EXHIBIT 10.8
AGREEMENT TO BUILD AND LEASE
BETWEEN
ORCHID APARTMENTS PRIVATE LIMITED
(An Indian company)
AND
MANHATTAN ASSOCIATES INDIA DEVELOPMENT CENTRE PRIVATE LIMITED
(An Indian company)
DATED: NOVEMBER 19, 2004
CONTENTS PAGE
SERIAL NO. DESCRIPTION PAGE NO.
1. Construction of the Building 5
2. Conditions Precedent to this Agreement 7
3. Conditions Precedent to the Lease Deed 8
4. Representations and Warranties 12
5. Term 14
6. Notices 14
7. Assignments and Sale 14
8. Protection of Intellectual Property Rights 15
9. Additional Space 15
10. Insurance 16
11. Governing Law and Arbitration 17
12. Real Estate Commission 17
13. General 18
14. Signature Page 19
15. Schedules 20
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LIST OF DEFINITIONS
DEFINED TERM SECTION PAGE
Acceptance Certificate 1.5 6
Adjudicator 1.6 7
Advance 1.3 5
Agreement Opening ▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇ ▇
▇▇▇▇ 12.1 17
Certificate 3.2(h) 9
Conditions 2.1 7
Conditions Precedent 3.3 8
Consent Certificate 2.1 7
Cure Period 1.5 6
Dispute 11.2 17
Effective Date 2.1 7
Expansion Plot 9.3 16
Expansion Premises 9.2 15
Fit-Out Commencement Date 3.5(a) 10
Installments 1.4(b) 6
KIADB Recital A 4
KSPCB 3.3(e) 9
Land Recital A 4
Lease Commencement Date 3.1 8
Lease Deed 1.3 5
Lessee Opening Paragraph 4
Lessor Opening Paragraph 4
Loss 3.6 12
Notice 1.5 7
Offer 7.3 15
Parties Opening Paragraph 4
Party Opening Paragraph 4
Premises Recital C 5
Project Architect 1.5 6
Rejection Certificate 1.5 6
Satisfaction Certificate 3.4 10
Signature Date Opening Paragraph 4
Specifications Recital D 5
2
LIST OF SCHEDULES
SCHEDULES
Schedule I- Description of the Land
Schedule II- Description of the Building
Schedule III- Description of the Premises
Schedule IV- Specifications
Schedule V- Benchmarks and Payment Schedule
Schedule VI- Lease Deed
Schedule VII- Scope of Maintenance Services
Schedule VIII- Consent Certificate
Schedule IX- Satisfaction Certificate
Schedule X- Schedule of Competitors
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AGREEMENT TO BUILD AND LEASE
This Agreement to Build and Lease (this "AGREEMENT") is made and executed on
this the 19th day of November, 2004 (the "SIGNATURE DATE") at Bangalore.
BETWEEN
I. M/s. Orchid Apartments Private Limited, a company incorporated in
accordance with the provisions of the [Indian] Companies Act, 1956,
with its registered office at ▇▇. ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ 560
001 (hereinafter referred to as the "LESSOR" which expression shall
mean and include its successors and permitted assigns) and represented
herein by its authorised signatory Shri. ▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇ of the One
Part
AND
II. M/s. Manhattan Associates India Development Centre Private Limited, a
company incorporated in accordance with the provisions of the [Indian]
Companies ▇▇▇ ▇▇▇▇, with its registered office at ▇▇▇▇ ▇▇.▇, ▇▇▇▇▇ ▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇, Whitefield Road, Bangalore 560 066
(hereinafter, referred to as the "LESSEE" which expression shall mean
and include its successors and permitted assigns) and represented by
its authorised signatory Shri. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of the Other Part.
The Lessor and the Lessee are also referred to as the "PARTY" in the singular
and as the "PARTIES" in the collective.
WHEREAS:
A. The Lessor represents that it is in sole and absolute possession of
land measuring approximately one hundred and eight thousand nine
hundred (108,900) square feet in Plot Nos. 170, 171 and ▇▇▇, ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ 560 066 (hereinafter referred to as the "LAND",
more fully described in Schedule I of this Agreement and by this
reference made a part hereof) and enjoys right, title and interest over
the Land by virtue of a Lease cum Sale Agreement executed between the
Lessor and the Karnataka Industrial Areas Development Board ("KIADB");
B. The Lessor will construct a building measuring approximately eighty
thousand (80,000) square feet of Built Up Area (defined below in
Section 1.2), consisting of a ground floor plus three (3) floors, on
the Land (the "BUILDING", more fully described in Schedule II of this
Agreement, and by this reference made a part hereof);
C. The Lessor has agreed to lease the ground, first and second floors of
the Building admeasuring approximately sixty thousand (60,000) square
feet of Built Up Area along with cafeteria space and provision for
training rooms and gymnasiums admeasuring
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approximately seven thousand two hundred (7,200) square feet on the
terrace of the Building (the "PREMISES", more fully described in
Schedule III of this Agreement and by this reference made a part
hereof) to the Lessee, in accordance with the terms and conditions of
this Agreement;
D. The Lessor represents that the Building shall be built in accordance
with the specifications contained in Schedule IV (the "SPECIFICATIONS")
to this Agreement, and by this reference made a part hereof; and
E. The Parties agree and undertake that they shall abide by the terms,
conditions and stipulations contained in this Agreement and therefore
agree to sign this Agreement confirming their commitment and intention.
NOW THEREFORE in consideration of the promises and covenants herein set forth
and for other good and valuable consideration, the receipt, adequacy and legal
sufficiency of which are hereby acknowledged, the Parties mutually agree as
follows:
1. CONSTRUCTION OF THE BUILDING.
1.1 Description. The Lessor agrees that the Premises will be constructed in
adherence to the Specifications and the Drawings (as defined in
Schedule IV). The common areas of the Land and Building (which include
the basement areas, staircases, elevators, open spaces in the Land and
Building) shall also be constructed in accordance with the
Specifications and the Drawings. Any variation in the construction of
the Building from the Specifications and the Drawings shall only be
effective if mutually agreed to by the Parties.
1.2 Built Up Area. The term "Built Up Area" shall mean the total area of
the Building including the main entrance lobby, lift lobby, shafts,
staircase, D.G. room, electrical room, lift machine room, and passenger
and service lift cores, excluding external atriums, basement parking
areas, all unenclosed areas, and the terrace area.
1.3 Advance. The Lessee agrees to pay the Lessor a cumulative sum of Rupees
Two Crore Nineteen Lakhs Sixty Thousand Only (Rs. 2,19,60,000/-) (the
"ADVANCE") as an Advance under this Agreement. The Parties further
agree that on the execution and registration of the lease deed (the
"LEASE DEED") for the Premises, the Advance shall be treated as the
interest free refundable security deposit payable by the Lessee under
the Lease Deed.
1.4 Payment of Advance. The Parties agree that the Advance shall be paid by
the Lessee to the Lessor in the following manner and as defined in
Schedule V of this Agreement:
(a) The Lessee shall pay a sum of Rupees Eighteen Lakhs Thirty
Thousand Only (Rs. 18,30,000/-) by demand draft to the Lessor
on the date of execution of this Agreement; and
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(b) The balance of the Advance shall be paid by the Lessee to the
Lessor in installments (the "INSTALLMENTS") on:
(i) the achievement of mutually agreed benchmarks as
described in Schedule V; and
(ii) the issuance of the Acceptance Certificates (as
defined in Clause 1.4).
It is hereby clarified that the Parties agree that the Installments
shall be paid by the Lessee to the Lessor as follows:
(a) Upon completion of the basement roof slab and ground floor
roof slab of the Building: Rupees Fifty Lakhs Thirty Two
Thousand Five Hundred Only (Rs. 50,32,500/-);
(b) Upon completion of the first floor roof slab, the second floor
roof slab and the third floor roof slab of the Building:
Rupees Fifty Lakhs Thirty Two Thousand Five Hundred Only (Rs.
50,32,500/-);
(c) Upon completion of the construction of the Building,
production of the occupancy certificate and issuance of the
Acceptance Certificate: Rupees Fifty Lakhs Sixty Five Thousand
Only (Rs. 50,65,000); and
(d) On the execution and registration of the Lease Deed: Rupees
Fifty Lakhs Only (Rs. 50,00,000/-).
1.5 Acceptance Certificate. The Lessor shall issue a written notice of
completion (the "NOTICE") to the Lessee on the achievement of each
mutually agreed benchmark as described in Schedule V, supported by the
certificate of M/s ▇▇▇▇▇▇ Associates, Bangalore (the "PROJECT
ARCHITECT"). The Lessee shall within seven (7) days from the receipt of
the Notice, inspect the completed benchmark and issue either (i) a
certificate of acceptance, accepting the achievement of the particular
benchmark (the "ACCEPTANCE CERTIFICATE"); or (ii) a certificate of
rejection, rejecting the achievement of the particular benchmark and
recording its reasons which shall be reasonably sufficient to prove the
grounds for such rejection (the "REJECTION CERTIFICATE"). Failure to
inspect and issue an Acceptance Certificate or a Rejection Certificate
within fourteen (14) days from the date of receipt of the Notice shall
be construed as a deemed acceptance of the Notice and the Lessee shall
be liable to pay the Lessor the applicable Installment. In the event
the Lessee issues a Rejection Certificate, the Lessor shall have
fourteen (14) days from its receipt to cure the defects detailed in the
Rejection Certificate (the "CURE PERIOD"). In the event the defects
detailed by the Lessee in the Rejection Certificate are not cured to
the sole satisfaction of the Lessee and the Project Architect within
the Cure Period, the Parties and the Project Architect shall meet to
discuss whether the Cure Period for rectifying the defect should be
extended. Within one (1) day from the date of such meeting, the Lessee
shall at its sole option, notify the Lessor as to whether the Lessee
will extend the Cure Period or will exercise its right to terminate
this Agreement in accordance with the provisions of this Agreement. The
Lessee shall pay the Installments within seven (7) days from the date
on which the relevant Acceptance Certificate has been issued.
