Exhibit 99.2
Dated 8th November 1999
Global Switch (London) Limited
Telemonde Networks Limited
AGREEMENT
relating to Lease and Services Agreements for The Paris Switch Building, 0-0 Xxx
Xxxxx, Xxxxxx, Xxxxxx and The Amsterdam Switch Building, Johan Xxxxxxxxxxxx 000,
Xxxxxxxxx, Xxxxxxxxxxx
SIGNED by SIMON XXXXXXXX XXXX XXXXXX
/s/ [ILLEGIBLE]
on behalf of Global Switch (London) Limited
SIGNED by
/s/ [ILLEGIBLE]
on behalf of Telemonde Networks Limited
4
THIS AGREEMENT is made on 8th November 1999
BETWEEN
GLOBAL SWITCH (LONDON) LIMITED (company registration number 3698210) whose
registered office is at Peel Place, 00-00 Xxxxxx Xxxxxx, Xxxxxxxxxx X0 0XX
("Global Switch") and
TELEMONDE NETWORKS LIMITED (company registration number 3714188) whose
registered office is at 0-00 Xxxxxxx Xxxxxx, Xxxxxx X0X 0XX ("Telemonde")
The parties agree as follows:
1 Introduction
This agreement is made on the same day as a separate Commitment Agreement
("the London Commitment Agreement") made between the same parties and by
which they have agreed to enter into a lease and services agreement ("the
London Lease and Services Agreement") of 11,775 square feet (or
thereabouts) in a building known as London Switch, East India Xxxx Xxxxx,
Xxxx Xxxxx Xxxx, Xxxxxx Xx0 0XX
2 Global Switch's Obligations
Global Switch will:
2.1 Procure that Global Switch (Paris) SARL negotiates with Telemonde as soon
as reasonably practicable a Commitment Agreement ("the Paris Commitment
Agreement") for 10,000 square feet or thereabouts within the building known
as Paris Switch, 0-0 Xxx Xxxxx, Xxxxxx, Xxxxxx although the parties both
accept that exchange of the Paris Commitment Agreement will necessarily be
subject to the following:
(a) both Telemonde and Global Switch (Paris) SARL negotiating in a
reasonable manner the terms of the Paris Commitment Agreement; and
(b) the specification for Paris Switch being equivalent to that attached
to the London Commitment Agreement; and
(c) the forms of the Paris Commitment Agreement and the lease and services
agreement annexed to it being equivalent in content to the London
Commitment Agreement and the London Lease and Services Agreement
except in so far as changes are necessary in order to accommodate the
requirements of the local jurisdiction and practice
2.2 Procure that Global Switch Amsterdam BV negotiates with Telemonde as soon
as reasonably practicable a Commitment Agreement ("xxx Xxxxxxxxx Commitment
Agreement") for 10,000 square feet or thereabouts within the building known
as Amsterdam Switch, Johan Xxxxxxxxxxxx 000, Xxxxxxxxx,
Xxxxxxxxxxx although the parties both accept that exchange of the Amsterdam
Commitment Agreement will necessarily be subject to the following:
(a) completion of the purchase of Amsterdam Switch pursuant to a contract
dated 18 August 1999 made between Automotive Safety Products BV (the
vendor) and Estata Beheer BV (the purchaser) which is procuring that
Global Switch Amsterdam BV Purchase in its place
(b) both Telemonde and Global Switch (Paris) SARL negotiating in a
reasonable period the terms of the Amsterdam Commitment Agreement; and
(c) the specification for Amsterdam Switch being equivalent to that
attached to the London Commitment Agreement; and
(d) the forms of the Amsterdam Commitment Agreement and the lease and
services agreement annexed to it being equivalent in content to the
London Commitment Agreement and the London Lease and Services
Agreement except in so far as changes are necessary in order to
accommodate the requirements of the local jurisdiction and practice
2.3 Procure that Global Switch (Paris) SARL and Global Switch Amsterdam BV act
reasonably in negotiating the documentation required to give effect to
clauses 2.1 and 2.2
3 Telemonde's obligations
3.1 Telemonde shall act reasonably and speedily in negotiating the
documentation required for exchange of the two Commitment Agreements
referred to in clauses 2.1 and 2.2
3.2 If Telemonde requires either or both of the two Commitment Agreements
referred to in clauses 2.1 and 2.2 to be entered into by another company or
corporate body (whether incorporated in France, the Netherlands or
elsewhere) on its behalf or in its place, Telemonde will procure that such
companies or corporate bodies be incorporated speedily and effectively and
Telemonde will in addition stand as guarantor for the obligations on the
part of any replacement company or corporate body in those Commitment
Agreements
4 Disputes
4.1 Any dispute between the parties to this agreement or in the negotiation of
either of the two Commitment Agreements referred to in clauses 2.1 and 2.2
may be referred by either party for determination by an independent
