|
printer-friendly
Sample Business Contracts
Home: Sample Business Contracts:
DATED 2nd April 2007
SLOUGH TRADING ESTATE LIMITED
- and -
RACKSPACE MANAGED HOSTING LIMITED
AGREEMENT FOR LEASE
- relating to -
Building 115 Buckingham Avenue Trading Estate
Slough Berkshire
NABARRO NATHANSON
Lacon House
Theobald’s Road
London WC1X 8RW
Ref: PD/TNP/LM/S2884/01010
Tel: 020 7524 6000
Fax: 01753 512768
INDEX
| |
1. |
Definitions and Interpretation |
| |
2. |
Tenant’s Planning Obligations |
| |
4. |
Landlord’s Obligations to carry out Works |
| |
17. |
Exclusion of Third Party Rights |
Annexures
| |
2. |
Form of Warranty from Environmental Consultant |
| |
3. |
Form of Warranty from Landlord |
| |
5. |
Form of Licence to Alter |
| |
6. |
Form of Warranties from Professional Team |
| |
8. |
Specification of Landlord’s Works |
| |
9. |
Specification of Tenant’s Works |
AN AGREEMENT made the 2nd day of April 2007 BETWEEN
| (1) |
SLOUGH TRADING ESTATE LIMITED (Company Registration Number 1184323) whose registered office is at 234 Bath Road Slough SLl 4EE (“the Landlord”) |
| (2) |
RACKSPACE MANAGED HOSTING LIMITED (Company Registration Number 3897010) whose registered office is at Unit 2 Longwalk Road Stockley Park Uxbridge UBI1 1BA (“the Tenant”) |
WHEREBY IT IS AGREED as follows:-
Definitions and Interpretation
“Application”
means the full detailed planning application submitted or to be submitted by and at the cost of the Tenant to the appropriate local planning authority in respect of the Tenant’s Works to be in a form approved by the Landlord such approval not to be unreasonably withheld or delayed
“the Completion Date”
means the fifth Working Day following the Condition Date
“Condition Date”
means the date of fulfilment of the Conditions Precedent
“Conditions Precedent”
means:
| |
(i) |
the grant of a Planning Permission which is or which is deemed to be a Satisfactory Planning Permission (“First Condition”); and |
| |
(ii) |
the completion of the Power Supply Agreement (“Second Condition”); and |
| |
(iii) |
the completion of the Landlord’s Works in accordance with this Agreement (“the Third Condition”); and if clause 4.3 has effect |
| |
(iv) |
the carrying out of or agreement as to the carrying out of the works referred to in clause 4.4 (“the Fourth Condition”) |
“Deposit Deed”
means the deed in the form of Annexure 1
“Environmental Consultant”
means WSP Environmental Limited of Buchanan House 24-30 Holborn London EC1N 2HS
2
“Environmental Deed of Warranty”
means a warranty in the form of Annexure 2 to be granted by the Environmental Consultant
“Landlord’s Solicitors”
means Nabarro of Lacon House Theobald’s Road London WCIX 8RW
“Landlord’s Warranty”
means the warranty in the form of Annexure 3
“Landlord’s Works”
means the works detailed in Annexure 8
“Lease”
means the lease of the Premises for a term of twenty years commencing on the Completion Date (whether or not completion takes place on such date where the delay is due to the default of the Tenant) at the Rent payable from the Rent Commencement Date with five yearly rent reviews at the expiration of every consecutive fifth year of the said term such lease to be in the form of Annexure 4
“Licence to Alter”
means the licence recording the Tenant’s Works such licence to be in the form of Annexure 5
“Other Rent”
means all sums payable as rent pursuant to the Lease other than the Rent
“Planning Agreement”
means an agreement entered or to be entered into under section 106 of the Town and Country Planning Act 1990
“Planning Permission”
means full detailed planning consent obtained by the Tenant pursuant to the Application
“Power Supply Agreement”
means the agreement for the supply of power to the Premises to be made between SHP (1) and the Tenant (2)
3
“Premises”
means the land and building known as Building 115 Buckingham Avenue Trading Estate Slough (as the same are more particularly described in the Lease)
“Post Completion Environmental Report”
means the environmental report to be provided by WSP Environmental Limited following practical completion of the construction of the Premises
“Professional Team”
means PD Architects (architects) and Robert Walpole & Partners (structural engineers)
“Rent”
means the initial yearly rent of £543,165
“Rent Commencement Date”
means the date being nine months from and including the Completion Date in respect of the Rent and the Completion Date in respect of the Other Rent (and in each case whether or not completion takes place on the Completion Date where delay is due to the default of the Tenant but otherwise on the date of actual completion)
“Satisfactory Planning Permission”
means a Planning Permission which does not contain an Unreasonable Condition (and if the Tenant so requires in respect of which the relevant period has expired without an application to the High Court under Section 288 of the Town and Country Planning Act 1990 or an application to the High Court for leave for a judicial review in relation to such Planning Permission having been commenced (or if commenced the application therefor has been withdrawn or finally determined so that the Planning Permission can be implemented without challenge)).
