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A)
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The
Landlord owns a property located at 114 Rue Ambroise Croizat, 93220
Saint-Denis, which includes a single building comprised of a basement
level, a ground floor, and four upper floors, to be used as a datacenter
(hereinafter the "Building") and exterior
circulation areas including car parks (hereinafter the “Property”).
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B)
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The
Landlord is a company specialized in the housing and the rental of
datacenters corresponding to power scales and electrical capacities of
more than 240 Kw for a total electrical capacity as determined in relation
to the total capacity of the building and the available electrical supply
of electricity suppliers.
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C)
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Any
reference to the "Recitals", an Article or an Appendix in the Lease shall
be understood to mean a reference to the recitals, an article or appendix
of the Lease.
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1.
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LEASE
- DESCRIPTION
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1.1
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The
Landlord hereby grants to the Tenant, which irrevocably accepts, a
commercial lease over the following premises located within the Property,
of a total area of approximately 10.273 square meters, comprised of
(hereinafter the "Leased
Premises"):
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-
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premises
reserved for business activities and neutral datacenter activities, in
particular office areas, located on the ground floor of the Building,
demarcated on the plan included in Annex 2, corresponding
to a total rental space of 8 835 square meters and the technical and
common areas, the latter being comprised of four high voltage electricity
substations each one of them with a delivering capacity of 3
Mva;
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-
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premises
located in a mezzanine in the Building situated above a portion of the
Leased Premises, demarcated on the plan included in Annex 2, corresponding
to a total rental space of approximately 1.735 square meters and the
technical and common areas,
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-
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the
exclusive right to use and access the exterior areas demarcated on the
plan included in Annex 2
for its installations and
equipment;
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-
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the
right to install equipment on the roof of the Leased Premises, it being
specified that there is presently no infrastructure on the roof to support
such equipment. The installation of such equipment shall be carried out at
the sole expense, responsibility, and risk of the Tenant
subject to the prior written approval of the Landlord, approval which the
Landlord may refuse only in the event that the Tenant fails to conform to
the technical and safety rules applicable to the installation of such
equipment.
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-
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the
private use of 32 parking spots on the
Property;
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-
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free
access to the visitor's parking
lot;
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-
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the
portion of the common parts relating to the aforementioned premises,
as indicated are indicated on the plans appearing in
Annex 2 hereto;
and
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1.2
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The
Parties mutually and expressly agree that the Leased Premises shall be
used exclusively for business neutral datacenter activities and, in
particular, as offices, and that they form an indivisible
whole.
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1.3
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A
schedule of condition shall be drawn up at the joint expense of both
Parties as soon as possible after the Lease has been signed, and at the
latest on the Entry Date onto the Premises (as defined in Section 4.1.1
hereinafter). If a schedule of condition is not drawn up for any reason
whatsoever, the Leased Premises shall be deemed to have been handed over
in perfect condition.
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1.4
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Environmental
and Technological Risk Statement; Energy Performance Analysis; Asbestos
Report
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1.4.1
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In
accordance with the terms of Articles L 125-5 and R 125-26 of the
Environmental Code (Code
de l’environnement), the Landlord has provided the Tenant, who
hereby acknowledges its receipt, with an Environmental and Technological
Risks Statement (état
des risques naturels et technologiques) – together with its annexes
-established on the basis of the information provided to it by virtue of
the Arrêté Préfectoral
Number 2006-45-1 of February 14, 2006, which statement is included
in Annex 3. The
Landlord herby informs Tenant that the Building has not sustained any loss
or damage which has given rise to indemnification pursuant to Article L
125-2 of the Environmental Code or Article L 128-2 of the Insurance
Code.
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1.4.2
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The
Tenant expressly exempts the Landlord from providing to the Tenant prior
to the signing of this Lease, any energy performance analysis of the
Leased Premises. The Tenant declares that he has such knowledge, and
hereby waives any claim against the Landlord or the Landlord
Group.
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1.4.3
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The
Landlord has transmitted, prior to the signing of the present agreement,
to the Tenant, who hereby acknowledges the receipt thereof, of
a pre-construction asbestos report dated November 28, 2007, and
appearing in Annex
3 hereto. The Tenant hereby declares to have perfect knowledge of
this report, the Leased Premises, and the Building, and assumes all
responsibility and without recourse against the Landlord and the Landlord
group for the Leased Premises and the Building, in this
regard.
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2.
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NATURE
OF THE LEASE
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3.
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INTENDED
USE OF THE PREMISES
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3.1
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In
accordance with Articles 1728 and 1729 of the French Civil Code, the
Tenant shall use the Leased Premises without causing any disturbance and
solely for business and neutral datacenter activities. This includes the
Tenant providing to its customers the rooms and infrastructure necessary
to store their IT and telecommunications
equipment.
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3.2
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In
general, the Tenant shall refrain from carrying on any activity that is
liable to call into question the use or nature of the Leased Premises. The
Tenant shall not, under any pretext, modify, even for a short time, the
intended use or change the nature of the activities carried on in the
Leased Premises, or carry on any ancillary or supplementary activities
without the prior written consent of the
Landlord.
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3.3
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The
Tenant represents that it has obtained all the permits required in order
to use the Leased Premises to perform the activity envisaged in Article
3.1 hereinabove for the entire term of the Lease and any renewals thereof.
The Landlord shall not incur any liability if these permits are denied or
the issue thereof is delayed. The Tenant shall be solely responsible all
amounts, fees, levies, taxes and other duties relating to the activities
carried on in the Leased Premises and the use
thereof.
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3.4
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During
the term of the Lease and any renewals thereof, the Tenant shall
undertake, at its own expense, to obtain all administrative permits
pertaining to the use of the Leased Premises and the performance of its
business. The Landlord shall not incur any liability if these permits are
denied, not renewed, withdrawn or the issue thereof is
delayed.
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4.
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TERM
– POSSESSION – EARLY AVAILABILITY
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4.1
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Term
of the Lease
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4.1.1
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The
Lease is entered into for a fixed term of twelve (12) full and consecutive
years, beginning on the entry date on to the Leased Premises, or October
1st,
2008, the date upon which the Lease shall become effective (the "Entry
Date on to the Premises), and ending on September 30th,
2020.
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4.1.2
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In
conformity to Article L. 145-4 paragraph 2 of the French Commercial Code,
the Landlord and the Tenant agree that the Tenant hereby
undertakes to not give notice of expiry at the
expiration the first three three-year period of the Lease, so that the
Lease shall remain in effect for a fixed term of twelve (12)
years.
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4.1.3
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It
is expressly stipulated, in the event that the Lease is renewed, it shall
remain in effect for a fixed term of twelve (12) full and consecutive
years, as shall all subsequent renewals. In conformity with the provisions
of Article 145-4 paragraph 2 of the French Commercial Code, the Landlord
and Tenant agree that in the event that the Lease is renewed under the
conditions hereinabove, the Tenant shall not give notice of expiry at the
expiration of each three-year period of the renewed Lease, so that the
Lease shall be renewed for a fixed term of twelve (12) years upon each
renewal. It being specified that the Base Rent applicable to the renewed
Lease shall be equal to the Base Rent as revised in conformity with the
indexation clause referred to in Article 6. The Landlord shall not take
into account any improvements resulting from the Tenant's operations when
determining the rent for the renewed
lease.
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5.
