EXHIBIT 10.33
*CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.
(1) QUATTROCENTO LIMITED
(2) EQUINIX UK LIMITED
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Counterpart/
LEASE
- relating to -
[*]
[*] London [*]
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*CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
TABLE OF CONTENTS
Clause Page
1. DEFINITIONS AND INTERPRETATIONS......................................... 4
2. DEMISE.................................................................. 6
3. TENANT'S COVENANTS...................................................... 6
3.1 To Pay Rent...................................................... 6
3.2 To Pay Rates..................................................... 6
3.3 To Pay Gas Electricity and Water Charges......................... 7
3.4 To Pay Value Added Tax and Interest.............................. 7
3.5 To Pay Fees...................................................... 7
3.6 To Pay Share of Common Expenses.................................. 7
3.7 To Repair........................................................ 8
3.8 To Decorate...................................................... 8
3.9 To Yield Up...................................................... 9
3.10 Alterations and Signs............................................ 9
3.1 Not to Overload.................................................. 10
3.12 To Permit Landlord to Enter...................................... 10
3.13 Defects Notices.................................................. 11
3.14 CDM Regulations.................................................. 12
3.15 To Comply with Statutory Requirements etc........................ 12
3.16 Planning Acts.................................................... 13
3.17 To Indemnify..................................................... 13
3.18 Prohibited Alienation............................................ 14
3.19 Permitted Alienation............................................. 15
3.20 Registration..................................................... 17
3.21 Sale or Re-letting Notices....................................... 17
3.22 Permitted Use.................................................... 18
3.23 Nuisance......................................................... 18
3.24 Refuse Deleterious Materials..................................... 18
3.25 Loss of Easements................................................ 19
3.26 Tenant's Works................................................... 19
3.27 To Observe Covenants Affecting Freehold.......................... 19
4. LANDLORD'S COVENANTS.................................................... 20
5. INSURANCE............................................................... 20
5.1 Definition........................................................ 20
5.2 Landlord's Covenants.............................................. 20
5.3 Tenant's Covenants................................................ 21
5.4 Suspension of Rent................................................ 23
5.5 Determination..................................................... 23
5.6 Insurance in the Landlord's Office................................ 24
6. PROVISOS............................................................ 24
6.1 Interest on Rents in Arrear................................... 24
6.2 For Re-entry.................................................. 24
6.3 Rent Demands.................................................. 25
6.4 Consents Easements Notices etc................................ 25
6.5 No Warranty by Landlord....................................... 27
7. RENT REVIEW......................................................... 27
8. TENANT'S RIGHT OF DETERMINATION..................................... 30
9. 1995 ACT............................................................ 31
10. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999....................... 31
THE FIRST SCHEDULE: The Demised Premises............................... 32
THE SECOND SCHEDULE: Rights Granted.................................... 33
THE THIRD SCHEDULE: Subjections........................................ 34
THE FOURTH SCHEDULE: Covenants by Surety............................... 35
THIS LEASE is made the 14th day of July 2000
BETWEEN:
(1) QUATTROCENTO LIMITED whose registered office is at 45 The Esplanade St
Helier Jersey Channel Islands JE4 8WQ (registered in Jersey under company
number 68191) ("Landlord") and
(2) EQUINIX UK LIMITED (Company Registration No. 3923886) whose registered
office is at 100 New Bridge Street London EC4V 6JA ("Tenant")
WITNESSES as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Lease the following words and expressions shall have
the following meanings unless the context requires otherwise:
"Agreement for Lease" an agreement for lease in respect of the Demised Premises
dated 1 June 2000 and made between the Landlord (1) and the Tenant (2)
"CDM Regulations" the Construction (Design and Management) Regulations 1994 and
"Health and Safety File" has the meaning given therein
"Demised Premises" the property described in the First Schedule hereto and all
additions and improvements from time to time made thereto and the Landlord's
fixtures and fittings therein but excluding any airspace thereover
"Excepted Part" any part or parts of the buildings forming part of the Demised
Premises comprising not less than [*] square feet of the floor space (measured
on a gross internal floor area basis) provided that every Excepted Part shall
have the benefit of and be subject to such rights as shall be necessary required
to ensure that such Excepted Part complies with all statutory obligations and in
particular fire regulations and building regulations
_______________________
*CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
"Planning Acts" the Town and Country Planning Act 1990 the Planning (Listed
Buildings and Conservation Areas) Act 1990 the Planning (Hazardous Substances)
Act 1990 the Planning (Consequential Provisions) Act 1990 and the Planning and
Compensation Act 1991
"Prescribed Rate" a rate of interest of [*]% per annum above the base rate from
time to time of National Westminster Bank plc or such other clearing bank as the
Landlord may from time to time specify or (in the event of base rates being no
longer published or used) such other comparable rate of interest as the Landlord
and the Tenant may from time to time agree in writing and if not agreed as shall
be determined by a chartered accountant nominated by the President or Vice-
President for the time being of the Institute of Chartered Accountants on the
application of either party and acting as an arbitrator in accordance with the
Arbitration Act 1996
"Quarter Days" 25 March 24 June 29 September and 25 December in each year and
"Quarter Day" any one of the Quarter Days
"Term" the term of years granted by Clause 2 hereof and shall include the period
of any holding over extension or continuation thereof whether pursuant to
statute or at common law and
"1995 Act" the Landlord and Tenant (Covenants) Act 1995
1.2 The expressions "Landlord" and "Tenant" include their
respective successors in title and "Tenant" shall include the personal
representatives of the Tenant and any person in whom this Lease may from time to
time be vested by whatever means
1.3 Covenants by the Landlord shall be effective to bind the
Landlord only in respect of such period when the reversion immediately expectant
on this Lease is vested in the Landlord and shall not bind the Landlord
personally after it shall have parted with all interest in the reversion and the
Landlord shall be and is hereby released from any liability thereunder in
relation to any period after it shall have parted with such reversion
1.4 Words importing the singular number only shall include the
plural and where there are two or more persons included in the expressions
"Landlord" or "Tenant" covenants expressed to be made by the Landlord or the
Tenant shall be deemed to be made by such persons jointly and severally
1.5 Words importing the masculine gender only shall include the
feminine and neuter genders and words denoting natural persons shall include
companies and corporations and vice versa
1.6 Any reference to this Lease shall be deemed a reference to
this Lease and any deed agreement or other document supplemental or collateral
hereto or entered into pursuant to the terms hereof
________________________
*CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
1.7 A reference to any Act of Parliament or statutory instrument
includes any Act or instrument for the time being in force amending or replacing
the same any directly applicable directive or other law of the European Union or
European Community affecting the same and having direct effect in the United
Kingdom and any instrument regulation or bye-law for the time being in force
under any such Act
1.8 References to the President and Vice-President of the Royal
Institution of Chartered Surveyors and the Institute of Chartered Accountants
include references to the equivalent officers of any Institution Association or
other body of which either of them may become part.
