tenant’s Works and they shall each provide to the other all relevant commissioning and testing data and results.

 

11.8.4

Where any of the Building Services (the supply or fixing of which is included in the Developer’s Works) need to be commissioned or to be tested or balanced after the Tenant’s Works and occupation of the Premises or any part thereof the Landlord shall procure such commissioning, testing and balancing and the Landlord and the Tenant shall arrange for the Verification Engineer to be present for the commissioning, testing and balancing as part of the scope of services to be provided by the Verification Engineer.

 

11.8.5

The Developer shall be responsible for procuring the carrying out of any works that are required to be done in order to enable the Building Services to be commissioned as part of the relevant Developer’s Works and the Tenant shall be responsible for procuring the carrying out of any works that are required to be done in order to enable the mechanical or electrical machinery or installations forming part of the Tenant’s Works to be commissioned. To the extent however that any works connected with or arising from the

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Tenant’s Works give rise to a need for commissioning, re-balancing, alteration of or adjustment to the Building Systems or other items which would otherwise be the Developer’s responsibility, the Developer shall at the Tenant’s cost procure the carrying out of any necessary works.

11.9

Simultaneous completion of Sections

If the Developer anticipates that practical completion of both Sections will occur simultaneously, the Developer shall be entitled to instruct the Construction Manager to conduct one inspection in respect of such Sections and the provisions of clauses 11.1,11.2 and 11.3 shall apply accordingly.

12.

DEFECTS

12.1

Making good initial Defects

The Developer shall, as soon as reasonably practicable and in any event prior to the expiry of the relevant Defects Period (provided that the Developer shall use reasonable endeavours to complete the same within 12 weeks of the Date of Sectional Completion or, in case of emergency, the Developer shall complete the same as soon as the situation requires), remedy or cause to be remedied those defects, shrinkages or other faults specified in any Snagging List which are in breach of the appointments of the Professional Team or the relevant Trade Contracts. The Developer shall use all commercially prudent and reasonable endeavours to procure that as little disturbance, damage and interference to the Tenant’s Works and/or the Tenant’s use and occupation of the Premises, is caused by the remedying of such defects, shrinkages or other faults and the Developer shall remedy any damage caused to the Premises, the Tenant’s Works and/or the Tenant’s belongings to the reasonable satisfaction of the Tenant.

12.2

Subsequent Defects

The Tenant shall be entitled from time to time during the period commencing on the date on which a Defects Period commences and ending 10 Working Days prior to the expiry of the relevant Defects Period to notify the Landlord of any defects, shrinkages or other faults which have appeared in the Developer’s Works.

12.3

Preparation of schedule of Defects

Without prejudice to clause 12.1 the Developer shall procure that the Construction Manager prepares a schedule in accordance with the Construction Management Agreement listing any defects, shrinkages or other faults (including any properly notified under clause 12.2 which have not been remedied) appearing in the Developer’s Works or any part thereof and supply a copy thereof to the Tenant and the Tenant’s Surveyors not later than 20 Working Days before the expiry of the Defects Period and the Tenant shall procure that not later than ten Working Days after the receipt of such schedule from the Construction Manager (as to which time shall be of the essence) the Tenant’s Surveyors shall notify to the Construction Manager any other defects, shrinkages or faults which they have observed and (provided that the Construction Manager’s discretion is not fettered) the Developer shall procure that the Construction Manager shall have due regard to such list and add them to the schedule to be delivered to the Construction Manager for the purposes of procuring to be made good pursuant to and in accordance with the terms of the Construction Management Agreement.

12.4

Making good Defects

 

12.4.1

The Developer shall within a reasonable time procure that all defects, shrinkages or other faults properly notified in accordance with clause 12.2 or properly specified in any schedule delivered to the Construction Manager in accordance with clause 12.3 are caused to be remedied by the Trade Contractors in accordance with the terms of the Trade Contracts, subject to the Tenant complying with clause 12.5.

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12.4.2

If the Trade Contractors have not carried out the remedial works required by and in accordance with clause 12.4.1 the Developer shall carry out such works or arrange for them to be carried out at no cost to the Tenant within a reasonable period of time.

12.5

Access by Landlord to make good Defects

 

12.5.1

If the Tenant is in occupation of the Premises or the relevant part of them the Tenant shall permit the Landlord, the Developer, the Construction Manager, the Trade Contractors and all persons authorised by them and on having been given prior reasonable written notice to have access to such parts of the Premises as are necessary in order to allow the Landlord and the Developer to comply with the obligations under this clause 12 and the Tenant shall (at the Developer’s expense where reasonably and properly incurred by the Tenant) remove any trade fittings, wall finishes, carpets, property, stock and effects and other items necessary to expose areas of the Developer’s Works to enable the execution of remedial works but the Landlord shall procure that each such person so entering shall:

 

(A)

use all reasonable and commercially prudent endeavours to cause the minimum amount of interference and disruption as is reasonably practicable to the carrying out of the Tenant’s Works or any other works by the Tenant in the Premises and to the Tenant’s business;

 

(B)

comply with any reasonable directions and security precautions required by the Tenant so long as these shall not prevent the carrying out of the relevant works or inspection;

 

(C)

be accompanied at all times by a representative of the Tenant (so long as the Tenant provides one); and

 

(D)

make good as soon as reasonably practicable to the reasonable satisfaction of the Tenant any loss, damage or injury thereby caused to the Premises or the Tenant’s Works or the Tenant’s stock and chattels.

 

12.5.2

For so long as the Construction Manager, all persons authorised by him (and the Trade Contractors) shall require access to the Premises to make good defects during the execution of the Tenant’s Works the Landlord shall co-ordinate the remedying of defects with the execution of the Tenant’s Works and the Landlord and the Tenant shall procure that there shall be full liaison between each other’s respective contractors and workmen so as to minimise the length of any delays and the possibility of interference with each other’s works.

12.6

Limitation of Landlord’s and the Developer’s liability

 

12.6.1

Subject to clause 12.6.3 the Landlord and the Developer shall cease to be liable to the Tenant in respect of its obligations in clauses 5 to 10 (inclusive) and this clause 12 in respect of each Section after the expiry of two years from the Date of Sectional Completion save in respect of any claims for breach of such obligations notified by the Tenant to the Landlord and the Developer prior to the expiry of such period, provided such claims are not trivial or vexatious.

 

12.6.2

To the extent permitted by law and subject to clause 12.6.3 the Landlord and the Developer shall have no obligations or liability to the Tenant and the Tenant shall have no remedies in respect of the Developer’s Works other than those expressly set out in this agreement or the Leases.

 

12.6.3

Clause 12.6.2 shall not exclude or limit the Landlord’s and the Developer’s liability for death or personal injury caused by its negligence.

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13.

PROFESSIONAL TEAM APPOINTMENTS, CONSTRUCTION MANAGEMENT AGREEMENT, TRADE CONTRACTS AND THIRD PARTY RIGHTS

13.1

Professional Team appointments

The Developer has prior to the date of this agreement entered into the Construction Management Agreement and Professional Team Appointments (save for the Verification Engineer’s appointment) annexed at Annexure T.

13.2

Alterations to Professional Team appointments and the Construction Management Agreement

The Developer shall not without the Tenant's approval (such approval not to be unreasonably withheld or delayed) alter the terms and conditions of:

 

13.2.1

any Professional Team Appointment; or

 

13.2.2

the Construction Management Agreement,

in each case to the extent any such alteration adversely affects the Tenant's rights under its Third Party Rights against the relevant Professional Team member or the Construction Manager (as the case may be) or the Landlord and/or the Developer's obligations under clause 12.

13.3

Trade Contracts

The Developer shall:

 

13.3.1

enter into the Trade Contracts with the Trade Contractors prior to the date of issue of the Certificate of Sectional Completion of Section One.

 

13.3.2

not agree any amendments to the form of each final form Trade Contract which would adversely affect the Tenant's Third Party Rights in relation to such Trade Contract save where such adverse effect would be negligible.

13.4

Third Party Rights

 

13.4.1

The Developer shall at its own expense procure the vesting in the Tenant of Third Party Rights from the Construction Manager, each member of the Design Team, the Cost Consultant and the Trade Contractors prior to the date of issue of the Certificate of Sectional Completion of Section One.

 

13.4.2

Notwithstanding the preceding provisions of this clause 13.4, the Developer shall be relieved of its obligation to procure the vesting of Third Party Rights in the case of any proposed party which has become insolvent prior to the due date for vesting of the relevant Third Party Right.

13.5

Substitute appointment of Construction Manager, Professional Team and Trade Contractor

 

13.5.1

If and to the extent that it is necessary to appoint a substitute to:

 

(A)

the Construction Manager;

 

(B)

any member of the Professional Team;

 

(C)

any Trade Contractor,

then the Developer shall give the Tenant not less than 10 Working Days' notice of the identity of such substitute.

 

13.5.2

The Developer shall procure that any substitute Construction Manager or member of the Professional Team or (where the Trade Contract requires the Trade Contractor to maintain professional indemnity insurance) Trade Contractor appointed maintains professional indemnity insurance in an amount not less than an amount which the Construction Manager or member of the Professional Team or Trade Contractor which is being replaced was required to maintain pursuant to the Construction Management Agreement or relevant Professional Team Appointment or Trade Contract.

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13.5.3

If a substitute Construction Manager or Professional Team member or Trade Contractor is appointed pursuant to clause 13.5.1 then the Developer shall at its own cost procure the vesting in the Tenant of a substitute Third Party Right from the substitute Construction Manager or Professional Team member or Trade Contractor in terms no less onerous than the third party right granted to the Tenant by the Construction Manager or Professional Team member or Trade Contractor (as the case may be) which is being replaced as soon as reasonably practicable after the date of the substitution and in any event before the date of completion of the Leases.