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RENT
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5.1
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The
Lease is entered into in consideration of an annual rent of
three-million-two-hundred-fifty-five-thousand euros (€ 3,255,000.00)
exclusive of tax and charges for all of the Leased Premises (hereinafter
the "Base Rent"),
is being specified that the Tenant shall benefit from a rent abatement,
including for the portion of the common parts pertaining to the said
premises for the period between the Entry Date on to the Premises and the
end of the sixth (6th)
month of the term of the Lease, or March 31,
2009.
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5.2
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The
Base Rent is currently subject to value-added tax payable at the legal
rate in force on the due date of each Base Rent installment.
The Tenant shall pay all duties, taxes and levies of any kind whatsoever
(including any variation in the rate of VAT) which may be
due in respect of the Base Rent, charges and other payments
provided for by the Lease.
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5.3
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Landlord
and Tenant have agreed upon the amounts of Base Rent set forth in Article
5 as indexed by application of Article 6 hereinafter as being equal to the
fair market value (valeur locative) of the
Leased Premises under the terms of the present Lease, without prejudice to
the Tenant's right to request a triennial "public policy" legal review of
the Base Rent in conformity with the French Commercial Code. The Landlord
and Tenant acknowledge and agree that the above mentioned provisions of
the French Commercial Code create a rebuttable presumption that the Base
Rent as set forth in Article 5, as indexed by application of Article 6
hereinafter is, in fact, equal to fair market value and should not be
revised in connection with any such triennial legal
review.
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5.4
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The
Base Rent shall be payable by bank transfer, monthly and in advance, by
the first day of each calendar month at the
latest.
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5.5
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The
Base Rent referred to in Article 5.1 as indexed in accordance with the
terms of Article 6, shall therefore be due and payable as from the first
anniversary date of the Lease.
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6.
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RENT
INDEXATION
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6.1
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The
Base Rent is subject to an annual increase of three percent (3%) per year,
exclusive of tax and charges on each anniversary date of the Entry Date on
to the Premises, or as indicated
hereinafter:
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Month
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Monthly Base Rent, excluding
taxes
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1-6
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Abatement period
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7-12
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€ 271.250
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13-24
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€ 279.388
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25-36
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€ 287.769
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37-48
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€ 296.402
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49-60
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€ 305.294
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61-72
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€ 314.453
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73-84
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€ 323.887
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85-96
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€ 333.603
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97-108
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€ 343.611
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109-120
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€ 353.920
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121-132
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€ 364.537
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133-144
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€
375.473
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6.2
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The
Parties acknowledge that this index is directly linked to the purpose of
this agreement and to the Landlord’s
business.
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6.3
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It
is expressly agreed that the Rent shall not fall to below the Base Rent
specified in Article 5.1 above as a result of such
indexation.
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6.4
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Implementation
of the indexation clause does not require the issuance of any notice, and
the index shall apply by operation of law. In the event that the Base Rent
is not immediately adjusted, it shall by no means constitute a forfeiture
by the Landlord of its right to apply the index at any subsequent time
with retroactive effect.
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6.5
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The
present clause regarding the annual indexation of the Base Rent
constitutes, in its entirety, a fundamental and determining clause without
which the Landlord would not have entered into the Lease. In consequence,
if this clause is not applied, whether in whole or in part, the Landlord
alone, shall be entitled should it so wish, to terminate the Lease by
operation of law by registered letter with advice of receipt (lettre recommandée avec
demande d’avis de réception) or by means of a process served by a
judicial officer (acte
extrajudiciaire), without the need to petition a
court.
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6.6
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This
clause constitutes a contractual indexation clause and does not refer to
the three-year statutory revision provided for in Articles L. 145-37 and
L. 145-38 of the French Commercial
Code.
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7.
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PAYMENT
OF CHARGES, SERVICE COSTS AND
EXPENSES
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7.1
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The
Tenant shall pay the Landlord or any person or entity responsible
for the management of the Leased Premises on the Landlord’s
behalf (hereinafter the “Property Manager”), upon
the latter’s request, its portion of any and all charges and expenses
incumbent on the Landlord as calculated on a pro rata basis of 53.18%
(fifty-three and eighteen percent) of the surface areas of the warehouse
as demarcated on the plan included in Annex 4, including but
not limited to the following:
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a)
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all
levies, taxes, contributions and other amounts payable now or in the
future with regard to the Leased Premises, regardless of the currency,
base and legal debtor thereof, in particular, the property tax, the annual
tax on office space, commercial premises and storage premises in the
Ile-de-France region and the tax for sweeping the roads and removing
household waste,
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b)
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the
insurance premiums referred to in Article 11.18.1
below,
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c)
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the
Property Manager’s rental and technical management fees and
expenses,
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d)
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the
individual service and supply costs including heating, air conditioning
and electricity costs, all costs relating to the operation, cleaning,
repair and maintenance of all the facilities in the Leased Premises and
the Property,
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e)
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the
costs relating to the cleaning, maintenance and repair, compliance with
current standards as referred to in Article 11.2.3, of the Leased Premises
and the Building, including the repair costs referred to in Article 605 of
the French Civil Code, with the sole exception of (i) major repairs as
referred to in Article 606 of the French Civil Code, (ii) work carried to
renovate and clean the exterior walls of the Building and (iii) work
carried out to repair the common areas of the Building due to wear and
tear, as referred to in Article 1755 of the French Civil Code, which shall
be borne by the Landlord (it being specified that the cost of
straightforward maintenance work on the exterior walls shall be borne by
the Tenant and the other tenants of the
Building),
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f)
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the
services provided by the Landlord to the Tenant in conformity with Article
11.4 hereinafter,
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7.2
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All
of the above-mentioned charges and expenses shall be paid as
follows:
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7.2.1
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The
Tenant shall pay a monthly advance on the first day of each calendar month
by bank transfer, it being specified that these advances are subject to
the value-added tax (VAT) at the legal rate in force on the due date of
each Base Rent installment. The Tenant shall pay all duties, taxes and
levies of any kind whatsoever (including any variation in the rate of VAT)
that may be payable in respect of the said charges and other payments
provided for by the Lease.
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7.2.2
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This
advance payment shall be payable each year on the first day of each
calendar month. The amount of this advance payment shall be calculated by
the Landlord or by the Property Manager by reference to the forecast
budget. The
Landlord or the Property Manager shall inform the Tenant of the amount
payable each year.
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7.2.3
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The
Tenant shall also pay the Landlord the levies and taxes referred to in
Article 7.1 a), within twenty (20) business days of the Tenant’s receiving
the corresponding invoice from the
Landlord.
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7.2.4
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It
is hereby specified that if the forecast budget is insufficient, the
Tenant shall pay the Landlord or the Property Manager all additional
advance payments required to cover the Landlord’s expenses for the Leased
Premises at all times, within twenty (20) business days of the Tenant’s
receiving the corresponding invoice from the Landlord, accompanied by the
related supporting documents.
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7.2.5
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An
annual adjustment shall be carried out in accordance with the amount of
expenses actually incurred, with the aid of various
schedules.
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7.3
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The
Tenant shall make arrangements with regard to its own telephone, fax,
Internet and other telecommunications services. The Tenant shall pay the
cost of its consumption of water, electricity and other utilities based on
meter readings, as well as all telephone, fax, Internet and other
telecommunications costs.
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7.4
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If
individual meters are installed, the Tenant shall reimburse its share of
the costs relating to its meter or sub-meter readings, as well the cost of
installing, renting, maintaining and reading the said
meters.
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8.