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1.6 Disputes. Notwithstanding the provisions of Clause 11 of this
Agreement, if any dispute arises between the Parties under Clause 1.5
above, the dispute shall be adjudicated by one (1) neutral third party
architect (the "ADJUDICATOR") mutually agreed upon by the Parties,
whose decision would be final and binding on the Parties. The Lessor
undertakes that during the pendency of any dispute under this Clause
1.6 it shall not suspend constructing the Building in accordance with
the Specifications and the mutually agreed benchmarks.
1.7 Inspection. Subject to complying with applicable security and safety
requirements and at its own risk, commencing from the Effective Date,
the Lessee shall have the right to inspect the Land and the
construction of the Building at all times without requiring to provide
any notice to the Lessor.
2. CONDITIONS PRECEDENT TO THIS AGREEMENT.
2.1 Effective Date. The Parties agree that this Agreement shall come into
force within seven (7) days from the date (the "EFFECTIVE DATE") on
which the Lessee issues a written Certificate of Consent (the "CONSENT
CERTIFICATE") certifying that the conditions described in Clause 2.2
(the "CONDITIONS") of this Agreement have been satisfied to the
complete and sole satisfaction of the Lessee.
2.2 Conditions. The Parties agree that the execution of this Agreement is
conditional on the satisfaction (as provided for in Clause 2.3 of this
Agreement), or the waiver (such waiver to be expressed on a written
instrument signed by the authorised representative of the Lessee) of
the following Conditions:
(a) The completion of a property due diligence that shall be
carried out by the Lessee to ascertain the title and status of
the Land. The property due diligence shall be based on the
documents and the title certificate provided to the Lessee by
the Lessor; and
(b) The Lessor shall submit the Drawings of the Building to the
Lessee and the Lessee shall approve or reject the Drawings in
writing, within seven (7) days from the date of receipt of the
Drawings from the Lessor. In the event the Lessee rejects the
Drawings it shall state the reasons for rejecting the Drawings
and the Lessor shall submit revised and corrected Drawings to
the Lessee. The Lessee shall approve or reject the revised
Drawings in writing, within seven (7) days from the date of
receipt of the revised Drawings from the Lessor.
The Conditions described in Clause 2.2 above shall be satisfied on the
date when the Lessee issues a duly executed Consent Certificate to the
Lessor stating that the Conditions have been satisfied. The Consent
Certificate shall be in the form and substance as provided for in
Schedule VIII to this Agreement.
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2.3 Satisfaction of Conditions. The Parties agree that the Conditions
described in Clause 2.2 above shall be satisfied by the Lessor within
thirty (30) days from the Signature Date, unless otherwise agreed by
the Lessee in writing. It is hereby clarified that the Parties agree
that subject to any delays attributable to the Lessee, if the
Conditions described in Clause 2.2 above are not satisfied within
thirty (30) days from the Signature Date, this Agreement shall expire
with immediate effect and the Lessor shall forthwith and without demur
refund all the amounts paid by the Lessee towards the Advance.
2.4 Absolute Ingress and Egress Rights.The Lessor hereby agrees that the
Lessee shall have absolute ingress and egress rights to the ground and
first floors of the Building for the purpose of planning and conducting
its fit-outs, commencing on or before January 8, 2005. The Parties
hereby agree that consequent to such rights being granted to the
Lessee, the Lessor shall make reasonable attempts not to impede the
Lessee in the carrying out of its fit-outs on the ground and first
floor of the Building and the Lessee shall make reasonable attempts not
to impede the Lessor in its construction of the Building.
3. CONDITIONS PRECEDENT TO THE LEASE DEED.
3.1 Lease Commencement Date. The Parties hereby agree that the lease
commencement date for the purposes of this Agreement and the Lease Deed
(the "LEASE COMMENCEMENT DATE") shall be May 15, 2005.
3.2 Execution of the Lease Deed. The Parties agree that within fifteen (15)
days of the Lessee issuing the Satisfaction Certificate (as defined in
Clause 3.4 of the Agreement), the Parties shall execute and duly
register the Lease Deed recording the terms of the lease of the
Premises by the Lessor to the Lessee. The Parties agree that the terms
and conditions of the Lease Deed shall be in the same material form and
substance as the terms and conditions of the lease deed contained in
Schedule VI to this Agreement. It is hereby clarified that under no
circumstances would the Lease Deed be amended or modified in such a
manner as would derogate, prejudicially affect, or in any way dilute
the rights provided to the Parties in Schedule VI except through an
instrument executed by both Parties in writing. The Parties further
agree that on the execution of the Lease Deed, the Advance paid by the
Lessee under this Agreement shall be treated as the interest free
refundable security deposit under the Lease Deed. It is hereby
specifically clarified that the terms and conditions contained in
Schedule VI of this Agreement form a part of this Agreement and are
binding on the Parties.
3.3 Conditions Precedent. The Parties agree that the execution of the Lease
Deed is conditional on the satisfaction (as provided for in Clause 3.3
of this Agreement), or the waiver (such waiver to be expressed on a
written instrument signed by the authorised representative of the
Lessee) of the following conditions (the "CONDITIONS PRECEDENT"):
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(a) The Lessor obtains applicable statutory approvals for the use
of the Building by the Lessee including the Occupancy
Certificate for the Building;
(b) The Building and the Premises are constructed in adherence to
the Drawings and the Specifications;
(c) The common areas of the Building and the Land should be in
accordance with the Specifications;
(d) The Lessor obtains absolute, sole, registered and beneficial
title to the Land and Building;
(e) The Lessor obtains applicable approvals and permission from
the Karnataka State Pollution Control Board ("KSPCB") to use
and operate the diesel generators and the sewerage treatment
plant that are installed/constructed on the Land;
(f) On the Fit Out Commencement Date the Premises should be handed
over to the Lessee in a water tight, clean and clear condition
with tapping points for all major service installations,
including the provision of tapping points for power, water and
HVAC facilities for the entire Building (provided that the
Lessor shall not be required to provide for the connection of
chillers in working condition to the HVAC infrastructure),
broadband infrastructure terminating in a central mechanical
room in the Building (provided that the Lessor shall not be
required to provide actual broadband connectivity) and such
other cabling as the Lessee requires for its business
purposes;
(g) The final and exact Built Up Area of the Premises that will be
leased by the Lessee is identified and agreed upon by the
Parties. It is further clarified that the Advance shall be
adjusted in accordance with the exact Built Up Area of the
Premises that is identified and agreed upon by both the
Parties. Any increase or decrease in the Advance shall be
adjusted against the last Installment payable by the Lessee to
the Lessor on the issuance of the final Acceptance
Certificate;
(h) By January 7, 2005 or such other date as is agreed upon by the
Lessee in writing, the Lessor shall provide the Lessee with a
certificate or such other document (the "CERTIFICATE") issued
by the KIADB granting the Lessor the permission to lease the
Building to the Lessee; and
(i) The Lessee issues the final Acceptance Certificate
corresponding to the final benchmark contained in Schedule V
to this Agreement.
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3.4 Satisfaction Certificate. The Conditions Precedent shall be satisfied
on the date, when the Lessee issues a duly executed certificate to the
Lessor stating that the Conditions Precedent have been satisfied (the
"SATISFACTION CERTIFICATE"). The Satisfaction Certificate shall be in
the form and substance as provided for in Schedule IX to this
Agreement.
3.5 Failure to satisfy Conditions Precedent. In the event the Conditions
Precedent are not fulfilled within the time period specified in this
Clause, the Lessor agrees that the Lessee shall enjoy the following
rights:
(a) If the Premises, including the completed warm shell and the
entire base building with glass curtain, is not handed over to
the Lessee for commencement of fit outs by March 15, 2005 (the
"FIT-OUT COMMENCEMENT DATE"), the Lessor shall provide the
Lessee with (i) three (3) days' rent free period for every
day's delay between March 16, 2005 and March 31, 2005; and
(ii) six (6) days' rent free period for every day's delay is
beyond April 1, 2005. If the delay in the Fit Out Commencement
Date extends to a date beyond April 15, 2005, the Lessee shall
have the right to terminate this Agreement with immediate
effect;
(b) If all the Conditions Precedent are not satisfied by April 15,
2005, the Lessor shall provide the Lessee with (i) three (3)
days' rent free period for every day's delay between May 1,
2005 and May 15, 2005; and (ii) six (6) days' rent free period
for every day's delay beyond May 16, 2005. If the delay in
fulfilling all the Conditions Precedent extends to a date
beyond May 30, 2005, the Lessee shall have the right to
terminate this Agreement with immediate effect. In the event
the Lessee exercises its right to terminate this Agreement as
provided for in this Clause 3.5, the Lessor shall within seven
(7) days from the date of termination of this Agreement repay
all Installments or any part of the Advance paid till such
date; and
(c) Notwithstanding any of the provisions of this Agreement, in
the event the Lessor fails to provide the Lessee with the
Certificate by January 7, 2005 or such date as may be agreed
upon and extended by the Lessee in writing, the Lessor shall:
(i) Pay the Lessee a sum of Rupees One Crore Only
(Rs.1,00,00,000/-) as liquidated damages to
compensate the business and other losses suffered by
the Lessee. The Parties acknowledge that the sum of
Rupees One Crore Only (Rs.1,00,00,000/-) payable as
liquidated damages has been quantified after
reasonably estimating the business and other losses
that the Lessee would suffer on account of the breach
of the condition set out in Clause 3.3(h) above; and
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(ii) At no cost whatsoever, obtain for the Lessee the
lease of an international standard office premises
suitable for an IT/ITES operation and measuring
approximately sixty thousand (60,000) square feet of
Built Up Area in the Whitefield EPIP area by February
15, 2005. The terms and conditions governing the
lease of such property shall be similar to the terms
and conditions contained in this Agreement and the
Lease Deed; or
(iii) In the event the Lessor is not able to obtain office
space to lease to the Lessee in the Whitefield EPIP
Area by March 15, 2005, at no cost whatsoever, obtain
for the Lessee the lease of an international standard
office premises suitable for an IT/ITES operation and
measuring sixty thousand (60,000) square feet of
Built Up Area in any other area in Bangalore by March
15, 2005. The terms and conditions governing the
lease of such property shall be similar to the terms
and conditions contained in this Agreement and the
Lease Deed, except as regards the rent payable to the
Lessor.
It is hereby clarified that the rent-free periods provided in Clauses
(a) and (b) above shall take effect after the completion of the two (2)
month Rent Free Period provided in the Lease Deed.