2. DEMISE
In consideration of the rents hereinafter reserved and of the covenants by the
Tenant hereinafter contained the Landlord HEREBY DEMISES unto the Tenant the
Demised Premises TOGETHER WITH (but to the exclusion of all other liberties
privileges easements rights or advantages whatsoever) the rights specified in
the Second Schedule hereto TO HOLD the same unto the Tenant for a term of TWENTY
- -FIVE YEARS commencing on and including 26th June, 2000 to and including 25th
June, 2025 YIELDING AND PAYING therefor FIRSTLY from the date hereof until 25th
June 2001 the rent of one peppercorn (if demanded) and thereafter during the
Term yearly and proportionately for any fraction of a year the rent of [*]
POUNDS ((Pounds)[*]) per annum (but subject to review as hereinafter provided)
such rent to be paid by equal quarterly payments in advance on the Quarter Days
without any deduction whatsoever the first payment (or a duly apportioned part
of it) to be made on the first anniversary of the date hereof SECONDLY in
respect of the Demised Premises from and including 26th June, 2000 by way of
further or additional rent on demand all sums payable by the Tenant pursuant to
sub-clause 5.3.1 hereof and THIRDLY by way of further or additional rent all
value added tax interest and other sums whatsoever from time to time payable by
the Tenant to the Landlord pursuant to the provisions of this Lease
3. TENANT'S COVENANTS'
The Tenant HEREBY COVENANTS with the Landlord as follows:
3.1 To Pay Rent
To pay the rents hereinbefore reserved on the days and in the manner aforesaid
without any deduction whatsoever and without exercising or seeking to exercise
any right of set-off
3.2 To Pay Rates
To pay (or indemnify the Landlord against) all existing and future rates taxes
duties charges assessments impositions and outgoings whatsoever (whether imposed
by statute or otherwise and whether of a national or local character and whether
of the nature of capital or revenue and even
_________________________
*CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
though of a wholly novel character) now or at any time during the Term payable
in respect of the Demised Premises or any part thereof or by the owner or
occupier thereof
3.3 To Pay Gas Electricity and Water Charges
To pay all charges for gas electricity water telecommunications and other
supplies consumed on the Demised Premises and all charges for the hire of meters
and equipment in respect thereof and to observe all regulations of the gas
electricity and water authorities and to keep the Landlord indemnified against
the non-payment breach non-observance or non-performance thereof
3.4 To Pay Value Added Tax and Interest
3.4.1 To pay any value added tax or any tax substituted
therefore or levied in addition thereto and chargeable in respect of all or any
rents and any other payments or supplies to be made under the provisions of this
Lease
3.4.2 To pay to the Landlord all interest which may become
due by virtue of any of the provisions of this Lease
3.5 To Pay Fees
To pay to the Landlord on an indemnity basis all reasonable and proper costs
fees charges and expenses (including legal costs and fees of bailiffs surveyors
architects engineers and other professional advisers) incurred by the Landlord:
3.5.1 attendant upon or incidental to every application
made by the Tenant for a consent or licence required or made necessary by the
provisions of this Lease whether the same be granted or refused or proffered
subject to any lawful qualification or condition or whether the application be
withdrawn (but not where a court has found that such consent has been unlawfully
refused or withheld)
3.5.2 incidental to the preparation and service of a notice
under Section 146 of the Law of Property Act 1925 or incurred by or in genuine
contemplation of proceedings under Sections 146 or 147 of that Act whether or
not in any such case forfeiture is avoided otherwise than by relief granted by
the court
3.5.3 in connection with the recovery of arrears of rent
due from the Tenant hereunder or
3.5.4 in connection with the supervision of the carrying
out of any works of repair or making good carried out pursuant to any notice
served under the foregoing provisions
3.6 To Pay Share of Common Expenses
To pay or repay to the Landlord within 10 days of demand a fair proportion (to
be conclusively determined by the Landlord's surveyor acting properly) of any
expenses incurred in repairing maintaining renewing (where beyond economic
repair) and cleansing all walls fences sewers
drains channels sanitary or sewerage apparatus pipes wires passageways stairways
entrance ways roads pavements and other things the use of which is common to the
Demised Premises and to other premises
3.7 To Repair
At all times during the Term to keep the Demised Premises in good and
substantial repair and condition and whenever necessary to rebuild reconstruct
renew or replace the whole of the Demised Premises or any part thereof (except
only damage by risks against which the Landlord has insured save where the
insurance monies are irrecoverable in consequence of any act or default of the
Tenant) and to renew and replace from time to time all landlord's fixtures and
fittings and appurtenances in the Demised Premises which may become or be beyond
repair at any time during or at the expiration or sooner determination of the
Term AND without prejudice to the generality of the foregoing:
3.7.1 to clean all windows (both inside and outside) in the
Demised Premises whenever necessary
3.7.2 to clean and repoint the external stone and brickwork
of the Demised Premises when necessary during the Term and in any event in the
last year thereof (howsoever determined unless carried out within the preceding
three years)
3.7.3 to keep such parts of the Demised Premises as shall
not from time to time be built upon in a clean and tidy condition and free from
rubbish and weeds and deposits of materials or refuse and
3.7.4 to cause all electrical hydraulic and other
mechanical installations and equipment whatsoever within the Demised Premises or
under the control of the Tenant and serving the same to be properly and
regularly serviced and maintained and when necessary repaired or replaced by
qualified persons who and at intervals which are approved by the manufacturers
of such installations and equipment and by the insurers of the Demised Premises
3.8 To Decorate
3.8.1 Interior
Whenever necessary throughout the Term and at least in every fifth year thereof
and also in the last year thereof (howsoever determined) to paint paper or
otherwise decorate or treat in a proper and workmanlike manner all the inside
wood metal and other parts of the Demised Premises heretofore or usually or
which ought to be painted papered or otherwise decorated or treated
3.8.2 Exterior
Whenever necessary throughout the Term and at least in every third year thereof
and in the last year thereof (howsoever determined (unless so decorated in the
previous year)) to paint or otherwise suitably decorate or treat in a proper and
workmanlike manner all the external parts of the Demised Premises heretofore or
usually so painted or otherwise decorated or treated the tints
or colours on each occasion to be first approved in writing by the Landlord and
at proper intervals to apply such (if any) other treatments as may be
appropriate to the remainder of the external parts of the Demised Premises
3.9 To Yield Up
3.9.1 To yield up the Demised Premises with the fixtures
and fittings and additions thereto (except tenant's or trade fixtures or
fittings which have been lawfully removed) at the expiration or sooner
determination of the Term in good and substantial repair and condition and
decorated in accordance with the several covenants herein contained and to make
good any damage caused to the Demised Premises by the removal of any tenant's or
trade fixtures or fittings
3.9.2 If any alteration or addition shall have been made to
the Demised Premises during the Term other than the Tenant's Works (as that term
is defined in the Agreement for Lease) and unless and to the extent that the
Landlord requests the Tenant in writing not to do so (whether as to the whole or
part thereof) to remove the same on such yielding up together with all signs
writing painting moulding or other illustration of the name or business of the
Tenant and any sub-tenant and to reinstate the Demised Premises to their state
and condition after completion of the Tenant's Works carried out by the Tenant
pursuant to the Agreement for Lease but nevertheless in such good and
substantial repair and condition as aforesaid and any dispute as to such repair
and condition shall be dealt with by adopting the procedure set out in Clause
8.3 hereof
3.10 Alterations and Signs
3.10.1 On any application for consent pursuant to the
following provisions of this Clause to submit to the Landlord in triplicate
adequate scale drawings and a specification of the alterations or additions
proposed to be made
3.10.2 Not to exhibit any sign fascia notice or
advertisement on the outside of the Demised Premises or so as to be visible
outside the Demised Premises except a sign showing the trading name of the
Tenant or sub-tenants subject to that sign being of a size design layout and of
materials all approved in writing by the Landlord (such consent not to be
unreasonably withheld or delayed)
3.10.3 Not to exhibit any sign notice or advertisement on
the inside of the Demised Premises and visible from outside except usual and
inoffensive trade advertisements notices and signs which are reasonably
necessary for the purposes of the business of the Tenant and are of a kind
ordinarily displayed by businesses similar to that of the Tenant
3.10.4 (Save in respect of the Tenant's Works) not without
the prior written consent of the Landlord by deed (which shall not be
unreasonably withheld or delayed) and then only in accordance with plans