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PAYMENTS
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8.1
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The
Tenant shall pay all amounts owed hereunder to the Landlord or the
Property Manager by bank transfer.
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8.2
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Any
installment of Rent and/or charges which is not paid on the due date
provided for under the Lease shall incur interest per day’s delay at the
legal interest rate applicable during the year in question, increased by
two points, calculated prorata temporis as
from the payment due date. Such interest shall be payable with the
principal amount. The same shall apply to any other amount payable by the
Tenant to the Landlord which is not actually paid on the due
date.
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8.3
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Moreover,
the Tenant shall pay all litigation costs arising as a result of the late
payment of any amount payable hereunder or the breach of any of its
obligations hereunder. Such costs shall be payable over and above any
damages which the Landlord may claim from the
Tenant.
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8.4
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If
the Tenant fails to pay to the Landlord the totality of the Security
Deposit referred to in Article 10.1 and the advance payment of charges
referred to in Article 7.2.1 within ten (10) days, at the latest, as from
the Entry Date on to the Premises, the Landlord may, in its sole
discretion, declare this Lease null and void by operation of law, and
without any indemnity
being owed to the Tenant. The Landlord shall inform the Tenant of its
decision to declare the lease null and void within two (2) business days.
In the event that the Landlord does not so inform the Tenant, it will be
deemed to have renounced this
right.
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9.
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PENALTY
CLAUSE
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9.1
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In
the event of non-payment of any amount payable hereunder on the due date,
a five percent (5%) penalty shall be applied by operation of law to the
amount owed if a formal notice sent to the Tenant by registered letter
with advice of receipt or served on the Tenant by a judicial officer has
gone unheeded after fifteen (15) days, as compensation for the costs
incurred by the management on account of such late payment. This penalty
shall be increased to ten percent (10%) if a court is petitioned to
collect the amount, even where an ordinary court order is
issued.
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9.2
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This
penalty shall apply over and above the late-payment interest referred to
in Article 8.2 above, notwithstanding implementation of the
termination clause provided for under Article 14 and the payment of any
damages which the Landlord shall be entitled to
claim.
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10.
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GUARANTEES
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10.1
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Security
Deposit
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10.2
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Payment
of the Security Deposit
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10.3
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The
terms of Article 10, above, notwithstanding, the Landlord and the Tenant
agree that, in the event that the sum of the Security Deposit exceeds the
total of two (2) terms Base Rent, the amount by which such sum exceeds two
(2) terms Base Rent will accrue interest in conformity with the provisions
of Article L. 145-40 of the French Commercial Code to the benefit of the
Tenant, from the date that such amount is submitted to the Landlord, until
the date upon which the sum of the Security Deposit no longer exceeds a
total of two (2) terms Base Rent. Any interest that accrues to the
Tenant’s benefit (a) shall not be considered to be part of the Security
Deposit ; and (b) shall be forwarded to the Tenant each year within sixty
(60) days after the anniversary date of the
Lease.
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10.4
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Joint
guaranty from EQUINIX Inc.
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10.4.1
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The
Tenant shall provide to the Landlord, within thirty (30) business days
following the signature of the Lease, a joint guaranty by EQUINIX Inc., a
company governed by the laws of the United States of America having its
registered office at 3500 South Dupont Highway, Dover, Delaware, 19901,
United States of America, registered on the companies register under
number 06293383 (hereinafter the “Guarantor”), identical
to the model of which is attached as Annex 5 of this Lease,
to guarantee the payment of any rent or charges which the Tenant may owe
to the Landlord or for which the Landlord may be held liable on account of
the Tenant hereunder, for any reason whatsoever (hereinafter the “Guarantee”). The
Guarantee shall benefit the Landlord and any future owner of the Leased
Premises.
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10.4.2
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The
Guarantee shall be provided together with a legal opinion prepared by the
American law firm of Gunderson-Dettmer-Stough-Villeneuve-Franklin &
Hachigan LLP, confirming the corporate existence of Equinix Inc., its
capacity to issue the Guarantee, and that it was executed by a duly
authorised individual and that all the requisite authorizations have been
granted in this respect.
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10.4.3
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The
Tenant's failure to provide the Landlord with the original Guarantee
referred to in Article 10.3, strictly identical to the model included in
Annex 5, and the
legal opinion regarding the Guarantee, within thirty (30) days, at the
latest, will result in this Lease being declared null and void by
operation of law, without any indemnity being owed to the Tenant, and
without prejudice to any of the Landlords rights arising under the Lease
following such nullity.
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10.4.4
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In
the event the Tenant ceases to be a subsidiary of EQUINIX Inc., the Tenant
shall provide the Landlord with a joint guaranty under the same terms and
conditions issued by another company of its group whose financial position
is satisfactory to the Landlord. The Tenant shall also provide the
Landlord with a legal opinion prepared by a leading independent law firm
under the conditions provided for in Article 10.3.2. Failing this, the
Landlord may implement the termination clause referred to in Article 14. A
copy of this legal opinion appears in Annex 4 of this Lease.
The Guarantee shall be renewed upon each renewal of this Lease, it being
specified that, under the same conditions provided for in Article 10.3.2,
the Tenant must show to the Landlord that the obligations under the
Guarantee have been validly authorized by the Guarantor's management and
submit a legal opinion prepared by a reputable independent law firm to
this effect. Failing this, the Landlord may implement the termination
clause referred to in Article 14.
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10.4.5
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In
the event of the assignment or contribution of the Lease as a result of a
merger, demerger, partial contribution of assets or other operation, the
Guarantee shall remain in effect and be renewed throughout the term of the
Lease
and any renewals thereof.
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10.4.6
|
If
the Leased Premises are sold, the new owner shall benefit from the
Guarantee simply by virtue of a notice given to the Tenant and the
Guarantor by the new owner.
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11.
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CHARGES
AND GENERAL CONDITIONS
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11.1
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Furnishing
and commercial exploitation
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11.2
|
Maintenance
– Work – Repairs
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11.2.1
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The
Tenant shall refrain from making any alteration, changing the layout,
installing partitions (subject to the reservations set out below),
piercing the walls, carrying out any demolition work, installing any
equipment on the roof, or building any structure of any kind whatsoever on
the Leased Premises and in the Mezzanine without the prior written consent
of the Landlord in accordance with the procedure set forth below or of the
architect and/or inspection agency and/or other skilled individuals
appointed by the Landlord (hereinafter collectively the “Architect”). In the
event that the nature of the work to be carried out required that the
Tenant consult an Architect, and/or technical consulting firm, and/or
specialist, and the Tenant did not do so, the Architect’s fees shall be
borne by the Tenant.
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11.2.2
|
Notwithstanding
any provision in this Lease to the contrary, the Tenant shall not make or
cause to be made any alterations, additions, improvements or replacements
to the Leased Premises, any other part of the Building, or the Property,
the Datacenter, or any other portion of the Building or Property
(collectively, “Alterations”) without
the Landlord's prior written consent, which consent shall not be withheld
without a valid reason. provided, however, that Landlord’s consent shall
not be required for any usual and customary installations, repairs,
maintenance, and removals of equipment and telecommunication cables within
the Leased Premises, if and to the extent that such installations,
repairs, maintenance, and removals, (i) are usual and customary within the
Tenant's business activities, (ii) are of a type and extent customarily
permitted to be made without consent by landlords acting consistently with
Institutional Owner Practices (defined below) leasing similar space for
similar uses to similar tenants, (iii) are in compliance with the
Datacenter Rules and Regulations, and (iv) will not affect the Building’s
structure, the provision of services to other Building tenants, or the
Building’s electrical, plumbing, HVAC, life safety or mechanical systems.