13.6

Waiver of rights

The Developer shall not without the Tenant’s approval (such approval not to be unreasonably withheld or delayed) waive or compromise any claim or any of its rights arising under the terms of the Construction Management Agreement or the Professional Team Appointment of any member of the Professional Team which would materially adversely affect the Tenant’s rights under the relevant Third Party Right.

14.

TENANT'S WORKS

14.1

Approval of detailed works and Method Statement

 

14.1.1

The Tenant shall as soon as available submit in writing to the Landlord for its approval (such approval not to be unreasonably withheld or delayed) designs to RIBA Stage 3 or equivalent of its proposals for the Tenant's Works and a draft of the Method Statement (and in considering whether or not to grant its approval the Landlord shall not be deemed to be unreasonably withholding its approval if the Tenant's Works comprise alterations which the Landlord would be entitled to refuse to approve under the terms of a Lease).

 

14.1.2

The Method Statement shall contain the following information:

 

(A)

details of contact names for the consultants and contractors proposed for the design and carrying out of the Tenant's Works;

 

(B)

proposals for the regular liaison, co-ordination and co-operation between the Construction Manager and the Tenant's contractor and Tenant's Professional Team;

 

(C)

details of the order and timing proposed for the carrying out of each part of the Tenant's Works including proposals for deliveries to the Premises of materials and equipment for incorporation or use in the Tenant's Works.

 

14.1.3

Notwithstanding approval of the Method Statement if it transpires that the method of carrying out the Tenant’s Works is having an adverse effect on the completion of any of the Developer's Works the Landlord may require such amendments or variation to the Method Statement as are reasonably necessary to mitigate such effect.

14.2

Access

The Tenant shall be permitted access to the Premises, the Office Common Parts and other parts of the Building permitted by the Fit-Out Guide to carry out the Tenant's Works after the later of the Date of Permitted Entry and the date on which the Landlord approves both the Tenant’s Works and the Method Statement.

14.3

Carrying out of Tenant's Works

If the Tenant shall carry out any Tenant's Works, the Tenant shall forthwith following the Date of Permitted Entry procure that such Tenant's Works shall be commenced, carried out and completed in accordance with the Licence for Alterations as if it had been granted as at the date the Tenant's Works are carried out.

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14.4

Signage

The Landlord shall:

 

14.4.1

from the date of this agreement and whilst the Landlord has retained hoarding around the Building, permit the Tenant to erect and maintain signage on such hoarding; and

 

14.4.2

during the period of the Tenant's Works, permit the Tenant to erect and maintain signage on the interior of the windows of the Premises to be visible from the exterior of the Building,

announcing the Tenant's new London headquarters at the Premises, subject to the Tenant first obtaining (i) all permissions, consents, approvals, licences, orders, certificates and agreements required from any competent authority (or proper and valid waivers made by the relevant competent authority) necessary to erect and retain such signage and (ii) the Landlord's approval of the size, location and nature of the signage (such approval not to be unreasonably withheld or delayed).

14.5

Co-ordination with Developer’s Works

The Tenant shall during the carrying out of the Tenant's Works:

 

14.5.1

take such precautions at all times and at its own cost as the Landlord, the Developer and their insurers or any of them may reasonably require for the protection of the Premises and the Developer's Works from the effect of the Tenant's Works;

 

14.5.2

use only the contractors' entrances, lifts, stairways, routes, exits and other areas within the Building as shall be reasonably designated from time to time by or on behalf of the Landlord who shall be obliged to make or procure such designations;

 

14.5.3

insure at the Tenant's own cost the public liability of its fitting-out contractors;

 

14.5.4

use reasonable endeavours not to cause any delay to or interference with the Developer's Works nor give any instruction to the contractors engaged on them and shall make good all or any damage to the Building caused by the carrying out of the Tenant's Works;

 

14.5.5

comply with the construction phase health and safety plan as produced and managed by the Construction Manager and as notified to the Tenant.

14.6

Co-ordination with Tenant's Works

The Developer shall during the carrying out of the Developer's Works where there is any overlap with the Tenant's Works:

 

14.6.1

take such reasonable precautions at all times and at its own cost as the Tenant, and the Tenant’s Professional Team, their insurers or any of them may reasonably require for the protection of the Premises and the Tenant’s Works from the effect of the Developer's Works; and

 

14.6.2

use reasonable endeavours not to cause any delay to or interference with the Tenant's Works nor give any instruction to the contractors engaged on them (save in the case of an emergency) and shall make good all or any damage to the Tenant's property and the Premises caused by the carrying out of the Developer's Works.

14.7

CDM Regulations

In respect of the Tenant's Works, the Tenant agrees to:

 

14.7.1

be the only client for the purposes of the CDM Regulations;

 

14.7.2

comply with its obligations as a client for the purposes of the CDM Regulations; and

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14.7.3

appoint a principal designer and a principal contractor in respect of the Tenant's Works and take all reasonable steps to ensure that each is provided with the relevant information to enable them to perform their duties under the CDM Regulations.

14.8

Health and Safety File

 

14.8.1

As soon as reasonably practicable after practical completion of the Tenant's Works and in any event within two months of practical completion of the Tenant's Works, the Tenant shall at its own cost supply the Landlord with a complete set of “as-built” scale drawings and the Health and Safety File for the Tenant's Works.

 

14.8.2

The Tenant shall use reasonable endeavours to ensure that there shall be granted to the Landlord a royalty-free and irrevocable non-exclusive licence to use and copy any information and documents or other materials comprised In the Health and Safety File for the Tenant's Works for any purpose connected with the Premises.

14.9

Fitting-Out Contribution

 

14.9.1

On completion of the Leases the Landlord shall pay to the Tenant the Fitting-Out Contribution, receipt of which the Tenant shall acknowledge in writing, as an inducement for the Tenant to execute and enter into the Leases.

 

14.9.2

The Fitting-Out Contribution shall comprise:

 

(A)

£25 per square metre (exclusive of VAT) of net internal area of the Premises in respect of carpet allowances; and

 

(B)

£75 per 10 square metres (exclusive of VAT) of net internal area of the Premises in respect of floor boxes; and

 

(C)

£100,000 (exclusive of VAT) in respect of an internal staircase between the 3rd, 4th and, if the Tenant so requires, the 5th floors of the Premises.

 

14.9.3

The Landlord and the Tenant consider that payment of the Fitting-Out Contribution is exempt from the application of the CIS under regulation 20 of the CIS Regulations but if and to the extent that payment of the Fitting-Out Contribution is not so exempt or the CIS applies to any other sum payable by the Landlord under this agreement, the Landlord and the Tenant agree to operate the CIS in accordance with the CIS Regulations. In particular the Landlord shall be entitled to make the required statutory deduction from any payment to the Tenant (including for the avoidance of doubt, any sum payable under this clause and clauses 4.2 and 18.11) in accordance with the CIS Regulations provided that the Landlord shall prior to the making of any such payment notify the Tenant in writing if the Landlord considers that the CIS will apply to the relevant payment or sum in which case the Landlord shall delay such payment (at the Tenant's request) for such time as is reasonable for the Tenant to obtain a CIS registration such that the relevant payment or sum is subject to a nil or reduced statutory deduction under the CIS Regulations.

14.10

Licence for Alterations

As soon as reasonably practicable (and in any event within two months of practical completion of the Tenant's Works) the Landlord, the Tenant and the Tenant's Guarantor shall execute and enter into the Licence for Alterations. The Landlord shall procure that its solicitors prepare the engrossments of such licence and the Tenant shall at its cost supply three complete sets of plans, specifications and other requisite information to the Landlord’s solicitors for such purpose.

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14.11

Tenant’s Professional Team

 

14.11.1

The Tenant as soon as practicable after the date of this agreement shall engage the Tenant’s Professional Team in relation to the Tenant’s Works on appointments and/or construction contracts providing for Warranties in favour of the Landlord. The appointments and/or construction contracts including the Warranties shall be in market standard form. The Tenant shall only be obliged to seek the Landlord’s approval (not to be unreasonably withheld or delayed) of the final form of such appointment and/or construction contracts and/or Warranties where such appointment and/or construction contracts and/or Warranties include any limitation or exclusion of the liability of the relevant member of the Tenant's Professional Team. The Tenant will provide the Landlord with a certified copy of the construction contracts and the appointments in relation to the Tenant's Works within ten days of their execution.

 

14.11.2

The Tenant shall procure that any member of the Tenant's Professional Team engaged by it to provide services and/or undertake works in connection with the Tenant's Works shall provide the Warranties properly executed in favour of the Landlord within ten days of their engagement.

 

14.11.3

If the Tenant engages any additional new or substituted member of the Tenant’s Professional Team in relation to the Tenant’s Works the terms of clause 14.11.1 shall apply to the appointments and/or construction contracts.

 

14.11.4

The Tenant shall not without the prior written consent of the Landlord (not to be unreasonably withheld or delayed) agree to vary any provision of any of the construction contracts and/or any of the appointments of the Tenant's Professional Team which would adversely affect the Landlord's rights in relation to the Warranty granted in relation to such construction contract and/or appointment.

15.