3.6 Other Grounds for Termination. The Lessee may terminate this Agreement
by providing the Lessor with thirty (30) days' prior written notice of
termination on the occurrence of any of the following events:
(a) Any of the representations, warranties and assurances provided
by the Lessor in Clause 4 of this Agreement are false and
untrue or are found to be false and untrue during the term of
this Agreement;
(b) The Lessor fails to cure any breach of the provisions of this
Agreement;
(c) The Lessor transfers, sells or alienates the Land and/or the
Building and the Premises, without reserving the rights of the
Lessee in terms of this Agreement; or
(d) The Lessor is dissolved in accordance with applicable
bankruptcy law, or a petition for dissolution of the Lessor is
admitted by a court of competent jurisdiction.
3.7 Consequences of Termination. The Lessor shall within seven (7) days
from the date of termination of this Agreement repay all Installments
or any part of the Advance hereunder paid to the Lessor prior to such
date of termination along with all capital expenditure, attorney and
project management fees, and other expenditure incurred by
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the Lessee in pursuance of the transaction (the "LOSS") contemplated
herein. For the purposes of determining the Loss, the Lessee shall
along with the termination notice, provide the Lessor with an audited
statement of account. The Lessor shall pay the Lessee the Loss as
depicted in the audited statement of account or as per Clause 3.5(c)(i)
whichever is lower.
3.8 Lessee's failure to execute the Lease Deed. The Parties agree that if
the Lessee issues the Satisfaction Certificate but fails to execute the
Lease Deed otherwise than for the reasons of termination as provided in
Clauses 3.5 and 3.6 above the Lessee shall become liable to pay the
Lessor an amount equal to the Rent payable for the first thirty six
(36) months of the Term being the lock in period under the Lease Deed.
On receipt of the said amount, the Lessor shall have no other claims
whatsoever against the Lessee.
3.9 Delay due to Force Majeure. In the event (i) the Fit Out Commencement
Date or the satisfaction of the other Conditions Precedent is delayed
on account of any act of god, governmental action including any action
of the federal or state Governments of the United States of America or
any other force majeure event beyond the control of either Party, for
every day's delay caused in this regard, the Lessor shall be provided
with an additional day to achieve the Fit Out Commencement Date and/or
the other Conditions Precedent, as the case may be. The penalties
described in Clause 3.5 shall apply on the expiry of the additional
days provided to the Lessor to adhere to the Benchmarks and Payment
Schedule contained in Schedule V of this Agreement. It is hereby
clarified that in the event the period of delay on account of a force
majeure event beyond the control of either Party, is in excess of one
hundred and twenty (120) days from the date of occurrence, the Lessee
shall be entitled to terminate this Agreement, without any liability
whatsoever. In the event the Lessee chooses to terminate this Agreement
under this Clause 3.9, the Lessor shall within thirty (30) days from
the date of receipt of a notice of termination, refund to the Lessee
all amounts paid to the Lessor under this Agreement, as of the date of
termination.
4. REPRESENTATIONS AND WARRANTIES.
A. Representations of the Lessor.
4.1 The Lessor represents and warrants to the Lessee that it (i) enjoys
right, title and interest in the Land by virtue of a Lease cum Sale
Agreement executed between the Lessor and the KIADB; (ii) is the sole,
absolute, registered and beneficial owner of the Land, Building and the
Premises; (iii) shall have valid effective title to the Land, Building
and Premises; (iv) enjoys the uninterrupted, quiet, peaceful, physical,
vacant and legal possession of the Land; and (v) shall enjoy the
uninterrupted, quiet, peaceful, physical, vacant and legal possession
of the Building and the Premises without any interference whatsoever
from any third party;
4.2 The Lessor represents and warrants to the Lessee that it shall obtain
all permissions necessary for the occupation and use of the Building
and the Premises by the Lessee and
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the Building and the Premises may be legally used and occupied by the
Lessee on or before the Lease Commencement Date;
4.3 The Lessor represents and warrants to the Lessee that the Building and
the Premises will be constructed in accordance with the Specifications,
the Drawings and the plan sanctioned by the concerned municipal and
governmental authorities;
4.4 The Lessor represents and warrants to the Lessee that there are no
claims, actions, litigations, arbitrations, land acquisition
proceedings, garnishee or other proceedings relating to the Land or the
transactions contemplated hereunder;
4.5 The Lessor represents and warrants to the Lessee that it does not have
any liability for any taxes, or any interest or penalty in respect
thereof, of any nature that may become a lien against the Land. The
Lessor agrees to indemnify the Lessee and save, defend and hold the
Lessee harmless from and in respect of any Loss resulting from or
related to the non-payment of any such taxes and applicable
governmental levies, provided that nothing in this clause shall prevent
the Lessor from securing project finance by mortgaging the Land and the
Building to any financial institution. The Lessor shall ensure that the
rights of the Lessee shall not be derogated from or prejudiced in any
manner whatsoever by the securing of such project finance;
4.6 The Lessor represents and warrants to the Lessee that it has authorised
▇▇. ▇. ▇. ▇▇▇▇▇▇▇▇▇▇▇ vide a resolution of its Board of Directors dated
November 15, 2004, to enter into this Agreement and has obtained all
applicable approvals and permissions to execute this Agreement; and
4.7 The Lessor agrees to indemnify and keep indemnified the Lessee against
any Loss arising out of (i) any breach of the terms and conditions of
this Agreement by the Lessor; or (ii) any of the representations and
assurances provided in this Clause 4 being false and untrue.
B. Representations of the Lessee.
4.8 The Lessee represents to the Lessor that it has authorised ▇▇.
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ vide a resolution of its Board of Directors dated
October 13, 2004 to enter into this Agreement; and
4.9 The Lessee shall always observe and perform all the terms and
conditions, covenants and provisions of this Agreement and shall not
do, omit or suffer to be done any thing whereby the right of the Lessor
to the Land, the Building or the Premises is violated, forfeited,
jeopardised or extinguished or the Lessor is prevented from carrying
out its obligations under this Agreement.
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5. TERM.
5.1 Term. This Agreement shall be valid and in force from the Signature
Date till the date on which the Lessee's right to exercise its option
for the Expansion Premises, as provided in Clause 9.2 below, expires or
the date on which the Lessee's right to exercise its option for the
Expansion Plot, as provided in Clause 9.3 below, expires, whichever is
later; or until the prior termination of this Agreement. It is hereby
clarified that the Lease Deed shall be valid and in force for a period
of five (5) years commencing from the Lease Commencement Date. At the
sole option of the Lessee, the Parties may renew the Lease Deed for a
further term of four (4) years by executing a fresh lease deed that
shall be duly registered.
6. NOTICES.
6.1 Notices. All notices, documents and other forms of communication under
this Agreement shall be in writing and shall be sent through registered
post acknowledgement due to the applicable Party at the addresses
mentioned below:
If to the Lessor:
Orchid Apartments Private Limited,
▇▇. ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇ 560 001
Attn: ▇▇. ▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇
If to the Lessee:
Manhattan Associates India Development Centre Private Limited,
Unit No. 2, ▇▇▇▇▇ ▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ 560 066
Attn: ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
7. ASSIGNMENTS AND SALE.
7.1 Assignment. The Parties agree that the Lessor may assign its rights or
obligations under this Agreement to any third party upon provision to
the Lessee of prior notice in writing. The Lessor hereby agrees that
any agreement or other instrument governing the assignment of rights or
obligations to such third party shall expressly provide that such third
party assignee will be bound by the terms and conditions of this
Agreement. The Lessor further agrees that in the event of the
assignment of any rights or obligations under this Agreement or on the
sale, transfer or alienation of the Land, Building or the Premises
(subject to the provisions of this Agreement) by the Lessor, the Lessor
shall
14
ensure that the rights of the Lessee under this Agreement remain
protected and are not derogated from or diluted in any manner
whatsoever.
7.2 Sale to a Competitor. Notwithstanding any of the other provisions
contained in this Agreement, the Parties agree that the Lessor shall
not sell or lease the Premises to any competitor of the Lessee as
listed in Schedule X of this Agreement.
7.3 Right of First Refusal. Notwithstanding any of the provisions contained
in this Agreement, in the event the Lessor decides to sell to any third
party all or any portion of the Land, Building or the Premises, then
before concluding such sale, the Lessor shall provide written notice of
such intended sale to the Lessee specifying in detail the terms of such
intended sale and shall irrevocably offer to sell to the Lessee the
Land, Building or the Premises or any portion thereof at the same price
and on the same terms as the Lessor intends to sell the Land, Building
or the Premises or any portion thereof to a third party (the "OFFER").
The Lessee may accept the Offer on the same terms and conditions as set
forth in the notice, by serving on the Lessor a written notice
accepting or rejecting the Offer, in that respect within forty five
(45) days of the receipt of the Offer from the Lessor, and shall set
forth the portion of the Land, Building or Premises or any portion
thereof as to which the Offer is accepted.
8. PROTECTION OF INTELLECTUAL PROPERTY RIGHTS.
8.1 Intellectual Property Rights. This Agreement shall not be construed or
sought to be interpreted to authorise either of the Parties to use any
of the intellectual property rights of the other. None of the terms of
this Agreement shall be understood to, nor shall this Agreement be
interpreted to permit either of the Parties to use the logo, trade
names or trade marks of the other Party in any manner whatsoever save
for the purpose of marketing and business communication, except with
such other Party's prior written consent, such consent not to be
unreasonably withheld or delayed.
9. ADDITIONAL SPACE.
9.1 Additional Space. In consideration of the Lessee having agreed to take
the Premises on lease, the Lessor has agreed to reserve for the Lessee
certain additional areas in the Land and the Building, which the Lessee
proposes to take for its proposed expansion in accordance with this
Clause 9.
9.2 Expansion Premises. The Lessor shall make available to the Lessee an
additional twenty thousand (20,000) square feet of space in the
Building (the "EXPANSION PREMISES") on an exclusive basis during the
Term (as defined in the Lease Deed). Further, the Lessee shall have the
right to exercise this option in installments and lease such portion or
portions of the Expansion Premises as it deems fit at any time. In the
event the Lessee exercises its option(s) under this Clause 9.2, the
Lessee shall pay Lease Rentals (as defined in the Lease Deed) at the
then applicable rate. Further, the Parties shall execute a fresh lease
deed on identical terms and conditions as contained in the Lease Deed,
on each occasion that the Lessee exercises its option(s) under this
Clause 9.2.