“SHP”
means Slough Heat and Power Limited being the party with whom the Tenant will be entering or has entered into the Power Supply Agreement and which company is within the same group of companies as the Landlord
“Side Letter”
means a letter in the form annexed to this Agreement as Annexure 7
“Standard Conditions”
means the Standard Commercial Property Conditions (Second Edition);
4
“Substation Site”
means the area shown edged blue on the plan annexed to the Lease on which it is intended SHP will locate and construct a substation for the purposes of fulfilling its obligations under the Power Supply Agreement
“Target Date”
means the date which is two calendar months from and including the date of this agreement
“Tenant’s Solicitors
means Martineau Johnson of No.1 Colmore Square Birmingham B4 6AA (Ref:JES/RA145079)
“Tenant’s Works”
means the works to be carried out by the Tenant at its own expense as briefly described in the specification at Annexure 9 pursuant to the Licence to Alter
“Termination Date”
means the date which is first working day after the expiry of six months from and including the date of this Agreement or such longer period as the Landlord and the Tenant may agree in writing from time to time
“Unreasonable Condition”
means a condition subject to which a Planning Permission is issued or (as the case may be) a provision in a Planning Agreement which has the effect of:-
| |
(i) |
In the case of the Tenant:- |
| |
• |
|
it imposes any restrictions on the siting of plant or equipment to be constructed on the Premises or the Substation Site which would be materially detrimental to the Tenant’s proposed use of the Premises
|
| |
• |
|
It makes the Planning Permission personal to the Tenant; or
|
| |
• |
|
It imposes limitations on noise levels emanating from the Premises or the Substation Site which would be impossible or impractical or which to comply with would impose a material financial burden on the Tenant; or
|
| |
• |
|
It prevents the carrying out of the proposed development unless and until a condition has been complied with which could not be satisfied by the Tenant without the agreement of the third party in respect of which agreement such third party shall have an absolute discretion; or
|
| |
• |
|
It requires the expenditure of money or other consideration outside the Premises or the Substation Site it does not allow development substantially in accordance with Application
|
5
| |
• |
|
It restricts the times during and/or days on which the plant or equipment may be operated
|
| |
• |
|
It imposes or creates any other obligation or restriction which in the reasonable opinion of the Tenant is likely to restrict its use and enjoyment of the Premises for the use proposed by the Lease
|
| |
• |
|
It would have the effect of materially affecting in an adverse way the Tenant’s ability to operate its business from the Premises
|
| |
• |
|
granting a temporary Planning Permission; or
|
| |
• |
|
preventing the carrying out of the use or occupation of the Premises for the purpose permitted by the Lease unless and until a condition has been complied which could not be satisfied without the agreement of a third party (unless such agreement has been received or cannot be unreasonably withheld); or
|
| |
• |
|
any other condition which in the reasonable opinion of the Tenant would materially or adversely affect the Premises or the use thereof or adverse to the Tenant
|
| |
(ii) |
In the case of the Landlord:- |
| |
• |
|
it creates a legal restriction on the Landlord in respect of other uses or occupations of other premises on the Landlord’s estate on which the Premises and the Substation Site are situate
|
| |
• |
|
any other condition which is in the reasonable opinion of the Landlord would be adverse to the Landlord
|
| |
• |
|
it requires the Landlord to enter into a Planning Agreement (other than one where a payment of money is required in which case the provisions of clause 2.11 apply)
|
“Warranties”
means the warranties from the Professional Team in the form of Annexure 6
“Working Day”
shall have the meaning set out in the Standard Conditions;
| 1.1 |
The clause headings in this Agreement (except for the definitions) are for ease of reference and are not to be used for the purposes of construing this Agreement. |
| 1.2 |
References in this Agreement to clause numbers or schedules or paragraphs in schedules mean the clauses of or schedules to or paragraphs in schedules to this Agreement. |
| 1.3 |
Obligations undertaken by more than one person are joint and several obligations and include their successors in title. |
| 1.4 |
Words importing persons include firms, companies and corporations and vice versa. |
6
| 1.5 |
Words importing one gender will be construed as importing any other gender. |
| 1.6 |
Words importing the singular will be construed as importing the plural and vice versa. |
| 1.7 |
Unless otherwise specified, a reference to legislation is to that legislation as consolidated, amended or re-enacted from time to time and includes all orders, regulations, consents, licences and bye-laws made or granted under such legislation and references to legislation generally are to all legislation (local, national and supra-national) having effect in relation to the Premises. |
| 1.8 |
Where any act is prohibited no party will permit or omit to do anything which will allow that act to be done. |
| 1.9 |