OCCUPATION

With effect from the Date of Permitted Entry and until the grant of the Leases:

15.1

this agreement shall not operate at law or in equity as a demise of the Premises and (whether or not it is in occupation of any part of the Premises) the Tenant shall pay the Landlord immediately after and with effect from the Date of Permitted Entry a licence fee equivalent in all respects (relating to amount and the timing, manner, method and apportionment of payment) to the several rents expressed to be payable from time to time in the Leases together with VAT thereon as if the Lease(s) relevant to a particular part of the Premises had actually been granted for a term commencing on the Date of Permitted Entry but the Tenant shall not be obliged to pay a licence fee equivalent to the Principal Rent for any period prior to the Rent Commencement Date and on the grant of the relevant Lease any licence fees paid by the Tenant in respect of any period following its grant shall be treated by the Landlord as a discharge of the relevant rents reserved by and due under such Lease in respect of the same period;

15.2

the Tenant shall be responsible for all rates and outgoings in respect of the Premises;

15.3

the parties shall perform and observe all the covenants and conditions on their respective parts to be contained in the Leases so far as the same may be applicable to a relationship of licensor and licensee;

15.4

this agreement shall not operate as a demise nor confer any proprietary right in the Premises (other than one to occupy as a licensee) on the Tenant.

16.

MEASUREMENT

16.1

Measured Area

 

16.1.1

As soon as reasonably possible after the Developer's Works have reached such a stage of construction as to make possible the measurement of the Premises the Landlord shall instruct the Independent Measurement Surveyor to measure the Measured Area of the Premises and the Landlord shall give at least 10 Working Days' notice to the Tenant of the date of such measurement inspection.

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16.1.2

The Landlord will procure that the Tenant and its advisors shall be entitled to accompany the Landlord and the Independent Measurement Surveyor on any inspection of the Premises carried out by the Independent Measurement Surveyor and both the Landlord and the Tenant shall be permitted to make reasonable representations (at the time or as soon as reasonably practicable after such inspection) to the Independent Measurement Surveyor (and at the same time as the representations are being made a copy shall be supplied to the other party) in connection with the measurement of the Premises but the Independent Measurement Surveyor shall not be bound by the same.

 

16.1.3

The Landlord shall procure the delivery to the Tenant within ten Working Days of such inspection of a report from the Independent Measurement Surveyor addressed to the Tenant confirming the Measured Area of the Premises.

 

16.1.4

The Independent Measurement Surveyor's determination of the Measured Area of the Premises shall be final and binding on the parties (save in the case of manifest error).

16.2

Duty of care

The Landlord shall procure that the Independent Measurement Surveyor provides the Duty of Care Letter addressed to the Tenant and the Guarantor prior to the date of completion of the Leases.

16.3

Adjustment of Principal Rent following measurement of Premises

If following measurement of each of the Premises pursuant to clause 16.1 the Measured Area shall be higher than or lower than that shown on the Measurement Plans (or such other target Measured Area as a result of a variation of the Developer's Works pursuant to clause 8 or otherwise agreed between the Landlord and the Tenant) the Principal Rent shall be increased to or decreased to (as the case may be) a sum equal to, in respect of the Third Floor Premises, the Fourth Floor Premises and (subject to clause 17 and Schedule 1) the Fifth Floor Premises or Part Fifth Floor Premises, the sum of £56.50 per square foot multiplied by the Measured Area but the Principal Rent shall not in any event exceed 103% of the amount that would be produced by multiplying £56.50 by the area in square feet shown on the Measurement Plans (or such other target Measured Area as a result of a variation of the Developer's Works pursuant to clause 8 or otherwise agreed between the Landlord and the Tenant) in respect of the applicable Premises.

16.4

Option to terminate

If the total Measured Area of the Premises calculated pursuant to clause 16.1 is less than 95% of the total target area shown on the Measurement Plans (or such other target Measured Area as agreed pursuant to a variation of the Developer's Works, a Tenant's Variation or otherwise agreed between the Landlord and the Tenant), the Tenant may serve notice upon the Landlord to terminate this Agreement within one month of the date of the provision of the measurement report pursuant to clause 16.1.3 and this Agreement shall terminate upon the expiry of such notice save for any antecedent breach by either party of the terms of this Agreement.

17

OPTIONS

The Landlord and the Tenant shall each comply with their respective obligations under Schedule 1.

18.

LEASE GRANT

18.1

Engrossment of Leases

The Landlord's solicitors shall prepare the engrossment of each Lease and counterparts of them.

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18.2

Completion of Leases

The Tenant and (in consideration of the Landlord having entered into this agreement at the Tenant's Guarantor's request) the Tenant's Guarantor shall execute and deliver the counterparts and the Landlord shall execute and grant the Leases on the tenth Working Day next after the Date of Sectional Completion of Section One.

18.3

Legal opinions

On the date of completion of the Leases the Landlord shall provide the Tenant with a signed and dated copy of the Landlord Legal Opinion and the Tenant's Guarantor shall provide the Landlord with a signed and dated copy of the Tenant's Guarantor Legal Opinion.

18.4

Engrossment of side letters

The Landlord's solicitors shall prepare the engrossments of the Reception Desk Side Letter and Terrace Side Letter and counterparts of them.

18.5

Completion of side letters

The Tenant and (in consideration of the Landlord having entered into this agreement at the Tenant's Guarantor’s request) the Tenant's Guarantor shall execute and deliver counterparts and the Landlord shall execute and deliver the Reception Desk Side Letter and the Terrace Side Letter on the tenth Working Day next after the Date of Sectional Completion of Section One.

18.6

Terms of Leases

The following provisions shall apply for the purposes of and in relation to the grant of the Leases:

 

18.6.1

the Contractual Term shall be computed from the Term Commencement Date;

 

18.6.2

the first Review Date shall be the fifth anniversary of the Term Commencement Date and subsequent review dates shall be at each fifth anniversary of that date;

 

18.6.3

the Principal Rent shall be due and commence to be payable on the Rent Commencement Date; and

 

18.6.4

the rent secondly reserved in each Lease and the Service Charge shall be due and commence to be payable on the date of grant of the relevant Lease.

18.7

Reception Desk Side Letter

 

18.7.1

If required by the Tenant, the Landlord will provide a receptionist for the Reception Desk on terms agreed by the Landlord and the Tenant (acting reasonably).

 

18.7.2

If the Landlord and the Tenant agree that the Tenant will staff the Reception Desk with its own employee(s), the Reception Desk Side Letter will be amended accordingly to give effect to such arrangement.

 

18.7.3

Following the decision by the Tenant of its desired location of the Reception Desk (or in default of the Landlord's choice of location) pursuant to clause 5.2 the relevant plan(s) shall be appended to the Reception Desk Side Letter.

18.8

Tenant's plant

The Landlord and the Tenant agree that the Tenant shall be entitled to a pro-rata allocation of the red and blue Roof Plant Areas along with tenant riser space within the Building, taking into account the intended location of the Tenant's services and use of the Premises. The final locations of the allocated Roof Plant Areas shall be agreed by the end of March 2018 and Schedule 1 Part 1 of the Leases shall be updated accordingly.

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18.9

Registration of Leases

Where the Leases when granted are registrable at the Land Registry pursuant to sections 4 or 28 of the Land Registration Act 2002 (as appropriate) the Tenant will:-

 

18.9.1

subject to receipt by the Tenant of the Leases executed by the Landlord, apply to register the Leases as soon as reasonably practicable but in any event within six weeks of grant; and

 

18.9.2

within 10 Working Days of completion of the registrations give notice thereof together with a copy of the official copies and title plans of the entries in all registered titles affected by such registration to the Landlord's solicitors.

18.10

Cancellation of Land Registry notice

Following completion of the Leases the Tenant shall promptly cancel or procure the cancellation of any notice or other entry registered at the Land Registry relating to this agreement and provide evidence to the Landlord of such cancellation.

18.11

Rent free contribution

On completion of the Leases the Landlord shall pay to the Tenant a sum equivalent to 12 months Principal Rent payable in respect of the Premises (exclusive of VAT (if any)), receipt of which the Tenant shall acknowledge in writing, as an inducement for the Tenant to execute and enter into the Leases.

18.12

Restrictions on title

Prior to completion of the Leases, the Landlord shall provide to the Tenant:

 

18.12.1

a written consent from a party who at the time of the grant of the Leases has a restriction on Land Registry title number NGL770398 for which consent is needed to register the Leases; and

 

18.12.2

a written certificate from the solicitor acting for the Landlord at the time of completion of the Leases certifying (where required) that the provisions of each clause from each document referred to In the restrictions registered (now or in the future) on title number NGL770398 have been complied with or that they do not apply to the grant of the Leases, such certificate(s) to be in a form complying with the terms of the relevant restriction,

and the Landlord shall use all reasonable endeavours to assist the Tenant in dealing with any Land Registry requisitions relating to the Tenant's registration of the Leases arising from the Landlord's title.

19.

SECOND FLOOR OPTION

19.1

Engrossment of Call Option Deed

The Landlord's solicitors shall prepare the engrossment of the Call Option Deed and counterpart of it.

19.2

Completion of Call Option Deed

The Tenant and (in consideration of the Landlord having entered into this agreement at the Tenant's Guarantor's request) the Tenant's Guarantor shall execute and deliver the counterpart and the Landlord shall execute and deliver the Call Option Deed on the tenth Working Day next after the Date of Sectional Completion of Section One.

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20.

LOCAL LAND CHARGES ETC.

20.1

The Leases will be granted subject to:

 

20.1.1

all local land charges whether registered or not before or after the date of this agreement and all matters capable of registration as local land charges whether or not actually so registered;

 

20.1.2

all notices, orders, resolutions, restrictions, agreements, directions and proposals therefor made by any local or other competent authority before or after the date of this agreement;

20.1.3

 

(A)

any matters which are unregistered interests which override registered dispositions under Schedule 3 to the Land Registration Act 2002; and

 

(B)

such unregistered interests as may affect the Premises to the extent and so long as they are preserved by the transitional provisions of Schedule 12 of the Land Registration Act 2002; and

 

20.1.4

any matters contained or referred to in the entries or records made in the registers of title number NGL770398 maintained by Land Registry as at 6 October 2017 timed at 12:10:07 except the registered charge noted under entry 9 of the charges register of that title number;

 

20.1.5

all matters contained in or referred to in the fourth schedule to each Lease.

