UK-Isle of Dogs-Millharbour-5 Greenwich View Place Lease - Ogden Properties Ltd. and Digital Island Inc.
DATED 1999
OGDEN PROPERTIES LIMITED
and
DIGITAL ISLAND INC
Counterpart/
L E A S E
in respect of
Third Floor City Reach
5 Greenwich View Place Millharbour Isle of Dogs
Le Brasseur J Tickle
Solicitors
6-7 Park Place
Leeds LS1 2RU
Tel: 0113 2341220
<PAGE>
THE PARTICULARS
1. "The Landlord" OGDEN PROPERTIES LIMITED
Registered Office Boston Hall, Boston Spa, Yorkshire
LS23 6AD
2. "The Tenant" DIGITAL ISLAND INC
Registered Office Suite 1200 45 Fremont Street San Francisco
CA 94105
3. "The Demised Premises" Third Floor City Reach, 5 Greenwich View
Place, Millharbour, Isle of Dogs London
E14 9NN
4; "The Fixed Term" Ten Years (10 years)
5. "the Term Commencement Date" 13th September 1999
6 "The Term Expiry Date" 12th September 2009
7 "The Initial Rent" The Initial Rent means from and including
the Term Commencement Date until the
Rent Start Date a peppercorn (if demanded)
and thereafter the sum of (Pounds)204,440 per
annum
8. "The Rent Start Date" 13th October 1999
9. "The Rest Review Date" 12th September 2004
10. "The Service Charge Date" 13th September 1999
2
<PAGE>
1. THE PARTIES
THIS LEASE is made the day of One thousand nine hundred and ninety nine
BETWEEN
THE LANDLORD named in the Particulars (hereinafter called "the Landlord") of the
first part and THE TENANT named in the Particulars (hereinafter called "the
Tenant") of the second part and THE SURETY named in the Particulars (hereinafter
called "the Surety") of the third part
2. DEFINITIONS
IN this Lease except where the context otherwise requires the following words
have the following meanings
Account Day means the 31st day of December or such other day as
the Landlord shall notify to the Tenant and the first
Account Day shall be the 31st day of December 1999
adjoining property means the property of the Landlord abutting upon
adjacent to or situate in the vicinity of the Demised
Premises including where the Demised Premises form
part of a larger property belonging to the Landlord
the other part or parts of that property
Advance Service Charge means the sum of (Pounds)59,180 (being the annual
payable during the period up to the first Account Day)
Authorised Guarantee means the form of Authorised Guarantee Agreement set
out in the Sixth Schedule hereto
Atrium means the entrance lobby shared with the adjoining
office building shown edged yellow on the Site Plan
Atrium Services means the services provided for the Atrium and may
include in particular but without prejudice to the
generality of the foregoing the matters set out in the
Fourth Schedule Part III but subject to the provisos
referred to in Clause 6.3 hereof
Building means the office building constructed on the Property
comprising ground floor and seven upper floors the
basement car park with the plant rooms serving the
same
Common Parts means those parts of the Building which it is not
intended shall be demised to any particular tenant or
occupier which shall include without prejudice to the
generality of the foregoing the lifts stairs toilets
corridors service corridors and service rooms and
plant rooms and fire escapes
Conduits means all ducts shafts cisterns tanks radiators water
gas electricity and telephone supply pipes wires and
cables sewers drains soil pipes waste water pipes
gutters soakaway meters and any other pipes wires and
cables other than those belonging to the relevant
supply authorities
Demised Premises means all that the premises described in the First
Schedule hereto but including all additions and
improvements thereto
Disputes Procedure means the procedure for settling disputes as to value
in accordance with the
3
<PAGE>
provisions of Clause 9 hereof
Estate means the piece or parcel of land at Millharhour Isle
of Dogs in the London Borough of Tower Hamlets and
known as Greenwich View Place as the same is for the
pu1poses of identification only edged green on the
Site Plan
Fixed Term means the period of years specified in the Particulars
commencing from the Term Start Date specified in the
Particulars
Floor Plans mean the plans annexed hereto and marked 'Third Floor
Plan' "Ground Floor Plan" and "Basement Plan"
Forecourt means the external areas of the Property not
comprised within the Building
Head Lease means the Lease dated the 18th day of April 1991
between Robert Ogden (1) the Landlord (2)
Initial Defect means a defect in or want of repair of the Building
which shall come to or be brought to the attention of
the Landlord before I" September 2002 and which arises
out of the original design or construction of the
Building and is due to faulty or defective design bad
workmanship or the use of defective or unsuitable
materials in the said original construction of the
Building
Initial Rent means the annual rent described in the Particulars
Insurance Rent means the rents payable for the insurance of the
Demised Premises
Insured Risks means fire storm tempest lightning impact explosion
aircraft (except in war) and articles dropped
therefrom (save in war) and malicious damage and such
other risks as the Landlord shall from time to time
reasonably require in so far as any such risk is in
each case available in the United Kingdom insurance
market on reasonably acceptable commercial terms
Market Rent means the rent calculated in accordance with Clause
8.1 hereof
Part I Services means all services provided for the Estate and any
adjoining or neighbouring land which may at any time
be managed controlled or used in conjunction with the
Estate or any part or parts thereof respectively by or
on behalf of the Landlord and may include in
particular but without prejudice to the generality of
the foregoing the matters set out in the Fourth
Schedule hereto but subject to the provisos referred
to in Clause 6.3 hereof
Part II Services means all services provided for the Building and may
include in particular but without prejudice to the
generality of the foregoing the matters set out in the
Fourth Schedule Part II but subject to the provisos
referred to in Clause 6.3 hereof
Permitted means a part of the Demised Premises comprising an
area which when sublet will not create with any area
retained in the occupation of the Tenant more than six
separate areas of occupation or more than six
sublettings
Plan means the plans annexed hereto
Planning Acts means the Town and Country Planning Act 1990 and the
Public Health Acts 1875-1969 or any statutory
modification or re-enactment thereof for the time
4
<PAGE>
being in force and any regulations or orders made or
having effect thereunder
Prescribed Rate means 4 per centum per annum above the National
Westminster Bank plc or its successors in business
bank rate or other equivalent prime lending rate for
the time being in force
Property means that part of the Estate demised to the Landlord
by the Headlease (including the Demised Premises) and
together with the basement the plant rooms serving the
same the Forecourt and the Unit Car Park Spaces
Proportion means a proportion determined from time to time by the
Surveyor whose determination shall be final and
binding on the parties (save in the case of manifest
error) but in making his apportionment as to what
proportion whether it be of service charges or
otherwise is to be attributable to the Demised
Premises the Surveyor shall normally make such
apportionment based on the proportion which the net
lettable area of the Demised Premises bears to the net
lettable area of the Building but may make such
apportionment on some other fair and reasonable basis
if he considers the same to be fair and reasonable
Qualifying Assignee means a firm person or company which complies with
each of the following criteria
(a) that can show that it has net profits before tax
(as stated in its accounts prepared and published in
accordance with the Companies Act 1985 and 1989 and
relevant statements of accounting practice in the case
of a limited company or in any other case prepared in
accordance with recognised accounting and auditing
procedures ("the Audited Accounts") for each of the
three completed financial periods (each such period
not to exceed 12 months) of the proposed assignee
immediately preceding the date of application for
Licence to Assign which exceed three time the
aggregate annual amount of rents payable hereunder at
the date of the proposed assignment
(b) that can show that it has net realisable assets
which (after the deduction of all figures attributed
to goodwill and other intangible assets and of any
prospective liability for corporation tax or capital
gain tax on capital gains in the event of the assets
being realised) as shown in the proposed assignee's
preceding financial period of the proposed assignee
exceed in value three times the aggregate annual
amount of the rents payable hereunder at the date of
proposed assignment
(c) whose status as the tenant under this Lease would
not in the reasonable opinion of the Landlord
materially reduce the open market of the Landlord's
interest in either the Demised Premises or the
Building
(d) it is not a company which is for the time being a
holding company or subsidiary of the Tenant or another
subsidiary of such holding company within the meaning
of Section 736 of the Companies Act 1985 and such
Assignee together with any surety (other than the
Assignor under an authorised guarantee agreement) is
on aggregate no less substantial in financial terms
than the Tenant for the time being (together with any
guarantor for that tenant) at the date of the
application for licence to assign
(e) it does not enjoy diplomatic or state immunity but
this criteria shall not apply where the proposed
assignee is the Government of the United Kingdom of
Great Britain and Northern Ireland or any department
thereof
5
<PAGE>
(f) it is not resident in (which in the case of a
corporation shall mean having its registered office
located in) a jurisdiction which has no reciprocal
enforcement of judgments with the United Kingdom of
Great Britain and Northern Ireland
Rent Start Date means the date named in the Particulars (being the
date for the commencement of the payment of the Yearly
Rent)
rents means the Yearly Rent the Service Charge and the
Insurance Rent
Review Day means the last day of the Review Year
Review Period means the period starting with the day following the
Review Day up to and including the expiry of the Term
Review Year means the fifth year of the Term
Service Area means the common areas accessways pedestrian ways
service roads and service areas the car and lorry
parks and loading bays and any skip areas and
landscaped areas within the Estate but excluding for
the avoidance of doubt the Property and any part of
the Estate specifically or intended to be demised to
any occupational tenant
Service Charge means the rents payable for the provision of the
Services in accordance with Clause 8.2 hereof
Service Charge Date means the date named in the Particulars
Service Operator means either the Landlord or the person providing the
Part I Services in accordance with the Head Lease or
any superior lease
Services means the Part I Services and the Part II Services and
the Atrium Services
Site Plan means the plan annexed hereto and marked Site Plan
Structure means the main structural walls of the Building
together with the main beams foundations and columns
forming the principal load bearing structure of the
Building together with the roof and roof supports
Surveyor means the Surveyor for the time being of the Landlord
(who may be a person employed by or otherwise
connected with the Landlord)
Term means the Fixed Term together with the period of any
extensions thereof or of any holding over whether by
statute or at common law
Unit Car Park Spaces means the eight (8) car parking spaces of which the
Tenant is granted exclusive use hereunder and shown
coloured blue on the Site Plan and/or Floor Plans
Yearly Rent means until the Review Day the Initial Rent and
thereafter during each successive Review Period a rent
equal to One hundred and eighty eight thousand three
hundred pounds ((Pounds)188,300) or the Market Rent as
at the relevant Review Day whichever be the greater
such term includes neither the Service Charge nor the
Insurance Rent
3. INTERPRETATION
6
<PAGE>
3.1 Words importing only the singular number shall where appropriate include
the plural number
3.2 Where the Tenant or the Surety at any time consists of two or more persons
covenants made by those persons shall be deemed to be joint and several
3.3 Words importing the neuter gender only shall include the masculine or
feminine gender (as the case may be) and words importing masculine gender shall
include the feminine gender and vice versa (including
3.4 Any reference to a statute shall be deemed to include reference to any
further statute for the time being in force amending replacing modifying or
supplementing such statute and any regulations directions or orders made
thereunder
3.5 Any reference to the Landlord shall include its successors in title and
assigns and any reference to the Tenant shall include its successors in title
and assigns
4. DEMISE AND RENT RESERVED
IN consideration of the respective rents and covenants by and on the part of the
Tenant hereinafter reserved and contained the Landlord hereby demises unto the
Tenant ALL THAT the Demised Premises TOGETHER WITH the easements and rights
specified in the Second Schedule hereto AND EXCEPT AND RESERVING unto the
Landlord and its tenants servants and licensees and all other persons who shall
now have or may hereafter be granted the same by the Landlord the rights and
easements specified in the Third Schedule hereto TO HOLD the same UNTO the
Tenant for the Fixed Term YIELDING AND PAYING to the Landlord:-
4.1 Yearly during the Term the Yearly Rent payable without any deduction by
equal quarterly payments in advance on the usual quarter days in every year and
proportionately for any period of less than a year the first such payment being
a proportionate sum in respect of the period from the Rent Commencement Date to
and including the day before the quarter day next after the Rent Commencement
Date to be paid on the Rent Commencement Date and
4.2 By way of further rent the Service Charge and the Insurance Rent to be