commercial property solicitor or an independent chartered surveyor
(whichever shall be appropriate in the circumstances) acting as an expert
and not as an arbitrator and appointed in accordance with clause 4.2
4.2 The expert ("the Expert") appointed under this clause 4 shall be appointed
either by agreement between the parties (which shall include Global Switch
(Paris) SARL or Global Switch Amsterdam BV, which Global Switch shall
procure) or (in default of agreement within one week after service of the
referring party's notice) on the application of either party by the
President for the time being of the Royal Institution of Chartered
Surveyors (who may refer and delegate the appointment to the President for
the time being of the Law Society of England and Wales, if he considers it
to be more appropriate that the Expert be a commercial property solicitor)
or someone duly authorised on his behalf
4.3 The following shall apply to the conduct of determination by the Expert:
(a) the Expert shall offer the parties a reasonable opportunity to make
written representations and to comment (once only) in writing on any
representations made by the others and the Expert shall have such
regard to any such representations or comments as he considers
appropriate
(b) the fees and expenses of the Expert including the cost of his
appointment will be borne by the parties in such proportion as he may
direct or in default of any such direction shall be borne equally by
the parties and if in the latter event either party pays more than
half the Expert's fees and expenses then it shall be entitled to
recover such excess from the other in the absence of any contrary
direction from the Expert
(c) the Expert shall within 28 days of the referral of the dispute give to
each of the parties a notice stating the results of his determination
and the reasons for it and that determination shall be final and
binding on the parties
5 Proper Law
This Agreement and any disputes arising out of or in relation to it shall
be governed by and construed in accordance with English law and the parties
agree to submit to the exclusive jurisdiction of the English Courts. If an
address for service is required and the addressee shall be incorporated or
registered outside England and Wales, then its address for the purpose of
proceedings brought in the English Courts shall be the address of whichever
shall be appropriate of the address for Global Switch or for Telemonde
COMMITMENT AGREEMENT PARTICULARS
for the London Switch Building, East India Dock, Xxxxxx X00
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1. Date 8th November 1999
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2. The Customer Name: Telemonde Networks Limited
Company Number: 3714188
Registered Office: 0-00 Xxxxxxx Xxxxxx, Xxxxxx,
XxX 0XX
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3. The Target Date The date determined in accordance with clause 1.5
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SIGNED by SIMON XXXXXXXX XXXX XXXXXX
on behalf of Global Switch (London) Limited [ILLEGIBLE]
SIGNED by
on behalf of the Customer [ILLEGIBLE]
1
THIS COMMITMENT AGREEMENT is made on the date stated in the Particulars between
GLOBAL SWITCH (LONDON) LIMITED (Company No 3698210) whose registered office is
at Peel Place, 00-00 Xxxxxx Xxxxxx, Xxxxxxxxxx X0 0XX ("London Switch") and THE
CUSTOMER whose details are set out in the Particulars.
1 Definitions and interpretation
In this Agreement:
1.1 "the Building" means The London Switch Building, East India Dock, Xxxxxx
X00.
1.2 "Completion Date" means the date falling 5 Working Days after completion of
the Works (whether agreed by the Customer as being complete; deemed to be
complete; or determined to be complete).
1.3 "Particulars" means the Commitment Agreement Particulars comprising the
front sheet to this Agreement.
1.4 "Lease and Services Agreement" means the agreement in the form of the
attached document.
1.5 "Target Date" means the date falling 14 weeks after the later of
(a) the date of this Agreement becoming unconditional and
(b) the date on which the Customer agrees the detailed design of that part
of the Works comprised in the specification for "Occupier Location"
attached to this Agreement provided that if the detailed design has
not been agreed within 2 weeks of the date of this Agreement,
otherwise than through London Switch's delay or unreasonable failure
to agree the design, London Switch shall be at liberty to proceed with
the design and fitting out of the Location (as that term is defined in
the Lease and Services Agreement) without further reference to the
Customer.
