COMMERCIAL LEASE
EXHIBIT
10.39
(1) DIGITAL
REALTY (PARIS 2) SCI
(2) EQUINIX
PARIS SAS
30
SEPTEMBER 2008
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
BETWEEN:
DIGITAL REALTY (Paris 2), a
French private limited Company for property purposes (société civile immobilière)
with a share capital of €866, 000. 00, having its registered office at 00 xxxxxx
Xxxx Xxxxxx, 00000 Bagnolet, registered in the Bobigny Trade and Companies
Register under number 492 802 947, represented by Xxxx Xxxxx, as, duly empowered
for the purposes hereof pursuant to a power of attorney appearing in Annex 1,
Hereinafter
referred to as the “Landlord”,
Party
of the first part,
And
EQUINIX PARIS SAS, a French
limited company (société par actions
simplifiée) with a share capital of € 37. 000, 00, having its registered
office at Roissy-en-France (95700) 167 rue de la Belle Etoile –Parc d'Activité
Xxxxx Xxxx, in the process of being registered in the Pontoise Trade and
Companies Register, represented by Xxxxxx Xxxxxxxx as Chief Executive Officer,
duly empowered for the purpose of executing the agreement; provided however that
in the event that the Tenant does not provide the Landlord with its definitive
Certificate of incorporation (Kbis) within 10 business days hereof the agreement
will be declared null and void, and an indemnity will be in conformity with the
provisions of section 8.4 hereinafter
Hereinafter
referred to as the “Tenant”,
Party
of the second part,
The
Landlord and the Tenant shall hereinafter be referred to individually as a
“Party” and together as
the “Parties”.
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
RECITALS
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A)
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The
Landlord owns a property located at 000 Xxx Xxxxxxxx Xxxxxxx, 00000
Xxxxx-Xxxxx, which includes a single building comprised of a basement
level, a ground floor, and four upper floors, to be used as a datacenter
(hereinafter the "Building") and exterior
circulation areas including car parks (hereinafter the “Property”).
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As the
Tenant has informed the Landlord of its desire to enter into a commercial lease
over part of the premises in the Building as defined in Article 1 below, the
Parties have agreed as follows.
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B)
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The
Landlord is a company specialized in the housing and the rental of
datacenters corresponding to power scales and electrical capacities of
more than 240 Kw for a total electrical capacity as determined in relation
to the total capacity of the building and the available electrical supply
of electricity suppliers.
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C)
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Any
reference to the "Recitals", an Article or an Appendix in the Lease shall
be understood to mean a reference to the recitals, an article or appendix
of the Lease.
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Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
Now,
therefore, the Parties agree as follows:
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1.
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LEASE
- DESCRIPTION
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1.1
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The
Landlord hereby grants to the Tenant, which irrevocably accepts, a
commercial lease over the following premises located within the Property,
of a total area of approximately 10.273 square meters, comprised of
(hereinafter the "Leased
Premises"):
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-
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premises
reserved for business activities and neutral datacenter activities, in
particular office areas, located on the ground floor of the Building,
demarcated on the plan included in Annex 2, corresponding
to a total rental space of 8 835 square meters and the technical and
common areas, the latter being comprised of four high voltage electricity
substations each one of them with a delivering capacity of 3
Mva;
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-
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premises
located in a mezzanine in the Building situated above a portion of the
Leased Premises, demarcated on the plan included in Annex 2, corresponding
to a total rental space of approximately 1.735 square meters and the
technical and common areas,
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-
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the
exclusive right to use and access the exterior areas demarcated on the
plan included in Annex 2
for its installations and
equipment;
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-
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the
right to install equipment on the roof of the Leased Premises, it being
specified that there is presently no infrastructure on the roof to support
such equipment. The installation of such equipment shall be carried out at
the sole expense, responsibility, and risk of the Tenant
subject to the prior written approval of the Landlord, approval which the
Landlord may refuse only in the event that the Tenant fails to conform to
the technical and safety rules applicable to the installation of such
equipment.
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-
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the
private use of 32 parking spots on the
Property;
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-
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free
access to the visitor's parking
lot;
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-
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the
portion of the common parts relating to the aforementioned premises,
as indicated are indicated on the plans appearing in
Annex 2 hereto;
and
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as the
said Leased Premises exist and extend, it being specified that any error in the
description, area or composition of the Leased Premises shall not give rise to
any recourse or claim on the part of the Tenant, which represents that it is
fully familiar with such premises as it has seen and inspected them for the
purposes of this lease (hereinafter the “Lease”).
The
Tenant shall have access to a gross electric output of 12Mva for the Leased
Premises.
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1.2
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The
Parties mutually and expressly agree that the Leased Premises shall be
used exclusively for business neutral datacenter activities and, in
particular, as offices, and that they form an indivisible
whole.
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Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
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1.3
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A
schedule of condition shall be drawn up at the joint expense of both
Parties as soon as possible after the Lease has been signed, and at the
latest on the Entry Date onto the Premises (as defined in Section 4.1.1
hereinafter). If a schedule of condition is not drawn up for any reason
whatsoever, the Leased Premises shall be deemed to have been handed over
in perfect condition.
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1.4
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Environmental
and Technological Risk Statement; Energy Performance Analysis; Asbestos
Report
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1.4.1
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In
accordance with the terms of Articles L 125-5 and R 125-26 of the
Environmental Code (Code
de l’environnement), the Landlord has provided the Tenant, who
hereby acknowledges its receipt, with an Environmental and Technological
Risks Statement (état
des risques naturels et technologiques) – together with its annexes
-established on the basis of the information provided to it by virtue of
the Arrêté Préfectoral
Number 2006-45-1 of February 14, 2006, which statement is included
in Annex 3. The
Landlord herby informs Tenant that the Building has not sustained any loss
or damage which has given rise to indemnification pursuant to Article L
125-2 of the Environmental Code or Article L 128-2 of the Insurance
Code.
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1.4.2
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The
Tenant expressly exempts the Landlord from providing to the Tenant prior
to the signing of this Lease, any energy performance analysis of the
Leased Premises. The Tenant declares that he has such knowledge, and
hereby waives any claim against the Landlord or the Landlord
Group.
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1.4.3
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The
Landlord has transmitted, prior to the signing of the present agreement,
to the Tenant, who hereby acknowledges the receipt thereof, of
a pre-construction asbestos report dated November 28, 2007, and
appearing in Annex
3 hereto. The Tenant hereby declares to have perfect knowledge of
this report, the Leased Premises, and the Building, and assumes all
responsibility and without recourse against the Landlord and the Landlord
group for the Leased Premises and the Building, in this
regard.
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2.
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NATURE
OF THE LEASE
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The
present lease is governed by the provisions of Articles L. 145-1 to L. 145-60 of
the French Commercial Code as well as by the provisions of Articles D. 145-12 to
D. 145-19 and those of Articles R. 145-1 to R 145-33 of the French Commercial
Code, and by the provisions of Article 33 of the French Decree no. 53-960 of 30
September 1953.
The
Tenant shall be solely responsible for the security, maintenance and insurance
regarding the Leased Premises and shall reimburse the Landlord for all expenses,
calculated pro rata
according the leased surface area, in conformity with Article 7 below, that the
Landlord may incur to maintain, insure, and secure the premises and common areas
during the term of the Lease. The Tenant shall also be solely responsible for
the upkeep and maintenance of all equipment installed in the Leased Premises by
the
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
Landlord
or Tenant subsequent to the signing of this Lease, it being specified that, with
the exception of force majeure, the subsequent installation of any equipment by
the Landlord is subject to prior written consent of the Tenant. The Landlord
reserves the right to conduct an biannual audit of the Tenant's insurance
certificates for the Leased Premises and equipment. In regards to this biannual
audit, the Tenant shall make available to the Landlord the maintenance records
concerning equipment installed by the Tenant in the Leased Premises. If
necessary, the Landlord shall have the right to conduct physical inspections of
the premises and infrastructure, provided that the Tenant receives at
least ten (10) days notice of such inspection, and that such visit does not, in
any case, disrupt the Tenant's normal activities, it being specified that such
inspections shall be conducted by persons with sufficient technical and
professional qualifications in that field. As an essential and determinative
condition, each Party hereby agrees that the information communicated or
collected from the Tenant during the visits described hereinabove are
confidential and constitute the exclusive information of the
Parties.
If
necessary, the Tenant may postpone any such inspection by forty-eight (48) hours
provided it provides five (5) days advance notice to the Landlord.
These
biannual audits and inspections shall be at the sole cost of the
Landlord.
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3.
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INTENDED
USE OF THE PREMISES
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3.1
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In
accordance with Articles 1728 and 1729 of the French Civil Code, the
Tenant shall use the Leased Premises without causing any disturbance and
solely for business and neutral datacenter activities. This includes the
Tenant providing to its customers the rooms and infrastructure necessary
to store their IT and telecommunications
equipment.
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3.2
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In
general, the Tenant shall refrain from carrying on any activity that is
liable to call into question the use or nature of the Leased Premises. The
Tenant shall not, under any pretext, modify, even for a short time, the
intended use or change the nature of the activities carried on in the
Leased Premises, or carry on any ancillary or supplementary activities
without the prior written consent of the
Landlord.
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3.3
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The
Tenant represents that it has obtained all the permits required in order
to use the Leased Premises to perform the activity envisaged in Article
3.1 hereinabove for the entire term of the Lease and any renewals thereof.
The Landlord shall not incur any liability if these permits are denied or
the issue thereof is delayed. The Tenant shall be solely responsible all
amounts, fees, levies, taxes and other duties relating to the activities
carried on in the Leased Premises and the use
thereof.
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3.4
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During
the term of the Lease and any renewals thereof, the Tenant shall
undertake, at its own expense, to obtain all administrative permits
pertaining to the use of the Leased Premises and the performance of its
business. The Landlord shall not incur any liability if these permits are
denied, not renewed, withdrawn or the issue thereof is
delayed.
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Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
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4.
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TERM
– POSSESSION – EARLY AVAILABILITY
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4.1
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Term
of the Lease
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4.1.1
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The
Lease is entered into for a fixed term of twelve (12) full and consecutive
years, beginning on the entry date on to the Leased Premises, or October
1st,
2008, the date upon which the Lease shall become effective (the "Entry
Date on to the Premises), and ending on September 30th,
2020.
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4.1.2
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In
conformity to Article L. 145-4 paragraph 2 of the French Commercial Code,
the Landlord and the Tenant agree that the Tenant hereby
undertakes to not give notice of expiry at the
expiration the first three three-year period of the Lease, so that the
Lease shall remain in effect for a fixed term of twelve (12)
years.
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4.1.3
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It
is expressly stipulated, in the event that the Lease is renewed, it shall
remain in effect for a fixed term of twelve (12) full and consecutive
years, as shall all subsequent renewals. In conformity with the provisions
of Article 145-4 paragraph 2 of the French Commercial Code, the Landlord
and Tenant agree that in the event that the Lease is renewed under the
conditions hereinabove, the Tenant shall not give notice of expiry at the
expiration of each three-year period of the renewed Lease, so that the
Lease shall be renewed for a fixed term of twelve (12) years upon each
renewal. It being specified that the Base Rent applicable to the renewed
Lease shall be equal to the Base Rent as revised in conformity with the
indexation clause referred to in Article 6. The Landlord shall not take
into account any improvements resulting from the Tenant's operations when
determining the rent for the renewed
lease.
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5.
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RENT
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5.1
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The
Lease is entered into in consideration of an annual rent of
three-million-two-hundred-fifty-five-thousand euros (€ 3,255,000.00)
exclusive of tax and charges for all of the Leased Premises (hereinafter
the "Base Rent"),
is being specified that the Tenant shall benefit from a rent abatement,
including for the portion of the common parts pertaining to the said
premises for the period between the Entry Date on to the Premises and the
end of the sixth (6th)
month of the term of the Lease, or March 31,
2009.
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No rent
shall be payable before the end of sixth (6th) month
of the term of the Lease, or March 31, 2009. The Tenant shall nevertheless pay
all of the charges referred to in Article 7 below as from the Entry Date on to
the Premises.
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5.2
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The
Base Rent is currently subject to value-added tax payable at the legal
rate in force on the due date of each Base Rent installment.
The Tenant shall pay all duties, taxes and levies of any kind whatsoever
(including any variation in the rate of VAT) which may be
due in respect of the Base Rent, charges and other payments
provided for by the Lease.
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Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
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5.3
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Landlord
and Tenant have agreed upon the amounts of Base Rent set forth in Article
5 as indexed by application of Article 6 hereinafter as being equal to the
fair market value (valeur locative) of the
Leased Premises under the terms of the present Lease, without prejudice to
the Tenant's right to request a triennial "public policy" legal review of
the Base Rent in conformity with the French Commercial Code. The Landlord
and Tenant acknowledge and agree that the above mentioned provisions of
the French Commercial Code create a rebuttable presumption that the Base
Rent as set forth in Article 5, as indexed by application of Article 6
hereinafter is, in fact, equal to fair market value and should not be
revised in connection with any such triennial legal
review.
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5.4
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The
Base Rent shall be payable by bank transfer, monthly and in advance, by
the first day of each calendar month at the
latest.
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5.5
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The
Base Rent referred to in Article 5.1 as indexed in accordance with the
terms of Article 6, shall therefore be due and payable as from the first
anniversary date of the Lease.
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6.
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RENT
INDEXATION
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6.1
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The
Base Rent is subject to an annual increase of three percent (3%) per year,
exclusive of tax and charges on each anniversary date of the Entry Date on
to the Premises, or as indicated
hereinafter:
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Month
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Monthly Base Rent, excluding
taxes
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1-6
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Abatement period
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7-12
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€ 271.250
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13-24
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€ 279.388
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25-36
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€ 287.769
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37-48
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€ 296.402
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49-60
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€ 305.294
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61-72
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€ 314.453
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73-84
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€ 323.887
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85-96
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€ 333.603
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97-108
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€ 343.611
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109-120
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€ 353.920
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121-132
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€ 364.537
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133-144
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€
375.473
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6.2
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The
Parties acknowledge that this index is directly linked to the purpose of
this agreement and to the Landlord’s
business.
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6.3
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It
is expressly agreed that the Rent shall not fall to below the Base Rent
specified in Article 5.1 above as a result of such
indexation.