calculated from and apportioned as necessary and made on the Service Charge Date
4.3 By way of further rent any interest payable by the Tenant on all such rents
as hereinafter appearing
4.4 If at any time and whenever the Market Rent is not ascertained until after
the relevant Review Date the Tenant shall continue to pay the Yearly Rent at the
rate applicable immediately before the relevant Review Date and within seven
days after the date of such ascertainment pay to the Landlord the amount by
which the rent paid on the usual quarter days on or after the relevant Review
Date falls short of the Market Rent together with interest thereof at four per
cent (4%) below the Prescribed Rate
TENANTS COVENANTS
5. THE Tenant hereby covenants with the Landlord in manner following:-
To pay Rent
5.1.1 To pay the rent on the days and in the manner set out in this Lease and
not to exercise or: seek to exercise any right or claim to withhold rent or any
right or claim to legal or equitable set-off
5.1.2 If so required in writing by the Landlord to make such payments by
Bankers Order or Credit Transfer to any bank and account in the United Kingdom
that the Landlord may from time to time nominate
7
<PAGE>
5.1.3 If the Tenant shall fail to pay the rents or any other sum due under the
Lease whether formally demanded or not to pay to the Landlord interest at the
Prescribed Rate on all rents or other sum from the date when they were due to
the date on which they are paid
5.1.4 nothing in the preceding clause shall entitle the Tenant to withhold or
delay any payment of the rents or any other sum due under this Lease after the
date upon which they fall due or in any way prejudice affect or derogate from
the rights of the Landlord in relation to such non-payment including (but
without prejudice to the generality of the above) under the proviso for re-entry
contained in this Lease
To Pay Outgoings
5.2 Subject only to any statutory direction to the contrary to pay and to
indemnify the Landlord against:
5.2.1 All rates taxes assessments duties charges outgoings and impositions
whatsoever (whether parliamentary parochial or otherwise) which are now or may
at any time hereafter be assessed charged or imposed upon the Demised Premises
or on the owner or occupier in respect thereof including a Proportion of
anything payable in respect of the Demised Premises or any part thereof and the
adjoining property of the Landlord or adjacent property or otherwise
5.2.2 Value Added Tax (or any tax of a similar nature that may be substituted
for it or levied in addition to it) chargeable in respect of any payment made by
the Tenant under any of the terms of or in connection with this Lease or in
respect of any payment made by the Landlord where the Tenant agrees in this
Lease to reimburse the Landlord for such payment
To pay for services
5.2.3 To pay for all gas and electricity and water consumed on the Demised
Premises and in the event of such supplies not being separately metered to the
Demised Premises by the relevant supply authority to pay a Proportion of the
costs charges and expenses incurred by the Landlord in respect of such supply
having regard to the consumption measured where appropriate by any sub-meters
which may be installed from time to time for the Demised Premises and if so
required by the Landlord to install and maintain within the Demised Premises
appropriate sub meters for any such services as aforesaid and to observe and
perform at the Tenant's expense all present and future regulations and
requirements of the supply authorities and to keep the Landlord indemnified in
respect of such regulations and requirements
Void Rates Indemnity
5.2.4 To indemnify the Landlord against any rates as aforesaid payable by the
Landlord after the expiration or sooner determination of the Term through the
Landlord's inability to claim void rate relief for the maximum period
(commencing with the date of expiration or sooner determination of the Term)
which would have been allowed had the Demised Premises been occupied up to the
date of the expiration or sooner determination of the Term
To Paint Inside
5.3 In the third year and every third year thereafter of the Term and in the
last three months of the Term whether determined by effluxion of time or
otherwise to paint or otherwise treat as the case may be all the inside wood and
ironwork of the Demised Premises usually or requiring to be painted or otherwise
treated with two coats of good quality paint or other suitable material of good
quality in a proper and workmanlike manner and on the last occasion in a colour
first approved by the Landlord (such approval not to be unreasonably withheld or
delayed) and also wash paint as aforesaid or repaper the ceilings and walls in
the usual manner
To Repair
5.4 Throughout the Term to repair and keep in good and substantial repair
(damage by the Insured Risks excepted (save to the extent of the excess which
shall be met and paid by the Tenant) unless payment of any
8
<PAGE>
insurance money shall be refused as a result of any act or default of the Tenant
and without prejudice to the Landlord's right to reinstate in the event of
damage by any of the Insured Risks) the whole of the .Demised Premises excluding
the Structure but including all Conduits solely serving the Demised Premises and
all additions thereto Provided that (but without prejudice to the Tenant's
painting obligations) the Tenant shall not be required to put the Demised
Premises into a better state of repair than they are in at the date hereof as
shown in the Schedule of Condition annexed hereto AND IN PARTICULAR but without
prejudice to the generality of the foregoing:
5.4.1 when and so often as any Landlord's fixtures belonging to the Demised
Premises shall so require to substitute other fixtures of a similar description
quality and value to the reasonable satisfaction of the Landlord
5.4.2 to treat maintain wash and clean in a suitable manner all washable
surfaces metalwork woodwork window frames doors and door frames and all fixtures
and fittings and items not required to be painted
5.4.3 to keep the Unit Car Park Spaces and the Demised Premises generally in a
proper and neat order and condition and to ensure that no vehicle maintenance is
carried on thereon and that no petrol or oil is discharged from any vehicles
standing on the Forecourt
5.4.4 to clean the interior face of the windows in the Demised Premises at
least once a month
PROVIDED THAT if the Tenant shall fail to keep the Demised Premises or leave the
same at the expiration or sooner determination of the Term in such condition
whether as to painting or repair as aforesaid then and in such case the Landlord
may do or effect all such repairs renovations and decorations for which the
Tenant shall be liable hereunder and the cost thereof shall be paid by the
Tenant to the Landlord on demand and the certificate of the Landlord or the
Landlords Surveyor certifying the cost to the Landlord shall be final and
binding on the Tenant
To Yield Up
5.5.1 At the expiration or sooner determination of the Term quietly to yield up
the Demised Premises so painted polished papered treated washed repaired
cleansed and kept as aforesaid (damage by the Insured Risks excepted unless
payment of any insurance money shall be refused as a result of any act or
default of the Tenant but subject to such excess as aforesaid)
5.5.2 To leave upon the Demised Premises for the absolute use and benefit of
the Landlord all such alterations and additions as the Tenant shall make or
place thereon without any compensation therefor but this provision shall not
extend to the Tenant's trade fixtures and the Tenant shall be at liberty at or
before the expiration or sooner determination of the Term to remove all Tenant's
trade fixtures (including partitioning) which have been erected or set up by the
Tenant both before and after the commencement of the Term the Tenant forthwith
making good all damage done or caused by such removal
5.5.3 If called upon by the Landlord so to do at the expiration or sooner
determination of the Term to remove all partitioning installed by the Tenant in
the Demised Premises and to make good the Demised Premises to the satisfaction
of the Surveyor
To Comply with Enactments
5.6.1 At all times during the Term to observe and comply in all respects with
the provisions and requirements of any and every enactment (which expression in
this covenant includes as well as any and every Act of Parliament already or
hereafter to be passed any and every order regulation and bye-law already or
hereafter to be made under or in pursuance of any such Acts including but
without prejudice to the generality of this covenant or clause the Offices Shops
and Railway Premises Act 1963 and the Factories Act 1961) so far as they relate
to or affect the Demised Premises or the user thereof for the purposes of any
manufacture process trade or business or the employment or residence therein of
any person or persons or any fixtures machinery plant or chattels for the time
being affixed thereto or being thereupon or used for the purposes thereof and to
execute all works and provide and maintain all arrangements which by or under
any enactment or by any government department local authority or other public
authority or duly authorised Officer or Court of competent jurisdiction acting
under or in pursuance of
9
<PAGE>
any enactment are or may be directed or required to be executed provided and
maintained by a tenant or occupier of premises at any time during the Term upon
or in respect of the Demised Premises or in respect of any such user thereof or
employment or residence therein of any person or persons or fixtures machinery
or chattels as aforesaid and to indemnify the Landlord at all times against all
costs charges and expenses of or incidental to the execution of any works or the
provision or maintenance of any arrangements so directed or required as
aforesaid and not at any time during the Term to do or omit or suffer to be done
or omitted on or about the Demised Premises any act or thing by reason of which
the Landlord may under any enactment incur or have imposed upon it or become
liable to pay any penalty damages compensation costs charges or expenses
To Comply with Fire Escape Requirements
5.6.2 At all times during the Term at the Tenant's expense to comply with all
requirements from time to time of the appropriate authority in relation to means
of escape from the Demised Premises in case of fire or other emergency and at
the expense of the Tenant to keep the Demised Premises sufficiently supplied and
equipped with fire fighting and extinguishing apparatus and appliances of a type
suitable in all respects to the type of user of or business manufacture process
or trade carried on upon the Demised Premises such apparatus and appliances to
be open to the inspection and to be maintained to the satisfaction of the
Landlord (so far as not opposed to the statutory obligation of the Tenant) and
also not to obstruct the access to or means of working such apparatus and
appliances by their operations at or connected with the Demised Premises
To Comply with Planning Requirements
5.7.1 At all times during the Term to comply in all respects with the
provisions and requirements of the Planning Acts and of all consents permissions
and conditions (if any) granted or imposed or having effect thereunder so far as
the same respectively relate to or affect the Demised Premises or any part
thereof or any operations works acts or things already or hereafter to be
carried out executed done or omitted thereon or the use thereof for any purpose
and
5.7.2 During the Term so often as occasion shall require at the expense in all
respects of the Tenant to obtain from (as the case may be) the Local Planning
Authority or the Secretary of State for the Environment all such consents and
permissions (if any) as may be required for the carrying out of any operations
on the Demised Premises or the institution or continuance thereon of any use
thereof which may constitute development within the meaning of the Planning Acts
but so that no application for planning permission shall be made without the
previous written consent of the Landlord which consent shall not be unreasonably
withheld and
5.7.3 To pay and satisfy any charge that may hereafter be imposed in respect of
the Demised Premises under the Planning Acts in respect of the carrying out or
maintenance of any such operations or the institution or continuance of any such
use as aforesaid and
5.7.4 Notwithstanding any consent which may be granted by the Landlord under
this deed not to carry out or make any alteration or addition to the Demised
Premises or any change of use thereof (being an alteration or addition or change
of use which is prohibited by or for which the Landlord's consent is required to
be obtained under this deed and for which a planning permission needs to be
obtained) before a planning permission therefor has been produced to the
Landlord and acknowledged by it in writing as satisfactory to it But so that the
Landlord may refuse so to express its satisfaction with any such planning
permission on the ground that the period thereof or any condition contained
therein or anything omitted therefrom in the reasonable opinion of the Surveyor
would be or be likely to be prejudicial to the Landlord's interest in the
Demised Premises or the Estate whether during the Term or following the
determination or expiration thereof and
5.7.5 Unless the Landlord shall otherwise direct to carry out and complete
before the expiration or sooner determination of the Term any works stipulated
to be carried out to the Demised Premises by a date subsequent to such
expiration or sooner determination as a condition of any planning permission
granted for any development begun before such expiration or sooner determination
and
10
<PAGE>
5.7.6 If and when called upon so to do to produce to the Landlord or the
Surveyor all such plans documents and other evidence as the Landlord may
reasonably require in order to satisfy it that the provisions of this covenant
have been complied with in all respects
To Provide details of notices etc.