Where any notice, consent, approval, permission or certificate is required to be given by any party to this Agreement such notice, consent, approval, permission or certificate must be in writing and will not constitute a valid notice, consent, approval, permission or certificate for the purpose of this Agreement unless it is in writing. |
| 2. |
TENANT’S PLANNING OBLIGATIONS – FIRST CONDITION |
| 2.1 |
The Tenant shall submit the Application as soon as reasonably possible and in any event within 20 Working Days of the date of this deed and thereafter use all reasonable endeavours to obtain at its own expense a Satisfactory Planning Permission as expeditiously as reasonably possible |
| 2.2 |
The Tenant will keep the Landlord fully informed of the progress of the Application |
| 2.3 |
Within seven days of receipt of written notice of the refusal by the local planning authority to grant Planning Permission pursuant to the Application the Tenant shall send a copy of the refusal decision to the Landlord and to the Landlord’s Solicitors |
| 2.4 |
If the local planning authority either refuses (or is deemed by statute to have refused) the Application or grants a Planning Permission which is not a Satisfactory Planning Permission the Tenant with the agreement of the Landlord (such approval not to be unreasonably withheld or delayed) but at its own expense may appeal against the decision or deemed decision of the local planning authority and shall notify the Landlord of such appeal within such period of time as shall be reasonable |
| 2.5 |
If the Tenant prosecutes any appeal it shall do so with all due diligence and will keep the Landlord informed of all relevant information with respect to the appeal and the Landlord shall at the cost of the Tenant give all reasonable assistance to the Tenant when reasonably requested to do so in this regard |
| 2.6 |
Upon the grant of Planning Permission the Tenant will promptly send a copy of the Planning Permission to the Landlord and the Landlord’s Solicitors and notify the Landlord and the Landlord’s Solicitor in writing as to whether or not in the opinion of the Tenant the Planning Permission constitutes a Satisfactory Planning Permission and if not state the reasons why not |
7
| 2.7 |
The Landlord shall within five Working Days of receipt of the notice given by the Tenant pursuant to Clause 2.6 notify the Tenant in writing as to whether or not in the opinion of the Landlord the Planning Permission constitutes a Satisfactory Planning Permission and if not state the reasons why not |
| 2.8 |
If both parties agree or it is determined pursuant to clause 2.9 that a Satisfactory Planning Permission subsists then the First Condition shall be satisfied on the date of such agreement or deemed agreement or determination as the case may be |
| 2.9 |
It either the Landlord or the Tenant consider that any condition within the Planning Permission constitutes an Unreasonable Condition and the other party disagrees then the party who disagrees shall notify the other in writing of this fact within ten Working Days of the other party’s notice and the matter shall then be referred to the determination of an Expert who shall be appointed in accordance with the provisions contained in Clause 13 of this Agreement and his decision as to whether or not any condition is an Unreasonable Condition shall be final and binding on the parties |
| 2.10 |
For the purposes of this Clause 2 a condition attached to a Planning Permission or a Planning Agreement shall not be capable of being deemed by the Landlord as being an Unreasonable Condition unless the Landlord gives written notification to the Tenant in accordance with and within the period specified in clause 2.7 |
| 2.11 |
If the Local Planning Authority shall indicate that Planning Permission would be granted subject only to an agreement under Section 106 of the Town and Country Planning Act 1990 the Landlord will at the request of the Tenant enter into such planning obligation with the Local Planning Authority under such section in such form as may be reasonable in the circumstances (where it relates to a payment of money) and approved by the Landlord (such approval not to be unreasonably withheld or delayed) and it must be stipulated in any such planning obligations that: |
| |
(i) |
the obligations contained therein are to become operative and give rise to liability only if the development to which they relate is begun; and |
| |
(ii) |
the Landlord is in any event to be relieved from all liability in respect of them after it has parted with all interest in the Premises |
and with effect from completion of the Lease and during the Term the Tenant will indemnify the Landlord against such liability as may arise under or in respect of the planning obligations and for the avoidance of doubt the Landlord shall only be obliged to enter into a Planning Agreement if it relates to the payment of monies to the local authority and for no other purpose except at its absolute discretion
| 3.1 |
Completion of pursuant to this Agreement is conditional upon the satisfaction of the Conditions Precedent prior to 4.30 p.m. on the Termination Date |
| 3.2 |
The Landlord and the Tenant will use all reasonable endeavours to ensure the Second Condition is satisfied on or before the Completion Date |
8
| 3.3 |
The Tenant may at any time and from time to time serve a written notice on the Landlord electing to waive any part or the whole of any Conditions Precedent then outstanding and upon the service of any such notice then such Condition Precedent shall be deemed to have been satisfied to the extent then so waived on the date of service of such notice |