15
9.3 Expansion Plot. The Lessee shall have the exclusive right to exercise
the option for an additional eighty thousand (80,000) square feet of
Built Up Area on the Land (the "EXPANSION PLOT"), which option shall be
exercised by the Lessee within twenty four (24) months from the Lease
Commencement Date. It is hereby clarified that this option shall be
exercised by the Lessee by the provision of three (3) months' notice in
writing to the Lessor and the twenty four (24) month option period
mentioned above shall be deemed to include such three (3) month notice
period. In the event of the Lessee exercising its option under this
Clause 9.3, the Lessor will construct the facility to be constructed on
such premises in accordance with the specifications of the Lessee and
make the same available to the Lessee within twelve (12) months of the
Lessee exercising the option. Further, the Parties shall execute a
fresh lease in identical terms and conditions as contained in the Lease
Deed, in the event that the Lessee exercises its option under this
Clause 9.3.
10. INSURANCE.
10.1 "All Risks" Coverage. During the Term of this Agreement, the Lessor
will keep its personal property, the Premises, the Building, and
leasehold improvements for which it retains ownership (including the
Premises), insured against loss or damage by fire and all other risks
of direct physical loss, only excepting the customary exclusions that
are contained in a standard "all risks" policy, for not less than one
hundred percent (100%) of the replacement value thereof. For purposes
of this Clause, "replacement value" will be deemed to be the cost of
replacing the property less the cost of excavation, foundations and
footings. Damages that are not insured and/or amounts for which the
Lessor becomes a co-insurer under its policy, including any related
costs, which occur due to the Lessor's failure to maintain property
insurance at the most recent replacement value, will be borne by the
Lessor. It is hereby clarified that the Lessor shall not be required to
insure any of the fit-outs or equipment installed in the Premises or
the Building by the Lessee. The Lessor hereby agrees that it will seek
reimbursement for any losses from its insurance provider and not from
the Lessee.
10.2 Evidence of Insurance. The Lessor shall furnish to the Lessee a true,
correct and validly certified True Copy of the certificates of such
insurance policies as are referenced in any and all Clauses contained
in this Agreement, within fifteen (15) days of the Lease Commencement
Date and shall provide evidence of the renewal of such insurance prior
to the expiration of the policies. The Lessor hereby undertakes that
any such insurance policies will not be cancelled without the provision
of at least thirty (30) days' prior written notice to the Lessee. The
Lessor agrees to notify the Lessee in writing thirty (30) days prior to
the date any material adverse change in, or any non-renewal of, such
policies is to become effective.
10.3 Lessor's Indemnification. The Lessor will indemnify, defend, and hold
the Lessee, and its employees and agents, harmless from any and all
loss or damage which the Lessee may sustain by reason of claims brought
against the Lessee alleging bodily injury or death to any person or
damage to property to the extent that such loss or damage is caused by
16
(a) the negligence or willful misconduct of the Lessor, or its
employees or agents, in connection with the Premises or the Building,
including Common Areas; or (b) the Lessor's default under the terms of
this Lease. Nothing contained herein will require the Lessor to defend,
indemnify or hold harmless the Lessee, or its employees and agents, for
losses or damages related to claims of bodily injury or death to any
person or damage to property to the extent caused by the negligence or
willful misconduct of the Lessee, or its employees or agents.
11. GOVERNING LAW AND ARBITRATION.
11.1 Governing Law. This Agreement is governed by and shall be construed in
accordance with the laws of the Republic of India.
11.2 Dispute Resolution. Subject to Clause 1.5, the Parties shall attempt to
amicably settle any dispute arising out of this Agreement and the
obligations hereunder (the "DISPUTE"). Either Party may give written
notice of the Dispute to the other Party within ten (10) days of the
day of the occurrence of the event which gives rise to such Dispute or
the day such event comes to the notice of the applicable Party. Both
Parties shall nominate one (1) person to attempt amicable settlement of
the Dispute within fifteen (15) days of notice under this Clause 11.2
and such attempt shall commence immediately.
11.3 Arbitration. If any Dispute arising between the Parties is not amicably
settled within thirty (30) days of commencement of attempts to settle
the same, the Dispute shall be referred to and be finally settled by
arbitration. The Parties agree that the arbitration proceedings will be
conducted at Bangalore in the English language in accordance with the
provisions of the [Indian] Arbitration and Conciliation Act, 1996 as it
then would be prevalent by a sole arbitrator mutually appointed by the
Parties. The decision of the sole arbitrator shall be final and binding
on the Parties.
11.4 Jurisdiction. Subject to the foregoing the courts at Bangalore only
shall have exclusive jurisdiction in all matters arising out of this
Agreement or any arbitration hereunder.
12. REAL ESTATE COMMISSION.
12.1 The Lessee hereby acknowledges and agrees that the Lessor has appointed
CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ South Asia Private Limited, ("CBRE") with its offices
at The Hulkul, ▇▇▇ ▇▇▇▇▇, ▇▇/▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ 560 001, to
act as its exclusive real estate representative. The Lessor will
compensate CBRE with a one time payment on the basis of real estate
commission equal to one (1) months' gross rentals as payable during the
first year of the Term, net of any applicable governmental levies and
service tax as payable, with fifty percent (50%) of such amount payable
upon execution of this Agreement and the remaining fifty percent (50%)
payable upon the execution of the Lease deed. It is hereby clarified
that the Lessee shall have no obligation towards CBRE whatsoever.
17
13. GENERAL.
13.1 This Agreement may be executed in one original and one counterpart. The
Lessee shall retain the original of this Agreement and the Lessor shall
retain the counterpart thereof.
13.2 The rights of each Party under this Agreement:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of rights and remedies
provided by law;
(c) may be waived only in writing and specifically; and
(d) shall not be construed as waived in the event of a delay in
exercising or non-exercise of any such right.
13.3 This Agreement may only be enforced by the Parties to this Agreement.
13.4 The Parties agree that if any of the provisions of this Agreement are
illegal or are declared to be invalid or illegal, the remaining
provisions of this Agreement shall continue to be in force and this
Agreement shall be interpreted accordingly.
13.5 Unless otherwise agreed to between the Parties, this Agreement and the
documents referred to in it contain the whole and definitive agreement
between the Parties relating to the transactions contemplated by this
Agreement and supercede all previous agreements, negotiations,
proposals and documents between the Parties relating to these
transactions.
13.6 The Lessee shall bear the stamp duty, registration and notarisation
charges payable on this Agreement and the stamp duty and registration
charges payable on the Lease Deed, and the Lessor shall bear the costs
of procuring the approval of all applicable authorities contemplated
under this Agreement and the Lease Deed, if required. All expenses
related to the execution and registration of this Agreement and the
Lease Deed shall be to the account of the Lessee.
13.7 The Parties hereby agree that time is the essence of this Agreement.
13.8 Each Party shall bear its own attorney's fees and other fees.
18
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
as of the date written below by their duly authorised representatives.
ORCHID APARTMENTS PRIVATE LIMITED WITNESS:
Signature:/s/ B.M. Jayeshanker Signature:
Name: B.M. Jayeshanker Name:
Title: Date:
Date: Address:
MANHATTAN ASSOCIATES INDIA
DEVELOPMENT CENTRE PRIVATE LIMITED WITNESS:
Signature:/s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Signature:
Name: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name:
Title: Date:
Date: Address:
19
SCHEDULE I
DESCRIPTION OF THE LAND
Land bearing Survey Numbers 170, 171 and 172, situated at ▇▇▇▇ ▇▇-▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇. ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ East Taluk, admeasuring to
the East by seventy four point five (74.5) metres, West by seventy two point
five (72.5) metres, North by one hundred and twenty nine point two (129.2)
metres, South by one hundred and fifty three point nine eight (153.98) metres,
totally admeasuring a total area of ten thousand two hundred and eleven
(10,211.00) square metres and bounded on the:
EAST BY : Road No.1-B;
WEST BY : Private Land;
NORTH BY : KIADB Storm Water Drain;
SOUTH BY : Road No.1-C;
And as further described in the map attached.
20
SCHEDULE II
DESCRIPTION OF THE BUILDING
The Building admeasuring approximately eighty thousand (80,000) square feet of
Built Up Area, consisting of a basement, a ground floor and three (3) upper
floors, on the portion of the Land described under Schedule I to this Agreement,
and as further described in the drawings attached.
21
SCHEDULE III
DESCRIPTION OF THE PREMISES
The premises situated at the basement, ground, first and second floors of the
Building approximately admeasuring sixty thousand (60,000) square feet of Built
Up Area, and terrace area consisting of cafeteria, gymnasium, training rooms
approximately admeasuring seven thousand two hundred (7200) square feet of Built
Up Area, in the Building, and as further described in the drawings attached.
22
SCHEDULE IV
SPECIFICATIONS
SCHEDULE OF FINISHES FOR MANHATTAN ASSOCIATES FACILITY AT EPIP, WHITEFIELD,
BANGALORE
A OFFICE BLOCK
1 External Walls
1.1 Front Curtain wall / Structural Glazing / ACP
1.2 Other three sides Recessed Punch windows and block work
plastered with 2 coats sponge plaster 25mm
thick with water proof compound / painted
with texture paint
2 MASONRY
2.1 Peripheral walls and main
walls Solid concrete block 200mm thick
2.2 Internal partitions -
toilet walls / shaft walls Solid concrete block 100mm thick
3 FLOOR FINISHES
3.1 Office Space IPS Flooring 50mm thick
3.2 Main Entrance Lobby Polished Granite
3.3 Passenger Lift Lobby -
All Floors Polished Granite and vitrified tiles
combination.
3.4 Service Lift Lobbies Polished Granite and vitrified tiles
combination.
3.5 Toilets Combination of Polished Granite and
vitrified ceramic tile flooring.