For example, Landlord’s consent would be required for the installation of
overhead ladder racks that are attached to the ceiling while Landlord’s
consent would not be required for the installation of equipment which does
not involve drilling into the floor or ceiling. For purposes
hereof, “Institutional
Owner Practices” shall mean practices that are consistent with the
practices of the majority of the institutional owners of institutional
grade, first-class datacenter or telecommunications projects in France. In
addition, the Landlord and Tenant agree that the Landlord must give his
consent (or objection) to the Tenant's Alteration request within ten (10)
calendar days following such request In the absence of a reply within this
time limit, the Landlord shall be deemed to have consented to the Tenant's
requests, which must, in all cases, be sent to the Landlord
by registered letter with advice of
receipt.
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11.2.3
|
Throughout
the term of the Lease and any renewals thereof, as from the date on which
the Tenant occupies the Leased Premises, it shall maintain the whole of
the Leased Premises, as well as all fit-out work, systems and facilities,
improvements and embellishments it effectuates which constitute fixtures,
particularly Infrastructural Equipment as defined in Article 11.6
hereinafter, in a good state of cleanliness, maintenance and repair, and
make all necessary replacements to the foregoing, with the sole exception
of (i) major repairs as referred to in Article 606 of the French Civil
Code, (ii) work carried out to renovate and clean the exterior walls of
the Property and (iii) work carried out to repair the common parts of the
Property due to wear and tear, as referred to in Article 1755 of the
French Civil Code, which shall be borne by the Landlord (it being
specified that the cost of ordinary maintenance work on the exterior walls
shall be borne by the Tenant and the other tenants within the Property).
At the end of the Lease or when the Tenant vacates the Leased Premises,
the Tenant shall surrender the Leased Premises and Infrastructural
Equipment; as defined in Article 11.6 below, in a good state of
cleanliness, maintenance and repair, consistent with the Leased Premises
being used in a normal way during the term of the Lease, as determined by
reference to the schedule of condition established by Parties in
accordance with that specified in Article 1.3
hereinabove.
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|
11.2.4
|
Throughout
the term of the Lease and any renewals hereof, the Tenant shall also pay
the cost of any work required to make the Leased Premises and the Property
secure and/or to bring them into conformity with any laws and/or
regulations of any kind whatsoever, in particular, those applicable to
security and the environment.
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|
11.2.5
|
In
derogation to Article 1755 of the French Civil Code, the Tenant undertakes
to pay the cost of and to assume full responsibility for all repair work
carried out on the Leased Premises and installations and equipment
contained therein and, where applicable, replacement items, even if such
repairs, work or replacements are the result of wear and tear or a force
majeure event.
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|
11.2.6
|
If
it is established that the Tenant has failed to comply with its
obligations under Articles 11.2.3 to 11.2.5 above or if any damage is
caused to the Leased Premises by the Tenant, its staff, visitors,
customers or subtenants, the Landlord shall issue a formal notice to the
Tenant to cure such breach within fifteen (15)
days.
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|
11.2.7
|
If
the Tenant fails to cure such breach within the time limit set in the
aforementioned formal notice, the Tenant shall reimburse to the Landlord
at the latter’s first request, the cost of all repairs carried out by the
Landlord because of the Tenant's failure to comply with its obligations
under Articles 11.2.3 to 11.2.5 above or if any damage is caused to the
Leased Premises by the Tenant, its staff or
visitors.
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|
11.2.8
|
The
Tenant shall promptly dismantle and remove, at its expense, any and all
formwork, fittings, decoration, windows, plates or other facilities of any
kind whatsoever that need to be moved either to detect and repair leaks of
any kind, cracks in the flue and ventilation pipes, in particular
following a fire or infiltration or, in general, to perform maintenance
work in the Building.
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|
11.2.9
|
The
Tenant shall pay the cost of all repair work, improvements, modifications
or even new structures which the Landlord reserves the right to carry out
or erect, even if they are not to the Tenant's benefit, irrespective of
the inconvenience caused and the duration thereof, even if the latter
exceeds forty
|
|
|
(40)
days – by way of exception to Article 1724 of the French Civil Code –
without any indemnity being payable by the Landlord and without any
reduction in Base Rent, providing that (i) the foregoing are carried out
with due care, (ii) the necessary steps are taken in agreement with the
Tenant to restrict the disturbance that may result thereof and to ensure
that the Tenant has ongoing access to the Leased Premises and that it can
perform its business therein and (iii) after the work has been carried
out, the Tenant’s enjoyment of the Premises is not diminished in any way.
By way of exception to Article 1723 of the French Civil Code, the Tenant
shall allow the Landlord to make any changes to the Property it considers
necessary, to the exclusion of the interior of the Leased Premises,
without any indemnity being owed by the Landlord, providing that that such
alterations to not affect the Tenant's enjoyment of the Leased Premises.
Any such changes shall be made with all due care and the necessary steps
shall be taken in agreement with the Tenant, it being specified that such
work, must not in any case disrupt the Tenant's normal business activities
in the Leased Premises.
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|
11.2.10
|
Providing
that its business is not affected, the Tenant shall allow the installation
of cables, piping and pipes which are connected to the common systems and
facilities or other private areas if the common parts cannot be used, as
well as the installation of the related drain cocks, sight holes, etc.
Moreover, the Landlord shall be entitled to install, maintain, repair,
replace and modify all cables, pipes and connections of any kind which may
be connected to or cross through the Leased Premises, without any
indemnity being owed to the Tenant. Providing that its business is not
affected, the Tenant shall also pay the cost of any changes made to the
supply, connection and replacement of meters and interior systems and
facilities which may be imposed by utilities suppliers or companies
responsible for maintaining the supply of water, electricity and
telecommunications facilities, heating, air conditioning and other
systems, facilities or services.
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|
11.2.11
|
The
Tenant shall refrain from installing any external roof, canopy, removable
awning or exterior blind of any kind without the prior written consent of
the Landlord and any administrative permits required. The Tenant shall pay
any fees that may be owed to the authorities in this
respect.
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|
11.2.12
|
The
Tenant shall pay the cost of any work which may be carried out on the
public thoroughfare or in neighbouring properties, even if its use of the
Leased Premises is disturbed, without any right of recourse against the
Landlord. The Tenant shall exercise any right of recourse against the
authorities, contractors or neighbours and shall hold the Landlord
harmless in this respect.
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|
11.2.13
|
The
Tenant shall refrain from forcing the walls and floors to bear any loads
which exceed the weight-bearing capacity of 1,200 kg per square meter, on
penalty of being required to carry out the necessary repair work at its
expense and to pay damages. Likewise, the Tenant shall ensure that the
lifts and freight elevator are not overloaded and that the lift cabins are
not damaged.
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|
11.2.14
|
Mezzanine.
Before installing any equipment on the mezzanine the Tenant shall carry
out, at its sole expense, responsibility, and risk, all work necessary to
render the mezzanine in compliance with the standards imposed by any
applicable laws, in particular, fire safety matters, and the construction
of an emergency exit. The Tenant shall obtain the Landlord's prior written
approval under the conditions of Article 11.2.1 hereinabove, approval
which shall not be withheld without a valid
reason.