previously approved by the Landlord (which approval shall not be unreasonably
withheld or delayed) and under the supervision and to the reasonable
satisfaction of the Landlord's surveyor:
3.10.4.1. to make any structural alteration or
addition to the Demised Premises or any part thereof or
3.10.4.2. to exhibit any sign fascia notice or
advertisement as aforesaid or
3.10.4.3. to erect any aerial mast satellite dish air
conditioning condenser or other plant machinery or apparatus whatsoever to the
exterior of the Demised Premises
Save that if the Landlord has not responded to the Tenant's request within 15
working days of receiving the same then the Landlord's approval shall be deemed
to have been given
3.10.5 Save in respect of the Tenant's Works not to commence
to make any alteration or addition to the Demised Premises without first
covenanting with the Landlord in such terms as the Landlord may specify that
unless and to the extent that the Landlord requests the Tenant in writing not to
do so the Tenant shall on the expiration or sooner determination of the Term
remove all or part of such alteration or addition and reinstate the Demised
Premises to their former state and condition after completion of the Tenant's
Works but nevertheless in such good and substantial repair and condition as
hereinbefore provided
3.10.6 If any works of alteration or addition shall be
carried out in breach of any of the foregoing covenants and if the Tenant shall
not remove the same and make good any damage to the Demised Premises caused by
such removal and otherwise reinstate the Demised Premises to their condition
prior to the carrying out of such alteration or addition (but in such good and
substantial repair and condition as aforesaid) forthwith following the receipt
of written notice from the Landlord requiring it to do so it shall be lawful for
the Landlord to enter the Demised Premises and itself carry out such removal and
reinstatement and all costs and expenses of it so doing shall be payable by the
Tenant to the Landlord on demand on a full indemnity basis
3.10.7 Provided That the Tenant may without consent carry out
internal non-structural alterations subject to the Tenant supplying to the
Landlord:
3.10.7.1. prior to such works being commenced
drawings and a specification thereof in duplicate and written confirmation from
the fire authority that the fire certificate relating to the Demised Premises is
not thereby invalidated and
3.10.7.2. immediately thereafter drawings and a
specification in duplicate of any such partitioning erected or altered
3.11 Not to Overload
Not to overload the floors of or any of the services in or to the Demised
Premises nor to suspend any excessive weight from any part of the Demised
Premises
3.12 To Permit Landlord to Enter
To permit the Landlord and the Landlord's servants and agents and all other
persons properly authorised by the Landlord (with or without workmen) at all
reasonable times during the Term (upon prior written appointment of not less
than seven days' previous notice except in the case of emergency) to enter the
Demised Premises accompanied at all times by a representative of the Tenant (but
not more than once in any twelve month period except in case of emergency) for
the purpose of examining the state of repair and condition thereof and of taking
a schedule of the landlord's fixtures and fittings therein and thereupon the
Landlord may:
3.12.1 serve upon the Tenant notice in writing specifying
any structural repairs necessary to be done in order to comply with the Tenant's
obligations hereunder and/or any repairs necessary to be done to keep the
Demised Premises wind and watertight and
3.12.2 require the Tenant to execute the same as soon as
practicable
and if the Tenant shall make default in complying with such notice within two
months of the date thereof or in the performance of any of the Tenant's
covenants herein contained it shall be lawful for the Landlord (but without
prejudice to the right of re-entry hereinafter contained) to enter upon the
Demised Premises and execute such repairs in accordance with the covenants and
provisions hereof and the cost of such repairs (including the fees of surveyors
architects engineers and other consultants employed or retained by the Landlord)
shall be repaid as a debt by the Tenant to the Landlord on demand and shall be
recoverable as rent in arrear
3.13 Defects Notices
3.13.1 As soon as the Tenant becomes aware of the same to
give notice forthwith to the Landlord of any want of repair or defect in the
Demised Premises or any part thereof by reason of which the Landlord might incur
liability by statute or otherwise to any other person and to display any
warnings or notices which the Landlord may reasonably require for the purposes
of avoiding or defraying any such liability and to immediately take all steps
necessary to minimise consequential disrepair and to prevent loss damage or
injury to persons or to property
3.13.2 Immediately upon receipt by the Tenant and forthwith
after receipt by any sub-tenant of:
3.13.2.1. any notice of a proposal for alteration
of the Valuation List under the Local Government Finance Act 1988 in respect of
the Demised Premises
3.13.2.2. any notice of the imposition or proposed
imposition of any new substituted increased altered rate tax duty charge
assessment or outgoing whatsoever in respect of the Demised Premises or any part
thereof or
3.13.2.3. any other notice order or proposal
affecting the Demised Premises or any interest in the Demised Premises in any
manner whatsoever
to send a copy thereof to the Landlord and to take all reasonable steps to
comply with such notice proposal order or communication and if so requested by
the Landlord and at the joint expense of the Landlord and the Tenant to make or
join with the Landlord in making such objections representations or appeal in
respect thereof as the Landlord may require unless to do so would be prejudicial
to the Tenant's use and enjoyment of the Demised Premises
3.14 CDM Regulations
3.14.1 In carrying out any works of repair alteration
or addition or any other works whatsoever to the Demised Premises to fully
comply with the CDM Regulations
3.14.2 Within six months after completion of any
works of repair alteration or addition or any other works whatsoever to the
Demised Premises to provide the Landlord with a certified copy of the Health and
Safety File relating to the Demised Premises consequent upon the carrying out of
such works and if the Tenant shall fail to do so the Landlord may enter the
Demised Premises and carry out such inspections and investigations necessary to
enable the Landlord to make a complete record of the works carried out and to
obtain such other information as the Health and Safety File should contain and
the Tenant shall pay the costs and expenses of the Landlord in so doing on a
full indemnity basis
3.14.3 Upon any yielding up of the Demised Premises
to deliver up to the Landlord the Health and Safety File relating to the Demised
Premises duly maintained in accordance with the CDM Regulations and containing
proper reference to any works of removal and reinstatement carried out prior to
such yielding up
3.15 To Comply with Statutory Requirements etc.
3.15.1 At all times during the Term to execute all
such works and do all such things as under or by virtue of any Act or Acts of
Parliament and all other applicable laws of the United Kingdom and elsewhere
(including without limitation directly applicable directives or other laws of
the European Union or the European Community having direct effect in the United
Kingdom) now or hereafter to be passed and all orders bye-laws rules and
regulations made thereunder (including without limitation the Factories Act 1961
the Offices Shops and Railway Premises Act 1963 the Fire Precautions Act 1971
(and any requirement of a Fire Certificate issued pursuant thereto whether
issued to the Landlord the Tenant or any sub-tenant) the Fire Precautions
(Workplace) Regulations 1997 (as amended) the Health and Safety at Work etc. Act
1974 the Control of Pollution Act 1974 the Environmental Protection Act 1990 the
Environment Act 1995 the CDM Regulations and the Gas Safety (Installation and
Use) Regulations 1994) are or shall be directed or necessary to be executed or
done upon or in respect of the Demised Premises or any part thereof or in
respect of the user thereof by the owner lessee tenant or occupier thereof
3.15.2 Not at any time during the Term to do or omit
or suffer to be done or omitted on or about the Demised Premises any act or
thing the doing or omission of which may under any such Act of Parliament or
other law cause the Landlord to incur or have imposed or become liable to pay
any penalty damages compensation costs charges expenses or other impositions
whatsoever
3.15.3 To comply with all requirements and
recommendations of the competent fire authority and the insurers of the Demised
Premises in relation to fire precautions affecting the Demised Premises and to
supply and equip and keep the Demised Premises supplied and equipped with such
fire alarm smoke detection and smoke ventilation systems and such fire fighting
appliances as are necessary to so comply and to keep all such systems and
appliances unobstructed and open to inspection and properly maintained
3.15.4 To keep all means of escape from the Demised
Premises in case of fire or other emergency clear and unobstructed at all times
3.15.5 Within 10 days of receipt of the same to supply
to the Landlord a certified copy of any fire certificate relating to the Demised
Premises together with any amendments thereto which may be made from time to
time
3.16 Planning Acts
3.16.1 At all times during the Term to comply in all
respects with the provisions and requirements of the Planning Acts 3.16.2 Save
in respect of the Tenant's Works not to make any application for planning
permission for change of use in respect of the Demised Premises or any part