| 3.4 |
If the Conditions Precedent have not all been satisfied by 4.30 pm on the Termination Date then (save during any period of dispute in respect of clause 2 or clause 4 of this Agreement which has been referred to an Expert pursuant to clause 16) either party may determine this Agreement by serving five (5) Working Days written notice on the other and upon the expiry of such notice this Agreement will determine unless in the meantime the Conditions Precedent have been satisfied or deemed to be satisfied and such termination shall be without prejudice to any antecedent claim or breach in respect of any provisions of this Agreement |
| 4. |
LANDLORD’S OBLIGATIONS TO CARRY OUT LANDLORD’S WORKS – THIRD CONDITION AND POSSIBLE FOURTH CONDITION |
| 4.1 |
The Landlord shall carry out and complete the Landlord’s Works: |
| |
(i) |
in a good and workmanlike manner |
| |
(ii) |
with good and suitable materials |
| |
(iii) |
in accordance with all legislative requirements |
| |
(v) |
to the reasonable satisfaction of the Tenant |
| 4.2 |
The Landlord shall use all reasonable endeavours to have completed the Landlord’s Works in accordance with this clause by the Target Date |
| 4.3 |
The Landlord undertakes to procure the Post Completion Environmental Report within one month of the date hereof. |
| 4.4 |
In the event that the Post Completion Environmental Report reveals any item of work that must be carried out in order to remediate the ground conditions at the Property to a standard which renders the Property suitable for its current proposed use under the Lease in accordance with the “suitable for use” standard referred to in the Statutory Guidance to the Contamination Land regime established by Part II A of the Environmental Protection Act 1990 then the same shall be undertaken by the Landlord as soon as reasonably possible with all due expedition, such works to be carried out at its own expense with the Landlord as soon as possible and to the reasonable satisfaction of the Tenant making good all damage caused in carrying out any such works and if such works are required completion of such works (or if the works can reasonably be undertaken notwithstanding the grant of the lease without interference to the Tenant’s Works or use of the Property then alternatively the agreement between the Landlord and the Tenant as to the method and timing for the carrying out of such works which neither party shall withhold or delay unreasonably) will be a fourth condition precedent for the purposes of this agreement (“Fourth Condition”) and this agreement shall be read and construed accordingly |
9
| 4.5 |
If the as Post Completion Environmental Report reveals items of contamination which were not revealed by the Phase II Geotechnical and Environmental Investigation Report dated January 2005 and prepared by WSP Environmental Limited a copy of which the Tenant has received prior to the date of this Agreement then if in carrying out the Tenant’s Works reasonable additional cost is reasonably incurred by the Tenant directly as a result of such ground conditions (reasonable evidence of such additional cost the Tenant shall provide to the Landlord) the Landlord shall pay or reimburse to the Tenant such additional costs (exclusive of VAT) such sum to be paid within 14 days of demand by the Tenant to a maximum liability of £20,000 (exclusive of VAT) |
| 5.1 |
Upon the Completion Date the Landlord shall grant the Lease the Side letter and the Licence to Alter and the Tenant shall accept the Lease the Side letter and the Licence to Alter and the parties shall enter into the Deposit Deed |
| 5.2 |
The Lease the Deposit Deed the Sideletter and the Licence to Alter and Counterparts thereof shall be prepared by the Landlord’s Solicitors and shall be executed respectively by the Landlord and the Tenant |
| 5.3 |
On Completion the Landlord shall provide to the Tenant the Landlord’s Warranty the Warranties and the Environmental Warranty duly executed by the Landlord, the Professionals and the Environmental Consultant as the case may be and save in the case of the Landlord together with certified copies of their respective appointments and professional indemnity cover |
| 5.4 |
Completion shall take place at the offices of the Landlord’s Solicitors or at such other place as they shall reasonably require |
| 5.5 |
If the Tenant has not provided full details of the Approval Items pursuant to clause 6.2 for the purpose of the Licence to Alter not less than 14 days prior to the Completion Date (or if no such Approval Items are to be undertaken then if the Tenant has not provided details of the Tenant’s Works to be undertaken generally for the purposes of the Licence to Alter) completion of such Licence shall take place within 14 days of the Landlord’s Solicitors submitting the engrossment of a counterpart Licence to Alter to the Tenant which they shall do promptly following the approval by the Landlord of the Approval Items or following receipt of such details (as the case may be) and in any event both parties shall bear their own costs in respect of the Licence to Alter. |
| 5.6 |
The Tenant shall pay to the Landlord on the Completion Date the sum of £319,109.58 as referred to in the Deposit Deed on the Completion Date |
| 5.7 |