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|
11.3
|
Electricity
Consumption
|
|
11.4
|
Security
– Surveillance
|
|
11.5
|
Additional
charges
|
|
11.6
|
Right
of first refusal
|
|
11.7
|
Ownership
of fittings etc. at the end of the
Lease
|
|
11.8
|
Disturbances
|
|
11.8.1
|
The
Tenant shall refrain from using any slow combustion appliances or
appliances which produce harmful gases. The Landlord shall under no
circumstances be liable for any damage to property or bodily injury caused
by such appliances; the Tenant shall refrain from using any appliance
which generates noise in excess of the noise regulations in force and from
using any electrical appliance or any other device that causes disturbance
to telecommunications apparatus unless such appliances and devices are
equipped with devices which prevent annoyance to
others.
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|
11.8.2
|
If
the Tenant uses any radio, television, or other appliances, it shall take
the necessary measures, to eliminate noise or interference affecting its
reception of the signal, without any right of recourse against the
Landlord.
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|
11.8.3
|
As
the Tenant must refrain from disturbing the neighbours, it shall handle
any claims made by neighbors or third parties at its own risk and expense,
in
|
|
|
particular
due to noise, odours, heat, vibration or radiation caused by the Tenant or
the equipment and machinery it owns (or which is in its custody for any
reason whatsoever), without any right of recourse against the Landlord,
even if the Landlord authorized the installation of such equipment and
machinery.
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|
11.9
|
Plates
and signs – Antennae – Roof
|
|
11.9.1
|
The
Tenant shall refrain from displaying any items on the windows, walls or
sills. It is also prohibited from affixing plates, signs, boards, notices
and paintings on the doors, windows, exterior walls, sills, string courses
or piers outside or at the entrance to the Leased Premises. Reciprocally,
the Landlord expressly undertakes that other tenants and occupants of the
Building will not place any plates, signs, boards, notices, and paintings
on the doors, windows, exterior walls, sills, string courses or piers
outside or at the entrance to the
Building.
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|
11.9.2
|
However,
the Tenant shall be authorised to affix a plate at the entrance to the
Leased Premises bearing all useful information on its name and business,
provided that it complies with a standard-form plate and the dimensions
previously approved by the Landlord and, where applicable, the competent
authorities.
|
|
11.9.3
|
The
Tenant shall also have the right to install construction material on the
portion of the roof corresponding to the Leased Premises. There is
currently no infrastructural support on the roof. The installation of such
equipment shall be carried out at the sole cost, responsibility, and risk
of the Tenant subject to the Landlord's prior written consent, which the
Landlord may refuse only in the event that the Tenant fails to conform to
the technical and safety rules applicable to the installation of such
equipment.
|
|
11.9.4
|
The
installation of any antenna and/or air conditioning unit shall be subject
to the Landlord’s prior written approval of the aforementioned works file
under the conditions set forth in Article 11.2.1. The relevant request
must include a description of the antennae and/or air conditioning unit
which the Tenant wishes to install.
|
|
11.10
|
Inspection
of the premises – Vacation – Final schedule of
condition
|
|
11.10.1
|
The
Tenant shall give the Landlord, its agents, contractors and workers and
the Architect access to the Leased Premises at all times, subject to at
least seventy-two (72) hours’ notice, except in case of an emergency, in
order to inspect and check the condition of the Leased Premises and the
Building, as well as to repair and maintain them at the Tenant’s risk and
expense should the Tenant have failed to fulfill its obligations arising
in connection with Article 11.2 above fifteen (15) days after the dispatch
of a formal notice which remains unheeded, except in the case of an
emergency. The Tenant may, if it so wishes, instruct its staff responsible
for security in the Leased Premises to accompany these individuals at no
expense to the Landlord. If immediate access to the Leased Premises is
required on account of an event that is liable to lead to harmful
consequences and it is not possible to contact any of the Tenant’s
representatives, the Landlord shall be expressly authorised to cause the
doors to be opened by a locksmith whose fee shall be reimbursed by the
Tenant.
|
|
11.10.2
|
If
the Leased Premises are sold or notice of termination of the Lease has
been given, the Tenant shall, at least during the last six (6) months of
the Lease, allow the Landlord’s representative(s) to visit the premises on
any business day between 9 a.m. and 12 noon and 2 p.m. and 4 p.m. and at
any other time with the Tenant’s consent (which may only be refused for a
legitimate reason), subject to at least seventy-two (72) hours’ notice.
The Tenant must also allow a board to be affixed at any place which the
Landlord deems appropriate, provided that it does not disrupt the Tenant’s
business.
|
|
11.10.3
|
Within
the last six (6) months prior to the Tenant’s vacating the Leased
Premises, the Tenant shall allow the Architect or any other representative
of the Landlord to draw up a preliminary final schedule of condition in
the presence of both Parties which indicates any repairs, cleaning, major
repairs and replacements required for which the Tenant is responsible
under the Lease. The Tenant undertakes to carry out the foregoing tasks,
where applicable, before vacating the Leased Premises, at its expense and
in
|
|
|
accordance
with Article 11.2 above.
|
|
11.10.4
|
A
final schedule of condition shall be drawn up in the presence of both
Parties, the Tenant having been duly called to attend, no later than on
the date of expiry of the Lease, once the Tenant has fully vacated the
Leased Premises and before the keys are handed over. If the Tenant fails
to attend the meeting, the schedule of condition shall be drawn up by a
judicial officer whose fees and expenses shall be paid in equal amounts by
the Parties. Such schedule of condition shall include a list of the repair
work incumbent on the Tenant hereunder and, in particular, the repair work
mentioned in the preliminary schedule of condition which has not been
carried out upon that date, as well as any work required but that did not
appear necessary during preparation of the preliminary schedule of
condition on account of the fact premises had not been entirely removed of
all furniture, systems, facilities and
equipment.
|
|
11.10.5
|
If
the Tenant fails to carry out the requisite repairs, cleaning, major
repairs and replacements required before vacating the Leased Premises in
accordance with the terms of the Lease or if it fails to vacate the
premises on the scheduled date, the Tenant shall owe the Landlord a daily
indemnity as from the date of expiry of the Lease, payable one week in
arrears, equal to one and a half times the daily Base Rent, plus charges,
calculated on a daily basis for the period required to return the Leased
Premises to their original
condition.
|
|
11.10.6
|
The
Tenant shall give at least one (1) month’s notice of the date on which it
intends to vacate the premises in order to enable the Landlord to make the
statutory declarations with the tax
authorities.
|
|
11.11
|
Sundry
requirements
|
|
11.11.1
|
The
Tenant shall at all times strictly comply with the provisions of all laws,
instructions, regulations and orders applicable to the Leased Premises
throughout the term of the Lease (in particular, by arranging for approved
bodies to carry out the regulatory verifications and inspections of all
systems
|
|
|
and
facilities within the Leased Premises in accordance with the regulations
laid down by the French Fire Insurance Companies Committee(Association Plénière des
Sociétés d'Assurance Incendie)) by providing the Landlord with all
supporting documents upon the latter's first request, in particular with
regard to the execution, at its expense and under its responsibility, by
contractors supervised by skilled individuals who meet the requirements
referred to in Article 11.2 above, of all work imposed under the said
provisions, as well as those applicable to roadways, cleanliness, the
police, safety and the labor inspectorat, and to bear the related
expenses, such that the Landlord is held harmless in respect of any
failure by the Tenant to comply with the foregoing
provisions.