5.8 Within fourteen days of becoming aware of the receipt of notice of the
same (whether by advertisement or not) to give full particulars to the Landlord
of any permission notice order or proposal for a notice or order made giver: or
issued to the Tenant its underlessees or the owner or occupier of the Demised
Premises by any Government Department Local or Public Authority or by any
competent authority under or by virtue of any statutory powers whether the same
shall be served directly on the Tenant or the original or a copy thereof be
received from any underlessee or other person and if so required by the Landlord
to produce such permission notice order or proposal for a notice or order to the
Landlord AND ALSO without delay to take-all reasonable or necessary steps to
comply with any such notice or order AND ALSO at the request of the Landlord to-
make or join with the Landlord in making such objections or representations
against or in respect of any such notice order or proposal as aforesaid as the
Landlord shall deem expedient (save where such objections or representations
shall not be in the Tenant's interests) but without cost to the Tenant
Powers of Entry
5.9 To permit the Landlord the Surveyor the licensees or tenants or occupiers
of adjoining property belonging to the Landlord if previously authorised in
writing by the Landlord with or without servants agents contractors licensees
and workmen at all reasonable times upon reasonable prior notice being given
(except in case of emergency) to enter upon the Demised Premises with all
necessary appliances:
5.9.1 To execute repairs alterations painting redecoration or other work to the
Property or any adjoining property which cannot otherwise be conveniently
effected
5.9.2 For the purpose of repairing cleansing emptying or maintaining or laying
or installing any Conduits and any sprinkler system in or under the Demised
Premises in connection with or for the accommodation of the Estate the Property
or the adjoining property
5.9.3 For all reasonable purposes in connection with the development of
adjoining property which cannot otherwise conveniently be effected
5.9.4 For the purpose of viewing the same and examining the state and condition
thereof and for the purpose of making any inspection which may be required for
the purposes of the Landlord and Tenant Acts 1927 and 1954 or any other Act for
the time being affecting the Demised Premises and for the purpose of taking
Schedules or inventories of the fixtures and things to be yielded up at the
expiration of the Term
5.9.5 To give to the Tenant (or leave upon the Demised Premises) a notice
specifying any repairs cleaning maintenance or painting that the Tenant has
failed to execute in breach of the terms of this Lease and to request the Tenant
immediately to execute the same
5.9.6 And for all reasonable purposes in connection with the execution and
carrying out of the Landlord's obligations hereunder
5.9.7 The person or persons exercising such rights doing as little damage as
may be practical to the Demised Premises and causing as little inconvenience as
Practicable and making good any damage thereby occasioned without unreasonable
delay at the expense of the Landlord or such person or persons but without
payment of any compensation for any annoyance nuisance noise vibration or
inconvenience caused to the Tenant in connection with the carrying on of its
business in the Demised Premises
Section 146 and 147 L.P.A. 1925 and other costs
11
<PAGE>
5.10 To pay to the Landlord all reasonable and proper costs charges and
expenses (including without prejudice to the generality of the foregoing legal
costs and fees payable to a surveyor or architect and other professional fees
and commissions payable to a bailiff) which may be properly incurred or properly
payable
5.10.1 by the Landlord in or in contemplation of any proceedings relating to
the Demised Premises under Sections 146 and 147 of the Law of Property Act 1925
(whether or not any right of re-entry or forfeiture has been waived by the
Landlord)
5.10.2 incidental to or in contemplation of the preparation and service of a
Schedule of Dilapidations at any time during or within six months after the
expiration of the Term but relating in all cases only to dilapidations which
accrued prior to the expiration or sooner determination of the Term howsoever
the same may be determined
5.10.3 in connection with or procuring the remedying of any breach of covenant
on the part of the Tenant contained in these presents
5.10.4 obtaining payment of any arrears of rent or the rectification of any
breach by the Tenant of any of the covenants on the part of the Tenant and the
conditions contained in this Lease whether proved by Court proceedings or not
5.10.5 Upon making an application for any consent or approval which is required
under these presents and to disclose to the Landlord such information as the
Landlord may reasonably require and in particular but without prejudice to the
generality of the foregoing the Superior Landlord's and the Landlord's legal
expenses and Surveyors fees (including disbursements and stamp duty) in respect
of all licences and the copies thereof resulting from all such applications by
the Tenant including charges fees and disbursements actually incurred in cases
where consent is refused or the application is withdrawn and in addition to pay
a reasonable management charge to the Landlord (being not less than (Pounds)500)
for or in connection with any such application Provided that the Landlord agrees
that where it employs a surveyor for non-technical advice or services in
connection with any of the said applications then where such surveyor's services
or advice is given in the provision of services capable of being carried out by
the Landlord itself then the Landlord will not make a charge for its own time in
connection with such application
Letting Boards etc
5.11 To permit the Landlord or its agents and all persons by order in writing
of the Landlord or its agents to view the Demised Premises at reasonable hours
in the daytime without interruption provided an appointment for the purpose is
first made with the Tenant who shall not unreasonably refuse such appointment
To Pay Increased Cost Of Insurance etc.
5.12 Not to bring or permit to be brought on the Demised Premises any article
or substance nor to do omit or suffer to be done or omitted any act matter or
thing whatsoever the bringing doing or omission of which would make void or
voidable any policy of insurance issued subject to usual conditions in respect
of the Demised Premises or in respect of the Landlord's fixtures and fittings
therein or of any other part of the Estate or any adjoining property or would
cause the premiums payable in respect of any insurance effected in relation to
the Demised Premises or the Estate or any adjoining property to be increased
beyond the normal rate
Tenants Insurances
5.13.1 To insure and at all times keep insured the Demised Premises against all
third party public and occupiers liability risks including liability under the
Defective Premises Act 1972 and any liability under the indemnity provisions
hereinafter contained such insurances in all cases to be on such terms and for
such sums as the Landlord and any Superior Landlord shall reasonably require
5.13.2 To effect all such insurances in some insurance office of repute in the
joint names (if possible) of the Landlord any Superior Landlord and the Tenant
12
<PAGE>
5.13.3 Upon request by the Landlord or its agents (made not more frequently
than annually) to produce to the Landlord the policy or policies of such
insurances and the receipt for or evidence of payment of every premium for the
then current year payable in respect of such policy or policies
5.13.4 PROVIDED ALWAYS that if and whenever default shall be made in making and
maintaining such insurances as aforesaid Landlord may effect and maintain such
insurances and the Tenant shall pay all moneys paid by the Landlord for that
purpose to the Landlord upon demand and such moneys if not so paid shall be
recoverable as rent in arrear
Give notice of damage
5.14.1 In the event of the Demised Premises or any part thereof being destroyed
or damaged by any of the Insured Risks to give notice thereof to the Landlord as
soon as such destruction or damage shall come to the notice of the Tenant
Damage by Tenant rendering insurance irrecoverable
5.14.2 That in the event of the Demised Premises or any part of the Building or
any adjoining property being destroyed or damaged by any Insured Risks or other
risks insured against by the Landlord and the insurance money under any
insurance against the same effected herein by the Landlord being wholly or
partly irrecoverable by reasons solely or in part of any act or default of the
Tenant then in every such case the Tenant will forthwith (in addition to the
said rent) pay to- the Landlord the whole or (as the case may require) a fair
proportion of the cost (including professional or other fees) of completely
rebuilding and reinstating the same
Alterations Structural
5.15.1 Not to cut maim injure or make any attachment or addition to any of the
Structure or make any structural alterations to the Demised Premises
Alterations Non-Structural
5.15.2 Not to make any further or other alteration or addition whatsoever in or
to the Demised Premises without the consent in writing of the Landlord such
consent not to be unreasonably withheld and to remove any such alteration or
addition(including any partitions) at the end or sooner determination of the
Term if so required by and to the extent required by the Landlord and to make
good the Demised Premises to the satisfaction of the Landlord
Alterations Unapproved
5.15.3 In the event of any breach of such covenants as aforesaid the Tenant
shall immediately upon notice in writing from the Landlord requiring it so to do
remedy the same and on its failure so to do for the space of two months after
such notice then it shall be lawful for the Landlord and others authorised by
the Landlord to enter upon the Demised Premises and to remove such alterations
or additions and to execute such other requisite works and all expenses of so
doing shall on demand be paid to the Landlord by the Tenant and if not so paid
shall be recoverable as rent in arrear
User
5.16.1 Not to use or permit to be used the Demised Premises or any part thereof
for residential occupation or for carrying on any noisy noxious offensive or
dangerous trade or business or as a betting shop public house hotel or inn or
for any retail purpose direct to the public nor to use or permit or suffer the
Unit Car Park Spaces to be used otherwise than for the parking of motor cars and
light vans nor to do or suffer to be done thereon any act or thing which may be
become or cause a nuisance injury damage annoyance disturbance or inconvenience
to the Landlord or any Superior Landlord or other lessees of the Estate or
owners lessees. or occupiers of any adjoining or neighbouring premises or for
illegal or immoral purposes
13
<PAGE>
5.16.2 Subject to the foregoing not to use or permit to be used the Demised
Premises or any part thereof other than as offices
Easements etc.