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6.4
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Implementation
of the indexation clause does not require the issuance of any notice, and
the index shall apply by operation of law. In the event that the Base Rent
is not immediately adjusted, it shall by no means constitute a forfeiture
by the Landlord of its right to apply the index at any subsequent time
with retroactive effect.
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6.5
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The
present clause regarding the annual indexation of the Base Rent
constitutes, in its entirety, a fundamental and determining clause without
which the Landlord would not have entered into the Lease. In consequence,
if this clause is not applied, whether in whole or in part, the Landlord
alone, shall be entitled should it so wish, to terminate the Lease by
operation of law by registered letter with advice of receipt (lettre recommandée avec
demande d’avis de réception) or by means of a process served by a
judicial officer (acte
extrajudiciaire), without the need to petition a
court.
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6.6
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This
clause constitutes a contractual indexation clause and does not refer to
the three-year statutory revision provided for in Articles L. 145-37 and
L. 145-38 of the French Commercial
Code.
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7.
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PAYMENT
OF CHARGES, SERVICE COSTS AND
EXPENSES
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7.1
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The
Tenant shall pay the Landlord or any person or entity responsible
for the management of the Leased Premises on the Landlord’s
behalf (hereinafter the “Property Manager”), upon
the latter’s request, its portion of any and all charges and expenses
incumbent on the Landlord as calculated on a pro rata basis of 53.18%
(fifty-three and eighteen percent) of the surface areas of the warehouse
as demarcated on the plan included in Annex 4, including but
not limited to the following:
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a)
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all
levies, taxes, contributions and other amounts payable now or in the
future with regard to the Leased Premises, regardless of the currency,
base and legal debtor thereof, in particular, the property tax, the annual
tax on office space, commercial premises and storage premises in the
Ile-de-France region and the tax for sweeping the roads and removing
household waste,
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b)
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the
insurance premiums referred to in Article 11.18.1
below,
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c)
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the
Property Manager’s rental and technical management fees and
expenses,
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Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
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d)
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the
individual service and supply costs including heating, air conditioning
and electricity costs, all costs relating to the operation, cleaning,
repair and maintenance of all the facilities in the Leased Premises and
the Property,
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e)
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the
costs relating to the cleaning, maintenance and repair, compliance with
current standards as referred to in Article 11.2.3, of the Leased Premises
and the Building, including the repair costs referred to in Article 605 of
the French Civil Code, with the sole exception of (i) major repairs as
referred to in Article 606 of the French Civil Code, (ii) work carried to
renovate and clean the exterior walls of the Building and (iii) work
carried out to repair the common areas of the Building due to wear and
tear, as referred to in Article 1755 of the French Civil Code, which shall
be borne by the Landlord (it being specified that the cost of
straightforward maintenance work on the exterior walls shall be borne by
the Tenant and the other tenants of the
Building),
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f)
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the
services provided by the Landlord to the Tenant in conformity with Article
11.4 hereinafter,
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the Base
Rent collected by the Landlord shall be net of all levies, taxes, contributions,
charges and expenses of any kind other than income tax.
For
informational purposes, the Landlord has provided the Tenant with a
non-exhaustive list of charges relating to the Leased Premises and the Building,
a copy of which appears in Annex 4.
In
no event shall the Landlord cause the Tenant to bear the costs of specific
service charges and services specifically pertaining other tenants or occupants
of the Building and the Property from which it does not benefit.
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7.2
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All
of the above-mentioned charges and expenses shall be paid as
follows:
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7.2.1
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The
Tenant shall pay a monthly advance on the first day of each calendar month
by bank transfer, it being specified that these advances are subject to
the value-added tax (VAT) at the legal rate in force on the due date of
each Base Rent installment. The Tenant shall pay all duties, taxes and
levies of any kind whatsoever (including any variation in the rate of VAT)
that may be payable in respect of the said charges and other payments
provided for by the Lease.
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The
Tenant undertakes to pay to the Landlord a sum of 42.269 EUR
(forty-two-thousand-two-hundred-sixty-nine Euros), all taxes included as advance
payment for the charges and expenses for the month of October 2008, at the
latest, within ten (10) business days from the Entry Date on to the
Premises.
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7.2.2
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This
advance payment shall be payable each year on the first day of each
calendar month. The amount of this advance payment shall be calculated by
the Landlord or by the Property Manager by reference to the forecast
budget. The
Landlord or the Property Manager shall inform the Tenant of the amount
payable each year.
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Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
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7.2.3
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The
Tenant shall also pay the Landlord the levies and taxes referred to in
Article 7.1 a), within twenty (20) business days of the Tenant’s receiving
the corresponding invoice from the
Landlord.
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7.2.4
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It
is hereby specified that if the forecast budget is insufficient, the
Tenant shall pay the Landlord or the Property Manager all additional
advance payments required to cover the Landlord’s expenses for the Leased
Premises at all times, within twenty (20) business days of the Tenant’s
receiving the corresponding invoice from the Landlord, accompanied by the
related supporting documents.
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7.2.5
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An
annual adjustment shall be carried out in accordance with the amount of
expenses actually incurred, with the aid of various
schedules.
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7.3
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The
Tenant shall make arrangements with regard to its own telephone, fax,
Internet and other telecommunications services. The Tenant shall pay the
cost of its consumption of water, electricity and other utilities based on
meter readings, as well as all telephone, fax, Internet and other
telecommunications costs.
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7.4
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If
individual meters are installed, the Tenant shall reimburse its share of
the costs relating to its meter or sub-meter readings, as well the cost of
installing, renting, maintaining and reading the said
meters.
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8.
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PAYMENTS
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8.1
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The
Tenant shall pay all amounts owed hereunder to the Landlord or the
Property Manager by bank transfer.
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8.2
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Any
installment of Rent and/or charges which is not paid on the due date
provided for under the Lease shall incur interest per day’s delay at the
legal interest rate applicable during the year in question, increased by
two points, calculated prorata temporis as
from the payment due date. Such interest shall be payable with the
principal amount. The same shall apply to any other amount payable by the
Tenant to the Landlord which is not actually paid on the due
date.
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8.3
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Moreover,
the Tenant shall pay all litigation costs arising as a result of the late
payment of any amount payable hereunder or the breach of any of its
obligations hereunder. Such costs shall be payable over and above any
damages which the Landlord may claim from the
Tenant.
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8.4
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If
the Tenant fails to pay to the Landlord the totality of the Security
Deposit referred to in Article 10.1 and the advance payment of charges
referred to in Article 7.2.1 within ten (10) days, at the latest, as from
the Entry Date on to the Premises, the Landlord may, in its sole
discretion, declare this Lease null and void by operation of law, and
without any indemnity
being owed to the Tenant. The Landlord shall inform the Tenant of its
decision to declare the lease null and void within two (2) business days.
In the event that the Landlord does not so inform the Tenant, it will be
deemed to have renounced this
right.
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Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
In the
event that the Landlord invokes the nullity clause hereinabove, the Tenant shall
be liable to the Landlord for a fixed and definitive indemnity of 50.000 EUR
(fifty-thousand Euros), to be paid by the Tenant to the Landlord within five (5)
business days as of the date the Landlord informed the Tenant of its decision to
declare the lease null and void.
In the
event that the Landlord renounces its right to declare the Lease null and void,
the Tenant shall be liable to the Landlord for interest accruing on the amount
of the Security Deposit and the advanced payment of charges referred to in
Articles 7.2.1 and 10.1 at an interest rate equal to the legal interest rate as
from the expiration of the above mentioned ten (10) business day period until
the Security Deposit and advance payment on charges are definitively paid in
full as a fixed indemnity, which may not be lowered.
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9.
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PENALTY
CLAUSE
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9.1
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In
the event of non-payment of any amount payable hereunder on the due date,
a five percent (5%) penalty shall be applied by operation of law to the
amount owed if a formal notice sent to the Tenant by registered letter
with advice of receipt or served on the Tenant by a judicial officer has
gone unheeded after fifteen (15) days, as compensation for the costs
incurred by the management on account of such late payment. This penalty
shall be increased to ten percent (10%) if a court is petitioned to
collect the amount, even where an ordinary court order is
issued.
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9.2
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This
penalty shall apply over and above the late-payment interest referred to
in Article 8.2 above, notwithstanding implementation of the
termination clause provided for under Article 14 and the payment of any
damages which the Landlord shall be entitled to
claim.
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10.
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GUARANTEES
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10.1
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Security
Deposit
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Tenant
will provide to Landlord a security deposit equal to 12 months' Base Rent,
including all taxes, for the first two years of the Lease, upon which this
security deposit shall be equal to 6 months' Base, including all taxes for the
remaining Lease period (the "Security
Deposit").
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10.2
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Payment
of the Security Deposit
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The Tenant
shall pay to the Landlord the amount of
three-million-two-hundred-fifty-five-thousand Euros (3.255.000 EUR) as the
Security Deposit referred to in Article 10.1 hereinabove within ten (10)
business days as from the Entry Date on to the Premises.
The
Landlord shall hold the Security Deposit as security for the performance by
the
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
Tenant of
the Tenant’s covenants and obligations under this Lease, it being expressly
understood and agreed that the Security Deposit shall not be considered an
advance payment of Rent or a measure of the Landlord’s damages in case of
default by the Tenant.
The
Security Deposit shall be held by the Landlord without liability to the Tenant
for interest, and the Landlord may commingle such deposit with any other funds
held by the Landlord. Upon the occurrence of any Event of Default,
the Landlord may, from time to time, without prejudice to any other remedy,
apply the Security Deposit to the extent necessary to make good any arrears of
Base Rent, and any other due payment, damage or injury, the amount of which
shall have been conclusively determined by the parties or by an enforceable
judicial decision, expense or debt caused to, or incurred by the Landlord by
such Event of Default. Following any application of the Security
Deposit, the Tenant shall pay to the Landlord on demand the amount so applied in
order to restore the Security Deposit to the amount immediately prior to such
application. Subject to the requirements of, and conditions imposed
by, governmental laws, rules and regulations applicable to security deposits
under commercial leases (the “Applicable Security Deposit
Laws”), the Landlord shall, within the time required by Applicable
Security Deposit Laws, or if no such requirement, within sixty (60) days after
the expiration of the Term of this Lease (or the earlier termination of this
Lease), return to the Tenant the portion (if any) of the Security Deposit
remaining after deducting all damages, charges and other amounts owing by the
Tenant to the Landlord under this Lease. The Landlord and the Tenant agree that
such deductions shall include, without limitation, all damages and losses that
the Landlord has suffered or will suffer as a result of any default under this
Lease by the Tenant, the amount of which has been conclusively determined by the
parties or by an executory judicial decision. If the Landlord transfers the
Landlord’s interest in the Leased Premises during the Term of this Lease
(including any extension thereof), the Landlord may assign the Security Deposit
to the transferee, and upon such transfer and the delivery to the Tenant of an
acknowledgement of the transferee’s responsibility for the Security Deposit, the
Landlord shall have no further liability for the return of the Security
Deposit. In the event the provisions of any Applicable Security
Deposit Laws, or and other laws, now or hereinafter in force, which restricts
the amount or types of claims that a landlord may make upon a security deposit
or imposes upon a landlord (or its successors) any obligation with respect to
the handling or return of security deposits, conflict with the terms and
conditions of this Article 10, the terms and conditions of this Section 10 shall
govern.
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10.3
|
The
terms of Article 10, above, notwithstanding, the Landlord and the Tenant
agree that, in the event that the sum of the Security Deposit exceeds the
total of two (2) terms Base Rent, the amount by which such sum exceeds two
(2) terms Base Rent will accrue interest in conformity with the provisions
of Article L. 145-40 of the French Commercial Code to the benefit of the
Tenant, from the date that such amount is submitted to the Landlord, until
the date upon which the sum of the Security Deposit no longer exceeds a
total of two (2) terms Base Rent. Any interest that accrues to the
Tenant’s benefit (a) shall not be considered to be part of the Security
Deposit ; and (b) shall be forwarded to the Tenant each year within sixty
(60) days after the anniversary date of the
Lease.
|
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
|
10.4
|
Joint
guaranty from EQUINIX Inc.
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|
10.4.1
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The
Tenant shall provide to the Landlord, within thirty (30) business days
following the signature of the Lease, a joint guaranty by EQUINIX Inc., a
company governed by the laws of the United States of America having its
registered office at 0000 Xxxxx Xxxxxx Xxxxxxx, Xxxxx, Xxxxxxxx, 00000,
Xxxxxx Xxxxxx of America, registered on the companies register under
number 06293383 (hereinafter the “Guarantor”), identical
to the model of which is attached as Annex 5 of this Lease,
to guarantee the payment of any rent or charges which the Tenant may owe
to the Landlord or for which the Landlord may be held liable on account of
the Tenant hereunder, for any reason whatsoever (hereinafter the “Guarantee”). The
Guarantee shall benefit the Landlord and any future owner of the Leased
Premises.
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|
10.4.2
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The
Guarantee shall be provided together with a legal opinion prepared by the
American law firm of Xxxxxxxxx-Xxxxxxx-Xxxxxx-Xxxxxxxxxx-Xxxxxxxx &
Hachigan LLP, confirming the corporate existence of Equinix Inc., its
capacity to issue the Guarantee, and that it was executed by a duly
authorised individual and that all the requisite authorizations have been
granted in this respect.
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|
10.4.3
|
The
Tenant's failure to provide the Landlord with the original Guarantee
referred to in Article 10.3, strictly identical to the model included in
Annex 5, and the
legal opinion regarding the Guarantee, within thirty (30) days, at the
latest, will result in this Lease being declared null and void by
operation of law, without any indemnity being owed to the Tenant, and
without prejudice to any of the Landlords rights arising under the Lease
following such nullity.
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|
10.4.4
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In
the event the Tenant ceases to be a subsidiary of EQUINIX Inc., the Tenant
shall provide the Landlord with a joint guaranty under the same terms and
conditions issued by another company of its group whose financial position
is satisfactory to the Landlord. The Tenant shall also provide the
Landlord with a legal opinion prepared by a leading independent law firm
under the conditions provided for in Article 10.3.2. Failing this, the
Landlord may implement the termination clause referred to in Article 14. A
copy of this legal opinion appears in Annex 4 of this Lease.