|
|
11.11.2
|
The
Tenant shall promptly inform the Landlord of any damage caused to the
Leased Premises and the Building.
|
|
11.11.3
|
The
Tenant and the Tenant's agents, employees and, and invitees shall comply
fully with rules and regulations appearing in Annex 6 (hereinafter the
"Datacenter Rules and
Regulations"). The Landlord shall at all times have the right to
change such rules and regulations or to amend or supplement them in such
manner as may be deemed by the Landlord in the exercise of its sole but
good faith discretion, for the safety, care and cleanliness of the Leased
Premises, the Building and the Property and for preservation of good order
therein, all of which Datacenter Rules and Regulations, as changed,
amended, and/or supplemented from time to time, shall be fully carried out
and strictly
|
|
|
observed
by the Tenant, provided such change is notified to the Tenant, and that
such change to the Datacenter Rules and Regulations may not increase the
Tenant’s monetary obligations under this Lease or unreasonably interfere
with access to or the beneficial use of the Leased Premises for the
permitted uses. In the event of a conflict between the
Datacenter Rules and Regulations and the terms of this Lease, the terms of
this Lease shall govern. Landlord shall apply the Datacenter Rules and
Regulations uniformly to the tenants of the
Property.
|
|
11.11.4
|
Subject
to the terms of Article 11.2.9 above, the Landlord may, if it considers it
appropriate, prohibit access to some or all of the common parts of the
Building, place boundaries or take any measures to this end, or
temporarily close all or part of the common parts or that it deems
necessary to carry out repairs and work, provided that the Tenant retains
possession of and/or full access to the Leased
Premises.
|
|
11.12
|
Levies
and taxes
|
|
11.12.1
|
The
Tenant shall pay all taxes and contributions, imposed now or in the
future, and any increases thereto, in particular, business and real
property taxes, city, police, and roadway taxes, and all other taxes,
duties, and fees and all national, regional, departmental, municipal, or
other taxes, of any kinds and regardless of whether they are attributable
to the Tenant or the Landlord, such that the Landlord is held harmless in
that respect, and shall provide the Landlord with proof of payment
thereof, at the latter’s request, before vacating the
premises.
|
|
11.12.2
|
If,
for any reason whatsoever, the Landlord is charged business tax with
regard to the Leased Premises (in particular, if the Tenant is not liable
for the said tax), the Tenant hereby undertakes to reimburse the amount of
the said tax to the Landlord upon the latter's first
request.
|
|
11.12.3
|
On
the date on which the Tenant vacates the Leased Premises, it shall provide
the Landlord with proof that it has taken all the necessary steps to
inform the tax authorities that it is vacating the Leased Premises such
that the Landlord is held harmless in respect of the levies and taxes for
which the Tenant is liable.
|
|
11.13
|
Liability
and claims
|
|
11.13.1
|
The
Tenant shall protect and monitor the Leased Premises and its property, as
it considers appropriate, to the extend that such services provided within
the Leased Premises do not suffice. In particular, the Landlord shall not
have any liability in the event of theft, attempted theft, any other
tortious act or offence committed by a third party or any other illegal
act (voie de
fait) of which the Tenant may be a victim in the Leased
Premises.
|
|
11.13.2
|
Moreover,
the Tenant shall be responsible for any disturbance or damage caused in
the Leased Premises by third parties on account of any illegal or other
action, in particular, in the event of a disturbance, disruption, noise
(including structure-borne noise) or acts for which its staff, suppliers,
clients or subtenants are responsible, without any right of recourse
against the Landlord. The Tenant expressly waives any right of recourse
and legal action against the Landlord with regard to damage caused to the
Leased Premises in the event of a disturbance, riot, strike or civil war
and with regard to any disruption.
|
|
11.13.3
|
In
the event of a compulsory purchase order in the public interest, the
Tenant may only exercise its rights against the expropriating party and
shall not make any claim against the
Landlord.
|
|
11.13.4
|
The
Tenant shall refrain from making any claim in the event of the
interruption of or problem with the supply of utilities in the Leased
Premises, in particular (where applicable), the supply of gas, water,
electricity and drainage facilities, or in the event of the stoppage of
the heating, lifts, air conditioning, ventilation, telephone or any other
similar service on account of the relevant suppliers work or repairs,
freezing temperatures, or any other cause beyond the Landlord’s control.
Moreover, the Landlord shall notify the Tenant of interruptions in these
utility services even where it has received express advance notice
thereof.
|
|
11.14
|
Health
and safety
|
|
11.14.1
|
Fundamental
and determining condition
|
|
11.14.2
|
Tenant’s
commitment
|
|
11.13.3
|
Tenant’s
work
|
|
11.15
|
Specific
Agreement Regarding Building Siding
|
|
11.16
|
Compliance
with Laws; Data Processing; Hazardous Materials;
ICPE
|
|
11.16.1
|
Compliance
with Laws
|
|
11.16.2
|
Landlord's
automatic personal data processing
|
|
11.16.3
|
Hazardous
Materials
|
|
11.16.4
|
Installations
Classées pour la Protection de l'Environnement
(ICPE)
|
|
11.17
|
Destruction
of the Leased Premises
|
|
11.17.1
|
Destruction
of the Leased Premises in their
entirety
|
|
11.17.2
|
Partial
destruction of the Leased Premises
|
|
|
1)
|
terminate
the Lease by operation of law, without any indemnity being payable by
either Party if, as a result of the partial destruction of the premises,
(i) the Tenant is unable to carry
on
|
|
|
a
significant portion of its business in the Leased Premises and, (ii) if
the Leased Premises cannot be rebuilt to their former state or used within
six (6) months;
|
|
|
2)
|
if
this is not the case, the Landlord may apply a Base Rent reduction for the
duration of the partial loss of possession as calculated by reference to
the area destroyed, it being specified that in this latter case, the Lease
shall continue to apply to all of the Leased
Premises;
|
|
11.18
|
Insurance
|
|
11.18.1
|
The
Landlord undertakes to insure with a reputable insurance
company:
|
|
–
|
The
Leased Premises, including all of the fixtures acquired or owned by the
Landlord and all fit-out work and equipment against, in particular, the
following risks:
|
|
|
Fire
and lightning,
|
|
|
All
explosions,
|
|
|
Electrical
damage,
|
|
|
Falling
aircraft and airborne objects,
|
|
|
Impact
of a vehicle belonging to a third
party,
|
|
|
Hurricanes,
cyclones, tornadoes and storms,
|
|
|
Smoke
damage,
|
|
|
Strikes,
riots and uprisings,
|
|
|
Vandalism
and malicious acts,
|
|
|
Water
damage.
|
|
–
|
The
Landlord’s civil liability for bodily injury and/or damage to property
and/or consequential loss sustained by third parties on account of the
buildings which form the Leased
Premises.
|
|
11.18.2
|
All
of the related insurance covers shall be subject to the terms, conditions,
limits and exclusions provided for in the policies taken out by the
Landlord.
|
|
11.18.3
|
Insurance
premiums shall be deemed to be rental charges. The Tenant undertakes to
reimburse the premiums for the insurance taken out by the Landlord in
respect of the Leased Premises which covers the risks listed
above.