If the Tenant has not provided full details of the plan and method statement for the purposes of the Sideletter for approval by the Landlord (which approval shall not be unreasonably withheld or delayed) not less than 14 days prior to the Completion Date completion of such Sideletter shall take place within 14 days of the approval by the Landlord of the plan and method statement |
| 5.8 |
On completion of the Lease: |
| |
(i) |
the Rent Review Dates shall be inserted being the fifth anniversary of the date of completion of the Lease |
10
| |
(ii) |
In clause 8 the Renewal Date shall be inserted being the twentieth anniversary of the term commencement date of the Lease and such date shall be inserted into clause 8.5.1 of the Lease |
| |
(iii) |
In clause 9 the Renewal Date shall be inserted being the twentieth-fifth anniversary of the term commencement date of the Lease and such date shall be inserted into clause 9.5.1 of Lease |
| 6.1 |
The Landlord acknowledges that:- |
| |
(i) |
the Tenant will be undertaking works to the Premises in the nature of those briefly described in the specification and plans attached at Annexure 9 and hereby confirms that it has approved such proposals (“Proposals”) save only that it still requires to see final details of those elements of the Proposals should they go ahead relating to |
| |
(i) |
a third level over part of the building to carry plant equipment which would require alterations to part of the roof structure; and |
| |
(ii) |
a possible adaptation to roof to create plant deck |
(“Approval Items”) to the extent that the Lease requires the Tenant to obtain the Landlord’s approval
| |
(ii) |
it will not unreasonably withhold or delay its approval of such detail of such Approval Items once received from the Tenant (notwithstanding the provisions of the Lease) |
| |
(iii) |
the Tenant is entitled on completion of the Lease to carry out the remainder of the Tenant’s Works |
| 6.2 |
The Tenant shall (if applicable) forthwith at its own cost prepare and submit to the Landlord for approval by the Landlord drawings and a specification of the Approval Items and upon such approval being obtained in writing the Tenant shall be entitled to carry out and complete the Approval Items following completion of the Lease |
| 6.3 |
The Tenant will provide the Landlord with as built drawings and specifications of any of the Tenant’s Works which affect the structure of the Premises within 21 days of the completion of such works in accordance with the provisions of the Lease |
| 7.1 |
The Landlord has deduced its title to the Premises prior to the date hereof by the production of official copies of the registers of title number BK409952 and a copy of the official plan dated 19 February 2007 and timed at 14:07:35 (the “Deduced Title”) and the Premises shall be let subject to the matter referred to on the Deduced Title. |
11
| 7.2 |
The Landlord covenants to make available the Substation Site to SHP no later than the Completion Date |
| 7.3 |
Vacant possession of the Premises shall be delivered to the Tenant on completion |
| 7.4 |
The Landlord confirms it will issue or grant to SHP such permissions and consents as SHP may require for the installation of electric lines and other apparatus within the Premises to enable SHP to make connections from the Substation Site to the building for the provision of power pursuant to the Power Supply Agreement |
| 7.5 |
The Landlord agrees to permit and hereby permits SHP to have access to the Premises and the Substation Site (accompanied by the Tenant if need be or appropriate) for the purposes of undertaking the works to be carried out on the Premises and the Substation Site by SHP under the Power Supply Agreement |
| 7.6 |
The Landlord will procure prior to the Completion Date the closure of leasehold title number BK216563 and the removal of the relevant notice of lease from its freehold title |
| 8.1 |
“Restrictions” means all matters affecting the Premises or its use registered or capable of registration as local land charges and all notices charges orders resolutions demands proposals requirements regulations restrictions agreements directions or other matters affecting the Premises or its use served or made by any local or other competent authority or otherwise arising under any statute or any regulation or order made under any statute |
| 8.2 |
The Premises shall be demised subject to all (if any) Restrictions affecting the Premises (whether in existence at the date of this Agreement or arising at any later date) |
| 8.3 |
No representation is made or warranty given by the Landlord as to whether any restrictions exist or as to the permitted use of the Premises for planning purposes |
| 9.1 |
Save as provided in clause 9.2 hereof no agent adviser or other person acting for the Landlord has at any time prior to the making of this Agreement been authorised by the Landlord to make to the Tenant or to any agent adviser or other person acting for the Tenant any representation whatever (whether written oral or implied) in relation to the Premises or to any matter contained or referred to in this Agreement |
| 9.2 |
Any statement made in writing or email by the Landlord’s Solicitors to the Tenant’s Solicitors prior to the making of this Agreement in reply to an inquiry made in writing by the Tenant’s Solicitors was made with the authority of the Landlord |
12
The Tenant shall pending completion not assign underlet charge or otherwise deal in any way with the benefit of this Agreement in whole or in part and the Landlord shall not be obliged to grant the Lease to any person other than the Tenant