5.17.1 Not to stop up darken or obstruct any windows or lights belonging to
the Demised Premises or the adjoining property or permit any new window light
opening doorway path passage drain or other encroachment or easement to be made
or acquired in against out of or upon the Demised Premises which may be or grow
to the damage annoyance or inconvenience of the Landlord or any of its tenants
And that in case any such window light opening doorway path passage drain or
other encroachment or easement shall be made or acquired or attempted to be made
or acquired the Tenant will upon the same coming to its notice give immediate
notice thereof to the Landlord and will at the request and cost of the Landlord
adopt such means as may be reasonably required or deemed proper for preventing
any such encroachment or the acquisition of any such easement
Underletting and Assignment
5.18.1 Not to assign charge or underlet or part with or share the possession
or occupation of any part (as distinct from the whole) of the Demised Premises
other than a sub-letting of a Permitted Part
5.18.2 Not to assign charge underlet or part with or share the possession or
occupation of the whole of the Demised Premises or underlet a Permitted Part or
stand possessed thereof as trustee or agent for any other person PROVIDED ALWAYS
that if the Tenant shall at any time during the Term desire to assign or
underlet the Demised Premises as a whole or underlet a Permitted Part and shall
on each occasion procure
5.18.2.1 that the proposed assignee is a Qualifying Assignee
5.18.2.2 that the proposed assignee enter into a direct covenant with the
Landlord to pay the rent reserved by and to perform and observe the covenants
and conditions of this present lease during the residue then unexpired of the
Term or until this Underlease shall be assigned by such assignee with the
approval of the Landlord in accordance with this clause whichever is the shorter
period
5.18.2.3 that the Tenant and any guarantor under this Lease of the Tenant
(other than a guarantor who has become a guarantor under the provisions of this
clause 5.18.2.3) shall enter into the Authorised Guarantee
5.18.2.4 If the Landlord so reasonably requires such persons or company as the
Landlord may reasonably require shall act as a guarantor for an intended
assignee and shall enter into a direct covenant to guarantee the payment of the
rent reserved and the performance and observance of the covenants and conditions
of this present Underlease during the residue then unexpired of the Term or
until this Underlease shall he assigned by such assignee with the approval of
the Landlord in accordance with this clause whichever is the shorter period and
such guarantee shall mutatis mutandis be in accordance with the Surety Covenant
5.18.2.5 any intended underlessee shall covenant with the Landlord as from the
date of the Underlease to observe and perform the covenants and conditions
contained in the Underlease
5.18.2.6 any underlease granted by the Tenant shall be at the market rent then
obtainable on a letting with vacant possession and without a premium and shall
be granted with reviews of rent to coincide with the reviews of rent as are
provided for herein
5.18.2.7 any underlease granted by the Tenant shall contain covenants on the
part of the underlessee with the Tenant in terms corresponding with sub-clauses
5.18.1 and 5.18.2. hereof
5.18.2.8 any underlease of a Permitted Part shall:
5.18.2.8.1 not be for a term which would expire after the contractual term
hereby granted has expired
14
<PAGE>
5.18.2.8.2 contain a covenant against any further underletting
5.18.2.8.3 exclude the provisions of Section 24-28 of the Landlord and Tenant
Act 1954 and such exclusion shall be approved by the appropriate Court
5.18.3 then but in such case only the Tenant shall subject to the prior
written consent of the Landlord which shall not be unreasonably withheld be
permitted to assign charge or underlet the Demised Premises as a whole or
underlet a Permitted Part
5.18.4 provided that the Tenant being a Limited Company may share occupation
of the Demised Premises with a Company which is either the Holding Company of
the Tenant or a Subsidiary Company of the Tenant or the Tenant's Holding Company
as those terms are defined by Section 736 of the Companies Act 1985 provided
that no such sharing of occupation shall be effected so as to afford the
relevant company security of tenure in the Premises
Enforcement of underleases
5.18.5.1 Not without the consent of the Landlord to vary the terms or waive the
benefit of any covenant of the underlessee or condition in an underlease of the
Premises
5.18.5.2 not without the consent of the Landlord (such consent not to be
unreasonably withheld) to accept a surrender of any underlease of the Premises
5.18.5.3 Diligently to enforce the covenants of the underlessee and the
conditions in an underlease of the Premises
5.18.5.4 Not without the consent of the Landlord to accept any sum or payment
in kind by way of commutation of the rent payable by an underlessee of the
Premises
5.18.5.5 Not to accept the payment of rent from an underlessee of the Premises
otherwise than by regular quarterly (or more frequent) payments in advance
5.18.5.6 Duly and punctually to exercise all rights to revise the rent reserved
by an underlease of the Premises and not to agree with an underlessee a revised
rent without the approval of the Landlord (such approval not to be unreasonably
withheld)
Registration
5.19 Within twenty eight days next after any assignment charge devolution or
underletting of the Demised Premises to give formal notice in writing to the
Landlord's Solicitors of such assignment devolution or underletting and of the
name and registered office or address of the assignee or underlessee (as the
case may be) and to produce to the Landlord's Solicitors a certified copy of
the instrument effecting such assignment or devolution or underlease as the case
may be) and to pay a reasonable fee (not to be less than (Pounds)30.00) plus
Value Added Tax thereon for registration of every such notice together with any
registration fee payable to the Superior Landlord
Notice Boards and Signs
5.20 Not to place or affix any aerial sign signboard advertisement hoarding
fascia placard bill notice or other notification whatsoever to or upon the
outside of the Demised Premises or in or upon the windows thereof Provided that
the Tenant may within three months of the date hereof erect and thereafter
maintain a sign or signs indicating the name of the Tenant and the trade or
business carried on from the Demised Premises such sign to be of a design and in
a position first approved by the Landlord and on the expiration or sooner
determination of the Term to remove or efface any aerial sign signboard
advertisement hoarding fascia placard bill notice or other notification as
aforesaid and to make good any damage caused thereby to the reasonable
satisfaction of the Surveyor
Indemnity
15
<PAGE>
5.21 To indemnify and keep indemnified the Landlord from all liability in
respect of any injury or the death of any person damage to any property movable
or immovable the infringement disturbance or destruction of any right easement
or privilege or otherwise by reason of or arising directly or indirectly out of
5.21.1 the repair state of repair condition or any alteration or attachment to
or to the user hereinbefore permitted of the Demised Premises
5.21.2 the act omission or default of the Tenant its underlessees or their
respective agents servants invitees or licensees
5.21.3 the use of cars or any other vehicles belonging to or under the control
of the Tenant on the Service Area and any other part of the Estate
5.21.4 any breach by the Tenant or any underlessee of the Tenant of any
covenant on the part of the Tenant or any condition herein contained and from
all proceedings costs claims and demands of whatsoever nature in respect of any
such liability or alleged liability
To park/load in allocated areas only
5.22 Not to cause congestion or obstruction on any access roadways or on any
part of the Forecourt or the Service Area and subject as aforesaid not to park
or to load or unload nor to permit persons doing business with the Tenant or the
occupier or occupiers of the Demised Premises to park or to load or unload any
goods or materials on to or from lorries or other vehicles save in those parts
of the Forecourt which shall have been designed for such purposes respectively
and to procure that each part of the Forecourt or the Service Area shall be so
used only by the type of vehicle intended to be used thereon and in any event
without causing damage thereto or to any neighbouring premises and without
annoyance or inconvenience to any Superior Landlord the Landlord or to its
lessees or other the occupiers of the Estate or any part thereof or the
occupiers of any adjoining or neighbouring property
Refuse and Storage of Materials
5.23 Not to bring onto the Demised Premises any dangerous inflammable
explosive noxious or offensive substance other than the Tenants usual stock in
trade of which prior written details have been provided to the Landlord's
insurers
To comply with Regulations
5.24 To comply with such lawful and reasonable regulations and directions
(including regulations or directions as to the means of bringing conduits into
the Demised Premises) as the Landlord may from time to time make or give for the
orderly convenient and proper management of the Estate or for the regulation of
vehicular traffic into from and within the Estate and the Service Area
Nuisance
5.25 To pay to the Landlord all costs charges and expenses which may be
incurred by the Landlord in abating a nuisance on or from the Demised Premises
whether or not caused by the Tenant and in executing all such works as may be
necessary for abating a nuisance in obedience to a notice served by a Local or
Public Authority
Noxious effluent
5.26 Not to allow to pass into the Conduits serving the Demised Premises any
oil grease or other noxious or deleterious effluent or other substance which may
become a source of danger or cause an obstruction in or injure the said Conduits
and in the event of any such obstruction or injury forthwith to make good such
damage to the satisfaction of the Surveyor
16
<PAGE>
Excess weight etc.