3.6 Staircase treads / risers
/ skirting & landings Kota stone
3.7 AHU / Service Rooms IPS Flooring 50mm thick
3.8 Pantry / Janitor's Closet Vitrified tiles
3.9 Terrace Cement rendered finish
3.10 Basement ramp IPS Flooring 50mm thick
4 INTERNAL WALLS
4.1 Office Areas C.M. 1:4 lime plaster 15mm thick and
painted with Oil Bound Distemper.
4.2 Main Entrance Lobby Polished Granite Cladding
4.3 Passenger Lift Lobby -
All Floors Polished Granite and vitrified tiles
combination
4.4 Service Lift Lobbies Polished Granite and vitrified tiles
combination.
4.5 Toilets Cladding (7' high) in vitrified ceramic
tiles with granite border, Washbasin
platforms & counter and Urinal Partitions
in polished marble / granite
4.6 Service Shafts(inside) 15mm thick sponge plaster
4.7 Staircase well C.M. 1:4 lime plaster 12mm thick and
painted with Oil Bound Distemper.
4.8 Ducts 15mm thick sponge plaster with white lime
wash finish
5 CEILING
23
5.1 Office Area Modular Acoustic tile ceiling with
Aluminium 'T' suspension system, 600 X 600
tiles,
Make ▇▇▇▇▇▇▇▇▇ / USG / Celltox / equivalent
5.2 Lift Lobby Gypsum Plaster Board with Cornice and cove
lighting
5.3 Entrance Lobby Combination of modular Acoustic & Gypsum
Plaster Board with cove lighting
5.4 Toilets Modular GRG Board Tiles or Aluminium 'T'
suspension system
5.5 Service room and
staircase core C.M. 1:4 lime plaster 12mm thick and
painted with oil bound distemper
5.6 Basement C.M. 1:4 lime plaster 12mm thick and
painted with cement paint
6 DOORS
6.1 Service Shaft / Staircase
/ AHU / Elec. Rooms Painted wooden Fire doors, with 2 hr fire
rating / as per code requirements, with
Brush steel finish Ironmongery. All
staircase fire escape doors fitted with
panic bars.
6.2 Lift lobby doors Veneer Finished 2 hrs. Fire rated wooden
Flush doors with Brush steel finish
Ironmongery & Vision panels
6.3 Main Entrance Doors 12mm thick frame less Double swing glass
doors with heavy duty floor springs
6.4 Toilet Doors Flush doors, with ▇▇▇ ▇▇▇▇ frames &
finished with lamination on both sides,
with Brush steel finish Ironmongery.
6.5 Fire Escape door in
Ground Floor Painted wooden Fire doors, with 2 hr fire
rating / as per code requirements, with
Brush steel finish Ironmongery.
7 RAILING
7.1 Staircase MS railing
7.2 Handicapped ramp SS / Brush steel railing
B EXTERNAL DEVELOPMENT
Driveways and Parking
slots Combination of Interlocking Paver blocks &
Asphalted Surface
Parking Slots Interlocking Paver Blocks / Asphalted
Surface
Landscape Soft & hard landscape to design
24
SCHEDULE V
BENCHMARKS AND PAYMENT SCHEDULE
DATE OF
AGREED DATE DATE OF NOTICE CERTIFICATE INSTALLMENT
BENCHMARK OF COMPLETION OF COMPLETION OF ACCEPTANCE PAYABLE
--------- ------------- -------------- ------------- -----------
Basement Roof Slab, 20.11.2004 20.11.2004 27.11.2004 Rs. 50,32,500/-
Ground Floor Roof
Slab
First Floor Roof Slab,
Second Floor Roof Slab
and Third Floor Roof 20.02.2005 20.02.2005 27.02.2005 Rs. 50,32,500/-
Slab
Fit Out
Commencement Date 15.03.2005 15.03.2005 22.03.2005 Nil
Completion of Building
and Occupation
Certificate and
issuance of the final 30.03.2005 30.03.2005 07.04.2005 Rs. 50,65,000/-
Acceptance Certificate
Lease Commencement Date 15.05.2005 -- -- --
Registration of Lease
Deed 20.05.2005 -- -- Rs. 50,00,000/-
25
SCHEDULE VI
LEASE DEED
1. TERMS OF THE LEASE DEED.
1.1 The Parties agree that the following terms contained in this Schedule
VI shall form a part of the Lease Deed and shall be binding on the
Parties.
2. REPRESENTATIONS AND WARRANTIES.
2.1 Lessor's Representations. As on the Lease Commencement Date, the Lessor
will represent and warrant to the Lessee the following covenants:
(a) That the Lessor (i) is the sole and absolute owner of
the Land, Building and the Premises; (ii) has valid
title and registered ownership rights to the
Premises; and (iii) enjoys the uninterrupted, quiet,
peaceful, physical, vacant and legal possession of
the Premises without any interference whatsoever;
(b) That the Premises are free from any and all
encumbrances;
(c) That all necessary and applicable statutory approvals
and permission with respect to the construction of
the Building and for the occupation of the Premises
have been obtained by the Lessor;
(d) That all necessary and applicable sanctions and
approvals for twenty four (24) hours a day/seven (7)
days a week water and power supply to the Premises
have been obtained;
(e) That there are no claims, actions, litigations,
arbitrations, land acquisition proceedings, garnishee
or other proceedings relating to the Land, the
Building or the Premises or the transactions
contemplated under the Lease Deed. The Lessor shall
give the Lessee immediate notice of any claim,
litigation, proceeding or investigation which becomes
known to it during the Initial Term (as defined
below) or the Renewal Term (as defined below);
(f) That the Lessor does not have any liability for any
taxes, or any interest or penalty in respect thereof,
of any nature that may become a lien against the
Land, the Building or the Premises. The Lessor agrees
to indemnify the Lessee and save, defend and hold the
Lessee harmless from any and all Losses resulting
from or related to the non-payment of any such taxes
and applicable governmental levies;
26
(g) That the Lessee may use the Premises on a twenty four
(24) hours a day/seven (7) days a week basis and
enjoy unhindered possession of the Premises; and
(h) That the Lessor (i) is authorised to enter into the
Lease Deed; and (ii) has obtained all applicable
approvals and permissions to execute the Lease Deed.
3. RENT.
3.1 Rent. The rent payable by the Lessee to the Lessor for the Premises
shall be calculated at the rate of Rupees Thirty and Fifty Paise Only
(Rs. 30.50/-) per square foot of Built Up Area per month (the "RENT").
The Rent is inclusive of power and power backup infrastructure and
centralised air conditioning infrastructure, false ceiling, ducting,
ceiling lighting and ceiling light fixtures and smoke detectors for the
Premises. The exact Built Up Area of the Premises will be confirmed by
the Parties at the time of execution of the Lease Deed. It is hereby
clarified that notwithstanding the area confirmed by the Parties as
provided above, the Lessee shall not be liable to pay Rent on a Built
Up Area of more than sixty one thousand (61,000) square feet.
3.2 Terrace Rent. The Lessee agrees to pay the Lessor rent towards the use
of the terrace area, for a cafeteria, gymnasium, and training rooms in
total admeasuring approximately seven thousand two hundred (7,200)
square feet (described in Schedule III) at the rate of Rupees Twenty
One Only (Rs. 21/-) per square foot, per month (the "TERRACE RENT").
The exact leasable terrace area will be confirmed by the Parties at the
time of execution of the Lease Deed. The Terrace Rent is inclusive of
power and power backup infrastructure and centralised air conditioning
infrastructure, false ceiling, ducting, ceiling lighting and light
fixtures and smoke detectors.
3.3 Car Parking. The Lessee agrees to pay the Lessor a car parking charge
at the rate of Rupees One Thousand Five Hundred Only (Rs. 1,500/-) per
covered car parking space, per month (the "CAR PARK RENT"). The Car
Park Rent shall be paid on the basis of the actual number of car
parking spaces used by the Lessee.
4. PAYMENT OF RENT.
4.1 Rent Free Period. For a period of two (2) months from the Fit-Out
Commencement Date the Lessee shall enjoy a rent free period of
occupation of the Premises(the "RENT FREE PERIOD") for the purpose of
establishing fit-outs in the Premises.
4.2 Payment of Lease Rentals. Commencing from the date of expiry of the
Rent Free Period (the "RENT COMMENCEMENT DATE") the Lessee shall
regularly pay the Rent, the Terrace Rent and the Car Park Rent
(hereinafter collectively also referred to as the "LEASE RENTALS") to
the Lessor on or before the seventh (7th) day of each month subject to
tax deduction at source, in advance for the month for which it is due.
In the event of
27
there being any delay in payment of the Lease Rentals, the Lessee shall
be liable to pay interest at the rate of twelve percent (12%) per annum
from the due date of the Lease Rentals till the date of realisation of
the amount by the Lessor.
4.3 Increase in Rent. The Lessee shall pay enhanced Rent at the rate of
fifteen percent (15%) over and above the last Rent paid at the end of
every three (3) years of the Term commencing from the Rent Commencement
Date.
5. SECURITY DEPOSIT.
5.1 Deposit. The Parties agree that on the Lease Commencement Date, the
Advance paid by the Lessee under the Agreement to Lease shall be
treated as the refundable interest free security deposit equivalent to
twelve (12) months' Rent (the "DEPOSIT").
5.2 Refund of Deposit. The Lessor shall on the expiry or earlier
termination of this Lease Deed, refund the Deposit against the delivery
of the vacant physical possession of the Premises, subject to Clause
5.3 and deduction of any arrears of Lease Rentals, electricity and
water charges and Maintenance Charges including charges towards
restoring structural damages, if any, caused by the Lessee. The Deposit
shall be refunded by the Lessor to the Lessee by demand draft payable
at Bangalore.
5.3 Failure to Refund Deposit. If, within thirty (30) days of the expiry or
early termination of the Lease Deed or the New Deed(as defined below),
the Lessor fails to refund the Security Deposit to the Lessee, without
prejudice to the rights of the Lessee under this Agreement and in law,
(i) the Lessor shall, in addition to returning the Deposit, pay
interest calculated at twelve percent (12%) per annum on the Deposit,
from the date of expiry of the Term or the early termination of the
Lease Deed or the New Deed, to the date of actual payment; and (ii) the
Lessee shall enjoy the right to use the Premises without the payment of
any Lease Rentals or Maintenance Charges from the date of expiry of the
Term or the earlier termination of the Lease Deed or the New Deed to
the date of actual repayment of the Security Deposit. It is hereby
clarified that in such event, the Lessee shall remain liable to pay
consumption charges for electricity, power back-up and water.