21.

CIL INDEMNITY

The Landlord shall be liable for any CIL Requirement and shall keep the Tenant indemnified against all liabilities, proceedings, costs, claims, demands and expenses incurred or arising out of any CIL Requirement save in respect of any CIL Requirement Which relates to development (other than the Tenant's Works) carried out by or within the control of the Tenant.

22.

TITLE

The Landlord's title to grant the Leases having been deduced the Tenant shall not raise any objection to that title and the Landlord shall not be required to reply to any requisitions on that title, other than in respect of new encumbrances revealed by the Tenant's pre-completion searches and save that the Landlord shall comply with clause 18.12.

23.

GROUND FLOOR RETAIL AND LEISURE

23.1

Restriction on letting of retail units

The Landlord agrees not to let or enter into an agreement for lease or permit any right of occupancy or permit any change of use of the Retail Units where the use is a Prohibited Use and to include within any lease or licence of a Retail Unit an express prohibition on a Prohibited Use.

23.2

Ground and basement area

 

23.2.1

The Landlord shall market the Cinema Unit with the intention of letting such area to a boutique cinema operator. The Landlord shall use reasonable endeavours to conclude a letting to such an operator but shall not be obliged to conclude a letting on terms which are materially off market (at the Landlord's reasonable discretion) nor shall the Landlord be obliged to let the Cinema Unit to an operator of mainstream multiplex cinemas.

 

23.2.2

The Landlord shall, at the Tenant’s request, facilitate an introduction between the Tenant and the eventual lessee of the Cinema Unit.

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23.2.3

The Landlord shall use all reasonable endeavours to ensure that the Cinema Unit is fitted out with proper sound-proofing and acoustic works to ensure that no actionable nuisance is caused to the Tenant's Premises by reason of noise penetration.

 

23.2.4

The obligations in this clause 23.2 shall only apply in relation to the first letting of the Cinema Unit.

24.

ADJACENT OFFICE SPACE

The Landlord shall keep the Tenant informed of leasing progress in respect of any adjacent or immediately contiguous office space to the Premises in the Building. In the event of a bona fide offer being made over such space by a prospective tenant, the Landlord shall afford the Tenant, in good faith, the opportunity to negotiate with the Landlord in respect of the space on market terms proposed by the Landlord.

25.

TERMINATION

25.1

Prior notice to Tenant

The Landlord and/or the Developer may in addition to any other rights and remedies it may have determine this agreement by written notice to the Tenant to that effect if:

 

25.1.1

there is any breach of the Tenant's obligations under this agreement and such breach (if capable of remedy) shall continue for and not be remedied to the reasonable satisfaction of the Landlord and the Developer within 20 Working Days after service of a notice on the Tenant by the Landlord in conjunction with the Developer specifying the breach; or

 

25.1.2

any guarantee of the Tenant’s obligations in this agreement becomes wholly or partly unenforceable for any reason; or

 

25.1.3

the Tenant or subject to clause 25.2 the Tenant's Guarantor is the subject of any event set out in paragraphs 5.1(c) to (f) inclusive of a Lease or is dissolved or otherwise struck off the register of companies in its place of incorporation or any other place where it is registered or located (or is the subject of any analogous procedure or step taken in any jurisdiction),

and following service of such notice the Landlord shall (subject to clauses 25.2 and 25.6) if the Tenant has taken occupation of the Premises or any part of them) re-enter upon and take possession of the Premises and this agreement shall then cease and all buildings, erections, fixtures, plant, equipment and materials on or adjoining the Premises shall become the property of the Landlord (except for any Tenant's fixtures and fittings and belongings which shall remain the property of the Tenant).

25.2

Replacement guarantor

The Landlord may not re-enter and take possession of the Premises in reliance upon clause 25.1.2 or on any event referable to the Tenant's Guarantor within clause 25.1.3 if within one month after the date when the right to re-enter first arose the Tenant has procured a replacement guarantee by a person who is reasonably acceptable to the Landlord and on terms which are the same as those set out in clause 34.

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25.3

Prior notice to Landlord

The Tenant may in addition to any other rights and remedies it may have determine this agreement by notice to the Landlord to that effect if the Developer's Guarantor is the subject of any event set out in paragraphs 5.1 (c) to (f) inclusive of a Lease or is dissolved or otherwise struck off the register of companies in its place of incorporation or any other place where it is registered or located (or is the subject of any analogous procedure or step taken in any jurisdiction) and following service of such notice this agreement shall terminate.

25.4

Non-completion of Developer's Works

In addition to any other rights and remedies the Landlord or Tenant may have, if the Developer's Works have not been completed by 4 February 2021 subject to extensions for Tenant Delay as is certified in writing by the Construction Manager then the Tenant and (save where the Developer is in breach of clause 6.3 of this Agreement) the Landlord shall have the right at any time thereafter to determine this agreement on giving not less than 10 Working Days' notice to the other but neither party may determine this agreement after the Date of Sectional Completion of Section One.

25.5

Repayment of costs

If this Agreement is terminated pursuant to clause 25.4, the Landlord shall reimburse the Tenant the Tenant's reasonable and properly incurred professional and legal fees incurred in relation to the Premises.

25.6

Saving clause

The determination of this agreement shall be without prejudice to any other rights or remedies of one party against another for the breach, non-observance or non-performance of any of such other party's obligations under this agreement.

25.7

Cancellation of Land Registry notice

If this agreement is determined the Tenant shall promptly cancel or procure the cancellation of any notice or other entry registered at the Land Registry relating to this agreement and provide evidence to the Landlord of such cancellation.

26.

ALIENATION

26.1

Dealings with agreement

 

26.1.1

The Tenant shall not assign or otherwise deal with the benefit of this agreement in whole or in part nor prior to the grant of the Leases make any disposition of the Premises save by way of charge permitted by clause 26.1.2.

 

26.1.2

The Tenant may with the consent of the Landlord charge this agreement to secure building finance in respect of the Tenant’s Works.

 

26.1.3

The Tenant shall supply a certified copy of the charge permitted pursuant to clause 26.1.2 to the Landlord within 10 Working Days of its completion.

 

26.1.4

The Tenant shall not allow any party to occupy the Premises after the Date of Permitted Entry prior to the grant of the Leases save for its contractor, employees, agents or any member of the Tenant's Professional Team.

27.

INSURANCE

27.1

Insurance of Developer's Works

 

27.1.1

From the commencement of the Developer's Works until the Date of Sectional Completion of the final Section the Developer shall take out All Risks Insurance (subject to such exclusions or limitations of cover as are set out in the policy or required by the

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insurers from time to time) with insurers of good repute in respect of the Developer's Works in their full reinstatement value but such obligation shall cease in respect of any Section in respect of which a Certificate of Sectional Completion has been issued.

 

27.1.2

From the Date of Sectional Completion the Landlord shall effect and maintain property owners' liability insurance in respect of the part of the Premises comprising such Section in such amounts as the Landlord may from time to time reasonably require having regard to the nature of the Developer's Works.

27.2

Insurance of the Building

From the date of this agreement, the Landlord shall insure the Building in accordance with its insurance obligations in the Leases.

27.3

Insurance of Tenant's Works by Landlord

From the Date of Permitted Entry until completion of the Tenant’s Works the Landlord shall, if requested by the Tenant and subject to reimbursement by the Tenant of the costs of the same:

 

27.3.1

add the Tenant's Works to the cover provided by the policy referred to in clause 27.1.1;

 

27.3.2

effect and maintain property owners' liability insurance in respect of the Tenant's Works in such amounts as the Tenant may from time to time reasonably require having regard to the nature of the Tenant's Works: and

 

27.3.3

procure that the Tenant is included as a composite co-insured party in respect of the Tenant's Works on the policy effected under clause 27.3.1.

27.4

Waiver of subrogation rights and basic terms of insurance

The Landlord and the Developer shall in relation to the policy of insurance to be effected by pursuant to clauses 27.1 and 27.2 use all reasonable endeavours to procure that the insurers shall waive all rights of subrogation against the Tenant provided that the Tenant shall ensure that full rights of recovery are maintained at all times against the Tenant’s contractor, sub-contractors and agents.

27.5

Insurance from Date of Sectional Completion

With effect from the Date of Sectional Completion in respect of a Section the Developer's insurance obligations in relation to All Risks Insurance pursuant to clause 27.1.1 shall cease but the Landlord as landlord under the Leases shall continue to comply with its insurance covenants contained in the Leases.

27.6

Production and inspection of policies

The Landlord, the Developer and the Tenant shall on demand each produce to the other for inspection the policy or policies of insurance maintained in accordance with the requirements of this clause 27 and the receipt for the last premium due or other sufficient evidence of payment thereof.

27.7

Destruction of Developer's Works

The Developer shall notify the Tenant promptly upon the occurrence of any material damage to or destruction of the Building and / or the Developer's Works (whether or not caused by any of the risks insured against) occurring before the Date of Sectional Completion in respect of a Section and in any case of damage or destruction by an Insured Risk (subject to receipt of all necessary Requisite Permissions and compliance with this agreement) shall rebuild, repair and otherwise reinstate the Building and / or the Developer’s Works as soon as practicable (subject to agreed extensions of time in accordance with the provisions of this agreement).

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27.8

No rendering policy of insurance void

The Landlord, the Developer and the Tenant mutually agree not knowingly to permit anything to be done which may render any insurance policy effected by the other void or voidable.