5.27.1 Not to do or permit or suffer or bring in or upon the Demised Premises
anything which may throw on the Demised Premises or the Building any weight or
strain in excess of that which such premises are calculated to bear with due
margin for safety and not to permit or suffer to be installed any machinery on
the Demised Premises which shall be unduly noisy or cause dangerous vibrations
5.27.2 Not to attach or affix any item whatsoever to any structural part or
cladding of the Demised Premises without the prior consent in writing of the
Landlord
LANDLORDS COVENANTS
6. THE LANDLORD HEREBY COVENANTS with the Tenant as follows:
Quiet Enjoyment
6.1 That the Tenant paying the respective rents hereby reserved and
observing and performing the several covenants and stipulations on the part of
the Tenant herein contained shall and may peaceably and quietly hold and enjoy
the Demised Premises during the Term without any lawful interruption or
disturbance from or by the Landlord or any person or persons lawfully or
equitably claiming under or in trust for it
To insure
6.2 That the Landlord will at all times during the Term (unless such
insurance shall be vitiated by any act or omission of the Tenant or their
respective agents or servants or save in respect of any one or more of the
Insured Risks as are not available) insure and keep insured the Property against
loss or damage by the Insured Risks or such other risks as the Landlord may
reasonably consider necessary or desirable in the Landlord from time to time
considers to be the full rebuilding or reinstatement value of the Property (but
subject to allowing for a reasonable excess) with provision for inflation to
cover the period of rebuilding or reinstatement (or such higher amount as the
Tenant shall require by notice in writing to the Landlord) including the cost of
demolition site clearance and shoring up any land or buildings and related costs
and architect's surveyors' and other professional fees and incidental expenses
consequent upon rebuilding or reinstatement together with three years' rack-rent
of the Demised Premises and three years estimated Service Charge applicable to
the Demised Premises (including an estimate for increased rent prior to a rent
review) and will whenever required (but not more frequently than once in every
calendar year) produce to the Tenant the policy or policies of such insurance or
other sufficient evidence of the nature extent and terms thereof and the receipt
for or other evidence of the payment of the last premium for the same and to
procure that the insurers waive any subrogation rights against the Tenant and in
case of destruction or damage by any of the risks aforesaid as soon as
practicable after the necessary labour and materials permits planning bye-laws
and any other necessary permission shall have been obtained will cause all
moneys received in respect of such insurance (other than for loss of rent) to be
forthwith laid out in reinstating the Demised Premises provided that the
Landlord shall be entitled to provide a different building on the site of the
Building from that presently thereon provided the same provides to the Tenant a
reasonably suitable and comparable alternative premises to that previously
constructed and making up any shortfall out of its own monies
Insurance or Tenants Improvements
6.2.2 Notwithstanding the provisions of Clause 6.2.1 hereof the Landlord shall
not be required to insure or to reinstate any items of fixtures fittings plant
or equipment installed by the Tenant during the Term notwithstanding that they
may have become Landlord's fixtures unless the Tenant shall have notified the
Landlord in writing of the said installation have advised the Landlord of the
cost thereof
To Manage and Provide Services
17
<PAGE>
6.3 At all times throughout the Term in accordance with the principles of
good estate management to carry out provide manage and operate the Services or
to procure that the same are provided managed and operated by the Service
Operator in the case of the Part I Services PROVIDED nevertheless that:
6.3.1 in performing its obligations hereunder the Landlord shall be entitled
in its absolute discretion to employ agents managers and contractors as is
hereinafter provided and
6.3.2 neither the Landlord nor the Service Operator shall be responsible for
any temporary delay or stoppage in the performance or observance of such
obligations or for any temporary omission to perform the same due to any cause
or circumstances not within their respective control but they shall take all
adequate steps to remedy or make good the same as soon as practicable
6.3.3 the Landlord and the Service Operator may at their absolute discretion
but in the interests of good estate management as aforesaid withhold add to or
extend vary or make alterations to the Services from time to time
6.3.4 the references to the maintaining of specified equipment plant or
machinery herein shall apply only if and when such equipment plant or machinery
is in fact installed
6.3.5 where the Estate shares or has common services with any adjoining
building or estate then there shall be attributed to the Estate a fair
proportion to be determined by the Service Operator of the cost of such shared
facilities and the references to the Services or the cost of any such service
shall take into account the fact that some facilities or services are shared
facilities or services and where Services include the cost of services supplied
to or in connection with the Atrium then the cost of any such service shall take
into account the fact that such services are shared with the building or
property with which the use of the Atrium is shared
To observe the Head Lease
6.4 During the Term to pay the rent reserved by the Head Lease and to
observe and perform (so far as the Tenant is not liable for such performance on
its part herein contained) all the lessees covenants contained therein
7. PROVIDED always and it is hereby expressly agreed as follows:
Proviso for Reentry
7.1 If:
7.1.2 the rents hereby reserved or any part thereof shall at any time be
unpaid for fourteen days after becoming payable (whether formally demanded or
not) or if any covenant on the Tenants part herein contained or any document
expressed to be supplemental to this Lease shall not be performed or observed
7.1.3 the Tenant shall:
7.1.3.1 enter into any arrangement or composition or scheme for the benefit of
its creditors or apply to the Court for an Interim Order under Part VIII of the
Insolvency Act 1986 or
7.1.3.2 permit any execution to be levied on the Demised Premises or
7.1.3.3 be unable (or has no reasonable prospect of being able) to pay a debt
within the meaning of Section 267 and/or 268 and/or 269 of the said Act or (not
being a company) shall become insolvent or bankrupt or have a Receiving Order
under Part VIII of the said Act made against him or if the Tenant is more than
one person all or any of such persons or
7.1.3.4 (being a company) have a Receiver appointed for it or Then (even if any
previous right of re-entry has been waived) and in any of the said cases it
shall be lawful for the Landlord at any time thereafter to re-enter upon the
Demised Premises or any part thereof in the name of the whole and thereupon this
demise shall absolutely determine
18
<PAGE>
but without prejudice to the right of action of the Landlord against the Tenant
or the Surety in respect of any antecedent breach of the Tenant's covenants
herein contained
Cesser of Rent in Case of Fire etc
7.2 In case the Building or any part thereof shall at any time during the
Term be so destroyed or damaged by any of the Insured Risks as to render the
Demised Premises unfit for occupation or use and the policy or policies effected
by the Landlord shall not have been vitiated or payment of the policy monies
refused in whole or in part in consequence of some act or default of the Tenant
the rent hereby reserved or a fair proportion thereof according to the nature
and extent of the damage sustained and in the event of any dispute the matter
shall be resolved as provided in the Disputes Procedure shall be forthwith
suspended until the Demised Premises shall be again rendered fit for occupation
or use
Power To Deal With Adjoining Land
7.3 The Landlord shall have power at all times without obtaining any consent
from or making compensation to the Tenant to deal with any property for the time
being belonging to the Landlord which adjoins or is opposite or near to the
Demised Premises as it may think fit to erect or suffer to be erected on such
adjoining neighbouring property any building whatsoever whether such building
shall or shall not affect or diminish the light or air which may now or at any
time or times during the Term be enjoyed by the Tenant or any tenants or
occupiers of the Demised Premises or any part thereof
Nothing Shall Limit The Landlords Right To Redevelop Adjoining Property
7.4 Nothing herein contained or implied shall impose or be deemed to impose
any restriction on the use of any land or buildings not comprised in this
Underlease and in particular nothing herein contained nor any of the rights
herein granted shall prevent or prohibit any part of the Estate or the Forecourt
from being built upon or rights thereover granted to third parties to the
exclusion of the Tenant save that in such circumstances where such might hinder
or limit any rights or amenities hereby granted to the Tenant the Tenant shall
be granted suitable alternative rights or amenities nor shall anything herein
contained give to the Tenant the benefit of or the right to enforce or to have
enforced or to prevent the release or modification of any covenant agreement or
condition entered into by any purchaser from or any lessee tenant or occupier of
the Landlord in respect of property not comprised in this Underlease or prevent
or restrict in any way the development of any land not comprised in this
Underlease
Landlord Not Liable For Acts Of Other Tenants etc
7.5 Subject to the Landlord taking all reasonable steps to prevent the same
the Landlord shall not be liable to the Tenant the Tenant's servants visitors
customers or others for any damage inconvenience loss or injury whatsoever
whether to the Demised Premises the furniture fittings stock or contents thereof
or any car or vehicles arising from:
7.5.1 any blocking or obstruction of the Service Area or the Forecourt
7.5.2 any negligence or act of the occupier (not being the Landlord personally
or any of its servants or employees) of any adjoining property
7.5.3 any interruption of any right of way or from any act neglect or default
of any other tenant of the Property or the Estate or any other persons
7.5.4 any defective workings failure stoppage or breakage of any water storage
tank pipe wires drain or other apparatus plant or machinery on the Property or
Estate or in any part thereof
No Warranty As To Use Planning Acts
19
<PAGE>
7.6 Nothing herein contained shall be deemed to constitute any warranty by
the Landlord that the Demised Premises or any parts thereof are authorised under
the Planning Acts or otherwise for any use or for any specific purpose
Service of Notices
7.7 Any notice under this Underlease shall be in writing and any notice to
the Tenant shall without prejudice to the efficacy of any other mode of service
be sufficiently served if left addressed to the Tenant on the Demised Premises
or sent to the Tenant by Recorded Delivery or left at the Tenants last known
address in Great Britain or where the Tenant is a Limited Company if addressed
to its Registered Office as shown at the Companies Registry and any notice to
the Landlord shall be sufficiently served if sent by Recorded Delivery or left
at the last known address in Great Britain of the Landlord or where the Landlord
is a Limited Company if addressed to the Landlord at its Registered Office
Acceptance
7.8 No acceptance of or demand or receipt for rent by the Landlord after
knowledge or notice received by the Landlord or its agents of any breach of any
of the Tenant's covenants herein contained or implied shall operate as a waiver
in whole or part of any such breach or of the Landlord's rights of forfeiture or
re-entry in respect thereof but that any such breach shall for all the purposes.