6. TERM.
6.1 Initial Term. The Lease Deed shall be valid and in force for a period
of five (5) years commencing from the Lease Commencement Date (the
"INITIAL TERM").
6.2 Renewal Term. At the sole option of the Lessee, the Parties may renew
the Lease Deed for a further term of four (4) years (the "RENEWAL
TERM"; the Initial Term and the Renewal Term are collectively referred
to as the "TERM") by executing a fresh lease deed that shall be duly
registered (the "NEW DEED"). The Parties hereby agree that in the event
the Lessee exercises its option to renew the term of the Lease Deed,
the New Deed shall (i) be executed and registered prior to the
expiration of the Lease Deed; and
28
(ii) the terms of the New Deed shall be identical to the terms of the
Lease Deed, subject to revision of the lease term and the lease rentals
as already defined in this lease. It is hereby clarified that the New
Deed shall not be subject to any lock-in period.
6.3 Lock-in Period. There being no breach on the part of the Lessor, the
Lessee shall not be entitled to terminate this Lease Deed for a minimum
period of three (3) years from the Lease Commencement Date (the
"LOCK-IN PERIOD"). In the event the Lessee intends to terminate this
Lease Deed during the Lock-in Period for reasons other than a breach on
the part of the Lessor, the Lessee will become liable to pay the Lease
Rent and the Terrace Rent for the remainder of the Lock-in Period. On
the expiry of the Lock-in Period the Lessee shall have the right to
terminate this Lease Deed in accordance with the provisions contained
in Clause 19.2 of this Lease Deed.
7. TAXES AND APPLICABLE LEVIES.
7.1 Taxes. The Lessor shall promptly pay when due all applicable taxes and
levies against the Land, the Building and the Premises, and any
fixtures or equipment attached thereto or appurtenant thereon,
including any taxes that may be levied on the lease transaction. The
Lessor shall promptly deliver to Lessee copies of (i) notices demanding
the payment of applicable taxes and levies; and (ii) receipts depicting
payment of all taxes and applicable levies against the Land, the
Building and the Premises, and any fixtures or equipment attached
thereto or appurtenant thereon.
8. STRUCTURAL WORKS.
8.1 Structural Maintenance. The Parties agree that the Lessee shall at its
own cost and expense ensure the day to day maintenance of the interior
of the Premises and effect necessary minor repairs to the interior of
the Premises. All other exterior, structural and major repairs shall be
provided for by the Lessor at its own cost and expense. If there are
any structural repairs to be carried out to the Premises, the Lessee
shall issue a written notice to the Lessor reporting the structural
defect and describing the details of the structural defect (the
"STRUCTURAL DEFECT NOTICE"). The Lessor shall repair the structural
defect within thirty (30) days from the date of receipt of the
Structural Defect Notice. If the Lessor fails to repair the structural
defect within thirty (30) days of the receipt of the Structural Defect
Notice to the sole satisfaction of the Lessee, the Lessee shall repair
the structural defect. The Lessee shall notify the Lessor with respect
to the details of the invoice raised for such repairs and deduct all
amounts paid with respect to the repair of the structural defect from
the next month(s) Lease Rentals.
9. INTERIOR WORKS.
9.1 Conduct of Interior Works. The Lessee shall enjoy the right to carry
out such interior works (not being in the nature of any material /
permanent / structural works) as the Lessee may find necessary for the
conduct of the Lessee's business, using such contractors as selected by
the Lessee. The Lessee shall have the right to install its machinery,
trade fixtures, furnishings and equipment in the Premises. The Lessee
shall
29
also have the right to install any electrical wiring within the
Premises with the prior written consent of Lessor, subject to the
Lessee obtaining all necessary building permits as are required for
such alterations. The Parties agree that all proprietary rights over
the interior alterations in the Premises shall at all times vest with
the Lessee.
9.2 Removal of Interior Works. Ownership of all alterations made by the
Lessee in accordance with Clause 9.1 above shall always be retained by
the Lessee, and the Lessee shall have the right to remove any and all
of the Lessee's machinery, trade fixtures, furnishings and equipment at
any time including at the expiry or earlier termination of the Lease
Deed, whether or not the same are, or are deemed to be, affixed to the
Premises. It is hereby clarified that the Lessee shall be under no
obligation to remove any of the alterations made by it any time
including at the termination or expiry of the Lease Deed. The Lessee
will be responsible to repair only structural damage done to the
Premises during such affixing and/or removal of its machinery, trade
fixtures, furnishings and equipment, provided always that such
obligation of the Lessee shall not extend to reinstating the Premises
to its original condition as on the Lease Commencement Date.
10. ASSIGNMENT AND SUB-LETTING.
10.1 Assignment. The Parties agree that the Lessor enjoys the right to
assign its rights or obligations under this Lease Deed to any third
party, after providing the Lessee with thirty (30) days' prior written
notice of such assignment, provided that the Lessor shall not assign
its rights or obligations under the Lease Deed to any third party
listed in Schedule X of the Agreement to Lease. The Lessor hereby
agrees that any agreement or other instrument governing the assignment
of rights or obligations to such third party shall expressly provide
that such third party assignee will be bound by the terms and
conditions of this Lease Deed. The Lessor further agrees that on the
assignment of any rights or obligations under the Lease Deed or on the
sale, transfer or alienation of the Premises to any third party not
being any person listed in Schedule X of the Agreement to Lease, the
Lessor shall ensure that the rights of the Lessee under this Lease Deed
remain protected and are not derogated from or diluted in any manner
whatsoever. On such assignment, sale, transfer or alienation being
affected by the Lessor, the Lessee shall, on being intimated by the
Lessor of such assignment, sale, transfer, or alienation to any third
party, attorn this Lease Deed in favour of such purchaser, transferee,
assignee or alienee as the case may be.
10.2 Sub-Letting. The Parties further agree that the Lessee may, upon prior
written notice to the Lessor, assign the Lease Deed or sublet all or
any portion of the Premises to: (i) any affiliate of the Lessee; (ii)
any entity controlling, controlled by, or under common control with the
Lessee; (iii) any person or entity which acquires all or substantially
all of the Lessee's assets or stock; or (iv) any organisation resulting
from a merger or consolidation with the Lessee. The Lessee shall not
assign the Lease Deed or sublet all or any portion of the Premises to
any other party without the prior written consent of the Lessor which
consent the Lessor shall not unreasonably delay or withhold. It is
hereby
30
clarified that in any such case of sublease of the Premises, the Lessee
shall continue to be liable and responsible for all obligations under
this Lease Deed.
10.3 Rental Discounting. The Lessor shall be entitled to seek rental
discounting facility or create a mortgage of the Premises or any part
thereof, provided such mortgage shall not in any manner affect the
rights of the Lessee to use and occupy the Premises during the Term,
provided that the Lessor shall: (i) provide the Lessee with details as
regards the entity to whom the Lease Rentals are payable; and (ii)
undertake to discharge the Lessee from all claims under this Lease Deed
on payment of the Lease Rentals to the identified entity.
10.4 Right of First Refusal. Notwithstanding any other provisions of the
Lease Deed, if the Lessor decides to sell to any third party (except
those Parties listed in Schedule X of the Agreement to Lease) all or
any portion of the Land, the Building or the Premises (the "SALE
PREMISES"), then before concluding such sale, the Lessor shall provide
written notice of such intended sale to the Lessee specifying in detail
the terms of such intended sale and shall irrevocably offer to sell to
the Lessee the Sale Premises at the same price and on the same terms as
the Lessor intends to sell the Sale Premises to the third party (the
"OFFER"). The Lessee may accept the Offer on the same terms and
conditions as set forth in the notice, by serving on the Lessor a
written notice accepting or rejecting the Offer in that respect within
thirty (30) Days of the receipt of the Offer from the Lessor, and shall
set forth the portion of the Sale Premises as to which the Offer is
accepted. In the event that the Lessee does not accept the Offer within
the thirty (30) day period, above mentioned, then the Lessor is at
liberty to alienate the property to any third party.
11. SUBORDINATION; INSURANCE.
11.1 Encumbrance. The Lessor represents and warrants to the Lessee that as
of the Lease Commencement Date, the only encumbrance on the Premises is
an equitable mortgage by deposit of title deeds for the value of Rupees
Six Crore Forty Lakhs Only (INR 6,40,00,000/-) in favour of Corporation
Bank, SC Road Branch, Bangalore. The Parties may agree, upon thirty
(30) days' advance written notice, to execute an attornment agreement
as is reasonably requested by the Lessor's lender subordinating its
interest and/or attorning to such lender provided that: (a) such lender
attorns in writing, agreeing to recognise the Lessee's possession and
rights under the Lease Deed and agreeing not to disturb or impair the
Lessee's rights to quiet enjoyment of the Premises and (b) any default
by the Lessor under such encumbrance shall not affect the Lessee's
rights under the Lease Deed. Notwithstanding any of the provisions of
the Lease Deed, on the registration of the Lease Deed the Lessee shall
enjoy indefeasible rights under the Lease Deed against any third party,
mortgagee or other holder of security over the Premises.
11.2 "All Risks" Coverage. During the Term of this Deed, the Lessor will
keep its personal property, the Premises, the Building, and leasehold
improvements for which it retains ownership (including the Premises),
insured against loss or damage by fire and all other risks of direct
physical loss, only excepting the customary exclusions that are
contained in
31
a standard "all risks" policy, for not less than one hundred percent
(100%) of the replacement value thereof. For purposes of this Clause,
"replacement value" will be deemed to be the cost of replacing the
property less the cost of excavation, foundations and footings. Damages
that are not insured and/or amounts for which the Lessor becomes a
co-insurer under its policy, including any related costs, which occur
due to the Lessor's failure to maintain property insurance at the most
recent replacement value, will be borne by the Lessor. It is hereby
clarified that the Lessor shall not be required to insure any of the
fit-outs or equipment installed in the Premises or the Building by the
Lessee.