| 11.1.1 |
“the Landlord’s Address” means the address of the Landlord shown on the first page of ‘ this Agreement or such other address as the Landlord may from time to time notify to the Tenant as being its address for service for the purposes of this Agreement |
| 11.1.2 |
“the Tenant’s Address” means the address of the Tenant shown on the first page of this Agreement or such other address as the Tenant may from time to time notify to the Landlord as being its address for service for the purpose of this Agreement |
| 11.2 |
Any notice or other communication given or made in accordance with this Agreement shall be in writing and given in accordance with Section 196 of the Law of Property Act 1925 (as amended) and shall be forwarded as applicable to the Landlord’s Address or the Tenant’s Address |
| 11.3 |
Any notices served on the Landlord shall be marked for the attention of the Company Secretary. or such other person as nominated from time to time by the Landlord who shall have authority to accept such notices |
| 11.4 |
Any notices served on the Tenant shall be marked for the attention of the Managing Director and the Operations Manager or such other person as nominated from time to time by the Tenant |
| 12.1 |
This Agreement is an executory agreement only and shall not operate or be deemed to operate as a demise of the Premises |
| 12.2 |
The Tenant shall not be entitled to occupation or possession of the Premises prior to the Completion Date but if it does take occupation prior to the Completion Date (which shall be at the absolute discretion of the Landlord) shall observe and perform all the covenants and conditions contained in the Lease as if the same had already been granted provided that notwithstanding the foregoing the Tenant shall be entitled to enter upon the Premises to carry out the Tenant’s Works prior to the Completion Date subject always to the provisions of the Licence to Alter |
| 12.3 |
The Landlord shall be entitled to all remedies by distress action or otherwise for recovering any monies due or for breach of obligation by the Tenant as if the Lease had been completed |
13
All the provisions of this Agreement shall (to the extent that they remain to be observed and performed) continue in full force and effect notwithstanding completion of the Lease and the Licence to Alter
| 14.1 |
This Agreement embodies the entire understanding of the parties and there are no other arrangements between the parties relating to the subject matter of this Agreement |
| 14.2 |
No amendment or modification shall be valid or binding on any party unless |
| 14.2.1 |
it is made in writing |
| 14.2.2 |
refers expressly to this Agreement |
| 14.2.3 |
it is signed by the party concerned or its duly authorised representative |
| 15.1 |
The Standard Conditions shall apply hereto in so far as the same are not inconsistent with the provisions hereof and are applicable to the grant of a lease save that |
| 15.2 |
For the purposes of Standard Condition 3.2 the risk in the Premises remains with the Landlord until completion |
| 16.1 |
Save as otherwise provided for in this Agreement any dispute or difference which shall arise between the parties as to the construction of this Agreement or as to the respective rights duties and obligations of the parties under or as to any other matter arising out of or connected with the subject matter of clause 2 or clause 4 of this Agreement shall if either the Landlord or the Tenant so requires at any time by notice served on the other (“the Notice”) be referred to the decision of an expert (“the Expert”) |
| 16.2 |
The Expert shall be appointed by agreement between the Landlord and the Tenant or if within 5 Working Days after service of the Notice the Landlord and the Tenant have been unable to agree then on the application of either the Landlord or the Tenant the President for the time being of The Royal Institution of Chartered Surveyors or (in each such case) the duly appointed deputy of such President or any other person authorised by him to make appointments on this behalf |
| 16.3 |
The costs of the Expert shall be determined by the Expert but in the event of any failure to determine the same the costs shall be borne in equal shares by the parties |
14
| 17. |
EXCLUSION OF THIRD PARTY RIGHTS |
Each party confirms that no term of this Agreement is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this Agreement save for lawful successor in title
AS WITNESS the hands of the parties hereto the day and year first before written
|
|
|
|
|
| SIGNED by |
|
) |
|
|
| a Director for and on behalf of |
|
) |
|
|
| SLOUGH TRADING ESTATE |
|
) |
|
|
| LIMITED |
|
) |
|
 02/03/2007 |
|
|
|
| SIGNED by |
|
) |
|
|
| a Director for and on behalf of |
|
) |
|
|
| RACKSPACE MANAGED HOSTING |
|
)
|
|
|
| LIMITED |
|
) |
|
|
15
Annexure 1
(Rent Deposit Deed)
18
[Deed and prescribed particulars delivered to the registrar of companies pursuant to section 395, Companies Act 1985 on ]
DATED 2007
SLOUGH TRADING ESTATE LIMITED
- and-
RACKSPACE MANAGED HOSTING LIMITED
DEPOSIT DEED
- relating to -
Building 115 Buckingham Avenue
Trading Estate Slough Berkshire
Solicitors
NABARRO
Lacon House
Theobald’s Road
London WC1X 8RW
Ref: PD/TNP/LM/S2884/01010
Tel: 020 7524 6000
DEPOSIT DEED
DATED 2007
PARTIES
BETWEEN
| (1) |
SLOUGH TRADING ESTATE LIMITED (Company Registration Number 1184323) whose registered office is at 234 Bath Road Slough Berkshire SL1 4EE (“the Landlord”) and |
| (2) |