27.9

Damage after Sectional Completion

The Tenant shall not be entitled to refuse to complete or to delay completion of the grant of a Lease due to any event occurring after the Date of Sectional Completion for each Section that results in:

 

27.9.1

any damage to the part of Premises comprising the relevant Section or any part of them; or

 

27.9.2

any damage to the means of access to and egress from the part of Premises comprising the relevant Section; or

 

27.9.3

any deterioration in the condition of the Premises comprising the relevant Section,

and the provisions of the Leases shall apply to any such event. Where the Leases have not been completed the provisions of the Leases shall also apply to any such event as if they had been completed as at the date of such event.

28.

CONFIDENTIALITY

28.1

Subject to clause 28.2 and clause 29, the terms of this agreement and all information received or obtained as a result of entering into or performing this agreement are confidential to the parties both before and after completion of the Leases and no party may make or permit or suffer the making of any announcement or publication of the information concerning any of those terms nor any comment or statement relating to them without the consent of the others, as to the form and content of any such announcement, publication, comment or statement.

28.2

Disclosure may be made by a party without the consent of the others if and to the extent:

 

28.2.1

necessary for the proper performance or enforcement of any obligations under this agreement (including to the relevant contractors and professional teams and as provided for in clause 28.2.6);

 

28.2.2

required by law (including legislation relating to the Land Registry) or by the rules of any stock exchange or regulatory body to whose regulation the party is subject;

 

28.2.3

required by or appropriate to its accountancy or audit procedures;

 

28.2.4

required to be included in its directors' report;

 

28.2.5

required by a court of competent jurisdiction, or HM Revenue and Customs;

 

28.2.6

necessary for disclosure to any employee or professional adviser of a party to this agreement or to any person providing finance to a party to this agreement (or such person's employees or professional advisers);

 

28.2.7

required by either party to an intending purchaser, assignee or mortgagee of that party's interest or to such person's employees or professional advisers;

 

28.2.8

required by either party’s valuers.

28.3

Each party shall use all reasonable endeavours to ensure that any person to whom this agreement is disclosed (except under clause 28.2.2 and 28.2.5) is bound by an equivalent obligation to that in this clause 28.

28.4

The undertakings in this clause 28 shall continue notwithstanding termination of this agreement.

28.5

The Tenant shall not be entitled to note this agreement against the Landlord's registered title other than by a unilateral notice and shall not without the consent of the Landlord send this agreement or a copy of it to the Land Registry.

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28.6

Notwithstanding the provisions of this clause 28 the parties agree to the issue of a press release in respect of the Tenant’s intended occupation of the Premises, in a form to be agreed between the Landlord and the Tenant (both parties acting reasonably).

29.

DISPUTES

29.1

Dispute resolution

 

29.1.1

If a dispute arises between the parties, the parties shall first consult in good faith and attempt to resolve such dispute.

 

29.1.2

If the parties fail to resolve the dispute through such consultation within 10 Working Days (or such longer period as the parties agree) either party may refer the matter to the Executives by giving written notice to the other, as the case may be. The Executives shall consult in good faith and attempt to resolve the dispute.

29.2

Selection and appointment of Adjudicator

Save as provided for under clause 29.7, if the Executives fail to resolve the dispute through consultation within 10 Working Days (or such longer period as the parties agree) either party may refer the matter to an independent person (the “Adjudicator”) with appropriate expertise and standing in the subject matter of the dispute and agreed between the parties and in the absence of agreement within 10 Working Days of the initial nomination of an appropriate person by the parties (as the case may be) will be appointed on the application of either party (having regard to the nature of the dispute or difference in question) by:

 

29.2.1

the Chairman for the time being of the Bar Council;

 

29.2.2

the President for the time being of the Royal Institute of British Architects;

 

29.2.3

the President for the time being of the Royal Institution of Chartered Surveyors;

 

29.2.4

the President for the time being of the Institute of Chartered Accountants; and/or

 

29.2.5

the President for the time being of the Institution of Civil Engineers,

or (in each such case) the duly appointed deputy of such Chairman or President or any other person authorised by him to make appointments on his behalf.

29.3

Reappointment

If the Adjudicator resigns, or is unable to act the parties shall appoint a replacement Adjudicator by agreement; If the parties have not agreed a replacement Adjudicator within five Working Days of the original Adjudicator resigning or becoming unable to act either party may request the appointment of a replacement Adjudicator with the intention that the replacement Adjudicator shall be nominated within five Working Days of such request and the parties shall accept such nomination. The dispute shall be referred to the replacement Adjudicator promptly and in any event within five Working Days of the date of agreement on his appointment or his nomination as the case may be, The replacement Adjudicator shall have power to settle any dispute that had been referred to his predecessor but had not been decided at the time when his predecessor resigned or became unable to act. The date of the replacement Adjudicator's appointment shall be the date of referral of the said dispute to him as Adjudicator.

29.4

Procedure for Adjudication

 

29.4.1

The Adjudicator shall settle the dispute by notifying the parties of his decision in accordance with the applicable law in relation to this agreement together with his reasons within 20 Working Days of referral of the dispute (or such longer period as the parties may agree).

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29.4.2

The party submitting the dispute to the Adjudicator shall within five Working Days of the appointment of the Adjudicator provide his written submission in respect of the dispute to the Adjudicator.

 

29.4.3

Any submission from another party to be considered by the Adjudicator shall be provided in writing within five Working Days from the first submission or such further period of up to five Working Days as the Adjudicator may allow.

 

29.4.4

If either party so requests, the Adjudicator shall call a hearing in order to resolve the dispute.

 

29.4.5

The parties shall comply with any decision of the Adjudicator in relation to the dispute and the Adjudicator's decision shall be final and binding unless and until revised pursuant to clause 29.7.

 

29.4.6

The Adjudicator shall be deemed not to be an arbitrator but shall render his decision as an expert and the provisions of the Arbitration Act 1996 and the law relating to arbitration shall not apply to the Adjudicator or his determination or the procedure by which he reached his determination.

 

29.4.7

The Adjudicator shall act impartially and may take the initiative in ascertaining the facts. The Adjudicator shall have the power to open up, review and revise any opinion, certificate, instruction, determination or decision of whatever nature given or made under this agreement insofar as it relates to the subject matter of the dispute.

 

29.4.8

Any communication between a party and the Adjudicator shall be communicated contemporaneously also to the other parties.

29.5

Legal costs and Adjudicator's fees and expenses

The Adjudicator shall be entitled to make an award of costs in respect of the reference to adjudication. If the Adjudicator does not make an award of costs in respect of such reference each party shall bear its own respective costs of any reference to adjudication and in such circumstances the costs of the Adjudicator (including the fees and expenses of any person consulted by him) shall be shared equally between the parties.

29.6

Adjudicator's exemption from liability

The Adjudicator shall not be liable for anything done or omitted in the discharge or purported discharge of his functions as Adjudicator unless the act or omission is in bad faith and any employee or agent of the Adjudicator shall be similarly protected from liability.

29.7

Disputes in relation to construction contracts

Where any dispute arises in relation to the Construction Management Agreement, a Trade Contract or a Professional Team Appointment, such dispute shall be resolved in accordance with the dispute resolution mechanism contained within the relevant Construction Management Agreement, Trade Contract or Professional Team Appointment.

29.8

Litigation

If either party wishes to challenge the Adjudicator’s decision then either party may, within 20 Working Days after receiving notice of the Adjudicator's decision, notify the other of its intention to issue proceedings in court in respect of the dispute.

30.

CAPITAL ALLOWANCES

30.1

All and any capital allowances in respect of the Fitting-Out Contribution referred to in clause 14.9 and the Developer's Works shall be for the benefit of the Landlord.

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30.2

The Tenant shall at the cost of the Landlord, as soon as reasonably practicable after the completion of the Tenant's Works, prepare a schedule identifying (in so far as is reasonably practicable) expenditure Incurred by the Tenant on every item of plant and machinery comprising those works in respect of which a claim for capital allowances could be made (the "Plant and Machinery Schedule") and supply a copy to the Landlord.

30.3

The Tenant shall apply the Fitting-Out Contribution as a contribution to expenditure upon items listed in the Plant and Machinery Schedule in the following order of priority:

 

30.3.1

as a contribution towards expenditure incurred by the Tenant in respect of the Tenant's Works, being expenditure on the provision of plant, machinery or any other assets which may qualify for capital allowances under the Capital Allowances Act 2001 ("CAA 2001") other than “special rate expenditure” as defined in section 104A of the CAA 2001;

 

30.3.2

to the extent that the Fitting-Out Contribution exceeds the sum referred to in clause 30.3.1, as a contribution towards expenditure incurred by the Tenant in respect of the Tenant's Works being expenditure on the provision of plant or machinery or any other assets which may qualify for capital allowances under the CAA 2001 where such expenditure constitutes special rate expenditure as defined in section 104A of the CAA 2001;

 

30.3.3

to the extent that the Fitting-Out Contribution exceeds the sums referred to in clauses 30.3.1 and 30.3.2 as a contribution towards expenditure incurred by the Tenant in respect of the remainder of the Tenant's Works; and

 

30.3.4

to the extent that the Fitting-Out Contribution exceeds the sums referred to in clauses 30.3.1 to 30.3.3 (inclusive), as a contribution towards expenditure incurred by the Tenant in respect of the remainder of the Tenant's Works.

30.4

The Tenant’s claim to capital allowances on each item listed in the Plant and Machinery Schedule shall be limited to the excess (if any) of the actual expenditure incurred by the Tenant in providing that element over the amount of the Fitting-Out Contribution towards that expenditure for which the Landlord is entitled to claim capital allowances in accordance with this clause 30, and the Landlord shall use reasonable endeavours at the request and cost of the Tenant to assist the Tenant in obtaining the benefit of any such allowances and at the request and cost of the Tenant the Landlord will execute any election which may be required to enable the Tenant to claim and receive the benefit of such capital allowances.