11.3 Evidence of Insurance. The Lessor shall furnish to the Lessee a true,
correct and validly certified True Copy of the certificates of such
insurance policies as are referenced in any and all Clauses contained
in this Deed, within fifteen (15) days of the Lease Commencement Date
and shall provide evidence of the renewal of such insurance prior to
the expiration of the policies. The Lessor hereby undertakes that any
such insurance policies will not be cancelled without the provision of
at least thirty (30) days' prior written notice to the Lessee. The
Lessor agrees to notify the Lessee in writing thirty (30) days prior to
the date any material adverse change in, or any non-renewal of, such
policies is to become effective.
12. FORCE MAJEURE.
12.1 Force Majeure. In the event of the Premises or any part thereof being
destroyed or damaged by earth quake, flood or any other natural
calamity or any governmental action, including any action or directive
of the United States Federal or State Governments, to such an extent or
degree that the Lessee is unable to continue its normal business
therein, or if the Premises is rendered unfit for occupation for
reasons otherwise than any act of omission or commission of the Lessee,
then the Lessee shall have the option to terminate the Lease Deed as
from the date on which such event occurs. In the event the Lessee
exercises its option to terminate the Lease Deed, the Lessee shall not
be liable to pay any Rent from the date of occurrence of such event,
and the Deposit and all other amounts paid in advance, if any, by the
Lessee, shall fall due immediately and be repaid by the Lessor to the
Lessee without demur. In the event the Lessee does not exercise the
option of terminating the Lease Deed within thirty (30) days of the
date of such damage or destruction or in case the damage is minor and
the Premises remains fit for normal occupation, the Lease Deed shall be
deemed to continue and shall remain in force and the Lessor shall at
its own expenses, as speedily as circumstances permit, perform such
rebuilding and repair as may be necessary to restore the Premises to
its original condition. There shall, however, be a pro-rata abatement
of Lease Rentals and Maintenance Charges payable from the date of such
event for a period of thirty (30) days from the date of the Force
Majeure event or till the Premises is restored to its former condition,
whichever is earlier. In case the Lessor fails to repair the Premises,
the Lessee shall have an option to carry out such repairs and adjust
the cost thereof from the Lease Rentals payable to the Lessor.
32
13. ELECTRICITY.
13.1 Electricity. The Lessor shall provide the Building and the Premises
with nine hundred and fifty (950) KVA of raw power along with one
hundred percent (100%) back up power provided by way of automatic
generators for the Building and the Premises. The Lessor shall install
calibrated meters, at its own cost, to measure the power consumed by
the Lessee within the Premises. The Lessor further agrees that the
Building shall be equipped with a transformer capacity of one thousand
five hundred (1,500) KVA. The Lessee shall pay charges for consumption
of power directly to the concerned authority. It is hereby clarified
that the Lessee shall not be liable to pay consumption charges for any
power usage in any area outside the Premises, including on the facade
of the Premises, except for signage installed by Lessee.
14. MAINTENANCE.
14.1 Maintenance Services. The Lessor will ensure that the Premises, the
Land and the Building are maintained to the standard which is expected
by a multi-national company and the Lessor will appoint an external
Property Management Services Company to achieve such standards. The
maintenance services (the "MAINTENANCE SERVICES") that the Lessor shall
provide are contained in Schedule VII to the Agreement to Lease.
14.2 Maintenance Charge. The Lessee has agreed to pay maintenance charges
towards the provision of the Maintenance Services at the rate of Rupees
Five Only (Rs. 5/-) per square foot of Built Up Area, per month (the
"MAINTENANCE CHARGES"). This amount is to be paid in addition to the
Lease Rentals commencing as of the Lease Commencement Date.
14.3 National Building Codes. The Lessor hereby represents and warrants that
the Premises have been constructed in accordance with the relevant
National Building Codes. The Lessor agrees that it shall conduct the
requisite fire drills in the Building as mandated by the National
Building Codes.
15. INSTALLATION OF TELECOMMUNICATION EQUIPMENT AND OTHER DEVICES.
15.1 Terrace Area. The Lessor has agreed that the Lessee will be entitled to
install its antenna/s dish or tower or any other kind of communication
devices which are desirable for the Lessee's efficient use of the
Premises, free of charge, on the terrace of the Building. The Lessee
will be entitled, along with such devices, to install ancillary
equipment for its operations in the said terrace area. The Lessee, at
its own cost, shall obtain all the licences and statutory permissions,
if required, for installation of such telecommunication devices and
ancillary equipment. The Lessor undertakes to provide any
"no-objection" letters or certificates required, or any affidavit,
endorsement or other document required for the Lessee to obtain such
permissions as are referred to in this Clause 15.1.
33
15.2 Telephone Lines. The Lessor shall ensure that the telecom service
provider of the Lessee's choice lays broadband or such other cable as
the Lessee requires, so as to enable the Lessee to obtain
telecommunication connectivity for its business purposes. The cables
shall be laid up to the Building, and shall terminate in a central
mechanical room in the Building.
15.3 Consultation with the Lessee. The Lessor hereby agrees that it shall
carry out the procurement of diesel generator sets, HVAC units and
elevators for the Building and enter into maintenance agreements for
the same only in consultation with the Lessee and agrees to be bound by
any viable preferences expressed in writing by the Lessee in this
regard.
16. ADDITIONAL SPACE.
16.1 Additional Space. In consideration of the Lessee having agreed to take
the Premises on lease, the Lessor has agreed to reserve for the Lessee
certain additional areas in the Land and Building, which the Lessee
proposes to take for its proposed expansion in accordance with this
Clause 16.
16.2 Expansion Premises. The Lessor shall make available to the Lessee an
additional twenty thousand (20,000) square feet of space in the
Building (the "EXPANSION PREMISES") on an exclusive basis during the
Term. Further, the Lessee shall have the right to exercise this option
in installments and lease such portion or portions of the Expansion
Premises as it deems fit at any time. In the event the Lessee exercises
its option(s) under this Clause 16.2, the Lessee shall pay Lease
Rentals (as defined in the Lease Deed) at the then applicable rate.
Further, the Parties shall execute a fresh lease deed on identical
terms and conditions as contained in the Lease Deed on each occasion
that the Lessee exercises its option(s) under this Clause 16.2.
16.3 Expansion Plot. The Lessee shall have the exclusive right to exercise
the option for an additional eighty thousand (80,000) square feet of
Built Up Area on the Land (the "EXPANSION PLOT"), which option shall be
exercised by the Lessee within twenty four (24) months from the Lease
Commencement Date. It is hereby clarified that this option shall be
exercised by the Lessee by the provision of three (3) months' notice in
writing to the Lessor and the twenty four (24) month option period
mentioned above shall be deemed to include such three (3) month notice
period. In the event of the Lessee exercising its option under this
Clause 16.3, the Lessor will construct the facility to be constructed
on such premises in accordance with the specifications of the Lessee
and make the same available to the Lessee within twelve (12) months of
the Lessee exercising the option. Further, the Parties shall execute a
fresh lease in identical terms and conditions as contained in the Lease
Deed, in the event that the Lessee exercises its option under this
Clause 16.3
34
17. SIGNAGE.
17.1 Signage. The Lessee will enjoy the following rights: (i) the right to
place signage using the Lessee's standard graphics and signage on the
Premises and all common areas of the Land and Building; and (iii) the
right to install monument signage on the Land, the Building and the
Premises.
18. TERMINATION.
18.1 Events of Termination. The Parties agree that this Lease Deed may be
terminated by the non-defaulting Party (irrespective of the Lock-in
Period), on the occurrence of any of the following events, by providing
the defaulting Party with thirty (30) days' written notice of
termination:
(a) Either Party breaches any of the provisions of the
Lease Deed and fails to remedy such breach within
thirty (30) days from being notified to remedy the
breach;
(b) Any of the representations, warranties and assurances
provided in the Lease Deed is false and untrue or is
found to be false and untrue during the term of the
Lease Deed;
(c) The whole or any part of the Land, Building or the
Premises is attached by any judicial or
administrative order or is acquired for any public or
quasi-public use or purpose;
(d) The permission or approval of any applicable
statutory or regulatory authority for the use of the
Land, Building or the Premises in accordance with the
terms and subject to the conditions contained in the
Lease Deed is withdrawn or suspended by either a
judicial, legislative or executive act; or
(e) The defaulting Party is wound up or dissolved
according to the provisions of law, or a petition for
dissolution is admitted by a court of competent
jurisdiction against the defaulting Party.
18.2 Termination after the Lock-in Period. After the Lock-in Period, the
Lessee shall, at any time, and at its sole option, have the right to
terminate the Lease Deed by providing the Lessor with sixty (60) days'
written notice of termination.
18.3 Consequences of Termination. On the termination of the Lease Deed the
following events shall occur:
35
(a) The Lessor shall within fifteen (15) days from the
termination of the Lease Deed and on the Lessee
handing over vacant possession of the Premises and
without demur, refund the Deposit to the Lessee. If
the Lessor fails to refund the Deposit to the Lessee
within fifteen (15) days from the termination of the
Lease Deed, the Lessor shall be liable to pay the
Lessee interest at the rate of twelve percent (12%)
per annum from the date of termination of the Lease
Deed till the date of realisation of the Deposit by
the Lessee.
19. GOVERNING LAW AND ARBITRATION.
19.1 Governing Law. This Lease Deed is governed by and shall be construed in
accordance with the laws of the Republic of India.
19.2 Dispute. The Parties shall attempt to amicably settle all disputes
arising out of this Lease Deed and the obligations hereunder (the
"DISPUTE"). Either Party may give written notice of the Dispute to the
other Party within ten (10) days of the occurrence of the event which
gives rise to such dispute or the date such event came to the notice of
the applicable Party.
19.3 Dispute Resolution. Both Parties shall nominate one person to attempt
amicable settlement of the Dispute within fifteen (15) days of notice
under Clause 19.2 and such attempt shall commence immediately.
19.4 Arbitration. If any Dispute arising between the Parties is not amicably
settled within thirty (30) days of commencement of attempts to settle
the same, the Dispute shall be referred to and be finally settled by
arbitration. The Parties agree that the arbitration proceedings will be
conducted at Bangalore, in the English language, and shall be governed
by the provisions of the [Indian] Arbitration and Conciliation Act,
1996. The arbitration shall be conducted by a sole arbitrator mutually
appointed by the Parties.