thereof
3.16.3 Save in respect of the Tenant's Works not
without the prior written consent of the Landlord to make any application for
any other planning permission in respect of the Demised Premises or any part
thereof nor to enter into any agreement with any local planning or other
competent authority regulating the use or development of the Demised Premises
Provided That the Landlord shall not unreasonably withhold consent to an
application for planning permission in respect of works of alteration of or
addition to the Demised Premises if the Landlord has granted consent for such
works in accordance with this Lease
3.16.4 Unless the Landlord otherwise directs in
writing the Tenant will carry out before the expiration or sooner determination
of the Term any works stipulated to be carried out to the Demised Premises by a
date subsequent to such expiration or sooner determination as a condition of any
planning permission which may be granted and implemented during the Term
3.16.5 Not to serve any purchase notice under the
Planning Acts in relation to the Demised Premises
3.17 To Indemnify
During the Term and any subsequent period during which the Tenant may remain in
possession of the Demised Premises to be responsible for and to indemnify the
Landlord against all claims demands actions proceedings liabilities reasonable
and proper costs charges and expenses in respect of or incurred in connection
with:
3.17.1 any damage or injury occasioned to:
3.17.1.1. the Demised Premises
3.17.1.2. any adjacent or neighbouring premises or
3.17.1.3. any person or any other property moveable
or immoveable
by any act default or negligence of the Tenant or of the servants agents
licensees or invitees of the Tenant or by any breach of the covenants on the
part of the Tenant herein contained
3.17.2 all such works things acts and omissions as are
specified in Clause 3.15 hereof
3.17.3 any obligation to abate a nuisance or to remedy any
other matter in connection with the Demised Premises in obedience to a notice
served by a local authority and
3.17.4 any contravention of the Planning Acts
3.18 Prohibited Alienation
3.18.1 Not to assign or charge part only of the Demised
Premises whether or not being an Excepted Part
3.18.2 Not to underlet any part or parts of the Demised
Premises other than (subject to the provisions of Clause 3.19 hereof) an
Excepted Part
3.18.3 Not to permit any underlessee of the Demised
Premises or any Excepted Part to sub-underlet any part thereof or assign part
only of the premises underlet
3.18.4 Not to grant any underlease of the Demised Premises
or any Excepted Part if such grant would cause or permit the number of separate
occupations of the Demised Premises at any time or from time to time to exceed
four
3.18.5 Not to share the possession or occupation of or
permit any other person to occupy the whole or any part of the Demised Premises
Provided That where the Tenant is a company it may without consent share
occupation of the whole or part of the Demised Premises with a company which
throughout the period of such sharing is a member of the same group of companies
(as defined by Section 42 of the Landlord and Tenant Act 1954) as the Tenant the
Tenant covenanting that:
3.18.5.1. immediately after the commencement and
termination of such sharing it will give written notice thereof to the Landlord
3.18.5.2. no tenancy will be created by such
sharing and
3.18.5.3. upon such company ceasing to be a member
of the same group of companies as the Tenant it shall forthwith vacate the
Demised Premises
3.18.6 Not to hold on trust for another the whole or any
part of the Demised Premises or any interest of the Tenant therein under this
Lease
3.19 Permitted Alienation
3.19.1 Not to assign the whole of the Demised Premises to
another member of the same group of companies as the Tenant Provided That
subject to the succeeding provisions of this Clause 3.19 the Tenant may so
assign to another member which is a holding company and which is not itself a
subsidiary ("holding company" and "subsidiary" having the meanings given by
Section 736 of the Companies Act 1985)
3.19.2 Not to assign the whole of the Demised Premises
without the prior written consent of the Landlord by deed which consent shall
not be unreasonably withheld or delayed
3.19.3 Without prejudice to the generality of the preceding
sub-clause 3.19.2 and any other matter or circumstances which may render
reasonable the Landlord withholding its licence or consent to an assignment of
the Demised Premises or any other condition subject to which it may be
reasonable to grant such licence or consent the Landlord may withhold its
licence or consent to an assignment in the circumstances set out in sub-clause
3.19.4 below or such licence or consent may be granted subject to the conditions
set out in sub-clause 3.19.5 below
3.19.4 The circumstances referred to above are:
3.19.4.1. Where any rents or other monies
whatsoever due and payable hereunder by the Tenant remain unpaid save where such
rents or other monies are genuinely disputed and are the subject of court
proceedings
3.19.4.2. Where any works which the Tenant is or
was required to carry out as a condition of the grant of this Lease or of any
agreement for the grant of this Lease have not been duly carried out in
compliance with that requirement or any time limit thereby imposed unless:
3.19.4.2.1 the Tenant or the proposed
assignee proffers an adequate bond or other security or
3.19.4.2.2 the proposed assignee
covenants with the Landlord to complete such works
3.19.4.3. Where there subsists any material breach
of any of the covenants by the Tenant herein contained which the Tenant has
failed to remedy or the remedy of which has not been adequately secured in a
manner or on terms reasonably acceptable to the Landlord
3.19.5 The conditions referred to above are:
3.19.5.1. That the Tenant and the proposed assignee
enter into an authorised guarantee agreement (as defined in Section 16 of the
1995 Act) and licence to assign in such form as the Landlord shall reasonably
require
3.19.5.2. That any guarantor of the Tenant's
obligations under this Lease shall have guaranteed to the Landlord that the
Tenant will comply with the terms and conditions of the authorised guarantee
agreement referred to in the immediately preceding sub-clause in such form as
the Landlord shall reasonably require
3.19.5.3. That prior to completion of the proposed
assignment any surety for the proposed assignee shall first (jointly and
severally if more than one) covenant with the Landlord in the terms contained in
the Fourth Schedule hereto (as if references therein to the Tenant were
references to the Assignee) and otherwise in such terms as the Landlord shall
reasonably require
3.19.6 Not to underlet the whole of the Demised Premises or
any Excepted Part nor permit any underlessee of the whole of the Demised
Premises or any Excepted Part to assign such underlease without the prior
written consent of the Landlord by deed which consent shall not be unreasonably
withheld or delayed and not to so underlet or permit such assignment unless in
relation to the whole of the Demised Premises or the Excepted Part as the
circumstances require:
3.19.6.1. The proposed underlessee or assignee has
first covenanted directly with the Landlord (jointly and severally if more than
one):
3.19.6.1.1 to pay the rents reserved by
the underlease and to perform and observe the covenants by the underlessee and
the conditions to be contained in the underlease
3.19.6.1.2 not to grant any sub-
underlease of part out of such proposed underlease and
3.19.6.1.3 not to do omit or suffer or
permit in relation to the premises underlet any act or thing which would or
might cause the Tenant to be in breach of this Lease or which if done omitted
suffered or permitted by the Tenant would constitute a breach of this Lease
3.19.6.2. Any surety for the proposed underlessee
or assignee shall first have covenanted with the Landlord (jointly and severally
if more than one) as surety in such form as the Landlord shall reasonably
require that the underlessee or assignee (as the case may be) will perform and
observe the covenants by the underlessee and the conditions contained in the
underlease and the covenants given by the underlessee pursuant to the foregoing
sub-clause 3.19.6.1.1
3.19.6.3. Any proposed underlease is granted in a
form first approved in writing by the Landlord (such approval not to be
unreasonably withheld or
delayed) without any fine or premium being payable by the Tenant or the
underlessee and at a rent equal to the then open market rent of the premises
underlet being not less than the rent then payable hereunder if such underlease
comprises the whole of the Demised Premises or not less than a due proportion of
the rent then payable hereunder if such underlease comprises an Excepted Part
(such rent in either case being payable in advance on the days on which rent is
payable under this Lease) and contains provisions for the review of the rent
thereby reserved on the basis and on the dates on which the rent hereby reserved
is to be reviewed
3.19.6.4. The proposed underlease of an Excepted
Part contains provisions for the repair and decoration by the underlessee of
such Excepted Part and/or for the payment by the underlessee of a fair and
proper proportion of the cost of repairing and decorating any part of the
Demised Premises thereafter used in common by and/or being of common benefit to
the Excepted Part and the remainder of the Demised Premises
3.19.6.5. Any proposed underlease of an Excepted
Part which creates a tenancy to which Part II of the Landlord and Tenant Act
1954 applies contains an agreement authorised by the court pursuant to Section
38(4) of that Act excluding the provisions of Sections 24 to 28 inclusive
thereof in relation to that underlease
3.19.7 Not to waive or vary any of the provisions of any