RACKSPACE MANAGED HOSTING LIMITED (Company Registration Number 3897010) whose registered office is at 2 Longwalk Road Stockley Park Uxbridge Middlesex UB11 1BA (“the Tenant”) |
THIS DEED WITNESSES:
In this Deed, the following expressions shall have the meanings indicated:
“Account”
a separate designated interest earning account at National Westminster bank PLC of Farnham Road Slough or an alternative a clearing bank or recognised building society opened or to be opened by and in the name of the Landlord to be designated Rackspace Managed Hosting Limited;
“Default”
any failure by the Tenant to pay (whether or not in the case of the yearly rent any formal demand has been made) the whole or any part of the rents or other money payable under the Lease or to pay any costs damages and expenses incurred by or payable to the Landlord in consequence of any failure by the Tenant to observe and perform any of the Tenant’s Obligations or in consequence of the determination of the Lease, before the expiration of its term, by forfeiture or any disclaimer by any liquidator of, or a trustee in bankruptcy of the estate of the Tenant or otherwise than by agreement;
“Deposit Balance”
the proportion from time to time standing to the credit of the Account attributable to the Tenant including any accrued interest which has not been paid to the Tenant;
1
“Initial Deposit”
the sum of £319,109.58;
“Lease”
the Lease of even date herewith made between the Landlord (1) and the Tenant (2);
“Premises”
the premises briefly known as Building 115 Buckingham Avenue Trading Estate Slough Berkshire
“Required Deposit”
the sum which is greater of:-
| |
(1) |
the Initial Deposit; and |
| |
(2) |
an amount at any time equal to six months’ annual rent payable under the Lease at the annual rate applicable at that time together with a sum equal to value added tax on that amount if value added tax is payable by the Tenant under the Lease at that time |
“Tenant’s Obligations”
the obligations of the Tenant under the Lease and this Deed
| 2.1 |
Words importing the singular number shall include the plural and vice versa and words importing one gender shall include both other genders |
| 2.2 |
Where any party to this Deed comprises more than one person the obligations on the part of that party in this Deed shall be construed as being the joint and several obligations of the persons comprising that party |
| 2.3 |
The headings to clauses do not form part of this Deed and shall not be taken into account in its construction or interpretation |
| 2.4 |
Reference to clauses are to clauses of this Deed |
| 2.5 |
References to the “Lease” include reference to the Lease as it may be varied from time to time |
| 3.1 |
The Landlord acknowledges receipt of the Initial Deposit and shall promptly and within 7 days pay it into the Account |
| 3.2 |
The Landlord shall also pay into the Account any sums paid to it by the Tenant under clause 5.1 or 5.3 |
2
| 3.3 |
The Tenant acknowledges that only the Landlord is entitled to give instructions to the institution at which the Account is maintained |
| 3.4 |
The Deposit Balance is the property of the Tenant but is subject to the charge created by clause 7.2 and shall not be repayable to the Tenant otherwise than in accordance with the provisions of clause 8 |
| 4. |
WITHDRAWALS FROM THE ACCOUNT |
| 4.1 |
The Landlord may withdraw money from the Account in order to meet any sum due to the Landlord arising out of a Default |
| 4.2 |
Written notice of any withdrawal (including the amount withdrawn and reasonable details of the relevant Default) shall be promptly given by or on behalf of the Landlord to the Tenant |
| 5. |
MAINTENANCE OF THE ACCOUNT |
| 5.1 |
Within fourteen days of notice under clause 4.2 being given the Tenant shall pay to the Landlord such amount as shall when added to the Deposit Balance following the withdrawal be equal to the Required Deposit |
| 5.2 |
If at any time the Deposit Balance (taking no account of any accrued interest which has not yet been paid to the Tenant pursuant to clause 6.2) is less than the Required Deposit the Landlord may give written notice to the Tenant of the amount of the difference |
| 5.3 |
Within fourteen days of notice under clause 5.2 being given the Tenant shall pay the amount of the difference to the Landlord to be paid into the Account |
| 6.1 |
The interest accruing on the Deposit Balance shall belong to the Tenant but shall be left in the Account and form part of the Deposit Balance until paid to the Tenant pursuant to Clause 6.2 |
| 6.2 |
Subject to clause 6.3, the Landlord shall, on written request by the Tenant, withdraw from the Account the interest which at the time of the request has accrued on the Deposit Balance and pay such interest to the Tenant net of tax or other withholding required by law |
| 6.3 |
No interest shall be payable to the Tenant out of the Account; |
| 6.3.1 |
at a time when there is a Default |
| 6.3.2 |
to the extent that payment of the interest would cause the Deposit Balance to be less than the Required Deposit; or |
| 6.3.3 |
more frequently than at six monthly intervals |
| 6.4 |
All tax payable in respect of interest accruing on the Deposit Balance shall be paid by the Tenant from its own money |
3
| 7.1 |
The Tenant warrants to the Landlord that the Deposit is free, and that all sums paid in accordance with clauses 5.1 or 5.3 will be paid free, from all charges, encumbrances, liens or third party rights (other than the charge referred to in clause 7.2) |