of these presents be a continuing breach of covenant so long as such breach
shall be subsisting and no person taking any estate or interest under the Tenant
shall be entitled to set up any such acceptance of or demand or receipt for rent
as a defence in any action or proceeding by the Landlord
Action By Distress
7.9 If the Tenant shall make default in making payment to the Landlord of
any moneys becoming payable by the Tenant to the Landlord pursuant to any of the
Tenants covenants hereinbefore contained the amount owing may be recovered by
the Landlord by action or distress as if the same formed part of the rent
payable hereunder or as liquidated damages
Disputes Between Lessees
7.10 In case any dispute shall arise between the Tenant and/or other tenants
or occupiers of the remainder of the Property or the Estate or any other
neighbouring premises in connection with any easement right or privilege the
Landlord may (if it shall think fit) determine every such dispute in such manner
as the Landlord shall think reasonable (acting fairly and properly) and the
Tenant will submit to and abide by every such determination
Representations
7.11 The Tenant acknowledges that this Lease has not been entered into in
reliance wholly or partly on any statement or representation made by or on
behalf of the Landlord except any such statement or representation that is
expressly set out in this Lease or its solicitors replies to pre-contract
enquiries or correspondence
Tenant's Property
7.12 If after the Tenant has vacated the Demised Premises on the expiry of
the Term any property of the Tenant remains in or on the Demised Premises and
the Tenant fails to remove it within fourteen days after being requested in
writing by the Landlord to do so or if after using its best endeavours the
Landlord is unable to make such a request to the Tenant within a further
fourteen days from the first attempt so made by the Landlord:
7.12.1 the Landlord may as the agent of the Tenant sell such property and the
Tenant will indemnify the Landlord against any liability incurred by it to any
third party whose property shall have been sold by the Landlord in the mistaken
belief held in good faith (which shall be presumed unless the contrary be
proved) that such property belonged to the Tenant
20
<PAGE>
7.12.2 if the Landlord having made reasonable efforts is unable to locate the
Tenant the Landlord shall be entitled to retain such proceeds of sale absolutely
unless the Tenant shall claim them within one year of the date upon which the
Tenant has vacated the Demised Premises
7.12.3 the Tenant shall indemnify the Landlord against any damage occasioned to
the Demised Premises and any actions claims proceedings costs expenses and
demands made against the Landlord caused by or related to the presence of the
property in or on the Demised Premises
Jurisdiction
7.13 For so long as the Lease is vested in Digital Island Inc
7.13.1 the rights and obligations of the parties under the Lease and all
documents supplemental thereto shall be governed by the laws of England
7.13.2 any legal action or proceedings against the Tenant with respect to any
matter arising under this Lease and any document supplemental thereto may be
brought in the English Courts
7.13.3 The Tenant irrevocably and unconditionally accepts the non-exclusive
jurisdiction of the English Courts in relation to anything arising under this
Lease or any document supplemental thereto
7.13.4 The Tenant Digital Island Inc irrevocably appoints Radcliffes of 5 Great
College Street London SW1P 3SJ as authorised to accept service on the Tenant in
England or Wales any notice under this Lease or any document supplemental there
to or under any statute and or process in the jurisdiction in the English Courts
in any legal action or proceeding arising under this Lease or any document
supplemental thereto
7.13.5 Should the Landlord bring any judicial proceedings in relation to any
matter arising under this Lease or any document supplemental thereto no immunity
from such judicial proceedings from attachment of its property or from execution
of judgement shall be claimed by the Tenant on the Tenant's behalf with respect
to the property of the Tenant any such immunity shall be waived by the Tenant
7.13.6 Nothing in the foregoing provisions should affect the right of the
Landlord to service process in any other manner permitted by law or to commence
any legal action or proceedings in any other jurisdiction
7.13.7 Any order declaration or other decision of the English Courts may be
enforced in the duly constituted Court of the country in which the Tenant (being
a company) is incorporated or (being an individual) is resident or in the Courts
of any other country in which the Tenant has assets and the Tenant undertakes to
submit to the jurisdiction of such Courts
RENTS REVIEW
Calculation or the Market Rent
8.1.1 The Market Rent may the any Review Period be agreed at any time between
the Landlord and the Tenant or (in the absence of agreement) shall be determined
not earlier than the Review Day by a person nominated in accordance with the
Disputes Procedure on the application of the Landlord or the Tenant made not
earlier than six months before the Review Day and so that in the case of such
determination in accordance with the Disputes Procedure the Market Rent shall be
such as shall be decided by such person nominated as aforesaid in accordance
with the following assumptions:
21
<PAGE>
8.1.1.1 that the Demised Premises are fit for immediate occupation and use for
the purposes hereinafter referred to and all normal means of access thereto are
in existence and capable of normal use notwithstanding any disruption thereof
and that no work has been carried out thereon by the Tenant or its sub-tenants
or their predecessors in title during the Term which has diminished the rental
value of the Demised Premises and that in case the Demised Premises have been
destroyed or damaged they have been fully restored
8.1.1.2 that the Demised Premises are available to let by a willing Landlord to
a willing Tenant as a whole without a premium but with vacant possession and
subject to the provisions of this Lease (other than the amount of the rent
hereby reserved but including the provisions for rent review) for a term equal
to the unexpired residue of the term of this Lease
8.1.1.3 that the covenants herein contained on the part of the Landlord and the
Tenant have been fully performed and observed
8.1.1.4 that the Demised Premises may be used for any use within Classes B1 or
A2 of the Town & Country Planning (Use Classes) Order 1987 or for any other use
permitted hereunder
8.1.1.5 that the said willing tenant or tenants do not seek a rent free period
nor any reduction in rent or other inducement or incentive to allow them the
equivalent of a rent free period and in considering any comparable rents the
existence of any rent free period or any reduction in rent calculated to allow
for any rent free period or other inducement or incentive shall be ignored
AND having regard to open market rental values current at the Review Day but
disregarding:
8.1.1.6 any effect on rent of the fact that the Tenant its sub-tenants or their
respective predecessors in title have been in occupation of the Demised Premises
8.1.1.7 any goodwill attached to the Demised Premises since the commencement of
the Term from the carrying on thereat of the business of the Tenant thereon and
8.1.1.8 any increase in rental value of the Demised Premises attributable to
the existence at the relevant Review Day of any improvement thereto or any part
thereof carried out with consent when required during the Term and completed not
more than ten years before the relevant Review Day Provided that there shall not
be disregarded any increase in rental value attributable to improvements
8.1.1.8.1 carried out in pursuance of an obligation to the Landlord or its
predecessors in title by the Tenant its sub-tenants or their respective
predecessors in title
8.1.1.8.2 carried out at the expense of the Landlord or with contributions from
the Landlord either in whole or in part
Memorandum
8.1.2 As soon as the Market Rent shall be agreed or ascertained in accordance
with the terms. hereof (and if required by the Landlord so to do) the parties
hereto (including any Surety) will forthwith sign a Memorandum thereof on the
Lease and the Counterpart thereof specifying the yearly amount of the Market
Rent
Service Charge
8.2 The Tenant hereby further covenants to pay to the Landlord on demand
8.2.1 In respect of the Part I Services a Proportion of the amount incurred
from time to time by the Landlord in or towards the payment to the Service
Operator for the supplying of the Part I Services in accordance with the Head
Lease and any Deed of Covenant completed pursuant thereto
22
<PAGE>
8.2.2 In respect of the Part II Services and the Atrium Services a Proportion
of the expenditure (which shall in addition to expenditure actually incurred be
deemed to include a reasonable provision for anticipated expenditure and an
amount equal to 15% of all such expenditure as aforesaid being a management fee
for the cost of managing all such services) incurred from time to time by the
Landlord or its Agent or Agents in or towards supplying the Part II Services and
the Atrium Services
8.2.3 Such payments together with Value Added Tax thereon shall be made in
accordance with the provisions hereinafter contained that is to say:
8.2.4 the Tenant will on each of the usual quarter days during the Term pay to
the Landlord on account of the Tenant's liability under this present covenant a
sum being one quarter of a Proportion of the estimated expenditure for the
Services year such estimate being based on the expenditure on the Services
during the immediately preceding period ending on the Account Day together with
an addition to take into account anticipated or increased expenditure PROVIDED
THAT during the period from the Service Charge Date to the next following
Account Day the Tenant shall pay quarterly to the Landlord on account of the
Tenant's liability under this present covenant the Advance Service Charge and so
in proportion for any period less than a quarter
8.2.5 if a Proportion of the expenditure incurred as aforesaid in any year
ending on the Account Day shall exceed the amount paid by the Tenant on account
during that year in accordance with the provisions hereinbefore contained the
Tenant shall within fourteen days after receiving notice in writing of the same
from the Landlord pay to the Landlord (in addition to any amount then due on
account under the provisions hereinbefore contained) a sum equal to such excess
8.2.6 if a Proportion of the expenditure incurred as aforesaid in any year
ending on the Account Day shall be less than the aggregate of the amounts paid
by the Tenant on account during that year under the provisions hereinbefore
contained the balance or difference shall be due to the Tenant and shall be
brought into account on the next quarter day
8.2.7 as soon as practicable after the Account Day in each year throughout the
Term the Landlord will furnish the Tenant with a statement containing a fair
summary of the heads of the expenditure on the Services during the relevant
period which statement shall be certified by an Accountant (who may be a person
employed by or otherwise connected with the Landlord)
Insurance Contribution
8.3 To pay on demand a Proportion of the premium for keeping the Property
insured against the Insured Risks and other insurable risks as the Landlord may
deem expedient or necessary in the full reinstatement value thereof including
architects' and surveyors' fees and three years loss of rent and insurance
against employers liability and third party risks together with the professional
fees incurred in ascertaining the full reinstatement value thereof as often as