1.6 "Working Day" means any day on which clearing banks in the City of London
are (or would be but for a strike, lock out or other stoppage affecting
such banks generally) open for normal business.
1.7 Words importing one gender include any other gender.
1.8 Words importing the singular include the plural and vice versa.
1.9 Where any party comprises more than one person the obligations and
liabilities of that party under this Agreement are joint and several
obligations of those persons.
1.10 The clause headings do not form part of this Agreement and are not to be
taken into account in its construction or interpretation.
2 Conditionality
2.1 This agreement is conditional upon the termination of an agreement made on
17 February 1999 between London Switch (then called London Switch Limited)
and USA Global Link (UK) Limited (the "Existing Agreement")
2.2 London Switch shall use its reasonable endeavours to terminate the Existing
Agreement as soon as practicable after 28 December 1999
2.3 As soon as the Existing Agreement has been terminated London Switch shall
notify the Customer and if the Existing Agreement has not been terminated
by 31 March 2000 this Agreement shall automatically cease and determine
3 Works
3.1 In this clause:
(a) "Works" means the works of alterations installations and additions to
the Building described in the attached specification with such
modifications only as may from time to time be notified in writing by
London Switch to the Customer, but not so as to affect significantly
the services to be provided under the Lease and Services Agreement.
(b) "Completion Notice" means a notice in writing given by London Switch
to the Customer that the Works have been completed.
2
3.2 London Switch shall use its reasonable endeavours to obtain all necessary
building regulations approvals and other consents required for the Works
and subject to their being obtained and remaining valid and unrevoked
London Switch shall in a good and workmanlike manner carry out the Works as
soon as reasonably practicable and shall aim to complete them by the Target
Date.
3.3 London Switch may substitute materials and may vary or alter the
specification for the Works (even if the effect of doing so affects the
services to be provided under the Lease and Services Agreement) if it is
required so as to comply with any public authority or statutory regulations
or requirements.
3.4 When the Works are completed London Switch shall serve a Completion Notice
and the Customer may inspect the Works to satisfy itself that they have
been completed. The precise area of "the Location" under the Lease and
Services Agreement will be measured and will be deemed accepted by the
parties so long as it falls within a tolerance of 2% either way of the area
specified in the Lease and Services Agreement Particulars.
3.5 Within five Working Days after receipt of the Completion Notice (time being
of the essence) the Customer may serve on London Switch a notice in writing
("a Counter Notice") stating that it does not accept that the Works have
been completed. Any Counter Notice must specify in what respect the
Customer is not satisfied with the Works. If no Counter Notice is served
within that five Working Days period the Customer will be deemed to have
accepted completion of the Works.
3.6 If a Counter Notice is served in accordance with and within the period
specified in clause 2.5 London Switch may either:
(a) accept the Counter Notice and carry out the additional works specified
by its as necessary to complete the Works in which case the above
procedure will be repeated as often as is necessary until the Customer
has accepted the Works; or
(b) within five Working Days after receipt of the Counter Notice by notice
in writing to the Customer require the matter to be determined by an
independent chartered surveyor ("the Expert") acting as an expert and
not as an arbitrator and in that event:
(i) the Expert will be appointed either by agreement between the
parties or (in default of agreement within five Working Days
after service of London Switch's notice) on the application of
either party by the President for the time being of the Royal
Institution of Chartered Surveyors or his duly authorized deputy
or any person authorized by him to make appointments;
(ii) the Expert shall offer the parties a reasonable opportunity to
make written representations and to comment (once only) in
writing on the representations made by others and the Expert
shall have such regard (if any) to any such representations or
comments as he considers appropriate;
(iii) the fees and expenses of the Expert including the cost of his
appointment will be borne by the parties in such proportion as he
may direct or in default of any such direction shall be borne
equally by the parties and if either party pays the whole of the
Expert's fees and expenses it shall be entitled to recover one
half from the other;
(iv) the Expert shall give to each of the parties a notice in writing
stating the results of his determination and that determination
shall be final and binding on the parties.