The Guarantee shall be renewed upon each renewal of this Lease, it being
specified that, under the same conditions provided for in Article 10.3.2,
the Tenant must show to the Landlord that the obligations under the
Guarantee have been validly authorized by the Guarantor's management and
submit a legal opinion prepared by a reputable independent law firm to
this effect. Failing this, the Landlord may implement the termination
clause referred to in Article 14.
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|
10.4.5
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In
the event of the assignment or contribution of the Lease as a result of a
merger, demerger, partial contribution of assets or other operation, the
Guarantee shall remain in effect and be renewed throughout the term of the
Lease
and any renewals thereof.
|
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
|
10.4.6
|
If
the Leased Premises are sold, the new owner shall benefit from the
Guarantee simply by virtue of a notice given to the Tenant and the
Guarantor by the new owner.
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|
11.
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CHARGES
AND GENERAL CONDITIONS
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The Lease
is granted and accepted under the following conditions that the Tenant
undertakes to execute and accomplish.
The
present Lease is governed by the provisions of Articles L. 145-1 to L. 145-60 of
the French Commercial Code as well as by the provisions of Articles D. 145-12 to
D. 145-19 and those of Articles R. 145-1 to R 145-33 of the French Commercial
Code, and by the provisions of Article 33 of the French Decree no. 53-960 of 30
September 1953. The Lease is a "Powered Base Building™" lease.
The
Tenant shall be solely responsible for the security, maintenance and insurance
of the Leased Premises and shall reimburse the Landlord for all
expenses, calculated pro rata in accordance with Article 7, that the Landlord
may incur to secure, maintain, and insure the Property and common areas during
the term of the Lease. The Tenant shall also be solely responsible for the
upkeep and maintenance of all equipment installed in the Leased Premises by the
Landlord or Tenant subsequent to the signing of this Lease, it being specified
that, except in the case of force majeure, any subsequent installation of
equipment by the Landlord shall remain subject to the Tenant's prior written
consent. The Landlord reserves the right to conduct biannual audits of the
Tenant's insurance certificates for the Leased Premises and the equipment. In
the context of these biannual audits, the Tenant shall provide to the Landlord
all maintenance records regarding the equipment installed by the Landlord in the
Leased Premises. The Landlord shall also have the right to conduct
physical inspections of the premises and infrastructure, provided that the
Tenant has received ten (10) days prior notice, and that such visit does not
disrupt the Tenant's normal business activities. These inspections shall be made
by persons with sufficient technical and professional qualifications in that
field.
As an
essential and determinative condition, each Party hereby agrees that the
information communicated or collected from the Tenant during the visits
described hereinabove are confidential and constitute the exclusive information
of the Parties.
If
necessary, and upon at least five (5) days prior notice, the Tenant may postpone
any such visit by forty-eight (48) hours.
These
biannual audits and inspections shall be at the sole cost of the
Landlord.
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11.1
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Furnishing
and commercial exploitation
|
The
installation and furnishing of the Leased Premises shall be the sole
responsibility of the Tenant. The installation of any equipment shall be subject
to Landlord's prior written consent, such consent shall not be withheld without
a valid reason.
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
As
exception to the Datacenter Rules and Regulations, a copy of which is attached
hereto (Annex 6), the
Landlord hereby agrees that the Tenant may install, within the Leased Premises,
any signs, plates, and may apply any decorations it so chooses.
In
addition, the Tenant shall have the right to install equipment on the portion of
the roof of the Building corresponding to the Leased Premises. There is
currently no infrastructural support on the roof. The installation of such
equipment shall be carried out at the sole cost, responsibility, and risk of the
Tenant subject to the Landlord's prior written consent, which may refused only
if the Tenant fails to comply with the technical and safety rules applicable to
the installation of such equipment.
The
Tenant shall furnish the Leased Premises and keep them constantly furnished with
furniture and equipment in a quantity and a value sufficient to meet the Base
Rent payments and to perform its obligations under the Lease.
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11.2
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Maintenance
– Work – Repairs
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11.2.1
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The
Tenant shall refrain from making any alteration, changing the layout,
installing partitions (subject to the reservations set out below),
piercing the walls, carrying out any demolition work, installing any
equipment on the roof, or building any structure of any kind whatsoever on
the Leased Premises and in the Mezzanine without the prior written consent
of the Landlord in accordance with the procedure set forth below or of the
architect and/or inspection agency and/or other skilled individuals
appointed by the Landlord (hereinafter collectively the “Architect”). In the
event that the nature of the work to be carried out required that the
Tenant consult an Architect, and/or technical consulting firm, and/or
specialist, and the Tenant did not do so, the Architect’s fees shall be
borne by the Tenant.
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Without
prejudice to the foregoing paragraph, the Tenant shall be authorised to carry
out all other work, in particular, on the surfaces (painting, wall and floor
coverings).
With
regard to work requiring the Landlord's approval, the Tenant shall submit a
request to the Landlord, including a description of the work planned,
accompanied by the related technical and architect’s plans, a risk analysis, a
provisional work timetable and a report issued by an approved inspection agency
without any reservations. The Landlord shall not withhold its authorization of
such work without valid reason.
With
regard to all of the Tenant’s initial fit-out work upon its entry on to the
Leased Premises, the Landlord undertakes to reply within no more than fifteen
(15) days of receipt of the complete file referred to above. In the absence of a
reply within this time limit, the Landlord shall be deemed to have accepted the
Tenant’s work.
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
With
regard to all subsequent work, this time limit of fifteen (15) days shall be
increased to one (1) month.
The work
must be carried out by duly qualified contractors.
Before
any work is carried out, contractors working on the infrastructure on behalf of
the Tenant must be approved by the Landlord, which shall not withhold its
authorisation of such work without valid reason.
The
Landlord shall be entitled to instruct the Architect to check that the work
complies with trade standards and the permit granted. The Architect’s fees and
expenses shall be borne by the Tenant.
The
Parties expressly agree that the Landlord shall not incur any liability under
any circumstance vis-à-vis the Parties or third parties, due to the Landlord
and/or the Architect having authorised the Tenant to carry out work, or due to
the Architect's monitoring overseeing the performance there of or the Landlord
having approved the contractors who perform such work.
The
Tenant undertakes to bear all the consequences of any damage caused to the
structure and solidity of the Leased Premises and on account of its work and to
indemnify the Landlord and any third party for damage of any kind whatsoever
caused by performance of the said work.
The
Tenant shall be prohibited from installing any systems and facilities which may
impede access to the fan coil units, air conditioning units, inspection trap
doors, waste traps, stop taps and meters, pipes or any other systems and
facilities which may be present in the Leased Premises.
The
Tenant shall assume full responsibility for all of this work and shall insure or
arrange insurance coverage for all of the risks incurred through insurance
policies obtained from a reputable insurance company.
In this
respect, the Tenant undertakes to provide the Landlord, upon its request with a
copy of (i) the insurance policies referred to in Article L. 242-1 of the French
Insurance Code (dommages-ouvrages; builder’s
liability insurance) and, where applicable, property developer’s liability
insurance in accordance with the provisions of Articles L. 241-1 and L. 242-2 of
the French Insurance Code and (ii) the general professional liability insurance
policy (RC exploitation – XX
xxxxxx d'ouvrage).
The
Tenant shall also provide proof that all of these contractors and their
subcontractors, if any, are, at the time they perform the work, covered by a
ten-year professional liability insurance policy in accordance with the French
Act of January 4, 1978 and its implementing decrees, as well as by a chief
executive’s liability insurance policy.
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
With
regard to the performance of such work, the Tenant shall comply with trade
standards and the provisions of French laws and regulations. Moreover, it shall
be solely responsible for filing all declarations and/or obtaining all
administrative permits required to perform this work and shall pay all taxes due
in relation to such permits (in particular, the local facilities tax), such that
the Landlord is held harmless in this respect at all times.
Upon
completion of the work, the Tenant shall provide the Landlord with a report
prepared by an inspection agency, which certifies that the work is in conformity
with the French laws and regulations in force, particularly in regards to safety
matters. The inspection agency’s fees shall be borne by the Tenant. The Landlord
may visit the site to ascertain that the work performed complies with the plans
originally submitted for its approval.
In the
event of non-conformity, the Tenant shall perform any additional work or
alterations demanded by the Landlord in a registered letter with advice of
receipt within three (3) months.
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11.2.2
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Notwithstanding
any provision in this Lease to the contrary, the Tenant shall not make or
cause to be made any alterations, additions, improvements or replacements
to the Leased Premises, any other part of the Building, or the Property,
the Datacenter, or any other portion of the Building or Property
(collectively, “Alterations”) without
the Landlord's prior written consent, which consent shall not be withheld
without a valid reason. provided, however, that Landlord’s consent shall
not be required for any usual and customary installations, repairs,
maintenance, and removals of equipment and telecommunication cables within
the Leased Premises, if and to the extent that such installations,
repairs, maintenance, and removals, (i) are usual and customary within the
Tenant's business activities, (ii) are of a type and extent customarily
permitted to be made without consent by landlords acting consistently with
Institutional Owner Practices (defined below) leasing similar space for
similar uses to similar tenants, (iii) are in compliance with the
Datacenter Rules and Regulations, and (iv) will not affect the Building’s
structure, the provision of services to other Building tenants, or the
Building’s electrical, plumbing, HVAC, life safety or mechanical systems.
For example, Landlord’s consent would be required for the installation of
overhead ladder racks that are attached to the ceiling while Landlord’s
consent would not be required for the installation of equipment which does
not involve drilling into the floor or ceiling. For purposes
hereof, “Institutional
Owner Practices” shall mean practices that are consistent with the
practices of the majority of the institutional owners of institutional
grade, first-class datacenter or telecommunications projects in France. In
addition, the Landlord and Tenant agree that the Landlord must give his
consent (or objection) to the Tenant's Alteration request within ten (10)
calendar days following such request In the absence of a reply within this
time limit, the Landlord shall be deemed to have consented to the Tenant's
requests, which must, in all cases, be sent to the Landlord
by registered letter with advice of
receipt.
|
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
|
11.2.3
|
Throughout
the term of the Lease and any renewals thereof, as from the date on which
the Tenant occupies the Leased Premises, it shall maintain the whole of
the Leased Premises, as well as all fit-out work, systems and facilities,
improvements and embellishments it effectuates which constitute fixtures,
particularly Infrastructural Equipment as defined in Article 11.6
hereinafter, in a good state of cleanliness, maintenance and repair, and
make all necessary replacements to the foregoing, with the sole exception
of (i) major repairs as referred to in Article 606 of the French Civil
Code, (ii) work carried out to renovate and clean the exterior walls of
the Property and (iii) work carried out to repair the common parts of the
Property due to wear and tear, as referred to in Article 1755 of the
French Civil Code, which shall be borne by the Landlord (it being
specified that the cost of ordinary maintenance work on the exterior walls
shall be borne by the Tenant and the other tenants within the Property).
At the end of the Lease or when the Tenant vacates the Leased Premises,
the Tenant shall surrender the Leased Premises and Infrastructural
Equipment; as defined in Article 11.6 below, in a good state of
cleanliness, maintenance and repair, consistent with the Leased Premises
being used in a normal way during the term of the Lease, as determined by
reference to the schedule of condition established by Parties in
accordance with that specified in Article 1.3
hereinabove.
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The
Tenant shall enter into, at its own expense, contracts for all upkeep and
maintenance of the air conditioning units, power distribution circuits, the low
voltage main panels (TGBT) and uninterruptible power supplies (UPS) within the
Leased Premises, providing these are required for operating purposes, without
any right of recourse against the Landlord.
The
Tenant shall have access to a gross electric output of 12 Mva for the Leased
Premises, it being specified that the Landlord shall not disturb the Tenants use
of such power. The Tenant shall be solely responsible for entering into all
electricity supply contracts for the Leased Premises and shall bear all costs
relating to the provision of this electricity supply to said
premises.
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11.2.4
|
Throughout
the term of the Lease and any renewals hereof, the Tenant shall also pay
the cost of any work required to make the Leased Premises and the Property
secure and/or to bring them into conformity with any laws and/or
regulations of any kind whatsoever, in particular, those applicable to
security and the environment.
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|
11.2.5
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In
derogation to Article 1755 of the French Civil Code, the Tenant undertakes
to pay the cost of and to assume full responsibility for all repair work
carried out on the Leased Premises and installations and equipment
contained therein and, where applicable, replacement items, even if such
repairs, work or replacements are the result of wear and tear or a force
majeure event.
|
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
|
11.2.6
|
If
it is established that the Tenant has failed to comply with its
obligations under Articles 11.2.3 to 11.2.5 above or if any damage is
caused to the Leased Premises by the Tenant, its staff, visitors,
customers or subtenants, the Landlord shall issue a formal notice to the
Tenant to cure such breach within fifteen (15)
days.
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|
11.2.7
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If
the Tenant fails to cure such breach within the time limit set in the
aforementioned formal notice, the Tenant shall reimburse to the Landlord
at the latter’s first request, the cost of all repairs carried out by the
Landlord because of the Tenant's failure to comply with its obligations
under Articles 11.2.3 to 11.2.5 above or if any damage is caused to the
Leased Premises by the Tenant, its staff or
visitors.
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|
11.2.8
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The
Tenant shall promptly dismantle and remove, at its expense, any and all
formwork, fittings, decoration, windows, plates or other facilities of any
kind whatsoever that need to be moved either to detect and repair leaks of
any kind, cracks in the flue and ventilation pipes, in particular
following a fire or infiltration or, in general, to perform maintenance
work in the Building.
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In the
event of a Roof Water Leak, the Landlord agrees to use its best efforts to (a)
commence its repair of such Roof Water Leak within twenty-four (24) hours
following receipt of written notice from the Tenant of the need for such repair,
and (b) diligently pursue such repair to completion thereafter. The
foregoing notwithstanding, the Landlord and the Tenant agree that the Landlord’s
failure to commence such cure within the aforementioned twenty-four (24) hour
period shall, in no event, be a default by the Landlord
hereunder. However, if the Landlord fails to commence its repair of a
Roof Water Leak within forty-eight (48) hours after the Landlord’s receipt of
notice thereof from the Tenant, the Tenant may (after notice by Tenant to
Landlord), but shall not be obligated to, undertake to repair the Roof Water
Leak. In such event, the reasonable amounts expended by the Tenant in
connection therewith shall be reimbursed by the Landlord to the Tenant within
twenty (20) days after Tenant’s written demand therefor.