may reasonably be deemed necessary
Disputes Procedure
9.1 Any difference or dispute between the Landlord and the Tenant arising
out of or in respect of the amount of any valuation required to be made under
this Underlease shall be referred to some independent and fit person to be
agreed upon by the Landlord and the Tenant or failing agreement to a person
nominated by the President for the time being of the Royal Institution of
Chartered Surveyors or if he shall not be available and able and willing to make
such appointment at the time of application therefor then by the next senior
officer of the said Institution who shall be so available and able and willing
or if no such officer of the said Institution shall be so available and able and
willing by such officer of such professional body of surveyors as the Landlord
shall designate and PROVIDED THAT if any such person nominated as aforesaid
shall relinquish his appointment or die or if it shall become apparent that for
any reason he will be unable to complete his duties hereunder the Landlord may
apply to the said President for a substitute to be appointed to his place which
procedure may be repeated as many times as necessary
9.2.1 Any person so nominated shall act as an expert and not as an arbitrator
23
<PAGE>
9.2.2 such person shall afford the Landlord and the Tenant an opportunity to
make representations to him in writing whereupon his decision as an expert shall
be final and conclusive and binding upon the Landlord and the Tenant
9.3 All fees and expenses payable to any such person as aforesaid shall lie
in his award with which award the Landlord and the Tenant shall forthwith comply
Compensation
10. ANY statutory right of the Tenant to claim compensation from the
Landlord on vacating the Demised Premises shall be excluded so far as the law
allows
Break Clause
11. IF the Tenant shall desire to determine the Term at the expiration of
the fifth year of the Term and shall give to the Landlord not less than six
months previous notice in writing of such its desire then provided that
11.1 the Tenant shall deliver up the Demised Premises with vacant possession
at the expiration of the fifth year of the Term
11.2 the Tenant shall in addition to any rents paid or payable to the
Landlord pay to the Landlord on or before vacating the Demised Premises the sum
of forty seven thousand and seventy five pounds ((Pounds)47,075.00) together
with any value added tax properly payable thereon
then immediately on the expiration of such fifth year the Term shall thereupon
cease but without prejudice to the remedies of either party against the other in
respect of any antecedent claim or breach of covenant
Inherent Defects
12. The Tenant shall have no liability under this Underlease whether
directly or indirectly by way of Service Charge for the remedying of or
consequences of any Initial Defect which the Landlord hereby covenants to make
good at no expense to the Tenant
Declaration as to Agreement for Lease
13 The Landlord and the Tenant hereby certify that there is no Agreement
for Lease (or Tack) to which this Lease (or Tack) gives effect
IN WITNESS whereof this Deed is executed in manner hereinafter appearing the day
and year first before written
THE FIRST SCHEDULE hereinbefore referred to:-
The Demise
ALL THOSE premises forming pall of the Building as shown for the purposes of
identification only edged with a red line on the Floor Plans TOGETHER WITH and
including:
1. The paint and other finishes applied to the interior of the external
walls and internal load bearing columns but not any other part of the external
walls and internal load bearing columns
2. The floor and the space below the same to and including the surface of
the sub-floor (if any)
3. The ceiling finishes and the light fittings therein and the wiring above
the ceiling
24
<PAGE>
4. Any non-load-bearing internal walls wholly within the Demised Premises
5. The inner half of the internal non-load-bearing walls dividing the
Demised Premises from other parts of the Building
6. The doors and windows and the internal surfaces of the door and window
frames
7. Conduits within and solely serving the Demised Premises
THE SECOND SCHEDULE hereinbefore referred to:-
Rights Granted to the Tenant
1. Rights of free and uninterrupted passage and running of gas electricity
water rainwater soil and sewerage to and from the Demised Premises into through
and along the Conduits which are now under upon or over the adjoining property
2. Rights for the Tenant his servants and licensees (in common with the
Landlord and all persons having the like right) and subject to the right of the
Landlord to vary from time to time the route thereof and subject to such
reasonable security arrangements as may be made from time to time in relation to
the Atrium by the Lessee thereof to pass and repass over such part of the Atrium
the Service Area and the Forecourt and the Common Parts as is necessary to
obtain access to the Demised Premises subject however to compliance by the
Tenant with the following conditions:
2.1 the Tenant shall not use the Forecourt or the Service Area other than
the Unit Car Park spaces for the parking of vehicles
2.2 the Tenant shall comply with such directions as may from time to time be
given by the Landlord for the regulation and direction of traffic
2.3 any rights of way hereby granted over the Atrium shall be on foot only
3. The right (in common as aforesaid) to use such address board frame (if
any) as may be displayed by the Landlord the amount of space of such address
board frame to be allotted to each tenant to be determined by the Surveyor whose
decision shall be final and binding upon the Tenant
4. The exclusive right to use for the parking of light vans and cars only
the Unit Car Parking Spaces or such reasonably suitable alternative spaces as
may from time to time be designated by the Landlord in substitution therefor
5. The non exclusive right to use such part of the Forecourt as is
necessary for the loading and unloading of vehicles provided that the same shall
not cause an obstruction to the turning and manoeuvring of other vehicles
loading and unloading from other premises on the Estate or the Property
6. The right (in common with the Landlord and all persons having the like
right) to use the toilets forming part of the Common Parts
THE THIRD SCHEDULE hereinbefore referred to:-
Exceptions and Reservations
1. The right to enter upon the Demised Premises after prior notice has been
given to the Tenant (except in case of emergency) for all or any of the purposes
for which the Tenant covenants to permit entry in this Underlease making good
forthwith all damage caused to the Demised Premises occasioned by the exercise
of such rights in accordance with the provisions in that regard hereinbefore
referred to
25
<PAGE>
2. The free and uninterrupted passage of water and soil through the pipes
drains and watercourses and of electricity and gas through the Conduits which
are now or may at any time during the Term be in on under or passing through or
over the Demised remises with the right
2.1 to construct and maintain new Conduits for the benefit of any adjoining
property and
2.2 the right to repair maintain and renew such existing and new Conduits
3. The right to deal in any manner whatsoever with any of the land
belonging to the Landlord or any Superior Landlord adjoining opposite or near to
the Demised Premises or forming part of the Estate or the Property and to erect
maintain rebuild or alter or suffer to be erected maintained rebuilt or altered
on such adjoining opposite or neighbouring lands any buildings or structures
whatsoever whether such buildings shall or shall not affect or diminish the
light or air which may now or at any time hereafter be enjoyed for or in respect
of the Demised Premises or any building for the time being thereon and without
liability to pay compensation for any damage or loss caused by the affecting or
diminishing of such light or air
4. The right to temporarily close as often as may be reasonably necessary
the Service Area or the Forecourt or the Common Parts or any part thereof for
the purposes of obtaining access to any Conduits and for maintaining repairing
or marking of the surface of the same and for any other reasonable purpose
Provided Always that the Landlord shall at all times maintain access to the
Demised Premises
THE FOURTH SCHEDULE hereinbefore referred to:-Part I
Services being the Services described in the Fourth Schedule to the Head Lease
1. The maintaining renewing amending repairing cleansing draining and
lighting of the Service Area and all boundary walls fences features
identification notice boards display boards directional signs or nameplates
(including any notice boards display boards directional signs or other
nameplates whatsoever designed or provided for the benefit of or which relate to
the Estate whether or not contained within the Estate)
2. The insuring of the Service Area other than such as are comprised within
the Building and all plant and equipment used in connection with the Part I
Services and all staff employed in connection with the Part I Services against
such risks as the Service Operator shall require and public or third party
liability risks and the payment of any valuation fee or for professional advice
in connection therewith
3. The maintaining amending renewing repairing and keeping the Conduits
other than those which are both comprised within and used exclusively for the
benefit of the Building or any other building on the Estate which is let by the
Superior Landlord to any tenant
4. The cultivating maintaining and renewing of all grass plants shrubs
trees hedges and garden and landscape areas of the Service Area and the keeping
of the same properly planted and free from weeds and any grass properly trimmed
5. The providing for the security control and management of the Service
Area and traffic control within the Estate
6. The periodic payments in respect of commission fees salaries or wages
National Health and Insurance Graduated Pensions Industrial Training levies
redundancy and similar or ancillary payments required by statute to be made by
the Service Operator (together with any value added tax thereon) in respect of
all persons (if any) from time to time employed or instructed by it for purposes
connected with the Estate to the extent that those persons are employed or
instructed for such purposes
7. The payment of all rates taxes assessments and outgoings from time to
time payable in respect of the Service Area and vehicles equipment and plant
engaged or used in providing management and service facilities and amenities for
the Estate
26
<PAGE>
8. The payment of all charges assessments and outgoings to electricity gas
telephone and other public or statutory utilities in respect of the Estate to
the extent that such charges assessments and outgoings are not wholly reimbursed
to the Service Operator by the Tenant and/or any other tenant or third party and
in respect of the Service Area and for the accommodation of vehicles equipment
and plant engaged or used in providing management and service facilities and
amenities for the Estate
9. The management of the Estate by the Landlord's agents or its own staff
including fees for the collection of rents and for computing the Insurance
Charge and the Service Charge
10. The providing repairing maintaining amending and renewing and operating
of all electrical mechanical and other plant and equipment chattels fixtures and
fittings of ornament or utility which the Service Operator shall consider
appropriate or desirable
11. The compliance with any Act of Parliament Statutory Instrument Order or
Regulation or Local Bye-Law relating to the whole or any part or parts of the
Service Area
THE FOURTH SCHEDULE hereinbefore referred to:-
Part II
The Part II Services.