|
|
11.18.4
|
For
its part, the Tenant shall take out insurance, at its expense, to cover
the following throughout the term of the Lease with a solvent and
reputable insurance company:
|
|
|
(a)
|
the
furniture, movables, materials, equipment, systems and facilities and all
items belonging to it or held in its custody for any reason whatsoever, as
well as all the systems and facilities installed by the Tenant in the
Leased Premises against all risks, in particular, the risks of theft,
fire, explosions and water damage, as well as claims brought by third
parties
|
|
|
and
neighbors and glass breakage with respect to the Leased Premises; the
Tenant also undertakes maintain insurance coverage throughout the term of
the Lease to cover loss of possession of the Leased Premises and operating
losses, even in the event of the loss of its ongoing business, in whole or
in part, including on account of damage or losses sustained by the
intangible elements attached to the said business, even if the damage or
destruction results from a construction defect or was caused by a
caretaker or any other individual for whom the Landlord is civilly
liable;
|
|
|
(b)
|
its
civil liability, in particular, with regard to all bodily injury or damage
to property caused directly or indirectly during the performance of the
work for which the Tenant is responsible, as well as damage which may be
caused either as a result of the occupancy of the Leased
Premises as a result of its property, amenities, systems and
facilities, or the use thereof, or by the Tenant’s
staff.
|
|
11.18.5
|
The
Tenant hereby waives its rights against the Landlord Group with respect to
any claims or damages or losses (including any claims for bodily injury to
persons and/or damage to the Building) which are caused by or result from
(i) any and all risks insured against under any insurance policy
required to be obtained and maintained by the Tenant and/or any Third
Party under this Lease and that is currently maintained by the Tenant
and/or any such Third Party at the time of such claim, damage, loss or
injury, or (ii) any and all risks which would have been covered under
any insurance policy required to be obtained and maintained by Tenant
under this Lease had such insurance been obtained and maintained as
required. Additionally, the insurance policies subscribed by
the Tenant and by all Third Parties, as defined below, shall specify that
Tenant’s and such Third Parties’ respective insurers waive all rights of
recourse against the Landlord Group for losses within the scope of the
insurance and waivers provided for in this Article
11.18.
|
|
11.18.6
|
The
Tenant’s insurance policies shall contain a clause which specifies that
the said policies may only terminate fifteen (15) days after the Landlord
has been informed of said
termination.
|
|
11.18.7
|
In
order to show compliance with the foregoing provisions, before taking
possession of the Leased Premises, and at the beginning of each calendar
year, the Tenant shall send to the Landlord a certified true copy of its
insurance policies or a certificate from its insurers confirming that the
Tenant is duly insured (and that all premiums due have duly been paid)
under the conditions set forth in this Article
11.18.
|
|
11.18.8
|
The
Tenant alone shall pay the cost of any insurance supplements imposed on
the Landlord or neighbours on account of the business conducted by the
Tenant.
|
|
11.18.9
|
The
Tenant also undertakes to comply with any decision taken by the Landlord
with regard to the carrying out of technical alterations required or
recommended by the insurers.
|
|
11.18.10
|
Lastly,
the Tenant undertakes to give the Landlord notice by registered letter
with advice of receipt of any loss, damage to or deterioration of the
Leased Premises within 48 hours of which it becomes aware, of such loss,
damage, or deterioration, at the risk of being held liable for any
damages, the amount of which cannot be claimed from the company insuring
the Leased Premises on account of a failure or delay in filing the related
declaration.
|
|
11.18.11
|
It
is expressly agreed that the Landlord may take out any additional
insurance it considers necessary at any time during the term of the Lease
to supplement or complete the covers mentioned above if required to do so
by law or if the nature of the business conducted by the Tenant or the way
in which the Tenant uses the Leased Premises
changes.
|
|
11.18.12
|
Provided
that the Tenant's normal activities in the Leased Premises are not
disturbed, The Tenant shall grant the Landlord’s insurers, once yearly,
unrestricted access to the Leased Premises to enable them to assess the
risks to be covered.
|
|
11.19
|
Assignment
- Subletting – Permitted Licensees
|
|
11.19.1
|
The
Tenant shall be prohibited from granting to any third party the right to
use the Leased Premises, in whole or in part, by any means whatsoever,
even temporarily, free of charge or by an agreement determinable at will.
In particular, the Tenant shall be prohibited from subletting the Leased
Premises in whole or in part and from leasing its ongoing
business.
|
|
11.19.2
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In
derogation to the foregoing, the Tenant shall be authorised to sublet
surface areas not exceeding 680m² to any corporate client, subject to
compliance with the following terms, which must be specified in all
sublease agreements:
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(a)
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the
Tenant and the Landlord expressly agree that the Leased Premises form an
indivisible whole; any subtenant may not claim any direct right of renewal
of its lease from the Landlord;
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(b)
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the
Tenant shall remain solely liable vis-à-vis the Landlord for all
obligations hereunder and the Landlord shall deal exclusively with the
Tenant with regard to all the obligations arising under the
Lease;
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(c)
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no
sublease shall be granted for a term longer than that remaining on the
term of the Lease, nor for a rental amount (per square meter) less than
the amount of Base Rent applicable during the course of the
sublease;
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(d)
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if,
notwithstanding the prohibition referred to in Article 11.19.1
hereinabove, the Tenant subleases to one or more of its customers, a
surface area equal to or greater than twenty-five (25%) of the Leased
Premises in consideration of sum greater than (a) the pro-rata portion of
Base Rent applicable to the portion of the Leased Premises that is the
subject of the sublease(s), plus (b) the leasing costs (i.e., tenant
improvement allowances and broker commissions) incurred by the Tenant in
connection with such sublease(s), (collectively, the "Excess Rent"), then
Tenant shall pay to the Landlord, as Additional Rent, fifty percent (50%)
of any such Excess Rent immediately upon Tenant's receipt
thereof.
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It
is specified all service contracts entered into by the Tenant necessary to
its business activity are not within the scope of this
clause.
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(e)
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the
Tenant shall be responsible for evicting its subtenant if the Lease ends
for any reason whatsoever and shall pay any compensation due for the
eviction or other amount which may be payable to the
subtenant;
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(f)
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the
Tenant shall check that the subtenant takes out the insurance policies
referred to in Article 11.18 and that such policies include a waiver of
the right to take action against the Landlord and its insurers, as
provided for
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in
Article 11.18.5;
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(g)
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if
the Landlord grants any authorization to enter into a sublease during the
term of the Lease, such authorization shall end if the Lease is assigned
by the Tenant;
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(h)
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the
aggregate area sublet by the Tenant shall not exceed sixty percent (60%)
of the total lettable area of the Leased
Premises.
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11.19.3
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The
Tenant may also enter into service agreements with its customers occupying
the Leased Premises for the purposes of datacenter activities, provided
that such agreements are not construed as commercial leases and do not
therefore benefit from the rules governing such leases. However, the
Tenant may not enter into any service agreements that grant an occupancy
right to a surface area of more then 680m² in the Leased
Premises.
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11.19.4
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Permitted
Licensees. Landlord acknowledges that the business to be
conducted by the Tenant in the Premises may require the installation of
certain computer, switch, and/or communications equipment owned
by licensees that the Tenant may authorize for the sole purposes of the
installation and operation of such equipment (“Permitted Licensees”) to
enter on to the Leased Premises (but not outside of the Leased Premises),
and in order for the Permitted Licensees to place and maintain this
equipment which may interconnect with the Tenant’s facilities and/or the
Permitted Licensees’ facilities (the “Permitted
Interconnection”). To activate the Permitted Licensees’ access to
the Premises for the Permitted Interconnection, the Landlord expressly
agrees that the Tenant may, without the Landlord’s further consent,
authorize the use or occupancy of portions of the Premises to the
Permitted Licensees for the sole purpose of the Permitted Interconnection
pursuant to written agreements by and between the Tenant and the Permitted
Licensees (collectively, “Permitted Agreements”).