31

VALUE ADDED TAX

31.1

All sums payable under this agreement:

 

31.1.1

by the Tenant to the Landlord (or any beneficial owner of the Premises or any VAT group of which wither is a member) or the Developer, or

 

31.1.2

by the Landlord (or any beneficial owner of the Premises or any VAT group of which either is a member) or the Developer to the Tenant,

shall be deemed to be exclusive of VAT.

31.2

Where pursuant to the terms of this agreement the Landlord (or any beneficial owner of the Premises or any VAT group of which either is a member) or the Developer makes a supply to the Tenant or vice versa (including for the avoidance of doubt each supply in respect of which an instalment is paid under clause 10.11.1) and VAT is chargeable in respect of such supply the party receiving such supply shall pay to the party making the supply subject to delivery of a valid VAT invoice in respect thereof a sum equal to the amount of VAT so chargeable and shall make such payment:

 

31.2.1

on the date of such supply; or

 

31.2.2

if later, on the date on which a valid VAT invoice in respect of the relevant amount addressed to the receiving party is issued to that party.

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31.3

Where the party receiving the supply fails to pay any such amount in full on the relevant date specified in clause 31.2 that receiving party shall also pay to the party making the supply interest on such amount at the Prescribed Rate from the date on which the supplier was liable to account to HM Revenue & Customs for the VAT in respect of such supply until the date payment is made by the recipient of the supply to the person making the supply but where the due date for payment by either party of any amount in respect of VAT is determined by reference to the issue of a VAT invoice as mentioned in clause 31.2, that party shall not be liable to make any payment under this clause 31.3 provided that any amount in respect of VAT payable by it is paid within 20 Working Days after the issue of such invoice.

31.4

Where a party is required by the terms of this agreement to reimburse or indemnify any other party for any cost, expense or other liability (including for the avoidance of doubt the requirement under clause 10.11.1), the payer shall reimburse or indemnify the payee for the full amount of such cost, expense or liability, including such part thereof as represents VAT, save to the extent that the other party is entitled to credit or repayment in respect of such VAT from HM Revenue & Customs.

31.5

The Tenant warrants and separately undertakes to the Landlord that, to the extent the Tenant (or any person connected with the Tenant within the meaning given by paragraph 34 Schedule 10 Value Added Tax Act 1994) occupies the whole or any part of the Premises, the Tenant (or that person or persons) will do so wholly, or substantially wholly, for eligible purposes within the meaning of paragraph 15 Schedule 10 Value Added Tax Act 1994.

32.

NOTICES

32.1

Any notice under this agreement:

 

32.1.1

must be in writing, addressed to the relevant party at a correct address; and

 

32.1.2

save as provided in clause 32.5 may be served by;

 

(A)

post or personal delivery (but not by facsimile, e-mail other electronic means of transmission, any document exchange or by any other means);

 

(B)

an agent of the serving party, but not on an agent of the party to be served.

32.2

Save as provided In clause 32.5 an addressee’s correct address is any of:

 

32.2.1

the registered office of a corporate addressee;

 

32.2.2

the Tenant's Guarantor's address as stated in the relevant guarantee document or (to the exclusion of that address) any other address in the United Kingdom subsequently notified to the Landlord, if the addressee is a Tenant’s Guarantor; and

 

32.2.3

an address for service within the United Kingdom as last notified by a foreign party to the serving party, if the addressee is a foreign party.

32.3

For the purpose of calculating any notice period associated with the service of a notice, the period begins on the date the notice is given to the party to be served.

32.4

Save as provided in clause 32.5 a notice is given:

 

32.4.1

by post, on the date of the second (or, if earlier receipt is proved, the first) day after the date when the notice is posted; and

 

32.4.2

by personal delivery, on the date when the notice is delivered, to a correct address of the party to be served.

32.5

Notices served pursuant to clauses 8.11.3 and 12.5.1 may be given by email to the email address notified from time to time by any party to any other party, and unless the actual time of receipt is proved, a notice served by email is treated as having been received before 4pm on the first Working Day after the date of its despatch (unless an automated response is received that the intended recipient is out of the office in which case it shall be deemed to have been received before 4pm on the day the intended recipient is shown by such response as returning to the office).

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32.6

In this agreement any reference to giving notice is synonymous with notifying and vice versa; and "give", "send", "serve" and "deliver" are synonymous.

32.7

A foreign party agrees to maintain and keep each other party notified of a correct address for the purposes of clause 32.2.3 at all times.

32.8

If the Tenant or the Tenant's Guarantor comprises more than one person it shall be sufficient service on the Tenant or the Tenant’s Guarantor if notice is served on one of them.

32.9

The Landlord need not serve on the Tenant's Guarantor a notice which is duly served on the Tenant and the Tenant's Guarantor shall not be relieved of any obligation or liability under this agreement because it has not received any such notice.

33.

NON-MERGER

This agreement shall continue in full force and effect notwithstanding the grant of the Leases to the extent that any provisions are still to be observed and performed.

34.

GUARANTEE OF TENANTS OBLIGATIONS

In consideration of the Landlord and the Developer having entered into this agreement at the Tenant's Guarantor’s request the Tenant's Guarantor as primary obligor guarantees and agrees with the Landlord and the Developer that:

34.1

the Tenant will perform its obligations in this agreement; and

34.2

it will make good to and indemnify the Landlord and the Developer against all losses, damages, costs and expenses caused by any default by the Tenant; and

34.3

its obligations under this clause 34 are not affected by:

 

34.3.1

any indulgence, compromise or neglect by the Landlord or the Developer in enforcing the Tenant's obligations in this agreement;

 

34.3.2

any legal limitation, immunity, incapacity, insolvency or the winding up of the Tenant or by the fact that the Tenant otherwise ceases to exist;

 

34.3.3

any other act or omission which, but for this provision, would have released the guarantor from liability,

or any combination of such matters and the Tenant's Guarantor's obligations are not to be released by, but shall be construed so as to require compliance with, the terms of every variation or waiver of any of the Tenant's obligations in this agreement;

34.4

it will execute the counterpart Leases as Tenant's Guarantor for the Tenant in accordance with this agreement: and

34.5

if at any time before the completion of the Leases the Tenant is the subject of any event specified in clause 5.1(c) to (f) inclusive of the Leases then the Landlord may at any time before completion of the Leases invoke the provisions of clause 34.6 by notice served on the Tenant unless it has previously served notice pursuant to clause 25 in respect of that or any other event; and

34.6

immediately on service of a notice pursuant to clause 34.5 but without prejudice to any pre-existing right of action of any party in respect of any breach by any other party of its obligations under this agreement the rights of the Tenant under this agreement shall cease and determine and this agreement shall have effect from the date of the notice as if the obligation to accept the Leases and the other obligations of the Tenant contained in this agreement were the primary obligations of the Tenant's Guarantor and the Tenant's Guarantor will when requisite execute and deliver counterparts of the Leases in lieu of the Tenant on the terms of this agreement and will take up the Leases on their grant; and

34.7

it abandons and waives any right it may have at any time under the existing or future laws of Jersey (by virtue of the droit de discussion or division) to require that:

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34.7.1

the Landlord or the Developer, before enforcing this agreement or any right, interest or obligation under this agreement, takes any action, exercises any recourse or seeks a declaration of bankruptcy against the Tenant or any other person, makes any claim in a bankruptcy, liquidation, administration or insolvency of the Tenant or any other person or enforces or seeks to enforce any other right, claim, remedy or recourse against the Tenant or any other person;

 

34.7.2

the Landlord or the Developer, in order to preserve any of its rights against the Guarantor joins the Guarantor as a party to any proceedings against the Tenant or any other person or the Tenant or any other person as a party to any proceedings against the Guarantor or takes any other procedural steps or observes any other formalities; or

 

34.7.3

the Landlord or the Developer divides or apportions the liability of the Guarantor under this agreement with any other person or such liability is reduced in any manner.

35.

GUARANTEE OF DEVELOPER'S OBLIGATIONS

In consideration of the Tenant and the Tenant's Guarantor having entered into this agreement at the Developer's Guarantor’s request the Developer’s Guarantor as primary obligor guarantees and agrees with the Tenant and the Tenant's Guarantor that:

35.1

the Developer will perform its obligations in this agreement; and

35.2

it will make good to and indemnify the Tenant and the Tenant's Guarantor against all losses, damages, costs and expenses caused by any default by the Developer; and

35.3

its obligations under this clause 35 are not affected by:

 

35.3.1

any indulgence, compromise or neglect by the Tenant or the Tenant's Guarantor in enforcing the Developer's obligations in this agreement;

 

35.3.2

any legal limitation, immunity, incapacity, insolvency or the winding up of the Developer or by the fact that the Developer otherwise ceases to exist;

 

35.3.3

any other act or omission which, but for this provision, would have released the guarantor from liability,

or any combination of such matters and the Developer's Guarantor's obligations are not to be released by, but shall be construed so as to require compliance with, the terms of every variation or waiver of any of the Developer's in this agreement.

36.

INDEMNITIES

The Landlord and the Developer shall, in relation to the indemnities given by the Tenant in clauses 9.5.3, 34.2 and 35.2 of this agreement:

 

(a)

as soon as reasonably practicable give the Tenant written notice and full details of any claim against the Landlord or the Developer from a third party;

 

(b)

consider and pay due account to written representations made by the Tenant relating to any such claim;

 

(c)

not settle or compromise any such claim unless the Landlord or the Developer is required to do so by its insurers;

 

(d)

use all reasonable endeavours to mitigate as far as practicable any loss or costs incurred by or caused to them as a result of such claim.