1. The maintaining renewing amending repairing painting treating and
cleansing draining and lighting of the Structure the Common Parts and the
exterior of the Building including the external cladding and glass therein
2. The maintaining repairing renewing and general operating of all
electrical and mechanical or other equipment used in connection with the
Building including in particular (but without prejudice to the generality of the
foregoing) the lifts and the heating and ventilating and cooling system the fire
protection and security system and the computerised building management system
serving the Building
3. The maintaining renewing amending repairing cleansing draining and
lighting (if any) of the Forecourt and all boundary walls fences or features
within the Property and identification notice boards display boards directional
signs or nameplates within the Property or the Atrium
4. The insuring of the Common Parts and all the plant and equipment used in
connection with the Part II Services and all staff employed in connection with
the Part II Services against such risks as the Landlord shall require (including
without prejudice to the generality of the foregoing public or third party
liability)
5. The maintaining amending renewing repairing and keeping the Conduits
within the Property other than those which are both comprised within and used
exclusively for the benefit of the Demised Premises
6 The cultivating maintaining and renewing of all grass plants shrubs
trees hedges and garden and landscape areas (if any) within the Property
7. The paying of all rates taxes assessments and out goings from time to
time payable in respect of the Property but excluding such as relate to the
Demised Premises and any part of the Building let or to be let to an
occupational tenant
8. The paying of independent professional valuations of the Property or the
Atrium or of any part thereof which shall be required by the Landlord for
determining to what amount the Property or the Atrium or any part thereof
should be insured PROVIDED THAT there shall not be more than one such valuation
in any twelve month period
9. The providing of security and control of the Common Parts and the
Forecourt
27
<PAGE>
10. The management of the Property and the Atrium by the Landlord's agents
or its own staff including fees for the collection of rents and for computing
the charge for Insurance and the Charge for the Services
11. The repairing cleaning maintaining and renewing of all party walls
structures fences sewers drains pipes wires or other conveniences belonging or
which shall belong to or be used by the Property and adjoining or contiguous
premises
12. The providing repairing maintaining amending and renewing of fire alarms
fire fighting and fire prevention equipment and fire hydrants Intruder alarm
equipment and internal communications system on the Property
13. The complying with any Act of Parliament Statutory Instrument Order or
Regulation or Local Bye-Law relating to the whole or any part or parts of the
Property
14. The collecting and compacting of refuse including the providing and the
repairing and the renewing of skips or other refuse containers and equipment for
the removal thereof and the removing and disposing thereof
15. The paying of all charges assessments and outgoings for electricity gas
telephone and other public or statutory utilities in respect of the Property and
the Atrium to the extent that such charge assessments and outgoings are not
wholly reimbursed to the Landlord by the Tenant or any other tenant or third
party
16. The employment (if so required by the Landlord) of such staff as may
reasonably be required or considered necessary or desirable to employ to
supervise and/or provide the Services including in this regard the provision and
maintenance of accommodation for such persons including managerial offices and
storage areas and the payment of all rates taxes outgoings and rent in respect
thereof (including a sum to cover a notional rent where such accommodation is
within the Building)
17. The provision of such annual sums as the Landlord may deem reasonably
expedient in order to provide and maintain a reserve fund in respect of:
17.1 those items of expenditure (including the replacement and repair of the
Forecourt and the Common Parts and areas of the Property not comprised or
intended to be comprised in any lease of part thereof or of any part thereof or
any fixtures and fittings therein and thereon) which are not of an annual or
periodically recurring nature
17.2 such allowances in respect of depreciation as the Landlord may deem
expedient
18. Any steps or proceedings taken by the Landlord in any attempt to prevent
any encroachment into against or upon the Property or any part thereof or any
acquisition of any new window light ventilator passage drainage or other
easement over or in respect of the Property or any part thereof by any person
whatsoever
19. The payment of the share attributable to the Property of all costs
charges and expenses incurred in connection with or relating to the cleaning
repairing maintaining lighting renewing and rebuilding of all roads footpaths
landscape features walls (excluding dock walls) fences gutters drains pipes and
other facilities which shall at any time during the Term belong to or be capable
of being used or enjoyed by the Property or the lessees or occupiers thereof in
common or jointly with any other person or persons
20. The provision of any other service which the Landlord in its sole
discretion acting in accordance under the principles of good estate management
may consider reasonably and properly necessary or desirable
THE FOURTH SCHEDULE hereinbefore referred to:-
Part III
The Atrium Services
28
<PAGE>
1. The repairing maintaining and renewing of the Atrium and the furniture
furnishings fixtures and fittings plant machinery flower and plant decorations
and other equipment therein the use of which is for the joint use of the
Building and the adjoining office building and any Conduits
2. The cleaning decorating and painting of the Atrium and the fixtures and
fittings therein
3. The lighting heating cooling and general operating of the Atrium and all
mechanical electrical or other equipment plant and machinery therein and the
payment of all charges and assessments and outgoings to the electricity gas
telephone and other public or statutory authorities for such services to the
Atrium
4. The provision of staff for the maintenance of reception services
including the payment of their wages National Insurance contribution and similar
or ancillary payments
5. The insurance of the Atrium in the full reinstatement value thereof
against loss or damage by the Insured Risks and such other risks as the Lessee
of the Atrium may reasonably require and the payment of the cost of an
independent professional valuation thereof from time to time for determining the
amount of any such insurance
6. The insurance of the Superior Landlord of the Atrium against third party
risks and employers liability
7. The payment of all rates taxes assessments and outgoings from time to
time payable in respect of the Atrium
8. Complying with the other covenants and obligations on the part of the
Lessee contained in the Lease of the Atrium
THE FIFTH SCHEDULE hereinbefore referred to:-
The Surety Covenant
THE Surety HEREBY COVENANTS with the Landlord as follows:-
1.1 That the Tenant shall pay the rent hereby reserved and observe and
perform the covenants and conditions herein contained as well after as before
any disclaimer of this Underlease by any liquidator or trustee in bankruptcy and
that although as between the Tenant and the Surety the Surety may only be surety
for the Tenant as between the Surety and the Landlord the Surety shall be liable
as if the Surety were principal debtor or covenantor for all obligations herein
or in this Underlease contained and shall not be released or discharged by time
or indulgence being given to any arrangements or alteration of terms being made
with the Tenant or any other person or by any release or dealing by the Landlord
or by any act omission or thing whatsoever whether with or without the consent
of the Surety whereby the Surety as surety only might have been released or
discharged
1 2 That if the Tenant (not being a company) shall become bankrupt or (being
a company) shall enter into liquidation and the trustee in bankruptcy or the
liquidator shall disclaim this Underlease or if this Underlease shall be
forfeited and if the Landlord shall within three months after such disclaimer or
forfeiture by notice in writing require the Surety to accept an Underlease of
the Demised Premises for a term commensurate with the residue of the Term
remaining unexpired at the date of such disclaimer or forfeiture on the same
terms as this Underlease (such Underlease to take effect from the date of the
said disclaimer or forfeiture of rents corresponding with those payable under
this Underlease in respect of the period immediately before the said date but
subject to review at the same times as those at which reviews would have
occurred had this Underlease remained in existence) the Surety shall accept such
Underlease and execute and deliver to the Landlord a Counterpart thereof and pay
the Landlord's proper costs and expenses of and incidental to the grant thereof
THE SIXTH SCHEDULE hereinbefore referred to:-
Authorised Guarantee
29
<PAGE>
PARTICULARS
Date
"The Landlord"
Registered Office
"The Tenant"
Registered Office
"The Assignee"
Registered Office
"The Premises"
"Lease"
30
<PAGE>
THIS DEED is made between the Landlord and the Tenant on the date stated in the
Particulars
WHEREAS
The Tenant holds the Premises under the Lease and wishes to assign the Lease to
the Assignee and pursuant to the Lease the Landlord's consent is required to
such assignment ("the Assignment") and such consent is given subject to a
condition (inter alia) that the Tenant enters into a deed in the form of this
Deed
NOW THIS DEED WITNESSES as follows
I. TENANTS OBLIGATIONS
The Tenant covenants with the Landlord as primary obligation
1.1 that the Assignee or the Tenant shall at all times during the period
("the Guarantee Period") from the completion of the Assignment until the
Assignee shall have ceased to be bound by the tenants covenants (which in this
Deed shall have the meaning attributed by Section 28(1) of the Landlord and
Tenant (Covenant) Act 1995 ("the 1995 Act")) contained in the Lease (including
the payment of the rents and all other sums payable under the Lease in the
manner and at the times specified in the Lease) duly perform and observe the
tenants covenants and shall indemnifying the Landlord in any way directly or
indirectly arising out of or arising out of or resulting from any default by the
Assignee in the performance and observance of the tenants covenants.
1.2 that if a liquidator trustee in bankruptcy or other competent personal
shall disclaim or surrender the Lease or the Lease shall be forfeited or the
Assignee shall die or cease to. exist (the date on which any such event occurs
being referred to in this Deed as ("the Relevant Date") then the Tenant shall
(if the Landlord so requires by notice in writing given to the Tenant within six
months after the Relevant Date) accept from and execute and deliver to the
Landlord a counterpart of a new Lease of the Premises for a term commencing on
the Relevant Date and continuing for the residue then remaining of the term of
the Lease such new Lease to be at the cost of the tenant and to be at the same
rents and subject to the same covenants conditions and provisions as are
contained in the Lease.
1.3 to pay any rent or other sums due from the Assignee and to observe and
perform all covenants and conditions on the Assignee's part contained in any
licence or other Deed entered into by agreement between the Landlord and the
Assignee pursuant to or by way of variation of the Lease and the Tenant shall
upon being requested to do so by the landlord join in any such licence or other
deed for the purposes of acknowledging that the covenants on the part of the
Tenant extend to the obligations under such Deed.
2. WAIVER OF RIGHTS
The Tenant waives any right to require the Landlord to proceed against the
Assignee or to pursue any other remedy of any kind which may be available to the
Landlord before proceeding against the Tenant.
3. MATTERS NOT AFFECTING LIABILITY
None of the following (or any combination of them) shall release determine
discharge or in any way lessen or affect the liability of the Tenant as
principal debtor under this Deed or otherwise prejudice or affect the liability
of the Tenant to accept a new lease in accordance with the provisions of this
Deed.
3.1 any neglect delay or indulgence or extension of time given by the
Landlord in enforcing payment of the rents or any other sums due under the Lease
or in enforcing the performance or observance of any of the tenant covenants
3.2 any refusal by the Landlord to accept rent tendered by or on behalf of
the Assignee if the Landlord believes there has been a breach of covenant by the
Assignee
3.3 the expiry or sooner determination of the term granted by the Lease
31
<PAGE>
3.4 any variation of the terms of the Lease (including any reviews of the
rent payable thereunder) or the transfer of the Landlord's reversion in which
case the Tenant will be liable. under the terms of the Lease as so varied
3.5 any change in the constitution structure or powers of either the
Assignee the Tenant or the Landlord or the liquidation administration
receivership or bankruptcy (as the case may be) of either the Assignee or the
Tenant or the death or dissolution of the Assignee
3.6 any legal limitation or any immunity disability or incapacity of the
Assignee (whether or not known to the Landlord) or the fact that any dealings
with the Landlord by the Assignee may be outside or in excess of the powers of
the Assignee
3.7 the surrender of part of the Premises and where that happens the
liability of the Tenant under this Deed continues for the part of the Premises
not surrendered after making any necessary apportionments under the Law of the
Property Act 1925 section 140
3.8 an attempt to vary the Lease which takes effect as a matter of law as
the surrender of the Lease and the re-grant of a new lease of the Premises
(including but not limited to an attempt to vary the term of the Lease or the
extent of the Premises) and in such case the Tenant shall be liable as if the
Tenant had entered into covenants in the terms of this Deed in the new lease
3.9 any other act omission matter or thing of any kind by virtue of which
(but for this provision) the Tenant would be exonerated either wholly or in part
(other than a release executed and delivered as a deed by the Landlord or a
release effected by virtue of the 1995 Act)
4. SUCCESSORS
This guarantee shall subsist for the benefit of the successors and assigns of
the Landlord under the Lease without the necessity for any assignment of it
IN WITNESS WHEREOF this Deed has been executed by the Tenant and is intended to
be and is hereby delivered on the date first above written
EXECUTED as a deed by )
Limited by )
Director
Secretary/Director
EXECUTED as a Deed (but not delivered )
until the date hereof) by the said )
Director
Secretary
EXECUTED as a Deed (but not delivered )
until the date hereof) by the said DIGITAL )
ISLAND INC in the presence of:-
Director
32
<PAGE>
Director/Secretary
33