3.7 If the Words have not been completed by the Target Date then the Customer
shall be entitled to a postponement of the start of its payment of the
"Rent" under the Lease and Services Agreement of a period equivalent to the
period from the Target Date up until the date on which the Works are
completed.
3.8 If the Works have not been completed within six months of the Target Date
then at any time thereafter either party may serve notice on the other to
terminate this Agreement and invoke the provisions of clause 8.
4 Completion
4.1 Subject as provided in clause 2.8 and in the following provisions of this
Agreement London Switch and the Customer shall complete the Lease and
Services Agreement on the Completion Date at such place as London Switch
require.
4.2 Between now and the Completion Date London Switch shall be entitled to
designate "the Location" under the Lease and Services Agreement to another
part of the Building so long as the area (and layout) of the designated
part shall be equivalent (and no less convenient in any material respect)
to that of "the Location" as now designated.
3
4.3 The Rent Commencement Date (as defined in the Lease and Services Agreement)
shall be the date 6 months after this Agreement shall have become
unconditional.
5 Title
The Customer shall assume the right of London Switch to grant the Lease and
Services Agreement and shall not require any evidence of or raise any
objection requisition or enquiry in respect of London Switch's title to the
Building.
6 No assignment
The Customer shall not assign underlet charge or otherwise deal with the
benefit of this Agreement in whole or in part and London Switch shall not
be obliged to (but may) complete the Lease and Services Agreement with any
person other than the Customer.
7 No possession
The Customer shall not be entitled to occupation of any part of the
Building until the Lease and Services Agreement is completed.
8 Insolvency of Customer
If at any time before completion of the Lease and Services Agreement the
Customer is the subject of a petition presented or an order made or a
resolution passed or analogous proceedings taken for the appointment of an
administrator of or winding up such company (except for the purpose of and
followed within one month by an amalgamation or reconstruction which does
not involve or arise out of insolvency or give rise to a reduction in
capital) or if a receiver is appointed to the whole or any part of its
undertaking assets property or revenues or if the Customer stops payment or
agrees to declare a moratorium or becomes or is deemed to be insolvent or
unable to pay its debts within the meaning of Section 123 of the Insolvency
Xxx 0000 then London Switch may at any time before completion of the Lease
and Services Agreement by notice in writing served on the Customer
immediately invoke the provisions of clause 9.
9 Termination
Wherever under the provisions of this Agreement notice is served invoking
the provisions of this clause then notwithstanding anything to the contrary
contained or implied elsewhere in this Agreement this Agreement will
(without prejudice to any pre-existing right of action of any party in
respect of any breach by any other party of its obligations under this
Agreement) immediately terminate and cease to have effect and the parties
will be released from any further liability under this Agreement.
10 Non-mergers, etc.
To the extent that they remain to be observed and performed all the
provisions of this Agreement shall continue in full force and effect
notwithstanding the completion of the Lease and Services Agreement.
11 Value Added Tax
Whenever under the terms of this Agreement either party is required to pay
any sums it shall in every such case in addition pay any Value Added Tax
applicable to such payment.
12 Proper Law
This Agreement and any disputes arising out of or in relation to this
Agreement shall be governed by and construed in accordance with English
law. The parties agree to submit to the exclusive jurisdiction of the
English Court. If the Customer shall be incorporated or registered outside
England and Wales its address stated in the Particulars shall be its
address for the purpose of proceedings brought in the English Courts.
AS WITNESS their agreement of the provisions set out in this Agreement the
parties have signed the Particulars on the date set out in the Particulars.
[AGREED DRAFT: 8 NOV 99: MLD/VFC]
LEASE AND SERVICES AGREEMENT PARTICULARS
for the London Switch Building, East India Dock, Xxxxxx X00
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1. Date
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2. The Customer Name: Telemoode Networks Limited
Company Number: 3714188
Registered Office: 0-00 Xxxxxxx Xxxxxx,
Xxxxxx, X0X0XX
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3. The area comprised in the Location 11,775 square feet
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4. The Term From (and including) the Commencement
Date up until 2015
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5. The Commencement Date
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6. The Rent (pound)771,250
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7. The Rent Commencement Date [6 months from when the
Commitment Agreement
becomes unconditional] 2000
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8. The number of car parking spaces 10 spaces
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Executed as its deed by
Global Switch (London) Limited
acting by:
Director
Director/Secretary
Executed as its deed by
the Customer acting by:
Director
Director/Secretary
1
SERVICES LIST
for the London Switch Building, East India Dock, London E14
1 Provision of access for visiting public telecommunications carrier staff
for the installation and testing of lines.