42


 

37

INTEREST

If any sums payable by any party to any other party under this agreement are not paid on the due date the payor shall in addition pay on demand to the payee interest on such sums at 3% above the Prescribed Rate from the date on which such sum fell due for payment to the date of actual payment (as well after as before any judgment obtained).

38.

LAW AND JURISDICTION

38.1

This agreement and any dispute or claim arising out of or in connection with it or its subject matter, existence, negotiation, validity, termination or enforceability (including non-contractual disputes or claims) shall subject to clause 28.6 be governed by and construed in accordance with English law and within the exclusive jurisdiction of the English courts, to which the parties irrevocably submit.

38.2

Each party irrevocably agrees that any claim form or other document to be served under the Civil Procedure Rules may be served on it by being delivered to or left at a correct address for the purposes of clause 32.2.

39.

EXCLUSION OF THIRD PARTY RIGHTS

The parties confirm that no term of this agreement is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to it.

40.

ENTIRE AGREEMENT, REPRESENTATIONS AND DECLARATIONS

40.1

This agreement constitutes the entire agreement between the parties to the exclusion of every other antecedent statement and agreement.

40.2

The Tenant and the Tenant's Guarantor severally acknowledge that they have not entered into this agreement in reliance upon any statement or other agreement (other than those which have been given by the Landlord's and/or the Developer's solicitors in a written reply to enquiries made by, or provided to, the Tenant's Solicitors before the exchange of this agreement).

40.3

The Tenant acknowledges that it has formed its own view as to the suitability of the Premises for the Tenant’s purposes.

40.4

The Landlord shall not be liable for, and the Tenant hereby waives, all 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 Landlord of any of its obligations contained in this agreement

40.5

The Developer shall not be liable for, and the Tenant hereby waives, all 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 any of its obligations contained in this agreement.

40.6

The Landlord shall not be liable to the Tenant, the Tenant’s Guarantor or any other person in respect of any loss of rights or interests granted to the Tenant by this agreement or the Leases due to failure on the part of the Tenant (or of HM Land Registry) properly to perfect or protect such rights and interests by registration.

40.7

The Tenant acknowledges that it has made all searches, enquiries and inspections which a prudent tenant would make and takes subject to any matters which are or would be revealed.

41.

SEVERANCE

If any provision of this agreement is held to be invalid or unenforceable, it shall be deemed to be deleted (so far as invalid or unenforceable) and the remaining provisions of this agreement shall continue in force.

IN WITNESS whereof this Deed has been executed by the parties hereto and is intended to be and is hereby delivered on the date first above written.

43


 

SCHEDULE 1

TENANT OPTION

1.

DEFINITIONS

In this Schedule, the following definitions shall have the following meanings:

"Contraction Option Period" means the period commencing on this date of this agreement and ending on the earlier of:

 

(a)

30 June 2018:

 

(b)

the date of service by the Tenant of a Fifth Floor Waiver Notice; and

 

(c)

the date of termination of this agreement in accordance with its terms;

“Fifth Floor Contraction Notice” means a notice served in accordance with and pursuant to paragraph 3.2.1(A);

"Fifth Floor Waiver Notice" means a notice served in accordance with and pursuant to paragraph 3.4.1;

"Non-Waived Part Fifth Floor Premises" means, on service by the Tenant of its first Part Fifth Floor Waiver Notice, the Part Fifth Floor Premises which are not the Waived Part Fifth Floor Premises;

"Other Part Fifth Floor Premises" means, on service by the Tenant of its first Part Fifth Floor Contraction Notice, the Part Fifth Floor Premises which are not the Rejected Part Fifth Floor Premises;

“Part Fifth Floor Contraction Notice" means a notice served in accordance with and pursuant to paragraph 3.2.1(B);

"Part Fifth Floor Lease” means a lease of the relevant Part Fifth Floor Premises in the Agreed Form of the Fifth Floor Lease at Annexure F with the following amendments:

 

(a)

the number of bicycle spaces referred to at paragraph 7 of Part I of the Second Schedule shall be reduced to an allocation calculated on a pro-rated basis of spaces available at the time of lease grant;

 

(b)

the number of lockers referred to at paragraph 7 of Part I of the Second Schedule shall be reduced to an allocation calculated on a pro-rated basis of spaces available at the time of lease grant;

 

(c)

the maximum number of occupiers of the Part Fifth Floor Premises for the purpose of clause 3.70(c) of the Part Fifth Floor Lease shall be two; and

 

(d)

such other amendments as are reasonably necessary to demise the Part Fifth Floor Premises as distinct from the Fifth Floor Premises;

"Part Fifth Floor Premises" means either part A or part B of the Fifth Floor Premises as elected pursuant to paragraph 3.2.1(B) as each such part is shown for identification purposes only edged red on the relevant Floor Plans and which is capable of separate occupation in accordance with good estate management practice and the performance of services within the Fifth Floor Premises, excluding all circulation areas, plant and equipment which are common to the Fifth Floor Premises as a whole;

44


 

"Part Fifth Floor Waiver Notice" means a notice served in accordance with and pursuant to paragraph 3.4.2;

"Rejected Part Fifth Floor Premises” means the Part Fifth Floor Premises which the Tenant does not require, as specified in the relevant Part Fifth Floor Contraction Notice;

"Waived Part Fifth Floor Premises" means the Part Fifth Floor Premises which the Tenant requires as specified in the relevant Part Fifth Floor Waiver Notice.

2.

RECITALS

2.1

As at the date of this agreement the Tenant intends to take the Third Floor Lease, the Fourth Floor Lease and the Fifth Floor Lease.

2.2

The Landlord has agreed that, during the time period set out in this Schedule 1, the Tenant will have the option to either contract its space requirements by either a whole or a half floor (by contracting in respect of the whole Fifth Floor Premises or a Part Fifth Floor Premises pursuant to paragraph 3).

3.

FIFTH FLOOR CONTRACTION OPTIONS

3.1

Applicability

 

3.1.1

Subject to paragraph 3.4, this paragraph 3 applies during the Contraction Option Period and ceases to have effect on (and the Tenant may not exercise its option to contract under this paragraph 3 after) the expiry of the Contraction Option Period.

3.2

Exercise of options

 

3.2.1

If the Tenant does not require:

 

(A)

the Fifth Floor Premises, it must give to the Landlord notice of such intention (the "Fifth Floor Contraction Notice") on or before the expiry of the Contraction Option Period and, following the date of service of the Fifth Floor Contraction Notice, paragraph 3.3.1 shall apply; or

 

(B)

a Part Fifth Floor Premises, it must give to the Landlord notice of such intention (a "Part Fifth Floor Contraction Notice"), specifying the Rejected Part Fifth Floor Premises, on or before the expiry of the Contraction Option Period and, following the date of service of a Part Fifth Floor Contraction Notice, paragraph 3.3.2 shall apply in relation to the Rejected Part Fifth Floor Premises, but shall not (for the avoidance of doubt) apply in relation to the Other Part Fifth Floor Premises.

 

3.2.2

The Tenant's right to serve a Part Fifth Floor Contraction Notice ceases upon service of a Fifth Floor Contraction Notice and the Tenant's right to serve a Fifth Floor Contraction Notice or a further Part Fifth Floor Contraction Notice ceases upon service of a Part Fifth Floor Contraction Notice, such that the intention is that the Tenant may only make one election as to its occupation of the fifth floor specifying whether it wishes to retain all or part of the fifth floor and may make no further election thereafter.

3.3

Deeming provisions

 

3.3.1

From and including the date of service of a Fifth Floor Contraction Notice on the Landlord pursuant to paragraph 3.2.1 (A), the definition of "Premises” shall be deemed to exclude the Fifth Floor Premises and Part Fifth Floor Premises and the definition of "Leases" shall be deemed to exclude the Fifth Floor Lease and Part Fifth Floor Lease and the provisions of this agreement shall have effect accordingly.

45


 

 

3.3.2

From and including the date of service of a Part Fifth Floor Contraction Notice on the Landlord pursuant to paragraph 3.2.1(B), the definition of "Premises" shall be deemed to exclude the Rejected Part Fifth Floor Premises and Fifth Floor Premises and the definition of "Leases" shall be deemed to exclude the Part Fifth Floor Lease so far as it relates to the Rejected Part Fifth Floor Premises only and the Fifth Floor Lease and the provisions of this agreement shall have effect accordingly.

3.4

Waiver of options

3.4.1

In the event that the Tenant wishes to give up its option to contract pursuant to paragraph 3.2.1 on or before the expiry of the Contraction Option Period, it shall give to the Landlord notice of such intention (the "Fifth Floor Waiver Notice"), specifying that the Tenant requires the Fifth Floor Premises and wishes to give up its option to contract pursuant to paragraph 3.2.1(A), In which case, following the date of service of the Fifth Floor Waiver Notice, this paragraph 3 shall cease to apply.

3.4.2

In the event that the Tenant wishes to give up an option to contract pursuant to paragraph 3.2.1(B) on or before the expiry of the Contraction Option Period, it shall give to the Landlord notice of such intention (a "Part Fifth Floor Waiver Notice”), specifying the Waived Part Fifth Floor Premises and that it wishes to give up its option to contract pursuant to paragraph 3.2.1(B) in relation to the Waived Part Fifth Floor Premises, in which case, following the date of service of the Part Fifth Floor Wavier Notice, this paragraph 3 shall cease to apply in relation to the Waived Part Fifth Floor Premises, but shall continue to apply in relation to the Non-Waived Part Fifth Floor Premises.