19.5 Jurisdiction. Subject to the foregoing the courts at Bangalore only
shall have exclusive jurisdiction in all matters arising out of this
Lease Deed or any arbitration hereunder.
20. NOTICES.
20.1 Notices. All notices, documents and other forms of communication under
this Lease Deed shall be in writing and shall be sent through
registered post acknowledgement due to the applicable Party at the
addresses mentioned below:
If to the Lessor:
Orchid Apartments Private Limited,
▇▇.▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇
ATTN: ▇▇. ▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇
36
If to the Lessee:
Manhattan Associates India Development Centre Private Limited,
▇▇▇▇ ▇▇-▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇. ▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇
ATTN: ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
21. GENERAL.
21.1 This Lease Deed is executed in one original and one counterpart. The
Lessor shall retain the original Lease Deed while the Lessee shall
retain a copy of the Lease Deed.
21.2 The rights of each Party under this Lease Deed:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of rights and remedies
provided by law;
(c) may be waived only in writing and specifically; and
(d) shall not be construed as waived in the event of a delay in
exercising or non-exercise of any such right.
21.3 This Lease Deed may only be enforced by the Parties to this Lease Deed.
21.4 The Parties agree that if any of the provisions of this Lease Deed are
illegal or are declared to be invalid or illegal, the remaining
provisions of this Lease Deed shall continue to be in force and this
Lease Deed shall be interpreted accordingly.
21.5 Unless otherwise agreed to between the Parties, this Lease Deed and the
documents referred to in it contain the whole and definitive agreement
between the Parties relating to the transactions contemplated by this
Lease Deed and supercede all previous agreements, negotiations,
proposals and documents between the Parties relating to these
transactions.
21.6 The Lessee shall bear the stamp duty and the registration charges
payable on this Lease Deed, and the Lessor shall bear the costs of
procuring the approval of all applicable authorities contemplated under
this Lease Deed. All other expenses, except for the stamp duty and
registration fees, related to execution and registration of the Lease
Deed shall be to the account of the Lessee.
21.7 Each Party shall bear its own attorney's fees.
37
21.8 The Schedules and Annexures annexed to this Lease Deed shall be read as
a part of this Lease Deed and shall constitute a part of this Lease
Deed.
21.9 The Lessee hereby undertakes that it shall carry out its business in
accordance with applicable law and environmental standards.
21.10 The Lessor shall enjoy the right to inspect the Premises subject to
providing the Lessee with twenty four (24) hours prior written notice
of inspection.
22. INDEMNIFICATION.
22.1 The Lessor agrees to indemnify and keep indemnified the Lessee against
any Loss (not being in the nature of any direct or indirect business
loss or any direct or indirect opportunity loss or any action in tort)
arising out of (i) any breach of the terms and conditions of the Lease
Deed by the Lessor; or (ii) any of the representations, warranties and
assurances provided in the Lease Deed being false and untrue. The
Lessor further agrees to indemnify the Lessee against any claim made
against the Lessee arising out of any act or omission, directly or
indirectly, attributable to the Lessor.
-SIGNATURE PAGE FOLLOWS-
38
SCHEDULE VII
MAINTENANCE SERVICES
I. The Maintenance Services to be provided as consideration for the
Maintenance Charges are as follows:
SECURITY: Effective and appropriate levels of security
for the Land and Building shall be provided
by trained security personnel, who shall be
present in sufficient numbers to ensure the
security of the Land and Building. The
Maintenance Charge shall include the payment
of salaries of the security personnel/agency
and expenses for installation and operation
and maintenance of any security equipment.
HOUSE-KEEPING / GENERAL Housekeeping staff shall clean, wash/mop,
MAINTENANCE IN COMMON and sweep the Land, and common areas and
AREA & BASEMENT AREAS: shall clean all facades of the Building and
the Basements. The Maintenance Charge shall
include salaries, wages, expenses and
consumables used for housekeeping of the
housekeeping staff.
GENERAL LIGHTING IN Lighting and illumination of the Land,
COMMON AREAS: Building, common areas including corridors,
terraces, basement, parking areas and
lobbies. The Maintenance Charge shall
include costs incurred by the Lessor towards
repair/replacement of bulbs, tube lights,
electrical fittings and other electrical
equipment. The Lessor shall install a meters
to record electricity consumption for the
areas outside the Premises, including the
exterior facade of the Premises.
ANNUAL MAINTENANCE Maintenance and operation of lifts including
CONTRACTS INCLUDING service elevators, generators, fire fighting
REPAIR AND SERVICE: systems, borewells, sumps, overhead water
tanks, booster pumps / motors / de-watering
systems, sewerage treatment plants, public
address system in the Land, Building and
common areas.
ELECTRICAL SUPPLY The Lessor shall ensure electricity supply
AND MAINTENANCE: of 950 KVA to the Premises supplied from
KPTCL and from a captive electricity
generation plant (D.G. back-up) located in
the Land, maintenance of bus ducts,
electrical panels, transformers etc.,
including repair
39
and replacement and hire charges for the
electricity meter in the Land, Building and
Premises.
MONTHLY SETTLEMENT OF Water charges, electricity charges with
COMMON AREA EXPENSES: respect to the common areas, lobbies,
basement parking, Land and Building common
areas lighting.
LANDSCAPING, GARDENING Regular maintenance of landscaped gardens in
AND ROADS: the Land, Building, common areas, the
Premises and the Expansion Plot and
maintenance of roads and paths within the
Land and common areas and the Expansion
Plot.
CIVIL: Repairs of the Land, Building and common
areas, white washing/painting of the
Building and common areas as and when
necessary.
PEST CONTROL: Pest control with respect to the Land,
Building, Premises and common areas.
MAINTENANCE OF BORE Maintenance, repairs and servicing of bore
▇▇▇▇▇, SUMPS, OVERHEAD well(s), sump(s), overhead water tank(s) and
WATER TANKS IN ensuring that all pumps, motor(s),
COMMON AREAS: equipments etc., are in proper working
condition.
PROPERTY MANAGEMENT: Fees payable to property managers, if any
AIR-CONDITIONING AND The Lessor shall provide a central air
TEMPERATURE CONTROL conditioning plant with multiple compressors
with chilled water system to the Premises
and shall maintain the Premises in the
following condition:
i) Temperature of 23 degrees
+/- 1 degree centigrade with
relative humidity design factor for
office areas;
ii) Data center/server room to have
supply from a precision air
conditioning plant as specified by
the Lessor to achieve a temperature
of 18 degrees +/- 1 degree
centigrade.
iii) Adequate provisions to get fresh
air supply into Premises either by
natural means or via mechanical
systems.
40
The Lessor shall ensure uninterrupted
air-conditioning supply in the event of a
power failure through D.G. backup.
DIESEL GENERATOR AND The Lessor shall provide full and complete
BACK-UP ELECTRICITY alternate/back up power supply for the
SUPPLY Premises on the immediate occurrence of any
electricity failure to the Land, Building or
Premises. The supply shall be through
automated diesel generator sets, with switch
time equal to or less than eight (8)
seconds.
SALARIES The Maintenance Charges shall include the
salaries payable to all administrative and
maintenance staff hired by the Lessor.
WATER SUPPLY The Maintenance Charges include payment for
water consumed in the Premises.
41
SCHEDULE VIII
CONSENT CERTIFICATE
[Lessee Letterhead]
[Date]
[Details of the Lessor]
Dear [Name]
This is to certify that the Conditions mentioned in the
Agreement to Build and
Lease executed between Orchid Apartments Private Limited and Manhattan
Associates India Development Centre Private Limited on November 19, 2004 have
been fulfilled to our satisfaction and that consequently we consent to the
commencement of the construction of the Building and the Premises.
------------------------------------
(authorised signatory)
42
SCHEDULE IX
SATISFACTION CERTIFICATE
[Lessee Letterhead]
[Date]
[Details of the Lessor]
Dear [Name]
This is to certify that the Conditions Precedent mentioned in the
Agreement to
Build and Lease executed between Orchid Apartments Private Limited and Manhattan
Associates India Development Centre Private Limited on November 19, 2004 have
been fulfilled to our satisfaction.
------------------------------------
(authorised signatory)
43
SCHEDULE X
SCHEDULE OF COMPETITORS
Access Data Systems
Accenture
Aldata
▇▇▇ Arbor Computer
Application Solutions
Applied Identification and Information Services
American Software
Applied Automation Techniques, Inc. (AAT)
Applied Tactical Systems (ATS)
Avexxis
BDM International
Cantoc
Catalyst International
CIM Vision
Computer Associates
Ciber
Cypress Associates
Data Collection Systems
Distribution Resources
EXE Technologies
Exeter Software Ltd.
FASCOR
Flo Thru Art
Flowtrack
Foxfire
Digiterra
Gateway Data Sciences Corporation
GE Information Services
Genco
Global Software
HK Systems
Haushahn Systems & Engineers
Harnischfegar Engineers
Highjump
▇▇▇▇▇
IMI
Infinity
Infoscan
Integrated Technologies Group, Inc.
Intentia
Interlink
Irista
▇.▇. ▇▇▇▇▇▇▇
IRMS (Integrated Warehousing Solutions)
▇▇▇▇▇▇▇ Systems Alpha & Omega
Oracle
Lily Software
LIS
LIOCS Corporation
Logility
MARC
MCBA
SSA
Management Technology International
Midgard
Mincron
OMI International, Inc.
Optum Software
PCS
Provia
Quantronix Inc.
QSSI
Red Prairie
Radio Beacon
Renaissance
Retek
RLM
RT Systems
Robocom Systems, Inc.
SAP
Savant
Scandata Systems
Somerset Automation
Sonica
Swisslog
Tecsys
TrakLink
Trident Systems
Uniteq
Vantageware
Viewlocity
Warehouse Automation
Western Atlas Material Handling Systems
Yantra
44
Manugistics
I2
G-Log
Nistevo
Elogex
NTE
Descartes
GT Nexus
LeanLogistics
Celarix
CarrierPoint
▇▇▇▇▇▇▇▇▇ Logistis
Transplace
Any successor company to any company listed above.
Any new company formed by or a division of an existing company formed by or on
behalf of an employee.
45
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▇▇ ▇▇▇▇ I phase, White field]
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