For the
purposes of this Lease, the term “Roof Water Leak” shall mean
and refer to a water leak in the Building’s roof structure, but shall not
include, for example, any leak from plumbing, chilled water pipes, otherwise in
connection with any air conditioning systems within (or on the roof of) the
Building, or otherwise in connection with any element of the Building for which
Tenant has the maintenance and repair obligation hereunder.
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11.2.9
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The
Tenant shall pay the cost of all repair work, improvements, modifications
or even new structures which the Landlord reserves the right to carry out
or erect, even if they are not to the Tenant's benefit, irrespective of
the inconvenience caused and the duration thereof, even if the latter
exceeds forty
|
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
|
|
(40)
days – by way of exception to Article 1724 of the French Civil Code –
without any indemnity being payable by the Landlord and without any
reduction in Base Rent, providing that (i) the foregoing are carried out
with due care, (ii) the necessary steps are taken in agreement with the
Tenant to restrict the disturbance that may result thereof and to ensure
that the Tenant has ongoing access to the Leased Premises and that it can
perform its business therein and (iii) after the work has been carried
out, the Tenant’s enjoyment of the Premises is not diminished in any way.
By way of exception to Article 1723 of the French Civil Code, the Tenant
shall allow the Landlord to make any changes to the Property it considers
necessary, to the exclusion of the interior of the Leased Premises,
without any indemnity being owed by the Landlord, providing that that such
alterations to not affect the Tenant's enjoyment of the Leased Premises.
Any such changes shall be made with all due care and the necessary steps
shall be taken in agreement with the Tenant, it being specified that such
work, must not in any case disrupt the Tenant's normal business activities
in the Leased Premises.
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|
11.2.10
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Providing
that its business is not affected, the Tenant shall allow the installation
of cables, piping and pipes which are connected to the common systems and
facilities or other private areas if the common parts cannot be used, as
well as the installation of the related drain cocks, sight holes, etc.
Moreover, the Landlord shall be entitled to install, maintain, repair,
replace and modify all cables, pipes and connections of any kind which may
be connected to or cross through the Leased Premises, without any
indemnity being owed to the Tenant. Providing that its business is not
affected, the Tenant shall also pay the cost of any changes made to the
supply, connection and replacement of meters and interior systems and
facilities which may be imposed by utilities suppliers or companies
responsible for maintaining the supply of water, electricity and
telecommunications facilities, heating, air conditioning and other
systems, facilities or services.
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However,
the Landlord undertakes to take all the necessary measures to restrict, where
possible, the disturbance that may be caused by such work such that the Tenant
can continue to perform its business in the Leased Premises.
The
Landlord authorizes the Tenant, as of the execution date of this agreement, to
install a maximum of twelve (12) technical ducts of a maximum of 80 mm each,
grouped into routes, for the sole purpose of connecting the Leased Premises with
the premises in the Building already occupied by the EQUINIX FRANCE SAS under
the terms of the commercial lease dated July 21, 2006. An example of how the
ducts may be routed appears in Annex 11.
Before
any installation of one or more technical ducts, the Tenant must obtain the
Landlord's prior written approval with regard to their exact placement and
installation method, approval which the Landlord may refuse only in the event
that the Tenant fails to conform to the technical and safety rules applicable
to
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
the
installation of such equipment.
In the
event that the above mentioned lease of July 21, 2006 terminates, for any reason
whatsoever during the term of the present Lease, the Landlord hereby
authorizes the Tenant to extend its fiber optical connections already
in place between the Leased Premises and those previously leased under the
abovementioned lease of July 21, 2006 to a technical area located in the
basement of the Building, demarcated on the plan included in Annex 7. The Tenant
may access this technical area only for the sole purpose of carrying out the
abovementioned extensions. In particular the Tenant may not install
any equipment or material other than that strictly necessary for the connections
described hereinabove. The Tenant may effectuate maintenance operations on such
equipment only with the Landlords express consent.
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11.2.11
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The
Tenant shall refrain from installing any external roof, canopy, removable
awning or exterior blind of any kind without the prior written consent of
the Landlord and any administrative permits required. The Tenant shall pay
any fees that may be owed to the authorities in this
respect.
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|
11.2.12
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The
Tenant shall pay the cost of any work which may be carried out on the
public thoroughfare or in neighbouring properties, even if its use of the
Leased Premises is disturbed, without any right of recourse against the
Landlord. The Tenant shall exercise any right of recourse against the
authorities, contractors or neighbours and shall hold the Landlord
harmless in this respect.
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11.2.13
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The
Tenant shall refrain from forcing the walls and floors to bear any loads
which exceed the weight-bearing capacity of 1,200 kg per square meter, on
penalty of being required to carry out the necessary repair work at its
expense and to pay damages. Likewise, the Tenant shall ensure that the
lifts and freight elevator are not overloaded and that the lift cabins are
not damaged.
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|
11.2.14
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Mezzanine.
Before installing any equipment on the mezzanine the Tenant shall carry
out, at its sole expense, responsibility, and risk, all work necessary to
render the mezzanine in compliance with the standards imposed by any
applicable laws, in particular, fire safety matters, and the construction
of an emergency exit. The Tenant shall obtain the Landlord's prior written
approval under the conditions of Article 11.2.1 hereinabove, approval
which shall not be withheld without a valid
reason.
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11.3
|
Electricity
Consumption
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The
Tenant’s actual electricity consumption for the Leased Premises, as reasonably
determined by the Landlord shall not, at any time, exceed 12 Mva for the Leased
Premises (the “Electricity
Consumption Threshold”). All equipment (belonging to the
Tenant or otherwise) located within the Leased Premises shall be included in
the
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
calculation
of the Tenant’s actual electricity consumption for the Leased
Premises. For the avoidance of doubt, the Landlord and the Tenant
acknowledge that the Electricity Consumption Threshold exists so that Landlord
is better able to (a) budget the amount of power available at the Building among
the existing and future tenants of the Building, (b) enhance the safeguarding,
in accordance with National Electrical Code Guidelines, of persons and
property. As such, the Tenant agrees that it will actively monitor
the electricity consumption for the Leased Premises to ensure that such
consumption does not exceed the Electricity Consumption
Threshold. Additionally, in the event that the electricity
consumption in the Premises does exceed the Electricity Consumption Threshold
(each such event, an “Electricity Consumption Threshold
Overage”), the Tenant agrees to take immediate action (regardless of
whether the Tenant has received notice of such Overage from Landlord) to power
down items of equipment in the Leased Premises in order to cause power
consumption in the Premises to be at or below the Electricity Consumption
Threshold. Additionally, in the event that (i) the Tenant receives a
notice from the Landlord related to any Electricity Consumption Threshold
Overage, and (ii) the Tenant has not remedied such Overage within seventy-two
(72) hours after its receipt of such notice from the Landlord, the Landlord must
provide to the Tenant written notice of this default.
In the
event that the Landlord receives notice from the Tenant's electrical supplier
that the Tenant has exceeded the maximum electricity consumption provided for by
the Tenant's electricity supply contract, the Tenant shall directly contact such
supplier and undertake all measures required by that supplier, in particular to
cause its electricity consumption to bebelow the Electricity Consumption
Threshold.
|
11.4
|
Security
– Surveillance
|
The
Landlord agrees to provide to the Tenant, upon the Tenant's request and at the
Tenant's expense, during the term of the Lease, in accordance with the
principles set out in the Datacenter Rules and Regulations, the following
services:
(i)
Security: access control to the Building as the Landlord finds reasonable
necessary; provided, however, that the Tenant shall compensate Landlord for all
additional costs incurred in making all modifications necessary for this
purpose, other than standard modifications; and
(ii)
Surveillance: the Landlord agrees to make available to the Tenant one or more
security guards to control movement on the Property and in the
Building, twenty-four (24) hours a day, seven (7) days a week,
three-hundred-sixty-five (365) days per year.
|
11.5
|
Additional
charges
|
In
addition to the payment of rent, upkeep and maintenance fees, and for the
services hereinabove, the Tenant shall, under the terms of Article 7, reimburse
the Landlord for all real property taxes, accounting fees, building management
fees, and all other expenses incurred by the owner for the day to day management
of the Building during the term of the Lease.
|
11.6
|
Right
of first refusal
|
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
The
Landlord and the Tenant are have agreed that during the term of the Lease, in
regards to certain of the Landlord's potential tenants, a list of whom appear in
Annex 8 (hereinafter
"Potential Tenants"),
the Tenant shall have priority over the Potential Tenants to enter into a lease
for the space offered by the Landlord to the Potential Tenants and under the
same conditions as the Potential Tenants.
In the
event where a Potential Tenant or a company of the same group as defined by the
provisions of Article L. 233-3 of the French Commercial Code, may seek to enter
into a lease for all or part of the vacant premises on the Property, the
Landlord shall address to the Tenant, by registered letter with acknowledgement
of receipt (hereinafter the "Notice") offering it a Lease
for all or part of the such premises under the same terms and conditions as
those offered by the Potential Tenant.
The
Notice by the Landlord shall designate the surface area concerned by the Notice,
the rental amount offered by the Potential Tenant, as well as all other charges
and conditions offered by the Potential Tenants.
The
Tenant may notify the Landlord of his intention to exercise his right of first
refusal, as to the entirety of the such premises under the same terms and
conditions as described in the Notice, by registered letter with advice of
receipt within twenty (20) days following its receipt of the
Notice.
In the
event that the Tenant does not notify the Landlord of his intent to exercise
this right under the conditions hereinabove, it shall be considered to have
definitively and irrevocably waived its right of first refusal for the lease of
such premises. The Landlord shall be free to lease them to any Potential Tenant
it may choose.
|
11.7
|
Ownership
of fittings etc. at the end of the
Lease
|
All of
the fittings, systems and facilities, improvements and embellishments, in
particular, all Infrastructural Equipment as defined hereinafter, made or
installed by the Tenant or by the Landlord upon the Tenants request, shall
become the property of the Landlord upon termination of possession, without any
indemnity being payable to the Tenant and without prejudice to the Landlord’s
right to require that the Leased Premises be returned to their original
condition, in whole or in part, at the Tenant’s expense, and with in sixty (60)
days following the Tenant's receipt of written notice by the
Landlord.
In
particular, the Landlord may require that, the Tenant remove, at its
expense:
(i) all
of the equipment that it may have installed in the unloading bay under the roof
at the rear of the Property along the eastern wall of the Building, which is
outlined on the plan appearing in Annex 2, and
(ii) all
Other Equipment, as defined below, independent of any removal of any
Infrastructural Equipment.
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
In the
event that the Tenant has not removed such items within this period, the items
referred to in the notice shall be considered to be abandoned by Tenant and the
Landlord may freely use or dispose of them without giving rise to an
indemnification obligation towards the Tenant. In addition, without prejudice to
the foregoing, in the event that the Tenant has not removed such items with in
the abovementioned period, the Landlord may undertake to remove such items and
demand compensation for the expenses incurred in such removal; in this case, the
Tenant shall reimburse the Landlord within forty-five (45) days following the
Landlord's request, all fees incurred in removing such items and restoring the
premises to their original condition, as well as an amount equal to ten percent
(10%) of such costs corresponding to the administrative expenses of such
operations. It is specified that this disposition shall remain effective for as
long as necessary following the expiration of the term of this
Lease.
"Infrastructural Equipment"
shall mean and include all electrical and power equipment (particularly, the
PDU, UPS, batteries, generators, strong current cables, and all other
electrical/power transmission cords and cables), all equipment relating to the
air conditioning system (particularly, the CRAC units, the CRAH units and/or all
water cooling systems) and all Building security and system monitoring equipment
installed or placed in any location of the Building or Property.
"Other Equipment" shall mean
and include all fittings, furnishings, and other property of the Tenant
(including computer systems and equipment, shelves and cabinets) and all
communication cables, connection lines (other than Infrastructural Equipment)
installed or placed by or for the Tenant in the Building.
"Termination of Possession" for
the interpretation of this Article 11.7, shall mean the date on which the Lease
actually ends, even if this falls before the contractual date of expiry
hereof.
|
11.8
|
Disturbances
|
|
11.8.1
|
The
Tenant shall refrain from using any slow combustion appliances or
appliances which produce harmful gases. The Landlord shall under no
circumstances be liable for any damage to property or bodily injury caused
by such appliances; the Tenant shall refrain from using any appliance
which generates noise in excess of the noise regulations in force and from
using any electrical appliance or any other device that causes disturbance
to telecommunications apparatus unless such appliances and devices are
equipped with devices which prevent annoyance to
others.
|
|
11.8.2
|
If
the Tenant uses any radio, television, or other appliances, it shall take
the necessary measures, to eliminate noise or interference affecting its
reception of the signal, without any right of recourse against the
Landlord.
|
|
11.8.3
|
As
the Tenant must refrain from disturbing the neighbours, it shall handle
any claims made by neighbors or third parties at its own risk and expense,
in
|
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
|
|
particular
due to noise, odours, heat, vibration or radiation caused by the Tenant or
the equipment and machinery it owns (or which is in its custody for any
reason whatsoever), without any right of recourse against the Landlord,
even if the Landlord authorized the installation of such equipment and
machinery.
|
|
11.9
|
Plates
and signs – Antennae – Roof
|
|
11.9.1
|
The
Tenant shall refrain from displaying any items on the windows, walls or
xxxxx. It is also prohibited from affixing plates, signs, boards, notices
and paintings on the doors, windows, exterior walls, sills, string courses
or piers outside or at the entrance to the Leased Premises. Reciprocally,
the Landlord expressly undertakes that other tenants and occupants of the
Building will not place any plates, signs, boards, notices, and paintings
on the doors, windows, exterior walls, sills, string courses or piers
outside or at the entrance to the
Building.
|
|
11.9.2
|
However,
the Tenant shall be authorised to affix a plate at the entrance to the
Leased Premises bearing all useful information on its name and business,
provided that it complies with a standard-form plate and the dimensions
previously approved by the Landlord and, where applicable, the competent
authorities.
|
|
11.9.3
|
The
Tenant shall also have the right to install construction material on the
portion of the roof corresponding to the Leased Premises. There is
currently no infrastructural support on the roof. The installation of such
equipment shall be carried out at the sole cost, responsibility, and risk
of the Tenant subject to the Landlord's prior written consent, which the
Landlord may refuse only in the event that the Tenant fails to conform to
the technical and safety rules applicable to the installation of such
equipment.
|
|
11.9.4
|
The
installation of any antenna and/or air conditioning unit shall be subject
to the Landlord’s prior written approval of the aforementioned works file
under the conditions set forth in Article 11.2.1. The relevant request
must include a description of the antennae and/or air conditioning unit
which the Tenant wishes to install.
|
The
Tenant shall be solely responsible for filing all declarations and/or for
obtaining all the administrative permits required to install such antennae and
the related equipment as well as for the payment of all taxes arising in
connection with such permits.