2 Provision of access for visiting maintenance staff from any authorised
maintenance organisation.
3 Provision of access for visiting Customer staff.
4 Liaising with the Customer over equipment installations by suppliers or
public telecommunications carriers, or maintenance visits by any authorised
maintainer.
5 (Between the hours of 09.00 and 17.00 Monday to Friday excluding Public and
Bank holidays) ordering on behalf of the Customer communications circuits
from public telecommunications carriers on instruction from and as
authorised by the Customer.
6 Save to the extent that such maintenance is the Customer's responsibility
under Clause 5.1, the maintenance and repair of the Building.
7 In relation to the Common Areas:
(a) the cleaning of the Common Areas and the exterior of the Building
(b) the provision of appropriate lighting when required
(c) the provision of appropriate heating when required
(d) the reasonable provision of air-conditioning
(e) the reasonable provision of hot and cold water
(f) the provision and operation of such fire prevention fire fighting and
fire alarm equipment and signs as may be required by any fire
authority, or as required by London Switch's insurers
(g) the provision of refuse bins and the operation of a refuse collection
service for the Building
(h) the provision and operation of a security patrol and/or security
observation system and/or other security equipment for the Building
(i) the maintenance of the grounds of the Building
2
(j) the provision of any other services which the Landlord from time to
time reasonably considers appropriate having regard to the principles
of good estate management
8 Insuring the Building in its full reinstatement value and insuring against
the public liability of London Switch in respect of claims in connection
with or in any way arising out of the use by the Customer of the Location.
3
THESE TERMS AND CONDITIONS are agreed on the date stated in the Particulars
between GLOBAL SWITCH (LONDON) LIMITED (Company No. 3698210) whose registered
office is at Peel Place, 00-00 Xxxxxx Xxxxxx, Xxxxxxxxxx X0 0XX ("London
Switch") and THE CUSTOMER whose details are set out in the Particulars.
1 Definitions and Interpretation
1.2 In this Lease:
"Building" means The London Switch Building, East India Dock, Xxxxxx X00;
"Commencement Date" means the date set out in the Particulars on which this
Lease will commence and from which date London Switch will commence the
provision of the Services;
"Common Areas" means all parts of the Building from time to time provided
for the common use of more than one of the occupiers of the Building and
their visitors including without limitation any of the following which fall
within this definition: vehicular and pedestrian accesses passages
stairways circulation areas lifts escalators loading bays fire escapes
toilet facilities storage areas refuse collection and disposal areas and
parking areas;
"Equipment" means the telecommunications equipment from time to time
installed in the Location by the Customer;
"Force Majeure" means any event outside the reasonable control of a party
affecting its ability to perform any of its obligations (other than
payment) under this Lease;
"Location" means such part of the Building comprising the square footage
stated in the Particulars and shown for identification purposes edged red
on the attached plan (the "Area") and extending from the upper side of the
floor slab immediately below the Area to the underside of the floor or roof
slab immediately above the Area excluding:
(a) the walls bounding the Area and
(b) the load-bearing walls and pillars within the Area and
(c) all structural floor slabs within the Area and
(d) all Service Media within the Area which do not serve the Area
exclusively
but including
(a) the plaster and other finishes on the inner sides of the walls
bounding the Area and on all faces of all load-bearing walls and
pillars wholly within the Area and
(b) all ceilings and other finishes applied to the floor or roof slab
immediately above the Area and to any floor slab within the Area and
all floors floor screeds and other finishes applied to the floor slab
immediately below the Area and to any floor slab within the Area and
(c) all doors windows and roof lights of the Area together with the frames
glass and furniture of them and
(d) the whole of all non-load-bearing walls or partitions wholly within
the Area and
(e) all Service Media within the Area and which serve the Area exclusively
and
(f) all London Switch's fixtures and fittings from time to time in the
Area;
"Particulars" means the Lease and Services Agreement Particulars comprising
the front sheet to this Lease;
"Rent" means the annual rent stated in the Particulars payable in respect
of the grant of this Lease to the Customer and the provision of the
Services by London Switch;
"Services" means the services to be provided by London Switch pursuant to
this Lease as described in the Services List, together with any additional
services to be provided by London Switch to the Customer in accordance with
Clause 6.1;
"Services List" means the list of Services attached to this Lease;
"Service Media" means sewers drains pipes wires cables conduits and other
conducting media;
"Term" means the term of this Lease as stated in the Particulars;
1.3 The Particulars form part of this Lease but the headings to clauses are
inserted for convenience only and shall not affect the interpretation or
construction of this Lease.