 

 

46


 

 

Signed as a deed on behalf of BLCT (PHC 15A)

 

)

 

LIMITED, a company incorporated in Jersey,

 

)

 

by

[Illegible]

, being a

 

)

 

person who, in accordance with the laws of that

 

)

 

territory, is acting under the authority of the company

 

 

 

 

Signature(s):

 

[Illegible]

 

 

 

 

 

Authorised Signatory

[Illegible]

 

EXECUTED as a DEED by BLUEBUTTON

 

[Illegible]

 

DEVELOPER COMPANY (2012) LIMITED

 

(Signature of director)

 

acting by two directors /a director and

 

 

 

its company secretary

 

[Illegible]

 

 

 

(Signature of director / secretary)

 

 

 

EXECUTED as a DEED by BLUEBUTTON

 

[Illegible]

 

PROPERTIES UK LIMITED acting by two

 

(Signature of director)

 

directors /a director and its

 

 

 

company secretary

 

[Illegible]

 

 

 

(Signature of director / secretary)

 

 

 


 

 

EXECUTED as a DEED by MIMECAST

 

/s/ P. Bauer

 

SERVICES LIMITED acting by two

 

(Signature of director)

 

directors /a director and its

 

 

 

company secretary

 

/s/ Peter Campbell

 

 

 

(Signature of director / secretary)

 

 

Signed as a deed on behalf of MIMECAST

 

)

 

LIMITED, a company incorporated in Jersey,

 

)

 

by      P. Bauer                                  , being a

person who, in accordance with the laws of that )

 

)

 

territory, is acting under the authority of the company

 

)

 

 

Signature(s):

 

/s/ P. Bauer

 

 

Authorised Signatory

 

 

 


 

Annexures D, E, F, K, L, and S included

Annexures A — C; G — J; M — R; and T — X intentionally omitted

 


 

ANNEXURE D: THIRD FLOOR LEASE IN AGREED FORM

This is Annexure D to the agreement for lease dated 2 January 2018 in respect of the 3rd, 4th and 5th floors of 1 Finsbury Avenue, London EC2 as made between (1) B.L.C.T. (PHC 15A) Limited (2) Bluebutton Developer Company (2012) Limited (3) Bluebutton Properties UK Limited (4) Mimecast Services Limited and (5) Mimecast Limited

 

Signed on behalf of:

 

 

 

 

 

B.L.C.T. (PHC 15A) Limited

 

[Illegible]

 

 

 

Bluebutton Developer Company (2012) Limited

 

[Illegible]

 

 

 

Bluebutton Properties UK Limited

 

[Illegible]

 

 

 

Mimecast Services Limited

 

/s/ Peter Bauer

 

 

 

Mimecast Limited

 

/s/ Peter Bauer

 

 


 

 

AGREED FORM

................................201*

B.L.C.T. (PHC 15A) LIMITED

and

MIMECAST SERVICES LIMITED

and

MIMECAST LIMITED

 

 

1 FINSBURY AVENUE, LONDON EC2

LEASE OF 3rd FLOOR

 

Herbert Smith Freehills LLP

 


 

TABLE OF CONTENTS

 

1

 

INTERPRETATION

 

2

2

 

DEMISE HABENDUM AND REDDENDUM

 

10

3

 

TENANT’S COVENANTS

 

11

 

 

Rent

 

11

 

 

Outgoings

 

11

 

 

Water gas and electricity charges and equipment

 

12

 

 

Repair

 

12

 

 

Decoration and maintenance

 

13

 

 

Yield up

 

13

 

 

Landlord’s rights of entry

 

13

 

 

Compliance with notices to remedy

 

13

 

 

Improvements and alterations

 

14

 

 

Notices of a competent authority

 

16

 

 

To comply with enactments

 

17

 

 

To comply with town planning legislation etc

 

17

 

 

User permitted

 

17

 

 

User prohibited

 

18

 

 

Alienation absolutely prohibited

 

19

 

 

Assignment permitted

 

19

 

 

Underletting permitted

 

20

 

 

Registration

 

23

 

 

Not to display advertisements

 

23

 

 

Insurance

 

23

 

 

Notice of damage

 

23

 

 

Landlord’s costs

 

24

 

 

VAT

 

24

 

 

Regulations affecting the Premises

 

25

 

 

Obstructions and encroachments

 

25

 

 

Covenants and provisions affecting the Landlord’s title

 

25

 

 

Operation of plant and equipment

 

26

 

 

Obligations relating to entry and services

 

26

 

 

Registration

 

26

 

 

Energy performance certificates

 

26

 

 

Bicycle Spaces

 

27

4

 

LANDLORD’S COVENANTS

 

27

 

 

Quiet enjoyment

 

27

 

 

Insurance

 

27

 

 

Landlord’s obligations in relation to insurance

 

28

 

 

Reinstatement

 

28

 

 

Obligations relating to Services for the Tenant

 

29

 

 

Building Defects

 

30

 

 

Head Lease rents

 

30

 

 

Retail Units

 

30

5

 

PROVISOS

 

30

 

 

Re-entry

 

30

 

 

Suspension of rent

 

32

 

 

Damage before Rent Commencement Date

 

32

 

 

Determination if damage or destruction

 

33

 

 

Roof Terrace

 

34

 


 

 

 

Warranty as to use

 

34

 

 

Service of notices

 

34

 

 

Apportionment

 

35

 

 

Exclusions of Landlord’s liability

 

35

 

 

Removal of property

 

36

 

 

VAT

 

36

 

 

Sharing of information

 

36

6

 

SURETY

 

37

7

 

CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999

 

37

8

 

DETERMINATION

 

37

9

 

RIGHT TO RENEW

 

38

10

 

GOVERNING LAW AND JURISDICTION

 

39

FIRST SCHEDULE - The Premises

 

40

SECOND SCHEDULE

 

41

 

 

Part I Rights granted

 

41

 

 

Part II Rights excepted and reserved

 

44

THIRD SCHEDULE - Review of Principal Rent

 

46

FOURTH SCHEDULE - Matters to which the demise is subject

 

49

FIFTH SCHEDULE - The Service Charge

 

50

SIXTH SCHEDULE

 

55

 

 

Part I Building Services

 

55

 

 

Part II Estate Services

 

56

 

 

Part III Incidental costs and expenses to be included in the Service Cost

 

58

SEVENTH SCHEDULE - Surety’s Covenant

 

62

EIGHTH SCHEDULE

 

64

Appendices:

Appendix A: Plans

Appendix B: Base Building Definition

Appendix C: Occupier Fit-Out Guide

Appendix D: Specification

Appendix E: Reception Side Letter

Appendix F: Western Terrace Side Letter

 


 

LAND REGISTRY PARTICULARS

 

LR1.

Date of Lease

 

LR2.

Title number(s):

 

LR2.1

Landlord’s title number(s)

NGL770398

LR2.2

Other title numbers

 

LR3.

Parties to this Lease

Landlord

 

 

B.L.C.T. (PHC 15A) LIMITED (company registration number 76075 (Jersey)) whose registered office is at 47 Esplanade, St Helier, Jersey JE1 0BD c/o York House, 45 Seymour Street, London W1H 7LX (the “Landlord”).

 

Tenant

 

MIMECAST SERVICES LIMITED (company registration number 04901524) whose registered office is at 6th Floor, CityPoint, One Ropemaker Street, London EC2Y 9AW (the “Tenant”).

 

 

Other parties

 

 

MIMECAST LIMITED (company registration number 119119 (Jersey)) whose registered office is at 22 Grenville Street, St Helier, Jersey JE4 8PX c/o 6th Floor, CityPoint, One Ropemaker Street, London EC2Y 9AW (the “Surety”).

LR4.

Property

In the case of a conflict between this clause and the remainder of this Lease then, for the purposes of registration, this clause shall prevail.

The property defined as “Premises” in Part 1 of the Particulars to this Lease.

LR5.

Prescribed statements etc:

 

LR5.1

Statements prescribed under rules 179 (dispositions in favour of a charity), 180 (dispositions by a charity) or 196 (leases under the Leasehold Reform, Housing and Urban Development Act 1993) of the Land Registration Rules 2003

None.

LR5.2

This lease is made under, or by reference to, provisions of:

Not applicable.

LR6.

Term for which the Property is leased

The term as specified in Part 1 of the Particulars to this Lease.

LR7.

Premium

None.

LR8.

Prohibitions or restrictions on disposing of this Lease

This lease contains a provision that prohibits or restricts dispositions.

LR9.

Rights of acquisition etc:

 

 


 

LR9.1

Tenant’s contractual rights to renew this Lease, to acquire the reversion or another lease of the Property, or to acquire an interest in other land

The right set out in clause 9 of this Lease.

LR9.2

Tenant’s covenant to (or offer to) surrender this Lease

None.

LR9.3

Landlord’s contractual rights to acquire this Lease

None.

LR10.

Restrictive covenants given in this Lease by the Landlord in respect of land other than the Property

The covenants set out in clauses 4.13 and 4.14 of this Lease.

LR11.

Easements:

 

LR11.1

Easements granted by this Lease for the benefit of the Property

The easements set out in Part I of the Second Schedule to this Lease.

LR11.2

Easements granted or reserved by this Lease over the Property for the benefit of other property

The easements set out in Part II of the Second Schedule to this Lease.

LR12.

Estate rent charge burdening the Property

None.

LR13.

Application for standard form of restriction

None.

LR14.

Declaration of trust where there is more than one person comprising the Tenant

None.

 

 


 

PARTICULARS

PART 1

 

“Premises”

The third floor of the Building being the premises described in the First Schedule together with all alterations, additions and improvements thereto other than Tenant’s or trade fixtures and fittings

“Term Commencement Date”

means [the date determined by the Agreement for Lease]

“Contractual Term”

Fifteen years from and including the Term Commencement Date

“Principal Rent”

£[to be determined in accordance with the Agreement for Lease] per annum (subject to review in accordance with the provisions of the Third Schedule)