The
Tenant shall service and maintain, solely at its expense, all antennae and the
related equipment such that they remain in a perfect state of repair at all
times throughout the term of the Lease and any renewals thereof.
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
The
Tenant shall be solely responsible for any claim or request for indemnification,
on any ground whatsoever, made by any third party or other tenant who complains
of a disturbance or interference caused to the analog signal on account of the
Tenant’s systems and facilities, such that the Landlord shall be held harmless
in that respect.
The
Tenant shall repair, at its own expense and at the Landlord’s first request, any
damage to the roof of the Property caused by the installation, maintenance,
repair, operation, dismantling or removal of antennae and the related equipment
and return such damaged areas to the condition in which they were found prior to
installation.
|
11.10
|
Inspection
of the premises – Vacation – Final schedule of
condition
|
|
11.10.1
|
The
Tenant shall give the Landlord, its agents, contractors and workers and
the Architect access to the Leased Premises at all times, subject to at
least seventy-two (72) hours’ notice, except in case of an emergency, in
order to inspect and check the condition of the Leased Premises and the
Building, as well as to repair and maintain them at the Tenant’s risk and
expense should the Tenant have failed to fulfill its obligations arising
in connection with Article 11.2 above fifteen (15) days after the dispatch
of a formal notice which remains unheeded, except in the case of an
emergency. The Tenant may, if it so wishes, instruct its staff responsible
for security in the Leased Premises to accompany these individuals at no
expense to the Landlord. If immediate access to the Leased Premises is
required on account of an event that is liable to lead to harmful
consequences and it is not possible to contact any of the Tenant’s
representatives, the Landlord shall be expressly authorised to cause the
doors to be opened by a locksmith whose fee shall be reimbursed by the
Tenant.
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|
11.10.2
|
If
the Leased Premises are sold or notice of termination of the Lease has
been given, the Tenant shall, at least during the last six (6) months of
the Lease, allow the Landlord’s representative(s) to visit the premises on
any business day between 9 a.m. and 12 noon and 2 p.m. and 4 p.m. and at
any other time with the Tenant’s consent (which may only be refused for a
legitimate reason), subject to at least seventy-two (72) hours’ notice.
The Tenant must also allow a board to be affixed at any place which the
Landlord deems appropriate, provided that it does not disrupt the Tenant’s
business.
|
|
11.10.3
|
Within
the last six (6) months prior to the Tenant’s vacating the Leased
Premises, the Tenant shall allow the Architect or any other representative
of the Landlord to draw up a preliminary final schedule of condition in
the presence of both Parties which indicates any repairs, cleaning, major
repairs and replacements required for which the Tenant is responsible
under the Lease. The Tenant undertakes to carry out the foregoing tasks,
where applicable, before vacating the Leased Premises, at its expense and
in
|
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
|
|
accordance
with Article 11.2 above.
|
Moreover,
the Landlord shall inform the Tenant of the items it wishes to retain and those
it wishes to be disposed of at least three (3) months before expiry of the
Lease. Failing this, the Landlord shall be deemed to have elected to retain the
Tenant’s amenities.
In the
event that work has not been carried out on the date on which the Tenant hands
over the keys, the Landlord may arrange for such work to be executed by the
contractors of its choice and claim the cost thereof from the Tenant in addition
to the penalties provided for in Article 11.9 below.
|
11.10.4
|
A
final schedule of condition shall be drawn up in the presence of both
Parties, the Tenant having been duly called to attend, no later than on
the date of expiry of the Lease, once the Tenant has fully vacated the
Leased Premises and before the keys are handed over. If the Tenant fails
to attend the meeting, the schedule of condition shall be drawn up by a
judicial officer whose fees and expenses shall be paid in equal amounts by
the Parties. Such schedule of condition shall include a list of the repair
work incumbent on the Tenant hereunder and, in particular, the repair work
mentioned in the preliminary schedule of condition which has not been
carried out upon that date, as well as any work required but that did not
appear necessary during preparation of the preliminary schedule of
condition on account of the fact premises had not been entirely removed of
all furniture, systems, facilities and
equipment.
|
|
11.10.5
|
If
the Tenant fails to carry out the requisite repairs, cleaning, major
repairs and replacements required before vacating the Leased Premises in
accordance with the terms of the Lease or if it fails to vacate the
premises on the scheduled date, the Tenant shall owe the Landlord a daily
indemnity as from the date of expiry of the Lease, payable one week in
arrears, equal to one and a half times the daily Base Rent, plus charges,
calculated on a daily basis for the period required to return the Leased
Premises to their original
condition.
|
The
Tenant shall pay the sums due in this respect upon the first request from the
Landlord or the Property Manager.
|
11.10.6
|
The
Tenant shall give at least one (1) month’s notice of the date on which it
intends to vacate the premises in order to enable the Landlord to make the
statutory declarations with the tax
authorities.
|
|
11.11
|
Sundry
requirements
|
|
11.11.1
|
The
Tenant shall at all times strictly comply with the provisions of all laws,
instructions, regulations and orders applicable to the Leased Premises
throughout the term of the Lease (in particular, by arranging for approved
bodies to carry out the regulatory verifications and inspections of all
systems
|
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
|
|
and
facilities within the Leased Premises in accordance with the regulations
laid down by the French Fire Insurance Companies Committee(Association Plénière des
Sociétés d'Assurance Incendie)) by providing the Landlord with all
supporting documents upon the latter's first request, in particular with
regard to the execution, at its expense and under its responsibility, by
contractors supervised by skilled individuals who meet the requirements
referred to in Article 11.2 above, of all work imposed under the said
provisions, as well as those applicable to roadways, cleanliness, the
police, safety and the labor inspectorat, and to bear the related
expenses, such that the Landlord is held harmless in respect of any
failure by the Tenant to comply with the foregoing
provisions.
|
In
consequence, the Tenant shall comply, at its sole expense, with all obligations
laid down by the authorities (with regard to health, the environment, safety,
employment legislation, etc.) pursuant to regulations, orders and all other
provisions in force now or in the future and with all instructions, claims or
orders which may be issued by the said administrative authorities.
The
Tenant shall arrange for its systems and facilities – in particular, its
electrical and fire safety systems and facilities – to be inspected by an
approved organisation whenever required to do so by an applicable regulation and
it shall make any changes to such systems and facilities requested by the
inspection organisation. Likewise, the Tenant shall arrange for safety
inspections to be carried out periodically on all of its plant. The Tenant shall
provide proof, at the Landlord’s first request, that it has taken out all the
contracts required or deemed advisable with regard to the technical management
of the Leased Premises with qualified firms and that it has complied with all
instructions given by inspection bodies.
The
Tenant shall carry out all work to bring [the Leased Premises] into conformity
under this Article 11.11.11 under the conditions provided for in Article
11.2.1.
|
11.11.2
|
The
Tenant shall promptly inform the Landlord of any damage caused to the
Leased Premises and the Building.
|
|
11.11.3
|
The
Tenant and the Tenant's agents, employees and, and invitees shall comply
fully with rules and regulations appearing in Annex 6 (hereinafter the
"Datacenter Rules and
Regulations"). The Landlord shall at all times have the right to
change such rules and regulations or to amend or supplement them in such
manner as may be deemed by the Landlord in the exercise of its sole but
good faith discretion, for the safety, care and cleanliness of the Leased
Premises, the Building and the Property and for preservation of good order
therein, all of which Datacenter Rules and Regulations, as changed,
amended, and/or supplemented from time to time, shall be fully carried out
and strictly
|
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
|
|
observed
by the Tenant, provided such change is notified to the Tenant, and that
such change to the Datacenter Rules and Regulations may not increase the
Tenant’s monetary obligations under this Lease or unreasonably interfere
with access to or the beneficial use of the Leased Premises for the
permitted uses. In the event of a conflict between the
Datacenter Rules and Regulations and the terms of this Lease, the terms of
this Lease shall govern. Landlord shall apply the Datacenter Rules and
Regulations uniformly to the tenants of the
Property.
|
|
11.11.4
|
Subject
to the terms of Article 11.2.9 above, the Landlord may, if it considers it
appropriate, prohibit access to some or all of the common parts of the
Building, place boundaries or take any measures to this end, or
temporarily close all or part of the common parts or that it deems
necessary to carry out repairs and work, provided that the Tenant retains
possession of and/or full access to the Leased
Premises.
|
The
Landlord reserves the general right to make any changes or alterations to the
common parts at its expense without seeking the Tenant’s approval, provided that
this does not affect the conditions of possession of the Leased Premises; the
Landlord may also take all decisions regarding the use of the Leased Premises,
provided that the Tenant retains possession of and normal access to the Leased
Premises.
|
11.12
|
Levies
and taxes
|
|
11.12.1
|
The
Tenant shall pay all taxes and contributions, imposed now or in the
future, and any increases thereto, in particular, business and real
property taxes, city, police, and roadway taxes, and all other taxes,
duties, and fees and all national, regional, departmental, municipal, or
other taxes, of any kinds and regardless of whether they are attributable
to the Tenant or the Landlord, such that the Landlord is held harmless in
that respect, and shall provide the Landlord with proof of payment
thereof, at the latter’s request, before vacating the
premises.
|
|
11.12.2
|
If,
for any reason whatsoever, the Landlord is charged business tax with
regard to the Leased Premises (in particular, if the Tenant is not liable
for the said tax), the Tenant hereby undertakes to reimburse the amount of
the said tax to the Landlord upon the latter's first
request.
|
|
11.12.3
|
On
the date on which the Tenant vacates the Leased Premises, it shall provide
the Landlord with proof that it has taken all the necessary steps to
inform the tax authorities that it is vacating the Leased Premises such
that the Landlord is held harmless in respect of the levies and taxes for
which the Tenant is liable.
|
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
|
11.13
|
Liability
and claims
|
|
11.13.1
|
The
Tenant shall protect and monitor the Leased Premises and its property, as
it considers appropriate, to the extend that such services provided within
the Leased Premises do not suffice. In particular, the Landlord shall not
have any liability in the event of theft, attempted theft, any other
tortious act or offence committed by a third party or any other illegal
act (voie de
fait) of which the Tenant may be a victim in the Leased
Premises.
|
|
11.13.2
|
Moreover,
the Tenant shall be responsible for any disturbance or damage caused in
the Leased Premises by third parties on account of any illegal or other
action, in particular, in the event of a disturbance, disruption, noise
(including structure-borne noise) or acts for which its staff, suppliers,
clients or subtenants are responsible, without any right of recourse
against the Landlord. The Tenant expressly waives any right of recourse
and legal action against the Landlord with regard to damage caused to the
Leased Premises in the event of a disturbance, riot, strike or civil war
and with regard to any disruption.
|
|
11.13.3
|
In
the event of a compulsory purchase order in the public interest, the
Tenant may only exercise its rights against the expropriating party and
shall not make any claim against the
Landlord.
|
|
11.13.4
|
The
Tenant shall refrain from making any claim in the event of the
interruption of or problem with the supply of utilities in the Leased
Premises, in particular (where applicable), the supply of gas, water,
electricity and drainage facilities, or in the event of the stoppage of
the heating, lifts, air conditioning, ventilation, telephone or any other
similar service on account of the relevant suppliers work or repairs,
freezing temperatures, or any other cause beyond the Landlord’s control.
Moreover, the Landlord shall notify the Tenant of interruptions in these
utility services even where it has received express advance notice
thereof.
|
|
11.14
|
Health
and safety
|
|
11.14.1
|
Fundamental
and determining condition
|
The
Landlord and its representative attach great importance to compliance with the
Prevention, Health and Safety regulations. All the terms of this Article 11.14
constitute a fundamental and determining condition without which the Landlord
would not have entered into this agreement.
|
11.14.2
|
Tenant’s
commitment
|
The
Tenant undertakes to comply with all prevention, health, and safety
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
regulations,
including all written instructions from the Property Manager or the Landlord
with regard to the technical management of the Property, and to ensure that its
staff, clients and suppliers also comply therewith. In particular, the Tenant
undertakes to comply with French Decree no. 92-158 of February 20,
1992 relating to the rules applicable to work carried out in an establishment by
an outside contractor.
In the
event the Landlord arranges for an outside contractor to work in the Leased
Premises or in the common parts accessible to the Tenant, the Landlord shall
provide the Tenant with the contact details of the contractor(s) before work
commences to enable the Tenant to determine, in agreement with these contractors
and the Landlord, any preventive measures and, if necessary, a prevention
plan.
|
11.13.3
|
Tenant’s
work
|
In the
event the Tenant carries out work in accordance with Article 11.2 above, it must
be carried out in compliance with the Prevention, Health and Safety regulations.
In its capacity as a chief executive, the Tenant shall be under an obligation to
comply with the applicable regulations, in particular French Decree no. 92-158
of February 20, 1992 (Articles R.4511-1 to R.4514-4 of the French Employment
Code) and Decree no. 94-1159 of December 26, 1994 (Articles R.4531-1 to
R.4532-98 of the French Employment Code), such that the Landlord and its
representative are held harmless in all of these respects.
Said work
must not have any impact on the security of the Property or its common parts. If
the work does have such an impact, the Tenant shall have sole criminal and civil
liability therefore.
|
11.15
|
Specific
Agreement Regarding Building Siding
|
Landlord
and Tenant acknowledge and agree that, as of the signature of this Agreement,
there are several holes in the façade of the Building as described in Annex 9 (hereinafter, the
“Façade
Holes”).
The
Landlord and the Tenant further agree that it shall be the sole responsibility
of the Landlord to perform the permanent repair of said Façade Holes, but that
such permanent repair is not scheduled to occur in the near term.