underlease of the Demised Premises and (save where sensible commercial
discretion dictates otherwise) to enforce (by proceedings arbitration or
otherwise as may be appropriate) the covenants on the part of the underlessee
and the provisions for review of rent contained in any underlease and not to
agree any review of rent pursuant thereto without the prior written approval of
the Landlord under this Lease which approval shall not be unreasonably withheld
3.19.8 The Landlord hereby acknowledges and agrees that the
Tenant's contemplated use of the Demised Premises and the installation operation
maintenance repair and replacement of telecommunications equipment and related
facilities by the Tenant's customers and vendors shall not be in breach of the
foregoing provisions of this Clause 3.19
3.20 Registration
3.20.1 Within 28 days next after any transfer assignment
mortgage charge devolution underletting of or licence to occupy (derivative or
otherwise) the Demised Premises to give written notice thereof to the Landlord
and to leave with the Landlord a true copy of the instrument effecting or
evidencing such transmission or devolution of any estate or interest in the
Demised Premises and to pay a reasonable fee being not less than Thirty Pounds
((Pounds)30) for the registration of each such notice
3.20.2 From time to time on demand during the Term to
furnish the Landlord with full particulars of all derivative interests of or in
the Demised Premises howsoever remote or inferior including particulars of the
rents payable in respect of such derivative interests and such further
particulars as the Landlord may require
3.21 Sale or Re-letting Notices
To permit the Landlord and the Landlord's agents at any time during the Term to
enter upon the Demised Premises (but not the interior thereof) in order to affix
upon the exterior thereof (but not so as materially to obstruct or interfere
with the access of light and air to or the user to the Demised Premises) notice-
boards or bills for selling the same and during the last six months of the Term
howsoever determined for re-letting the same and that the Tenant will not remove
or obscure such notice-boards or bills and will (as well before as during the
said last six months of the Term) permit all persons authorised in writing by
the Landlord and accompanied by the Landlord's designated representative and the
Tenant's representative and after making a prior appointment of not less than 48
hours to view the Demised Premises at reasonable hours in the daytime
3.22 Permitted Use
Not to use the Demised Premises or any part thereof or suffer the same to be
used otherwise than as an internet business exchange with ancillary offices and
recreation areas or any use within Classes B1 B2 and/or B8 of the Schedule to
the Town and Country Planning (Use Classes) Order 1987 and the Landlord
acknowledges and agrees that the use by the Tenant as an internet business
exchange shall include the installation operation maintenance repair and
replacement of telecommunications equipment and related facilities within the
Demised Premises
3.23 Nuisance
3.23.1 Not to do or permit or suffer any nuisance upon the
Demised Premises and to abate any nuisance which may arise (whether or not
through the act of any person) and not at any time to use the Demised Premises
or any part thereof or allow the same to be used for any illegal or immoral
purpose and not to hold any sale by auction or political meeting or public show
upon the Demised Premises or use the same for gambling or residential or
sleeping purposes or for any noisy offensive or dangerous trade manufacture or
occupation
3.23.2 Without limiting the foregoing not to play any
musical instrument or apparatus upon the Demised Premises which can be heard
outside the Demised Premises and not to install or use in or upon the Demised
Premises any machinery or apparatus which causes noise or vibration which can be
heard or felt in any adjacent premises or which may cause any physical damage
3.24 Refuse Deleterious Materials
3.24.1 Not to cause or permit from the Demised Premises the
discharge into any drains or sewers serving the Demised Premises of any oil
grease or deleterious materials or any waste or matter which is prohibited by
law or which causes or is likely to cause a nuisance or annoyance or any damage
obstruction or destruction thereof and to make good or remedy any damage
obstruction or destruction so caused to the reasonable satisfaction of the
Landlord
3.24.2 Not to cause or permit the discharge into the air
from the Demised Premises of any fumes smoke gas soot ash dust grit or other
noxious emission which is prohibited by law or which causes or is likely to
cause any nuisance annoyance damage or harm
3.24.3 Not to cause or permit from the Demised Premises any
deposit in on or under the Demised Premises or any discharge or escape from the
Demised Premises of any matter substance material waste or effluent which would
cause or be likely to cause:
3.24.3.1. any nuisance annoyance damage or harm
3.24.3.2. any pollution of any watercourse or any
controlled waters or
3.24.3.3. the Demised Premises or any other land to
be contaminated land and for the purposes of this and the foregoing sub-clause:
"controlled waters" has the meaning given in Section 104 of the Water Resources
Act 1991 and "harm" and "contaminated land" have the meanings given in Section
78A of the Environmental Protection Act 1990
3.24.4 Not to deposit any refuse or rubbish outside the
Demised Premises
3.24.5 Until its removal from the Demised Premises to store
all refuse and rubbish in such manner as causes no fire or health hazard
3.24.6 Not to keep any material or liquid of a dangerous
corrosive toxic contaminative combustible explosive radioactive volatile
unstable or offensive nature upon the Demised Premises
3.25 Loss of Easements
Not knowingly to obstruct or suffer to be obstructed any of the windows or light
or any other privilege right or easement belonging to the Demised Premises or
any buildings comprised in the Demised Premises nor to permit any new window
light passage drain or other encroachment or easement to be made into against
upon or over the Demised Premises or any part thereof and in case any
encroachment or easement whatsoever shall be attempted to be made or acquired by
any person or persons whomsoever to give notice thereof in writing to the
Landlord immediately the same shall come to the notice of the Tenant and to do
all such things as may be proper for preventing any new encroachment or easement
being made or acquired
3.26 Tenant's Works
To carry out the works to the Demised Premises referred to in the Agreement for
Lease within nine months of the date hereof to the reasonable satisfaction of
the Landlord
3.27 To Observe Covenants Affecting Freehold
At all times during the Term to observe and comply with the covenants
stipulations and provisions affecting the Demised Premises including (without
prejudice to the foregoing) those contained or referred to in the deeds and
documents brief particulars of which are specified in the Third Schedule hereto
and to keep the Landlord indemnified against all losses damages claims costs and
expenses in any way relating thereto or arising from any breach of this covenant
4. LANDLORD'S COVENANTS'
Quiet Enjoyment
The Landlord HEREBY COVENANTS with the Tenant that the Tenant paying the rents
hereby reserved and observing and performing the several covenants and
stipulations on the part of the Tenant herein contained shall peaceably hold and
enjoy the Demised Premises throughout the Term without any interruption by the
Landlord or any person rightfully claiming under or in trust for the Landlord or
through title paramount
5. INSURANCE
5.1 Definition
In this Clause 5 "Insured Risks" means fire and such other risks as the Landlord
shall in its reasonable discretion determine
5.2 Landlord's Covenants'
The Landlord covenants with the Tenant:
5.2.1 To Insure
To keep insured or cause to be insured at all times throughout the Term from and
against loss or damage by the Insured Risks (subject in relation to any
particular risk to insurance for that risk being ordinarily available with a
reputable insurer for property such as the Demised Premises and subject to such
excesses exclusions or limitations as the policy of insurance may stipulate):
5.2.1.1. the Demised Premises (but not the
Tenant's or trade fixtures and fittings) to the full value of the cost of
rebuilding the same (to be determined from time to time by the Landlord's
surveyor and to include the cost of demolition and removal of debris plus
professional fees in connection with such rebuilding and value added tax (or any
tax substituted therefor or levied in addition thereto) payable on any of such
costs and fees and to have due regard both to the time at which such loss or
damage may be sustained and to any possible delay in the commencement and
execution of such rebuilding) and
5.2.1.2. a sum representing three years' rent
(taking account where appropriate of any anticipated reviews thereof) payable
under this Lease
5.2.2 To Reinstate
In the event of damage to or destruction of the Demised Premises by any of the
Insured Risks then subject to:
5.2.2.1. the provisions hereinafter contained in
relation to frustration of rebuilding
5.2.2.2. the policy of insurance not having been
vitiated or payment of the policy monies refused in whole or in part by reason
of any act or default of the Tenant or any sub-tenant or licensee of the Tenant
and
5.2.2.3. the Landlord being able to obtain all
necessary consents which it will use all reasonable endeavours to obtain
the Landlord will lay out all monies received (and where insufficient make up
the deficiency from its own funds in reinstating and rebuilding the Demised
Premises with all convenient speed) PROVIDED THAT in the event of substantial
damage to or destruction of the Demised Premises by an Insured Risk such