The Permitted Licensees shall comply with all Applicable Laws and the
Building Rules and Regulations. The Permitted Agreements and
the Permitted Licensees’ rights thereunder shall be subject and
subordinate at all times to the Lease and all of its provisions, covenants
and conditions. Tenant hereby agrees to indemnify, defend, and
hold harmless Landlord and the Landlord Group from and against (and to
reimburse Landlord and the Landlord Group for) any and all Claims arising
from or in any manner relating to (i) any Permitted Agreement, (ii)
the
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access
or occupancy of the Leased Premises or any other portion of the Building
or the Property by any Permitted Licensee or any person claiming by,
through or under any Permitted Licensee, its partners, and their
respective officers, agents, servants or employees of Tenant or any such
person (collectively, the “Permitted Licensees
Parties”), (ii) the acts or omissions of any Permitted Licensee or
any Permitted Licensees Parties. Anything to the contrary contained herein
notwithstanding, Landlord and Tenant acknowledge and agree that Permitted
Agreements shall not constitute, or be deemed to be, the grant of a
leasehold interest or otherwise constitute, or be deemed to be, a real
property interest.
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11.19.5
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The
Lease shall not be assigned by any means whatsoever without the prior
written consent of the Landlord.
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11.19.6
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No
sublease for a portion of the Leased Premises, or the accordance of an
occupancy right on the Leased Premises by virtue of a service agreement,
for a surface area exceeding 680m² may be granted without the prior
written consent of the Landlord. Such consent may be further subject to a
payment by the Tenant to the Landlord of an indemnity, the amount of which
is to be determined by the mutual agreement of the
Parties.
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11.20
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Tenant’s
failure to comply with its
obligations
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12.
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Non-waiver
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13.
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Changes
to shareholders
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14.
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Termination
clause
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14.1
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In
the absence of payment of (i) a single installment of Base Rent, (ii) the
charges and various reimbursements which are payable with the Base Rent,
(iii) any ancillary amounts, (iv) outstanding Base Rent, (v) penalties or
late-payment interest, (vi) any indemnity due, payable for any reason
whatsoever (in particular, after the effective date of a notice of
termination where the Landlord refuses to renew the Lease), and (vii) more
generally, any amounts payable by the Tenant to the Landlord, regardless
of the reason therefor, or in the event of non-compliance with any of the
clauses, charges and conditions of the Lease – which all have the same
binding force – the Lease shall be terminated by operation of law at the
Landlord’s discretion, without any legal formality, if the Tenant fails to
comply with a formal notice to pay an amount or perform an obligation,
which refers to this termination clause, within one (1)
month.
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14.2
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In
the event that a formal notice or order to perform is issued under the
foregoing terms, and is still unheeded at the time limit set, the Landlord
may choose to implement the termination clause or require the agreement to
be performed, or waive its rights to enforce the order in whole or in
part, in which case it shall give express notice of such
waiver.
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14.3
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The
Landlord shall retain this option until such time as the Tenant
voluntarily complies with a formal notice to vacate the Leased Premises or
is forced to do so. Such formal notice may be in the form of an
application to a court for an eviction
order.
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| 14.4 | If the Tenant refuses to vacate the Leased Premises after the termination of the Lease under the conditions set forth in this Article 14, it may be forced to do so by an urgent order rendered by the Presiding Judge of the Bobigny Regional Court, which shall be immediately enforceable, without any guarantee and notwithstanding any appeal. |
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14.5
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If
the Lease is terminated by virtue of this termination
clause:
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14.5.1
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The
Landlord shall retain all Base Rent and charges paid in advance, without
prejudice to any other rights and rights of recourse it may
hold.
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14.5.2
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The
Tenant shall owe a monthly indemnity for occupation equal to the amount
provided for in Article 11.10.5 by operation of law from the termination
of the Lease until such time as the Landlord recovers possession of the
Leased Premises.
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14.5.3
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Notwithstanding
such termination by operation of law, the Landlord may claim compensation
from the Tenant for the loss it sustains as a result of such early
termination.
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14.6
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In
any event, all costs and expenses arising in connection with official
procedures, orders, legal proceedings, protective measures and measures of
execution, as well as those arising in connection with the discharge of
registrations and notices which may be required pursuant to the French Act
of 17 March 1909, shall be borne by the Tenant and invoiced during the
following period.
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15.
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WAIVER
OF CLAIMS; INDEMNITY
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15.1
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Waiver
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15.2
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Indemnification
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15.2.1
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Tenant’s
Indemnification. Without prejudice to the provisions of Article 11.18.5,
and except to the extent caused by the negligence or willful misconduct of
the Landlord or any other member of the Landlord Group, as determined by a
court of competent jurisdiction, the Tenant shall indemnify, defend, and
hold harmless the Landlord and the Landlord Group from and against any and
all claims, actions, suits, proceedings, losses, damages, obligations,
liabilities, penalties, fines, costs and expenses (including, without
limitation, attorneys’ fees, legal costs, and other costs and expenses of
defending against any claims, actions, suits, or proceedings)
(collectively, “Claims”) caused by: (i)
the use or occupancy of the Leased Premises by the Tenant and/or any of
its directors, officers, shareholders, members, employees, agents,
constituent partners, affiliates, beneficiaries, trustees and/or
representatives (together with Tenant, collectively, the “Tenant Group”), or any
person acting by, through or under the Tenant or any other member of the
Tenant Group, or the use or occupancy of any portion of the Building or
the Property by the Tenant or any member of the Tenant Group, or any
person claiming by them, through them or under them or any member of the
Tenant Group , or (ii) the negligence or willful omissions of the Tenant,
or any other member of the Tenant Group with respect to the Leased
Premises, the Building or the
Property.
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15.2.2
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Landlord
Indemnification, Without prejudice to the provisions of Articles 11.18.5
and 15.1, Landlord shall defend, indemnify, and hold harmless Tenant and
the Tenant Group from and against all Claims caused by (i) the use or
occupancy of the Buillding or the Property by the Landlord of the Landlord
Group, or any person acting by, through, on its behalf or under the
Landlord’s authority or that of any other member of the Landlord Group, or
the use or occupancy of any portion of the Building or the Property by the
Landlord or any member of the Landlord or the Landlord Group, or any
person acting through them, on their behalf or under their authority or
any member of the Landlord Group, or (ii) the negligence or willful
omission of Landlord or any member of the Landlord Group with respect to
the Building or the Property. In the event that any action or
proceeding is brought against Tenant or any member of the Tenant Group by
reason of any such Claim, Landlord upon notice from Tenant shall defend
such action or proceeding at Landlord’s cost and expense by counsel
reasonably approved by Tenant, which may not be unreasonably
withheld. Landlord’s obligations under this Section 15.2.2
shall survive the expiration or termination of this Lease as to any
matters arising prior to such expiration or termination or prior to
Tenant’s vacation of the Leased Premises and the
Building. Nothing contained in this Section 15.2.2 shall be
interpreted or used in any way to affect, limit, reduce or abrogate any
insurance coverage provided by any insurer to either Tenant or
Landlord. This indemnity provision shall survive the
termination or expiration of this
Lease.
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15.3
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Consequential
Damages
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16.
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Costs
and address for service –
Jurisdiction
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