Landlord
agrees, as Landlord’s sole obligation in regards to the Façade Holes and the
repairing thereof, to create temporarily patch the Façade Holes in accordance
with the working plan and schedule included in Annex 9 (hereinafter, the
“Post-Commencement Date
Building Modifications”). The Landlord agrees to its best
efforts to cause the Post-Commencement Date Building Modifications to be
completed before December 31,
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
2008. The
foregoing notwithstanding, the Landlord and the Tenant acknowledge and agree
that the Landlord’s completion of the Post-Commencement Date Building
Modifications is not a condition precedent to any obligation of the Tenant to
pay the Rent and any charges, nor is such completion a condition precedent to
this Lease taking effect. Upon Landlord’s completion of Landlord’s
Post-Commencement Date Building Modifications, Landlord shall provide written
notice the to Tenant (hereinafter, the “Post-Commencement Date Building
Modifications Completion Notice”). Provided that Landlord is
working diligently using commercially reasonable efforts after the Commencement
Date to complete Landlord’s Post-Commencement Date Building Modifications,
Landlord shall not be in default of its obligation to complete Landlord’s
Post-Commencement Date Building Modifications.
However,
in the event that the Landlord fails to complete the Post-Commencement Date
Building Modifications by December 31, 2008, unless such delay is due to force
majeure or caused by the Tenant, the Tenant may (after notice by the Tenant to
the Landlord) undertake to complete the Landlord’s Post-Commencement Date
Building Modifications. In such event, (i) the Tenant shall be
exempted from making any rental charge payments until the completion of the
Post-Commencement Date Building Modifications or March 31, 2009, at the latest,
and (ii) the Tenant shall be reimbursed for any reasonable expenses incurred by
the Tenant in connection with the completion of the Post-Commencement Date
Building Modifications after December 31, 2008 within twenty (20) days
after the Tenant’s written demand therefor, which must be accompanied by all
documents justifying the expenses incurred.
|
11.16
|
Compliance
with Laws; Data Processing; Hazardous Materials;
ICPE
|
|
11.16.1
|
Compliance
with Laws
|
The
Tenant, at the Tenant’s sole cost and expense, shall timely take all action
required to cause the Leased Premises to comply at all times during the term of
this Lease in all respects with all laws, ordinances, building codes, rules,
regulations, orders and directives of any governmental authority having
jurisdiction (including without limitation any certificate of occupancy or other
French equivalent and all regulations applicable to hygiene, safety and urban
planning issues), including those regulations and decisions relative to the ICPE
(as contemplated in Section 11.16.4, below) regulations and orders from the
prefect issued to Landlord, and all covenants, conditions and restrictions
affecting the Property now or in the future applicable to the Leased Premises
and with all rules, orders, regulations and requirements of any applicable fire
rating bureau or other organization performing a similar function (collectively,
“Applicable Laws”). The Tenant
shall not use the Leased Premises, or permit the Leased Premises to be used, in
any manner, or do or suffer any act in or about the Leased Premises
which: (i) violates or conflicts with any Applicable Law; (ii) causes
or is reasonably likely to cause damage to the Property, the Building, the
Tenant Space or the Building and/or Property systems and equipment, including,
without limitation, all fire/life safety, electrical, HVAC, plumbing or
sprinkler, access
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
control
(including, without limitation, Landlord’s Access Control Systems including (i)
a checkpoint at the level of the main entry to the Building which will be open
twenty-four (24) hours a day, seven (7) days a week, (ii) an electronic "entry
card" system to control access to the Building has been installed, and(iii) a
video surveillance system has been installed ), mechanical, telecommunications,
elevator and escalator systems and equipment (collectively, the “Building Systems”); (iii) will
invalidate or otherwise violates a requirement or condition of any fire,
extended coverage or any other insurance policy covering the Property, the
Building, and/or the Leased Premises, or the property located therein, or will
increase the cost of any of the same (unless, at the Landlord’s election, the
Landlord permits an activity which will cause an increase in any such insurance
rates on the condition that the Tenant shall agree in writing to pay any such
increase to the Landlord immediately upon demand in addition to the Base Rent);
(iv) constitutes or is reasonably likely to constitute a nuisance, annoyance or
inconvenience to other tenants or occupants of the Building or the Property, or
any equipment, facilities or systems of any such tenant; (v) interferes with, or
is reasonably likely to interfere with, the transmission or reception of
microwave, television, radio, telephone, or other communication signals by
antennae or other facilities located on the Property; (vi) amounts to (or
results in) the commission of waste in the Leased Premises, the Building or the
Property; (vii) violates any of the rules and regulations promulgated from time
to time by the Landlord applicable to the Leased Premises, the Building or the
Property (including, without limitation, the Datacenter Rules and Regulations),
provided that the Tenant was given prior notice of such rule or regulation and
that it does not disrupt the normal activities of the Tenant in the Leased
Premises; or (viii) is not a Permitted Use. The Tenant agrees that
any incident or accident that has resulted (or may result) in non-compliance
with Applicable Laws shall be immediately reported in writing to
Landlord. Tenant shall be responsible for any losses, costs or
damages in the event that unauthorized parties gain access to the Leased
Premises, the Building or the Property through access cards, keys or other
access devices provided to the Tenant by the Landlord. The tenant
shall promptly upon demand reimburse the Landlord, in addition to the Base Rent,
for any additional premium charged for any insurance policy by reason of the
Tenant’s failure to comply with the provisions of this Article
11.16. The Tenant agrees to indemnify the Landlord for any direct or
indirect consequence of the Tenant’s non-compliance with any of the above,
whether such non-compliance is intentional or unintentional
|
11.16.2
|
Landlord's
automatic personal data processing
|
The
Landlord and the Tenant acknowledge that Landlord’s Access Control
System may, now or hereafter, incorporate certain security elements
(e.g., biometric scanners) that collect and process personal data (e.g.,
fingerprints) (“Personal
Data”) of those individuals who access the Property, the Building, and/or
the Leased Premises (“Landlord’s Automatic Personal
Data
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
Processing”). Pursuant to the
Act n° 78-17 of January 6, 1978, on data processing, data files and individual
liberties amended by Act n° 2004-801 of August 6, 2004, the Decree n° 2005-1309
of October 20, 2005 enacted for the application of the Act of January 6, 1978,
and the standards established and published by the French National Data
Protection Authority (“Personal
Data Processing Legislation”), the Tenant agrees to obtain (and provide
to the Landlord) from all members of its personnel, prior to their entrance on
the Property, their written consent to the Landlord’s collection and processing
of their Personal Data. In order to comply with the Personal Data Processing
Legislation, the Landlord agrees that, if the Landlord utilizes Landlord’s
Automatic Personal Data Processing, (i) the Landlord will use Landlord's
Automatic Personal Data Processing only for the purposes of access control and
security related to the Property, Building, and/or the POP room, and (ii) the
Landlord will notify the French National Data Protection Authority, as and to
the extent required by Applicable Law, of the manner in which Personal Data is
intended to be used in connection with Landlord’s Automatic Personal Data
Processing, in order to obtain the French National Data Protection Authority’s
prior approval of Landlord’s Automatic Personal Data Processing.
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11.16.3
|
Hazardous
Materials
|
No
Hazardous Materials (as defined below) shall be Handled (as defined below) upon,
about, in, at, above or beneath the Leased Premises or any portion of the
Building or the Property by or on behalf of the Tenant, its transferees or
partners, or their respective contractors, clients, officers, directors,
partners, employees, servants, representatives, licensees, agents, or invitees
(collectively, the “Tenant
Parties”). Additionally, the Tenant shall not use the Leased
Premises, or permit the Leased Premises to be used, in any manner which may
directly or indirectly lead to any non-compliance with any Environmental
Law. Notwithstanding the foregoing, normal quantities of those
Hazardous Materials customarily used in the conduct of the Permitted Use may be
used at the Leased Premise without the Landlord’s prior written consent, but
only in compliance with all applicable Environmental Laws (defined below) and
only in a manner consistent with Institutional Owner Practices (as defined in
below).
The
Landlord nonetheless hereby authorizes the Tenant as of the execution date of
the present agreement and for the purposes of its business activity in the
Leased Premises to use, the following materials and products:
- Refrigerant gas
(70m³)
- Glycol water (650 m³)
- Lead batteries (110
tons)
- Domestic fuel (300
m³)
- Coolant from diesel generators (25
m³)
- Mineral oil from diesel
lubrification (12 m³)
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
- Argo 55 (130 m³)
- FM200 (50 m³), to be fully
eliminated in 2010
“Environmental Laws” shall mean
and include all now and hereafter existing Applicable Laws regulating, relating
to, or imposing liability or standards of conduct concerning public health and
safety or the environment,
including without limitation Arrêté
Préfectoral Number 02-1736 of April 23, 2002, delivered pursuant to
French environmental regulations on Installations Classées pour la
Protection de l’Environnement (“ICPE”) or any other arrêté préfectoral amending
or replacing it.
“Hazardous Materials” shall
mean and include: (1) any material or
substance: (i) which is defined or becomes defined as a
“hazardous substance,” “hazardous waste,” “infectious waste,” “chemical mixture
or substance,” or “air pollutant” under Environmental Laws; (ii) containing
petroleum, crude oil or any fraction thereof; (iii) containing
polychlorinated biphenyls (PCB); (iv) a product or substance containing or
presumed to contain asbestos, (v) which is radioactive; (vi) which is
infectious; or (2) any other material or substance displaying toxic, reactive,
ignitable or corrosive characteristics, and are defined, or become defined by
any Environmental Law. “Handle,” “Handled,” or “Handling” shall mean any
installation, handling, generation, storage, treatment, use, disposal,
discharge, release, manufacture, refinement, presence, migration, emission,
abatement, removal, transportation, or any other activity of any type in
connection with or involving Hazardous Materials.
"Trade Practices" shall mean
and include those practices generally employed by the majority of institutional
owners of Datacenters or of first class and institutional telecommunication
systems.
|
11.16.4
|
Installations
Classées pour la Protection de l'Environnement
(ICPE)
|
The
Landlord hereby represents that for any ICPE operated in the Building or on the
Property, the Landlord is the sole holder of the Arrêté Préfectoral Number
02-1736 of April 23, 2002, delivered pursuant to French environmental
regulations relative to ICPE's (a copy of which appears in Annex 10) and that the Landlord will
be the sole holder of any other arrêté préfectoral amending
or replacing it. The Landlord shall inform the Tenant of any arrêté préfectoral amending
or replacing the Arrêté
Préfectoral Number 02-1736 of April 23, 2002, as well as any eventual
change in the operator thereof.
The
Landlord also hereby represents and guarantees that, for any ICPE operated in
the Building or on the Property, Landlord is and will be the sole contact with
the local environment agency (STIIIC). The
Tenant shall not interfere in the relationships between the Landlord and the
local environmental agency (STIIIC), including without
limitation by directly contacting the local environmental agency (STIIIC) without the
Landlord’s prior written consent.
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
The
Tenant shall immediately report to the Landlord any incident or accident which
may directly or indirectly lead to any non-compliance with any Environmental
Law, including without limitation Arrêté Préfectoral Number
02-1736 of April 23, 2002, delivered pursuant to French environmental
regulations on ICPE or any other arrêté préfectoral amending
or replacing it.
The
Landlord, the Landlord’s agents and employees shall have the right to enter upon
any and all parts of the Leased Premises, the Building, or the Property,
provided that the Tenant has five (5) business days' notice (except
in the case of an emergency when no prior notice shall be required) and the
visit is necessary to ensure the validity of Arrêté Préfectoral Number
02-1736 of April 23, 2002 delivered pursuant to French environmental regulations
relative to ICPE's or any other arrêté préfectoral amending
or replacing it, and more generally to comply with applicable Environmental
Laws.
However,
in the event where the request to enter the premises is issued by a competent
administrative authority, the Tenant undertakes to allow access to all parts of
the Leased Premises, the Building, or the Property upon presentation of the
request permitting the Landlord and the administrative authorities in question,
to conduct all necessary verifications and inspections. In the event where a
representative of an administrative authority conducts an unexpected
site visit, the Tenant shall allow such representative immediate access to all
of the Leased Premises.
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11.17
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Destruction
of the Leased Premises
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11.17.1
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Destruction
of the Leased Premises in their
entirety
|
If the
Leased Premises are destroyed in their entirety due to a construction defect,
flood, fire, strike, act of war, civil war, riot or any other cause beyond the
Landlord’s control, the Lease shall terminate by operation of law, without any
indemnity being payable by either Party, but without prejudice to the rights
that may be exercised by either of the Parties against the other Party if the
destruction can be attributed to the latter.
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11.17.2
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Partial
destruction of the Leased Premises
|
If the
Leased Premises are destroyed in part due to wear and tear, a construction
defect, flood, strike, act of war, civil war, riot or other cause beyond the
Landlord’s control, the Landlord may:
|
|
1)
|
terminate
the Lease by operation of law, without any indemnity being payable by
either Party if, as a result of the partial destruction of the premises,
(i) the Tenant is unable to carry
on
|
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
|
|
a
significant portion of its business in the Leased Premises and, (ii) if
the Leased Premises cannot be rebuilt to their former state or used within
six (6) months;
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|
|
2)
|
if
this is not the case, the Landlord may apply a Base Rent reduction for the
duration of the partial loss of possession as calculated by reference to
the area destroyed, it being specified that in this latter case, the Lease
shall continue to apply to all of the Leased
Premises;
|
Reciprocally,
if the Leased Premises are destroyed in part due to wear and tear, a
construction defect, flood, strike, act of war, civil war, riot or other cause
beyond the Landlord's control, the Tenant may terminate the Lease by operation
of law, without any indemnity being payable by either Party if, as a result of
the partial destruction of the premises, the Tenant is unable to carry on a
significant portion of its business in the Leased Premises,
without
prejudice to the Landlord’s rights against the Tenant and vice versa if the
partial destruction of the premises can be attributed to either
Party.
If the
Parties fail to agree on whether or not the Tenant can continue to carry on its
business in spite of the partial destruction of the Leased Premises, the Parties
shall abide by the decision of an expert appointed either by mutual agreement or
by the Presiding Judge of the Bobigny Regional Court ruling in urgent
proceedings upon the application of the first Party to act. The costs and
expenses arising in connection with the order and the fees of the expert thus
chosen or appointed shall be paid by the Party which the expert finds to be at
fault.