rebuilding or reinstatement of the Demised Premises shall be either in the form
in which they were immediately before the damage or destruction or in that form
with such modifications as:
5.2.2.4. may be required by any competent
authority as a condition of the grant of any consent
5.2.2.5. the Landlord may reasonably make to the
design or specification thereof to reflect then current building practice or
5.2.2.6. the Landlord may otherwise reasonably
require but so that the Demised Premises as rebuilt and reinstated shall provide
accommodation not materially less convenient and commodious than that existing
immediately before the destruction or damage
5.2.3 To Produce Evidence of Insurance
To produce to the Tenant upon written request (but not more than once in any
insurance period save where there have been material changes) reasonable
evidence of the terms of the insurance policy and of payment of the current
premium
5.3 Tenant's Covenants'
The Tenant covenants with the Landlord:
5.3.1 Pay Costs of Insurance
To repay to the Landlord within 14 days of demand a sum or sums of money equal
to the amount or amounts from time to time paid by the Landlord for the
insurance of the Demised Premises in accordance with the foregoing covenants and
against public and third party liability of the
Landlord and in the revaluation of the Demised Premises for insurance purposes
(provided that such revaluations shall not be carried out more than once in any
three year period)
5.3.2 Pay Excess
In the event of any insured damage occurring to pay to the Landlord on demand
the amount of any excess to be borne by the Landlord pursuant to the policy of
insurance
5.3.3 Insurers' Requirements
5.3.3.1. To comply with all requirements of the
Landlord's insurers in respect of the Demised Premises and not to do or permit
to be done in or upon the Demised Premises or any part thereof anything which
may increase the premium upon any policy for the insurance of the Demised
Premises or any other premises or which shall invalidate or preclude the renewal
of any such policy of insurance or which may be prejudicial in any way to any
claim which may fall to be made thereunder
5.3.3.2. If any damage to or destruction of the
Demised Premises shall occur due to any of the Insured Risks and any insurance
money under any insurance effected under the terms of this Lease shall be
irrecoverable by reason solely or partly of any act or default of the Tenant or
its servants agents underlessees invitees or any one for whom the Tenant is
responsible then the Tenant will forthwith pay to the Landlord on demand the
whole or (as the case may be) the irrecoverable part of the cost (including any
costs of site and debris clearance and architects' quantity surveyors'
engineers' and other professional person's fees and incidental expenses) of
making good such damage or destruction
5.3.4 Unoccupied Premises
Without limiting the foregoing to immediately notify the Landlord in writing if
the Tenant ceases to occupy or trade from the Demised Premises and to comply
with all requirements of the Landlord's insurers (so far as not inconsistent
with the Tenant's obligations hereunder) in respect of the Demised Premises
whenever the same shall be vacant and unoccupied
5.3.5 Information to Landlord
To inform the Landlord in writing of the cost of and the reinstatement value
from time to time of all improvements additions fixtures and fittings to the
Demised Premises made or affixed by the Tenant which may become Landlord's
fixtures and fittings
5.3.6 Notice to Landlord of Damage
Upon becoming aware to forthwith give written notice to the Landlord of any
damage to or destruction of the Demised Premises by any of the Insured Risks
5.3.7 Other Insurance
To insure and keep insured in an insurance office to be approved in writing by
the Landlord:
5.3.7.1. all plate and armoured glass in the
Demised Premises against loss or damage by accident to the full reinstatement
value thereof
5.3.7.2. (to the extent not covered by insurance
effected by the Landlord pursuant to sub-clause 5.2.1 hereof) all plant and
machinery forming part of the Demised Premises against loss or damage due to
explosion breakdown or other sudden or unforeseen cause and
5.3.7.3. any public and third party liability of
the Tenant in respect of the Demised Premises
and whenever required to produce to the Landlord (but not more than once in any
insurance period) the policy or policies of such insurance and the receipt for
each last premium due in respect thereof and in case any such plant and
machinery shall be destroyed or damaged by any Insured Risk all monies received
in respect of the insurance thereof shall with all convenient speed be laid out
in reinstating the same
5.4 Suspension of Rent
If at any time or times during the Term the Demised Premises or any part or
parts thereof shall be destroyed or so damaged by any of the Insured Risks as to
be unfit for occupation or use by the Tenant and the policy effected by the
Landlord shall not have been vitiated or payment of the policy monies refused in
whole or in part by reason of any act or default of the Tenant the rent firstly
hereinbefore reserved or such part or parts thereof as is commensurate with the
part or parts of the Demised Premises or means of access so rendered unfit for
occupation or use shall cease to be payable from the happening thereof until the
sooner of:
5.4.1 the date when the same has or have been fully
reinstated and rendered fit for occupation and use or
5.4.2 the date following the expiration of the period of
loss of rent insurance to be effected by the Landlord hereunder or (if it shall
occur) the postponed date of determination certified pursuant to sub-clause
5.5.1 hereof
5.5 Determination
5.5.1 If reinstatement of the Demised Premises pursuant to
sub-clause 5.2.2 hereof shall not have been completed so as to render the
Demised Premises suitable for occupation and use on the day immediately
following the expiration of the period of loss of rent insurance to be effected
by the Landlord hereunder (in this Clause referred to as "Relevant Period") then
either the Landlord or the Tenant may at any time thereafter (but not after the
date of practical completion in relation to such reinstatement) determine this
Lease by giving written notice to the other Provided That if before the
expiration of the Relevant Period the Landlord's surveyor shall certify in
writing a date not later than six months after the expiration of the Relevant
Period by which in his opinion such reinstatement shall be so completed then
such right of determination shall be postponed to the date so certified
5.5.2 Any such determination shall be without prejudice to
any claim by either party against the other in respect of any antecedent breach
of covenant upon such determination any insurance monies shall belong to the
Landlord absolutely
5.6 Insurance in the Landlord's Office'
If the Landlord for the time being is an insurance company or a member of a
group of companies which includes an insurance company it shall be entitled to
effect or maintain in its own office or in the office of any insurance company
within such group any insurance it is required to effect pursuant to this Lease
and the premiums charged by the Landlord or such other company shall for the
purpose of any covenant by the Tenant to pay or contribute towards the cost of
such insurance be deemed to have been paid by the Landlord on the first day of
the period of insurance to which the relevant premium relates
6. PROVISOS
PROVIDED ALWAYS AND IT IS HEREBY AGREED as follows:
6.1 Interest on Rents in Arrear
If the rents hereby reserved or any part thereof or any other monies payable to
the Landlord hereunder shall not be paid on any of the days herein appointed for
payment (whether legally demanded or not) or if payment of the same shall be
proffered to but not accepted by the Landlord during the subsistence of any
breach of covenant by the Tenant which the Landlord reasonably considers would
be waived by such acceptance the said rents or the parts thereof or other monies
unpaid as aforesaid shall bear interest at the Prescribed Rate from the date
when the same shall become due until the date of actual payment whether after or
before any judgment and such interest shall for all purposes be treated as rent
in arrear and be recoverable by distress or other process of law Provided That
nothing in this Clause shall entitle the Tenant to withhold or delay any payment
of the rent after the date upon which it first falls due or in any way prejudice
affect or derogate from the rights of the Landlord under the proviso for re-
entry hereinafter contained
6.2 For Re-entry
If and whenever:
6.2.1 the rents hereby reserved or any part thereof shall
be in arrear or unpaid for 21 days after becoming payable (whether formally
demanded or not) or
6.2.2 there shall be any material breach non-performance
or non-observance of any covenants conditions or agreements herein contained and
on the part of the Tenant to be performed or observed which is not remedied
within 14 days of receiving notice from the Landlord that such breach subsists
or
6.2.3 where the Tenant for the time being is a company:
6.2.3.1. an order is made or a resolution passed
for the winding-up of the Tenant or
6.2.3.2. a provisional liquidator is appointed in
respect of the Tenant or
6.2.3.3. an administration order is made in
respect of the Tenant or
6.2.3.4. a receiver (including an administrative
receiver) is appointed in respect of the Tenant or any assets of the Tenant or
6.2.3.5. any voluntary arrangement is proposed
pursuant to Part I of the Insolvency Act 1986 in respect of the Tenant or
6.2.3.6. the Tenant shall otherwise cease for any
other reason to be or to remain liable under its covenants contained in or
arising from this Lease or cease for any reason to maintain its corporate
existence or
6.2.4 where the Tenant for the time being is an
individual:
6.2.4.1. the Tenant proposes a voluntary
arrangement under Part VIII of the Insolvency Act 1986 or
6.2.4.2. the Tenant suffers a bankruptcy order to
be made under the said Act or shall petition the court for his or her own
bankruptcy or
6.2.5 the Tenant shall enter into any arrangement or
composition for the benefit of the creditors of the Tenant or shall suffer any
distress or execution to be levied on the goods of the Tenant
THEN and in any such case it shall be lawful for the Landlord at any time
thereafter to re-enter the Demised Premises or any part thereof in the name of
the whole and to peaceably hold and enjoy the same as if this Lease had not been
granted and thereupon the Term shall absolutely determine but without prejudice
to any right of action of the Landlord in respect of any antecedent breach by
the Tenant of any of the obligations on the part of the Tenant herein contained
6.3 Rent Demands
The demand for or the acceptance of rent or any other monies due under this
Lease by the Landlord or its agents shall not waive any breach of the Tenant's
covenants or the conditions contained in this Lease and any such breach shall
for all purposes of this Lease constitute a continuing breach
6.4 Consents Easements Notices etc.
6.4.1 Any licence or consent to be given by the Landlord
pursuant to this Lease shall unless the Landlord otherwise first expressly
agrees in writing be given only by deed under seal duly executed by the Landlord
6.4.2 The Tenant shall not by virtue of this demise be
deemed to have acquired or be entitled to nor shall it during the Term acquire
or become entitled by any means whatever in respect of the Demised Premises to
any easement from or over or affecting any other land or premises now or at any
time hereafter belonging to the Landlord and not comprised in this demise
6.4.3 Notwithstanding any rights hereby granted to the
Tenant and the covenants by the Landlord contained in this Lease the Landlord
may at any time hereafter without obtaining any consent from the Tenant and
without paying any compensation to the Tenant erect any new buildings of any
height depth or width on any land not included in this demise now or at any time
hereafter belonging to the Landlord or raise to any height or extend or add to
in width or depth or otherwise alter any existing or new building on any such
land whether or not such new or extended or altered building may obstruct or
affect the passage of light and air or the access to the Demised Premises or any
new building replacing the Demised Premises in whole or in part
6.4.4 The Landlord may settle or compromise with any other
party any claim or entitlement in respect of interference to or infringement of
any rights of light or air or any other easement or enjoyment to which the
Demised Premises may from time to time be entitled on such terms and conditions
as the Landlord in its discretion may think fit without the consent or approval
of the Tenant and without being liable to the Tenant for any damages or
compensation whatsoever in respect thereof
6.4.5 Any notice to be served or given hereunder shall be
sufficiently served or given:
6.4.5.1. on or to the Tenant if delivered to or
sent by recorded delivery or registered post to the Tenant at the Demised
Premises or to its usual principal place of business in the United Kingdom or
(if a company) to its registered office which at the date of such delivery or
sending is registered with the Registrar of Companies or (if an individual) to
his usual place of abode in the United Kingdom and if sent by recorded delivery
or registered post such service shall be deemed to be made on the working day
following the date of posting and
6.4.5.2. on or to the Landlord if delivered to or
sent by recorded delivery or registered post to the Landlord at its registered
office which at the date of such delivery or sending is registered with the
Registrar of Companies or to such other address for service as the Landlord
shall from time to time notify in writing to the Tenant hereunder and if sent by
recorded delivery or registered post such service shall be deemed to be made on
the working day following the date of posting
6.4.6 The Clause headings hereto and the heading of any
Schedule hereto shall not affect the construction of this Lease
6.5 No Warranty by Landlord
The Landlord gives no warranty express or implied that the use of the Demised
Premises or any part thereof for any specific purpose is authorised under the
Planning Acts or otherwise or that the Demised Premises or any part thereof are
suitable for the purpose of the Tenant or for any purpose
7. RENT REVIEW
7.1 With effect from each of the fifth tenth fifteenth and
twentieth anniversaries of the date on which the Term is herein expressed to
commence (the date of the relevant anniversary being "Review Date") the rent
firstly hereby reserved payable hereunder shall be the Reviewed Rent as defined
in Clause 7.2 hereof
7.2 The Reviewed Rent shall be whichever is the greater of:
7.2.1 the rent payable hereunder immediately prior to the
Review Date (but ignoring for such purpose any suspension of rent pursuant to
the terms of this Lease) or
7.2.2 the open market rent which would become payable for
the Demised Premises after the expiry of a rent free period for fitting out
works of such length as would be negotiated on a letting of the Demised Premises
at the Review Date if the Demised Premises were so let with vacant possession in
the open market by a willing landlord to a willing tenant without payment of any
premium or other capital sum by the Tenant for a term of 10 years commencing on
the Review Date and on the same terms in all other respects as this Lease except
the rent hereby firstly reserved but including the same provisions for rent
review as are herein contained but effective from every fifth anniversary of the
date of commencement of the term of such letting
Assuming:
7.2.3 that the Demised Premises may be used for any use
within the same Class in the Schedule to the Town and Country Planning (Use
Classes) Order 1987 as any use from time to time permitted hereunder
7.2.4 that the Demised Premises are ready for immediate use
and occupation
7.2.5 that all the Tenant's obligations herein have been
complied with
7.2.6 that any destruction of or damage to the Demised
Premises has been made good before the Review Date
7.2.7 that any additions or alterations carried out on or
to the Demised Premises during the Term which have diminished the rental value
of the Demised Premises have been removed or reinstated
7.2.8 that the Tenant and any prospective willing tenant
is registered as a taxable person under the Value Added Tax Act 1994 and is
entitled to credit as input tax any value added tax payable by the Tenant on the
rents and other sums payable to the Landlord hereunder
7.2.9 that no reduction is to be made to take account of
any rental concession or other inducement for fitting out works which on a new
letting with vacant possession might be granted to an incoming tenant
7.2.10 that the gross internal floor area of the Demised
Premises is [*] square feet
But disregarding:
7.2.11 any effect on rent of the fact that the Tenant any
authorised sub-tenant or their respective predecessors in title have been in
occupation of the Demised Premises
7.2.12 any goodwill attached to the Demised Premises by
reason of the carrying on thereat of the business of the Tenant any authorised
sub-tenant or their respective predecessors in title and
7.2.13 any increase in rental value of the Demised Premises
attributable to the existence at the Review Date of any improvement to the
Demised Premises or any part thereof carried out with the prior written consent
of the Landlord where required otherwise than pursuant to an obligation to the
Landlord or its predecessors in title by the Tenant any authorised sub-tenant or
their respective predecessors in title during the Term or during any period of
occupation prior thereto arising out of any agreement to grant the Term (it
being acknowledged that the items of works described in the Agreement for Lease
constitute improvements to be disregarded under this sub-clause 7.2.13 or
7.2.14 the rent payable on the basis of the operation of
the following formula:
A x B
where A is the rent per square foot per annum based on [*]% of the open market
rental value which would be payable for a [*] square foot industrial and/or
warehouse building of the same specification as the Demised Premises of not less
than five years in age situated within a three mile radius of the Demised
Premises and otherwise on the same terms and conditions as set out in sub-clause
7.2.2 (other than sub-clause 7.2.10) and
where B is [*] square feet
__________________________
*CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
7.3.1 The Landlord and the Tenant (or their
respective surveyors) may at any time consult together and endeavour
to reach agreement as to the amount of the Reviewed Rent
7.3.2 If the Landlord and the Tenant (or their surveyors as
aforesaid) shall fail so to consult or to agree upon the Reviewed Rent by the
date one calendar month after the Review Date (or within such extended period as
the Landlord and the Tenant mutually agree in writing) the determination of the
Reviewed Rent may at the instance of either party be referred to a duly
qualified independent surveyor to be appointed by agreement between the Landlord
and the Tenant and in default of such agreement to be appointed on the
application of either party by the President or any Vice-President for the time
being of the Royal Institution of Chartered Surveyors (who shall from time to
time if necessary appoint a successor or successors) and any surveyor appointed
shall act as an independent expert and the costs thereof shall be paid as
determined by the surveyor or in the absence of any such determination by the
Landlord and the Tenant in equal shares
7.3.3 In acting as an independent expert the surveyor shall
allow the parties to submit representations and cross-representations as to
their opinion of the Reviewed Rent and shall have due regard to the same but
shall nevertheless determine the Reviewed Rent in his own absolute discretion
7.4 Forthwith after the Reviewed Rent has from time to time been
ascertained in accordance with the foregoing provisions a memorandum specifying
the Reviewed Rent shall be recorded in writing by separate instrument and signed
by or on behalf of the Landlord and the Tenant and shall at all times thereafter
be conclusive evidence of the amount of the rent then payable and the Tenant
shall pay the Landlord's costs of preparing and completing such memorandum
7.5.1 The Tenant shall as from and including the
Review Date pay the Reviewed Rent at the time and in manner aforesaid
which Reviewed Rent shall remain payable until it shall be further