1.4 Words importing the singular shall include the plural and vice versa. Words
importing a gender include every gender and references to persons include
an individual, company, corporation, firm or partnership.
4
1.5 All sums payable hereunder are exclusive of VAT or any other applicable tax
or duty payable upon such sums which shall be added if appropriate at the
rate prevailing at the relevant tax point.
1.6 The words and phrases "other", "including" and "in particular" shall not
limit the generality of any preceding words or be construed as being
limited to the same class as any preceding words where a wider construction
is possible.
2 Demise
With effect from the Commencement Date London Switch hereby demises to the
Customer the Location, the Customer paying throughout the Term the Rent and
observing the obligations on its part in this Lease, together with:
2.1 the right to retain the Equipment in the Location for the duration of the
Term; and
2.2 the right to use the number of car parking spaces stated in the Particulars
on London Switch's land adjacent to the Building in the place or places
which London Switch will from time to time designate; and
2.3 the right to pass and xxxxxx at all times over the Common Areas
but excepting and reserving to London Switch the right on reasonable prior
notice to enter the Location at all reasonable times for the purpose of
laying and thereafter maintaining the Service Media situated in the voids
within the Location, London Switch causing no damage or destruction to the
Location and no interruption to the Customer's business carried on at the
Location, together with the right to free passage and running of services
or supplies to and from the remainder of the Building through such Service
Media; and
London Switch reserves the right to refuse to admit to the Building or
remove from the Building any employees and subcontractors of the Customer
whose admission or presence is or would be in the reasonable opinion of
London Switch detrimental to the commercial interest of London Switch
3 Inspection
London Switch may enter the Location at any time with or without workmen to
take a plan of and to view the state and condition of the Location and if
any defects disrepair or unauthorised alterations are found for which the
Customer is liable the Customer will within three months after written
notice (or immediately in case of emergency) repair and make good the
Location to London Switch's satisfaction and in case of default London
Switch its agents or contractors may enter the Location to carry out all
necessary works and the Customer shall repay the costs of those works to
London Switch on demand.
4 Fees and payment terms
4.1 The Customer undertakes to pay London Switch the Rent, such fee to be
payable in four equal instalments quarterly in advance on 1st January, 1st
April, 1st July and 1st October in each year of the Term, provided that the
first instalment shall comprise an appropriate proportion of the Rent
calculated with effect from the Rent Commencement Date until the end of the
then current quarter.
4.2 The Rent shall upon each anniversary of the Commencement Date increase by
4%.
4.3 If any sum due under this Lease is not paid on the due date then (without
prejudice to London Switch's other rights and remedies) London Switch
reserves the right to charge interest on such sum on a daily basis (after
as well as before judgement) from the due date to the date of payment at
the rate of 3% above the base rate from time to time of Lloyds Bank plc (or
of such other bank as London Switch may nominate from time to time.
5 Customer's obligations
The Customer shall be responsible for the consequences of any use of the
Equipment and agrees with London Switch:
5.1 To maintain the internal fabric and finishes on the internal facing walls
and the floor and ceiling of the Location including all doors and windows
(if any) within the Location and not to make any alteration or addition
(whether structural or non-structural) whatsoever in or on the Location
provided that the Customer may erect or dismantle demountable partitioning
inside the Location.
5.2 To maintain the Equipment in good working order unless any maintenance is
London Switch's responsibility under the Services and not to replace or
make any modification alteration or addition to the Equipment which results
in material increases to the floor loading heat output power consumption or
environmental conditions of the Equipment and/or the Location
5
5.3 Not to use the Location except for the retention and use of the Equipment
in the Location nor to cause any injury, damage or nuisance to or,
interference with any person or property including (without limitation) the
Building and/or any equipment owned by third parties which may from time to
time be located in the Building.