In the
event of option (2) above, the calculation of the rent reduction shall be
carried out by an expert chosen by the Landlord and the Tenant. In the event
that the Parties fail to agree on an expert within forty-five (45) days
following the partial destruction, such expert shall be appointed by the
Presiding Judge of the Bobigny Regional Court ruling in urgent proceedings. The
costs and expenses arising on connection with the order thus chosen or appointed
shall be born equally between the Landlord and the Tenant.
In any
event, the Tenant shall be responsible, together with its insurance company
where applicable, for the consequences of any loss of possession on account of
the partial destruction of the Leased Premises and any restoration work
required.
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
|
11.18
|
Insurance
|
|
11.18.1
|
The
Landlord undertakes to insure with a reputable insurance
company:
|
|
–
|
The
Leased Premises, including all of the fixtures acquired or owned by the
Landlord and all fit-out work and equipment against, in particular, the
following risks:
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|
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Fire
and lightning,
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|
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All
explosions,
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|
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Electrical
damage,
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|
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Falling
aircraft and airborne objects,
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|
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Impact
of a vehicle belonging to a third
party,
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|
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Hurricanes,
cyclones, tornadoes and storms,
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|
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Smoke
damage,
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|
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Strikes,
riots and uprisings,
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|
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Vandalism
and malicious acts,
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|
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Water
damage.
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The
insurance shall include ancillary covers, including, but not limited to expert's
fees.
|
–
|
The
Landlord’s civil liability for bodily injury and/or damage to property
and/or consequential loss sustained by third parties on account of the
buildings which form the Leased
Premises.
|
The
Landlord reserves the right to cover all other reasonable risks.
|
11.18.2
|
All
of the related insurance covers shall be subject to the terms, conditions,
limits and exclusions provided for in the policies taken out by the
Landlord.
|
|
11.18.3
|
Insurance
premiums shall be deemed to be rental charges. The Tenant undertakes to
reimburse the premiums for the insurance taken out by the Landlord in
respect of the Leased Premises which covers the risks listed
above.
|
|
11.18.4
|
For
its part, the Tenant shall take out insurance, at its expense, to cover
the following throughout the term of the Lease with a solvent and
reputable insurance company:
|
|
|
(a)
|
the
furniture, movables, materials, equipment, systems and facilities and all
items belonging to it or held in its custody for any reason whatsoever, as
well as all the systems and facilities installed by the Tenant in the
Leased Premises against all risks, in particular, the risks of theft,
fire, explosions and water damage, as well as claims brought by third
parties
|
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
|
|
and
neighbors and glass breakage with respect to the Leased Premises; the
Tenant also undertakes maintain insurance coverage throughout the term of
the Lease to cover loss of possession of the Leased Premises and operating
losses, even in the event of the loss of its ongoing business, in whole or
in part, including on account of damage or losses sustained by the
intangible elements attached to the said business, even if the damage or
destruction results from a construction defect or was caused by a
caretaker or any other individual for whom the Landlord is civilly
liable;
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|
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(b)
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its
civil liability, in particular, with regard to all bodily injury or damage
to property caused directly or indirectly during the performance of the
work for which the Tenant is responsible, as well as damage which may be
caused either as a result of the occupancy of the Leased
Premises as a result of its property, amenities, systems and
facilities, or the use thereof, or by the Tenant’s
staff.
|
|
11.18.5
|
The
Tenant hereby waives its rights against the Landlord Group with respect to
any claims or damages or losses (including any claims for bodily injury to
persons and/or damage to the Building) which are caused by or result from
(i) any and all risks insured against under any insurance policy
required to be obtained and maintained by the Tenant and/or any Third
Party under this Lease and that is currently maintained by the Tenant
and/or any such Third Party at the time of such claim, damage, loss or
injury, or (ii) any and all risks which would have been covered under
any insurance policy required to be obtained and maintained by Tenant
under this Lease had such insurance been obtained and maintained as
required. Additionally, the insurance policies subscribed by
the Tenant and by all Third Parties, as defined below, shall specify that
Tenant’s and such Third Parties’ respective insurers waive all rights of
recourse against the Landlord Group for losses within the scope of the
insurance and waivers provided for in this Article
11.18.
|
In return
for the foregoing, the Landlord hereby waives its rights against the Tenant
Group with respect to any claims or damages or losses (including any claims for
bodily injury to persons and/or damage to property) which are caused by or
result from (i) any and all risks insured against under any insurance
policy required to be obtained and maintained by the Landlord under this Lease
and that is currently maintained by the Landlord at the time of such claim,
damage, loss or injury, or (ii) any and all risks which would have been
covered under any insurance policy required to be obtained and maintained by the
Landlord under this Lease had such insurance been obtained and maintained as
required. Additionally, subject to the waiver of all rights of
recourse by the Tenant and all Third Parties and their respective insurers, the
insurance policies subscribed by the Landlord shall specify that the Landlord’s
insurers waive all rights of recourse against the Tenant Group, including Third
Parties, for losses within the scope of the insurance and waivers provided for
in this Article 11.18.
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
In
regards of the present Article 11.18.5, "Third Parties" designates all
occupants of the Leased Premises, the Building, and the Property because of, or
for the benefit of the Tenant, all persons or entities having a right or
interest (in particular, rights of priority and rights of retention) in the
Infrastructural Equipment or any Other Equipment, and all persons or entities
having had access to the Leased Premises because of, or for the benefit of the
Tenant and thereupon suffered a prejudice or bodily harm while in the Leased
Premises, the Building, or the Property.
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11.18.6
|
The
Tenant’s insurance policies shall contain a clause which specifies that
the said policies may only terminate fifteen (15) days after the Landlord
has been informed of said
termination.
|
|
11.18.7
|
In
order to show compliance with the foregoing provisions, before taking
possession of the Leased Premises, and at the beginning of each calendar
year, the Tenant shall send to the Landlord a certified true copy of its
insurance policies or a certificate from its insurers confirming that the
Tenant is duly insured (and that all premiums due have duly been paid)
under the conditions set forth in this Article
11.18.
|
|
11.18.8
|
The
Tenant alone shall pay the cost of any insurance supplements imposed on
the Landlord or neighbours on account of the business conducted by the
Tenant.
|
|
11.18.9
|
The
Tenant also undertakes to comply with any decision taken by the Landlord
with regard to the carrying out of technical alterations required or
recommended by the insurers.
|
|
11.18.10
|
Lastly,
the Tenant undertakes to give the Landlord notice by registered letter
with advice of receipt of any loss, damage to or deterioration of the
Leased Premises within 48 hours of which it becomes aware, of such loss,
damage, or deterioration, at the risk of being held liable for any
damages, the amount of which cannot be claimed from the company insuring
the Leased Premises on account of a failure or delay in filing the related
declaration.
|
|
11.18.11
|
It
is expressly agreed that the Landlord may take out any additional
insurance it considers necessary at any time during the term of the Lease
to supplement or complete the covers mentioned above if required to do so
by law or if the nature of the business conducted by the Tenant or the way
in which the Tenant uses the Leased Premises
changes.
|
|
11.18.12
|
Provided
that the Tenant's normal activities in the Leased Premises are not
disturbed, The Tenant shall grant the Landlord’s insurers, once yearly,
unrestricted access to the Leased Premises to enable them to assess the
risks to be covered.
|
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
|
11.19
|
Assignment
- Subletting – Permitted Licensees
|
|
11.19.1
|
The
Tenant shall be prohibited from granting to any third party the right to
use the Leased Premises, in whole or in part, by any means whatsoever,
even temporarily, free of charge or by an agreement determinable at will.
In particular, the Tenant shall be prohibited from subletting the Leased
Premises in whole or in part and from leasing its ongoing
business.
|
|
11.19.2
|
In
derogation to the foregoing, the Tenant shall be authorised to sublet
surface areas not exceeding 680m² to any corporate client, subject to
compliance with the following terms, which must be specified in all
sublease agreements:
|
|
|
(a)
|
the
Tenant and the Landlord expressly agree that the Leased Premises form an
indivisible whole; any subtenant may not claim any direct right of renewal
of its lease from the Landlord;
|
|
|
(b)
|
the
Tenant shall remain solely liable vis-à-vis the Landlord for all
obligations hereunder and the Landlord shall deal exclusively with the
Tenant with regard to all the obligations arising under the
Lease;
|
|
|
(c)
|
no
sublease shall be granted for a term longer than that remaining on the
term of the Lease, nor for a rental amount (per square meter) less than
the amount of Base Rent applicable during the course of the
sublease;
|
|
|
(d)
|
if,
notwithstanding the prohibition referred to in Article 11.19.1
hereinabove, the Tenant subleases to one or more of its customers, a
surface area equal to or greater than twenty-five (25%) of the Leased
Premises in consideration of sum greater than (a) the pro-rata portion of
Base Rent applicable to the portion of the Leased Premises that is the
subject of the sublease(s), plus (b) the leasing costs (i.e., tenant
improvement allowances and broker commissions) incurred by the Tenant in
connection with such sublease(s), (collectively, the "Excess Rent"), then
Tenant shall pay to the Landlord, as Additional Rent, fifty percent (50%)
of any such Excess Rent immediately upon Tenant's receipt
thereof.
|
|
|
It
is specified all service contracts entered into by the Tenant necessary to
its business activity are not within the scope of this
clause.
|
|
|
(e)
|
the
Tenant shall be responsible for evicting its subtenant if the Lease ends
for any reason whatsoever and shall pay any compensation due for the
eviction or other amount which may be payable to the
subtenant;
|
|
|
(f)
|
the
Tenant shall check that the subtenant takes out the insurance policies
referred to in Article 11.18 and that such policies include a waiver of
the right to take action against the Landlord and its insurers, as
provided for
|
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
|
|
in
Article 11.18.5;
|
|
|
(g)
|
if
the Landlord grants any authorization to enter into a sublease during the
term of the Lease, such authorization shall end if the Lease is assigned
by the Tenant;
|
|
|
(h)
|
the
aggregate area sublet by the Tenant shall not exceed sixty percent (60%)
of the total lettable area of the Leased
Premises.
|
In
accordance with the provisions of Article L. 145-31 of the French Commercial
Code, the Landlord shall be asked to sign the sublease agreement, a draft of
which shall have been sent to it at least fifteen (15) days in advance, by
registered letter with advice of receipt.
In the
event the Landlord does not sign the agreement, a copy of the sublease shall be
sent to it within fifteen (15) days of the signature thereof.
|
11.19.3
|
The
Tenant may also enter into service agreements with its customers occupying
the Leased Premises for the purposes of datacenter activities, provided
that such agreements are not construed as commercial leases and do not
therefore benefit from the rules governing such leases. However, the
Tenant may not enter into any service agreements that grant an occupancy
right to a surface area of more then 680m² in the Leased
Premises.
|
|
11.19.4
|
Permitted
Licensees. Landlord acknowledges that the business to be
conducted by the Tenant in the Premises may require the installation of
certain computer, switch, and/or communications equipment owned
by licensees that the Tenant may authorize for the sole purposes of the
installation and operation of such equipment (“Permitted Licensees”) to
enter on to the Leased Premises (but not outside of the Leased Premises),
and in order for the Permitted Licensees to place and maintain this
equipment which may interconnect with the Tenant’s facilities and/or the
Permitted Licensees’ facilities (the “Permitted
Interconnection”). To activate the Permitted Licensees’ access to
the Premises for the Permitted Interconnection, the Landlord expressly
agrees that the Tenant may, without the Landlord’s further consent,
authorize the use or occupancy of portions of the Premises to the
Permitted Licensees for the sole purpose of the Permitted Interconnection
pursuant to written agreements by and between the Tenant and the Permitted
Licensees (collectively, “Permitted Agreements”).
The Permitted Licensees shall comply with all Applicable Laws and the
Building Rules and Regulations. The Permitted Agreements and
the Permitted Licensees’ rights thereunder shall be subject and
subordinate at all times to the Lease and all of its provisions, covenants
and conditions. Tenant hereby agrees to indemnify, defend, and
hold harmless Landlord and the Landlord Group from and against (and to
reimburse Landlord and the Landlord Group for) any and all Claims arising
from or in any manner relating to (i) any Permitted Agreement, (ii)
the
|
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
|
|
access
or occupancy of the Leased Premises or any other portion of the Building
or the Property by any Permitted Licensee or any person claiming by,
through or under any Permitted Licensee, its partners, and their
respective officers, agents, servants or employees of Tenant or any such
person (collectively, the “Permitted Licensees
Parties”), (ii) the acts or omissions of any Permitted Licensee or
any Permitted Licensees Parties. Anything to the contrary contained herein
notwithstanding, Landlord and Tenant acknowledge and agree that Permitted
Agreements shall not constitute, or be deemed to be, the grant of a
leasehold interest or otherwise constitute, or be deemed to be, a real
property interest.
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11.19.5
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The
Lease shall not be assigned by any means whatsoever without the prior
written consent of the Landlord.
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In
derogation to the foregoing, the Landlord hereby authorizes the Tenant to assign
the present Lease rights to any company belonging to the Tenant's group as
defined in the provisions of Article L. 233-3 of the Commercial Code. The Tenant
undertakes to provide a copy of the assignment agreement within fifteen (15)
days following the signing of such agreement.
No
transfer will release the Tenant from Tenant's obligations under this lease or
alter the primary liability of the Tenant to pay the Rent and to perform all
other obligations to be performed by Tenant hereunder. The provisions herein
must be reproduced in all subsequent transfers.
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11.19.6
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No
sublease for a portion of the Leased Premises, or the accordance of an
occupancy right on the Leased Premises by virtue of a service agreement,
for a surface area exceeding 680m² may be granted without the prior
written consent of the Landlord. Such consent may be further subject to a
payment by the Tenant to the Landlord of an indemnity, the amount of which
is to be determined by the mutual agreement of the
Parties.
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For each
sublease contract or service agreement entered into by the Tenant in breach of
the preceding provisions, the Tenant shall pay to the Landlord a fixed,
inclusive and non-negotiable indemnity of eighty-five-thousand euros (85.000 €).
In such a case, the Landlord may not invoke the termination clause.