increased pursuant to the provisions of this Clause or until the
expiration of the Term (whichever shall first occur)
7.5.2 If the Reviewed Rent shall for any reason not have
been ascertained prior to the Review Date the Tenant shall continue to pay rent
at the rate payable immediately prior to the Review Date until the Reviewed Rent
shall have been ascertained and upon the date ("Due Date") 14 days after the
date of such ascertainment there shall be payable (in addition to any rent then
due and payable at the rate of the Reviewed Rent):
7.5.2.1. such sum ("Addition") as with the rent
already paid for the period from and after the Review Date down to the Quarter
Day following the Due Date will equal the total amount of the Reviewed Rent
payable for that period and
7.5.2.2. interest at the 3% below the Prescribed
Rate from the Review Date to the Due Date calculated on a day-to-day basis and
compounded
quarterly on the Quarter Days on so much of the Addition as would from time to
time have become payable if the Reviewed Rent had been ascertained prior to the
Review Date
7.6 If at any Review Date the Landlord is prevented by any Act
of Parliament from reviewing rent pursuant to this Clause then the Landlord may
by written notice to the Tenant postpone such Review Date to the first day upon
which such review may lawfully be implemented but if the Landlord shall not so
require then the Review Date shall be that specified hereunder or as otherwise
stipulated or permitted by such Act of Parliament
8. TENANT'S RIGHT OF DETERMINATION
The Tenant may determine this Lease on the fifteenth and/or twentieth
anniversary of the Term (either such date hereinafter referred to as
"Determination Date") if the Tenant gives to the Landlord not less than 12
months' prior written notice of such determination expiring on the Determination
Date and if such notice is given and if the Tenant shall up to the Determination
Date have:
8.1 paid all rents due under this Lease
8.2 performed its obligations pursuant to Clause 3.9 above and
8.3 either the Reinstatement Notice (as defined below) has been
complied with or the Reinstatement Sum (as defined below) has been paid to the
Landlord in accordance with the following provisions:
8.3.1 the Landlord shall instruct the Landlord's surveyor
(who shall act as an independent and impartial expert) to inspect the Demised
Premises no later than six weeks prior to the Determination Date
8.3.2 the Landlord's surveyor shall be instructed to notify
the Tenant in writing ("Reinstatement Notice") no later than four weeks prior to
the Determination Date of any works which in the reasonable opinion of the
Landlord's surveyor must be undertaken by the Tenant in order to comply with the
obligations contained in Clause 3.9 by the Determination Date ("Reinstatement
Works") and what in the reasonable opinion of the Landlord's surveyor represents
the proper and reasonable cost of carrying out the Reinstatement Works
("Reinstatement Sum")
8.3.3 if a Reinstatement Notice shall be served on the
Tenant and the Reinstatement Works shall not have been completed to the
reasonable satisfaction of the Landlord's surveyor on or before the
Determination Date then the Tenant shall on the Determination Date or within
seven working days of written demand whichever shall be the later pay to the
Landlord the Reinstatement Sum and
8.3.4 the Landlord shall immediately place the
Reinstatement Sum in a separate designated interest bearing deposit account and
shall apply the Reinstatement Sum in carrying out and completing the
Reinstatement Works as soon as is reasonably practicable and in any event within
three months after the Determination Date and shall within seven working days
after completion of the Reinstatement Works or the expiry of the said three
month period whichever shall be the earlier pay to the Tenant any difference
between the Reinstatement Sum and the costs actually incurred by the Landlord in
carrying out the Reinstatement Works together with all interest accrued on the
balance of the Reinstatement Sum being repaid to the Tenant (less any tax
properly payable on such interest) and the Landlord shall at the request of the
Tenant produce satisfactory documentary evidence of the sums so incurred
then on the Determination Date this Lease shall absolutely determine and be of
no further effect but such determination shall be without prejudice to the
rights of either party in respect of any antecedent claim or breach of covenant
or condition hereunder
9. 1995 ACT
It is agreed and declared that the tenancy hereby created is a new tenancy for
the purposes of the 1995 Act
10. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
Unless otherwise expressly stated nothing in this Lease shall create or confer
any rights or other benefits pursuant to the Contracts (Rights of Third Parties)
Act 1999 in favour of any person other than the parties to this Lease
IN WITNESS whereof this Deed has been duly executed and delivered
unconditionally on the date first before written
THE FIRST SCHEDULE
THE DEMISED PREMISES
The land and buildings known as [*] London [*] shown for identification purposes
only edged red on the attached plan
____________________
*CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
THE SECOND SCHEDULE
Rights Granted
1. The exclusive right to use the airspace above the Demised Premises for all
reasonable purposes in connection with the use and enjoyment of the Demised
Premises and the construction and retention of any alteration or addition
to the Demised Premises for consent has been obtained pursuant to the
provisions of this Lease and for the proper performance and observance of
the Tenant's covenants and the conditions herein contained but not further
or otherwise
2. The exclusive right to exhibit signs as detailed in sub-clause 3.10.2
THE THIRD SCHEDULE
Subjections
All matters contained or referred to in the property and charges registers of
title numbers [*] and [*]
_________________
*CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
THE FOURTH SCHEDULE
Covenants by Surety
1. The Tenant will pay the rents reserved and observe and perform the
covenants conditions and agreements contained in this Lease and on the
part of the Tenant thereunder to be observed and performed as well after
as before any disclaimer of this Lease by any liquidator or trustee in
bankruptcy or by the Crown
2. In case of default in such payment of rent or other monies or performance
or observance of any of the covenants as aforesaid during the currency of
the Term and also thereafter during such period as the Tenant remains in
occupation of the Demised Premises the Surety will pay and make good to
the Landlord within 10 working days of demand all loss damages and
reasonable costs and expenses thereby properly arising or incurred by the
Landlord
3. If the Tenant (being an individual) shall die or become bankrupt or (being a
company) shall enter into liquidation and if a trustee in bankruptcy of
the Tenant or a liquidator of the Tenant (as the case may be) shall
disclaim this Lease or it if shall be forfeited or if it shall vest bona
vacantia the Landlord may within six months after any such event by
notice in writing require the Surety to take a lease of the Demised
Premises for a term equal to the residue of the Term remaining unexpired
at the date of such event at the same rents as are hereinbefore reserved
(including reviewed rents and so that if any review is current but
undetermined at the date of such event the rent first reserved by the new
lease shall from the commencement thereof be the reviewed rent which in
respect of the periods before and after such determination shall be
payable on the terms contained in sub-clause 7.5.2 hereof) and subject to
the like covenants and conditions as are contained in this Lease and in
any licence or deed supplemental or relating to this Lease (but effective
from the date of this Lease insofar as any of such covenants and
conditions shall not have been performed and observed by the Tenant) and
on the execution of such new lease the Surety shall execute and deliver
to the Landlord a counterpart thereof and pay the reasonable and proper
costs of the Landlord in granting the same
4. If the Landlord does not require the Surety to take a lease of the Demised
Premises the Surety will nevertheless within 10 working days of demand
pay to the Landlord a sum equal to the rents and other payments that
would have been payable under this Lease but for the disclaimer or
forfeiture until the expiration of six months from the date of disclaimer
or forfeiture or until the earlier date upon which the Demised Premises
shall be re-let by the Landlord
5. The Surety acknowledges that anything done omitted or agreed by the Tenant
is done omitted or agreed with the concurrence of the Surety
6. The Surety waives any right to participate in any review of rent under this
Lease and any rights the Tenant may have of first requiring the Landlord
to proceed against or claim payment from the Tenant or any other person
and the Surety agrees to subordinate and does hereby subordinate any and
all claims the Surety may have against the Tenant existing now or arising
later (whether in respect of payment made under this paragraph or
otherwise) to any and all claims by the Landlord under this Lease and
shall not be entitled to participate in any security held by the Landlord
in respect of the Tenant's obligations to the Landlord under this Lease
until the obligations on the part of the Surety or of the Tenant under
this Lease shall have been performed or discharged
7. The Surety will be liable to the Landlord as sole or principal debtor or
covenantor for all obligations on the part of the Tenant herein contained
and will not be released or discharged in whole or in part by:
7.1 any neglect or forbearance of the Landlord in endeavouring to obtain
payment of the said rents or other monies when the same become payable or
any refusal to accept payment thereof or in enforcing the performance or
observance of the covenants herein on the Tenant's part contained or any
time which may be given by the Landlord to the Tenant
7.2 any legal limitation immunity disability incapacity or other
circumstances affecting the liability of the Tenant or
7.3 any variation waiver release or modification of any of the terms of this
Lease or the granting of any consent hereunder or the surrender of any
part of or other change or modification of or to the Demised Premises or
any part thereof and the Surety agrees to be a party to any document
effecting or evidencing any of the foregoing for the purpose of being
bound by the same and by the terms and conditions thereof
THE COMMON SEAL of )
QUATTROCENTO LIMITED was )
hereunto affixed in the presence: )
Director
Director
THE COMMON SEAL of )
EQUINIX UK LIMITED )
was hereunto affixed in the presence of: )
Director
Secretary