| 7.2 |
The Tenant charges its interest in the Account and the Deposit Balance from time to time, and all money from time to time withdrawn from the Account, to the Landlord as security for the performance of the Tenant’s Obligations |
| 7.3 |
The Tenant shall execute any document or take any action which the Landlord may reasonably require in order to perfect the charge created by clause 7.2 |
| 7.4 |
The charge created by clause 7.2 is in addition to and shall not be merged with or prejudice or affect or be affected by any other security interest of the Landlord in relation to the Tenant |
| 8. |
RELEASE OF DEPOSIT BALANCE |
| 8.1 |
The Deposit Balance shall be maintained in the Account until the earliest to occur of: |
| 8.1.1 |
where the Lease comes to an end by forfeiture the date upon which the Tenant and any mortgagee of the Tenant’s interest in the Premises shall have lost or irrevocably released any rights either of them might have to claim relief from forfeiture |
| 8.1.2 |
the date of the assignment of the Lease by the Tenant with the consent of the Landlord in accordance with the terms of the Lease |
| 8.1.3 |
where the Lease comes to an end by expiry the date which is one month after the later of the expiry of the Lease and vacant possession of the Premises being given to the Landlord |
| 8.1.4 |
the date of the Landlord’s confirmation pursuant to clause 11.3 hereof |
| 8.2 |
Within one month of the earliest of the dates referred to in clause 8.1 the Landlord shall, subject to clause 8.3, pay the Deposit Balance to the Tenant |
| 8.3 |
The Deposit Balance shall not be payable to the Tenant under clause 8.2 at a time when there is a Default but shall become payable when the Tenant has remedied such Default or when the Landlord has withdrawn from the Account amounts equal to all sums properly due and payable to the Landlord arising out of the Default |
| 8.4 |
Payment of the Deposit Balance shall not affect any liability of the Tenant to the Landlord in relation to the Lease or the Premises |
| 9. |
AUTHORITIES BY THE TENANT |
| 9.1 |
The Tenant irrevocably authorises the Landlord to act in accordance with this Deed in connection with the Account and the Deposit Balance |
4
| 9.2 |
The Tenant irrevocably authorises the institution referred to in clause 3.3 to act only on the Landlord’s instructions |
| 10. |
TRANSFER OF THE LANDLORD’S INTEREST |
| 10.1 |
If the Landlord transfers the reversion immediately expectant upon the determination of the term created by the Lease, the Landlord shall: |
| 10.1.1 |
assign the benefit of this deed to the transferee of the reversion; and |
| 10.1.2 |
procure that the transferee of the reversion no later than the date of the transfer covenants in a deed with the Tenant to observe and perform the obligations of the Landlord under this deed |
| 10.2 |
On delivery of the deed referred to in clause 10.1.2 to the Tenant the Landlord (being the transferor) shall cease to be liable for any future default in compliance with any provision of this Deed |
| 11.1 |
The Tenant may at any time notify the Landlord in writing (with copies of the relevant audited accounts and any other relevant material) that in each of three consecutive accounting periods of the Tenant (the third such period ending no earlier than twelve months before such notice), the Tenant’s audited accounts establish that its net profit after tax for each such accounting period constituted a sum which is at least three times the amount of annual rent payable under the Lease as at the date of the Tenant’s notice |
| 11.2 |
For the purposes of clause 11.1 no account shall be taken of any accounting period of the Tenant that is not a period of twelve months |
| 11.3 |
The Landlord shall not unreasonably withhold or delay its written confirmation that it is satisfied that the notice, accounts and material referred to in clause 11.1 establish the circumstances there referred to |
| 12.1 |
The proviso for re-entry contained in the Lease shall be exercisable as well upon any breach of any covenant or obligation on the part of the Tenant contained in this Deed as on the happening of any of the events mentioned in the Lease |
| 12.2 |
The rights of the Landlord under this Deed do not limit its rights under the Lease |
| 12.3 |
This Deed is to be disregarded upon any review of rent payable under the Lease |
| 12.4 |
The Landlord has no obligations or liabilities under this Deed to anyone except the Tenant notwithstanding an assignment of the Lease by it |
5
| 12.5 |
The provisions as to notices contained in the Lease shall apply to notices served pursuant to this Deed |
| 12.6 |
The Landlord may at any time terminate this Deed by paying the Deposit Balance to the Tenant and, on doing so, is released from all liabilities and obligations under this Deed except in relation to rights of the Tenant that have arisen before the termination |
| 12.7 |
Any termination under clause 12.6 and any payment of the Deposit Balance, does not affect the Landlord’s rights under the Lease |
IN WITNESS of which this Deed has been executed and was delivered on the date appearing as the date of this deed
6
|
|
|
| EXECUTED as a DEED by SLOUGH |
|
) |
| TRADING ESTATE LIMITED acting by: |
|
) |
|
|
|
|
|
|
|
|
|
Director |
|
|
|
|
Director/Secretary |
|
|
|
| EXECUTED as a DEED by RACKSPACE |
|
) |
| MANAGED HOSTING LIMITED acting by: |
|
) |
|
|
|
|
|
|
|
|
|
Director |
|
|
|
|
Director/Secretary |
Annexure 2
(Form of | 