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11.20
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Tenant’s
failure to comply with its
obligations
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If the
Tenant fails to comply with the obligations incumbent upon it under the Lease,
two (2) months after an ordinary notice has been sent by registered letter with
advice of receipt, or served by a judicial officer, and has gone unheeded
(except in the case of an emergency affecting the security of the Property), the
Landlord may arrange for the breached obligation to be performed by any company
of its choice at the Tenant’s risk and expense, the costs of which shall be
added by operation of law to the next installment of Base Rent, notwithstanding
any damages that may be claimed or the implementation of the termination clause.
The Landlord’s contractors shall perform their tasks with care,
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
taking
all the requisite measures to avoid disrupting the Tenant’s
activities.
In case
of an emergency or if the Tenant breaches its prevention, health and safety
obligations, the Landlord may take action immediately without observing the
aforementioned deadline of two (2) months.
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12.
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Non-waiver
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No
tolerance regarding the conditions of the Lease, shall be deemed to constitute
an amendment to or the elimination of such conditions, regardless of the
frequency and duration thereof. The Landlord may cease to tolerate the breach at
any time without formality or notice.
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13.
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Changes
to shareholders
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The
Tenant shall inform the Landlord by registered letter with advice of receipt of
any change in the control of the Tenant company, that is to say, if more than
50% of its shares (capital or voting rights) or partnership shares (capital or
voting rights) are sold or in the event of a change of control within the
meaning of Article L. 233-3 of the French Commercial Code of any company which
controls the Tenant directly or indirectly, within one (1) month of the date on
which such change of control takes place.
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14.
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Termination
clause
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14.1
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In
the absence of payment of (i) a single installment of Base Rent, (ii) the
charges and various reimbursements which are payable with the Base Rent,
(iii) any ancillary amounts, (iv) outstanding Base Rent, (v) penalties or
late-payment interest, (vi) any indemnity due, payable for any reason
whatsoever (in particular, after the effective date of a notice of
termination where the Landlord refuses to renew the Lease), and (vii) more
generally, any amounts payable by the Tenant to the Landlord, regardless
of the reason therefor, or in the event of non-compliance with any of the
clauses, charges and conditions of the Lease – which all have the same
binding force – the Lease shall be terminated by operation of law at the
Landlord’s discretion, without any legal formality, if the Tenant fails to
comply with a formal notice to pay an amount or perform an obligation,
which refers to this termination clause, within one (1)
month.
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14.2
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In
the event that a formal notice or order to perform is issued under the
foregoing terms, and is still unheeded at the time limit set, the Landlord
may choose to implement the termination clause or require the agreement to
be performed, or waive its rights to enforce the order in whole or in
part, in which case it shall give express notice of such
waiver.
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14.3
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The
Landlord shall retain this option until such time as the Tenant
voluntarily complies with a formal notice to vacate the Leased Premises or
is forced to do so. Such formal notice may be in the form of an
application to a court for an eviction
order.
|
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
| 14.4 | If the Tenant refuses to vacate the Leased Premises after the termination of the Lease under the conditions set forth in this Article 14, it may be forced to do so by an urgent order rendered by the Presiding Judge of the Bobigny Regional Court, which shall be immediately enforceable, without any guarantee and notwithstanding any appeal. |
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14.5
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If
the Lease is terminated by virtue of this termination
clause:
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14.5.1
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The
Landlord shall retain all Base Rent and charges paid in advance, without
prejudice to any other rights and rights of recourse it may
hold.
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14.5.2
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The
Tenant shall owe a monthly indemnity for occupation equal to the amount
provided for in Article 11.10.5 by operation of law from the termination
of the Lease until such time as the Landlord recovers possession of the
Leased Premises.
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14.5.3
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Notwithstanding
such termination by operation of law, the Landlord may claim compensation
from the Tenant for the loss it sustains as a result of such early
termination.
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14.6
|
In
any event, all costs and expenses arising in connection with official
procedures, orders, legal proceedings, protective measures and measures of
execution, as well as those arising in connection with the discharge of
registrations and notices which may be required pursuant to the French Act
of 17 March 1909, shall be borne by the Tenant and invoiced during the
following period.
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15.
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WAIVER
OF CLAIMS; INDEMNITY
|
The
Parties' obligations under this Article 15 shall survive the expiration or
termination of this Lease as to any matters arising prior to such expiration or
termination or prior to the Tenant’s vacation of the Leased Premises and the
Building. Nothing contained in this Article 15 shall be interpreted
or used in any way to affect, limit, reduce or abrogate any insurance coverage
provided by any insurer to either the Tenant or the Landlord in accordance with
Articles 11.18 and 11.2.14, and as completed by this Article 15.
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15.1
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Waiver
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To the
fullest extent permitted by law, the Tenant, as a material part of the
consideration to the Landlord, hereby assumes all risk of, and waives all claims
it may have against the Landlord and its respective directors, officers,
shareholders, members, employees, agents, constituent partners, affiliates,
beneficiaries, trustees
and representatives (the “Landlord Group”) for damage to
or loss of property (including, without limitation, consequential damages, loss
of profits and intangible property) or personal injury or loss of life or other
damages of any kind resulting from the Property, the Building, or the Leased
Premises, or any part thereof becoming beyond repair, by reason of any repair or
alteration thereof, or resulting from any accident within the Property, the
Building, or the Leased Premises or on or about any space adjoining the same, or
resulting directly or indirectly from any act or omission of any person, or due
to any condition, design or defect of the Property, the
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
Building,
or the Leased Premises, or any space adjoining the same, or the mechanical
systems of the Building, which may exist or occur, whether such damage, loss or
injury results from conditions arising upon the Leased Premises or upon other
portions of the Building, or from other sources or places, and regardless of
whether the cause of such damage, loss or injury or the means of repairing the
same is accessible to the Tenant, provided, however, that such assumption and
waiver shall not apply to the extent such claims are determined by a court of
competent jurisdiction to have been proximately caused by the negligence or
willful misconduct of the Landlord or any other member of the Landlord
Group.
The
Tenant agrees that the Landlord shall not bear any responsibility or liability
for any damage to the Tenant’s equipment or interruption of the Tenant’s
operations which is caused by any other tenant or occupant of the Building or
the Property or the employees, agents, contractors, technicians,
representatives, customers, co-locators or invitees of any such tenant or
occupant, except to the extent that these damages are caused by the negligence
or willful misconduct of the Landlord or any member of the Landlord Group, as
determined by a court of competent jurisdiction.
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15.2
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Indemnification
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15.2.1
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Tenant’s
Indemnification. Without prejudice to the provisions of Article 11.18.5,
and except to the extent caused by the negligence or willful misconduct of
the Landlord or any other member of the Landlord Group, as determined by a
court of competent jurisdiction, the Tenant shall indemnify, defend, and
hold harmless the Landlord and the Landlord Group from and against any and
all claims, actions, suits, proceedings, losses, damages, obligations,
liabilities, penalties, fines, costs and expenses (including, without
limitation, attorneys’ fees, legal costs, and other costs and expenses of
defending against any claims, actions, suits, or proceedings)
(collectively, “Claims”) caused by: (i)
the use or occupancy of the Leased Premises by the Tenant and/or any of
its directors, officers, shareholders, members, employees, agents,
constituent partners, affiliates, beneficiaries, trustees and/or
representatives (together with Tenant, collectively, the “Tenant Group”), or any
person acting by, through or under the Tenant or any other member of the
Tenant Group, or the use or occupancy of any portion of the Building or
the Property by the Tenant or any member of the Tenant Group, or any
person claiming by them, through them or under them or any member of the
Tenant Group , or (ii) the negligence or willful omissions of the Tenant,
or any other member of the Tenant Group with respect to the Leased
Premises, the Building or the
Property.
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In the
event that any action or proceeding is brought against the Landlord or any
member of the Landlord Group by reason of any such Claim, the Tenant upon notice
from the Landlord shall defend such action or proceeding at the Tenant’s cost
and expense by counsel reasonably approved by the Landlord, which may not be
unreasonably withheld. Tenant’s obligations under this Section 15.2.1
shall survive the expiration or termination of this Lease as to any matter
arising prior to
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
such
expiration or termination or prior to Tenant’s vacation of the Leased Premises
and the Building. Nothing contained in this Section 15.2.1 shall be
interpreted or used in any way affecting, limiting, reducing or abrogating any
insurance coverage provided by any insurer to either Tenant or
Landlord. This indemnity provision shall survive the termination or
expiration of this Lease.
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15.2.2
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Landlord
Indemnification, Without prejudice to the provisions of Articles 11.18.5
and 15.1, Landlord shall defend, indemnify, and hold harmless Tenant and
the Tenant Group from and against all Claims caused by (i) the use or
occupancy of the Buillding or the Property by the Landlord of the Landlord
Group, or any person acting by, through, on its behalf or under the
Landlord’s authority or that of any other member of the Landlord Group, or
the use or occupancy of any portion of the Building or the Property by the
Landlord or any member of the Landlord or the Landlord Group, or any
person acting through them, on their behalf or under their authority or
any member of the Landlord Group, or (ii) the negligence or willful
omission of Landlord or any member of the Landlord Group with respect to
the Building or the Property. In the event that any action or
proceeding is brought against Tenant or any member of the Tenant Group by
reason of any such Claim, Landlord upon notice from Tenant shall defend
such action or proceeding at Landlord’s cost and expense by counsel
reasonably approved by Tenant, which may not be unreasonably
withheld. Landlord’s obligations under this Section 15.2.2
shall survive the expiration or termination of this Lease as to any
matters arising prior to such expiration or termination or prior to
Tenant’s vacation of the Leased Premises and the
Building. Nothing contained in this Section 15.2.2 shall be
interpreted or used in any way to affect, limit, reduce or abrogate any
insurance coverage provided by any insurer to either Tenant or
Landlord. This indemnity provision shall survive the
termination or expiration of this
Lease.
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|
15.3
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Consequential
Damages
|
Under no
circumstances whatsoever shall the Landlord or the Tenant ever be liable under
this Lease for consequential damages, incidental damages, indirect damages,
special damages or for loss of profit or loss of income.
The
foregoing notwithstanding, with regard to any customer or other person or entity
to which the Tenant, any of its affiliates, or transferees provides goods or
services, which are in any way related to or associated with the use of the
Leased Premises, including, but not limited to, those (now or hereafter)
conducting transactions or other operations by or through or in connection with
equipment and/or installations located within the Leased Premises, the Tenant
hereby agrees to indemnify and hold the Landlord and the other members of the
Landlord Group harmless with regard to (and to reimburse Landlord and any other
members of the Landlord Group for) any and all claims by, through, under or
related to any customer of the Leased Premises for, or with regard to, any type
of consequential damages, incidental, indirect, or special damages, or for loss
of profit or income.
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
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16.
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Costs
and address for service –
Jurisdiction
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All of
the costs, expenses, levies, taxes and duties arising in connection with this
Lease, as well as those arising in connection with all matters consequential
hereto, shall be borne solely by the Tenant.
Each
Party shall pay the fees of its respective legal advisers or lawyers incurred in
connection with the drafting and negotiation of the Lease.
For the
purposes hereof, in particular, the delivery of all instruments served by a
judicial officer or procedural documents, the Tenant’s address for service shall
be at the Building and the Landlord’s address for service shall be at its
registered office.
For the
purposes of the Lease and all subsequent matters, the Parties mutually agree to
grant jurisdiction to the courts in the place where the Building is
located.
Executed
in Paris
On 30
Septembre, 2008
In two
originals
[signature] [signature]
The
Landlord The
Tenant
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
Translation
for information purpose only
GUARANTEE
FOR
RENT
AND CHARGES PAYMENT
EQUINIX INC., a company
incorporated under the Laws of Delaware, the registered office of which is
situated 0000 Xxxxx Xxxxxx Xxxxxxx, Xxxxx, XX 00000, Xxxxxxxx, XXX,
registered under number 29 11 438, represented by Mr. Xxxxxxx
Xxxxx, as Director, duly authorised for the purpose of this
Guarantee
Hereafter
“the Guarantor”
Declares
that it guarantees the undertakings:
of EQUINIX PARIS SAS, a
French société par actions
simplifiée, with
share capital of € 37,000, the registered office of which is situated 000,
xxx xx xx Xxxxx Xxxxxx Xxxx d’Activité Xxxxx Xxxx XX – 00000 Xxxxxx-xx-Xxxxxx,
under process of registration at the French Trade and Companies Registry of
Pontoise.
Hereafter “the
Guaranteed Party”
In favour
of:
DIGITAL REALTY (PARIS2) SCI, a
French société civile
immobilière, with share capital of € 866,000, the registered office of
which is situated 00, xxxxxx Xxxx
Xxxxxx – 93170 Bagnolet, registered at the French Trade and Companies
Registry under number 492 802 947 R.C.S. Bobigny
Hereafter
“the Lessor”
In
respect of the payment of rents and charges that the Guaranteed Party may owe to
the Lessor under the terms of the attached lease agreement dated 30th
September 2008 between the Lessor and the Guaranteed Party for premises located
at 000 xxx Xxxxxxxx Xxxxxxx, 00000 Saint-Denis, for a fixed term of 12 years,
starting on 1st October
2008 and ending on 30th
September 2020, such guarantee being maintained in the event of renewal
(hereafter the “Lease Agreement”).
To this
end, the Guarantor waives its right to request that the Lessor (i) seeks prior
enforcement against the Guaranteed Party (bénéfice de discussion) and
(ii) apportions its claim against all debtors pro rata to their share of
the debt (bénéfice de
division).
Confidential
document. Free translation of the orginal French agreement signed on 30
September 2008 for information purposes only.
This
Guarantee can only be validly called by registered letter with acknowledgement
of receipt sent by the Lessor to the Guarantor at its registered office
during the time when it is valid and within 3 month after the tenant’s failure
to pay, and after unsuccessful formal notice to pay sent to the tenant in the
terms and conditions of the Lease Agreement.
Such
registered letter shall contain all the relevant documents evidencing the sums
for which the Guarantee is called.
Payment
must be made within eight (8) working days from the date of the receipt by the
Guarantor of the registered letter with acknowledgement of receipt referred to
above.
This
undertaking shall be irrevocable and unconditional as from the Date of Entry
into Possession and throughout the entire term of the Lease Agreement, including
its further renewals.
All costs
and duties resulting from this Guarantee shall be borne by the
Guarantor.
Any and
all disputes arising from the interpretation or performance of this Guarantee
shall be subject to the exclusive jurisdiction of the Courts under the
competence of the Paris Court of Appeal that shall apply French
law.
Signature