5.4 To indemnify London Switch in respect of any injury or damage or, in the
case of equipment, interference as set out in Clause 5.3 caused directly or
indirectly to any person or property by the Equipment or by the Customer,
its employees, agents and sub-contractors irrespective of how such injury
or damage arises, provided that the Customer shall have no liability under
this Clause 5.4 to the extent that any injury or damage is caused by the
negligence of London Switch, its employees, agents or sub-contractors
carrying out the Services.
5.5 That, if any interference occurs between the Equipment and the equipment of
a third party and causes a dispute, that dispute shall be resolved by
London Switch in such manner as London Switch reasonably directs and the
Customer agrees to comply with London Switch's directions.
5.6 To indemnify London Switch against all costs, claims, demands, losses,
damages, expenses and liabilities of whatsoever nature (including without
limitation reasonable legal fees) suffered or incurred (directly or
indirectly) by London Switch in connection with any claim that the use or
possession of the Equipment or any computer programs used in connection
with the Equipment infringes the intellectual property rights (including
without limitation any patent, copyright, design right, registered design,
trade xxxx or service xxxx) of any third party.
5.7 Subject to Clause 9.4, at the end of the Term or on the earlier termination
of this Lease, to remove the Equipment from the Location and on demand to
pay any and all reasonable costs incurred by London Switch arising directly
or indirectly from the disconnection and removal of the Equipment.
5.8 To be responsible for the payment directly to the relevant carriers or
suppliers of all fees and charges payable in relation to the ordering
and/or installation of communications circuits from public
telecommunications carriers.
5.9 To be responsible for the payment of all fees and charges levied for or in
connection with the provision of an electrical supply to the Location which
supply shall be separately metered for the Location but the Customer's
responsibility under this Clause 5.9 shall (for the avoidance of doubt)
exclude the supply of electricity to the Common Areas the cost of which
shall be included within the Rent.
5.10 To observe such rules and regulations governing the Building and its use
and in particular method statements on cable management as London Switch
may make and notify to the Customer.
5.11 To comply with the requirements of any statutes or other legislation
applicable to the Location or its use and also with London Switch's health
& safety instructions issued from time to time relating to the Location or
its use including those relating to the disposal of rubbish and hazardous
material and ensure that the Location is kept tidy and safe at all times.
5.12 To pay the rates due in respect of the Location unless that is included as
one of the Services.
6 Provision of Services
6.1 Subject to the other provisions of this Lease and the Customer paying the
Service Fee London Switch hereby agrees with the Customer to provide the
Services to the Customer in accordance with this Clause 6, together with
such other additional services requested by the Customer which London
Switch agrees (at an additional cost to the Customer) in writing to
provide.
6.2 London Switch warrants and undertakes to the Customer that it shall perform
the Services with reasonable care and skill but London Switch does not
warrant or undertake that the Services will cause the Equipment to operate
without fault or interruption save that in carrying out the Services or any
other works to the Building London Switch will use its reasonable
endeavours not to interfere with the Equipment.
6.3 Subject to Clause 6.2, all other conditions, warranties, terms and
undertakings (whether express or implied, statutory or otherwise) relating
to the delivery, performance, quality, occurrence or reliability of the
Equipment or the Services are hereby excluded to the fullest extent
permitted by law.
7 Limitation of liability
7.1 Save as provided by statute the following provisions set out the entire
liability of London Switch (including any liability for the acts and
omissions of its employees, agents and sub-contractors) to the Customer
whether arising as a result of any breach of its contractual obligations
under this Lease or as a result of any false representation or statement or
tortious act or omission (including negligence) or otherwise howsoever. Any
breach, false representation or statement, act or omission falling within
this Clause 7.1 shall for the purpose of this Clause 7 be known as an
"Event of Default".
7.2 London Switch accepts liability to the Customer in respect of damage to the
tangible property of the Customer resulting from the negligence of London
Switch or its employees, agents or sub-contractors.
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7.3 The entire liability of London Switch in respect of any Event of Default
shall be limited to dmages of:
(a) (pounds)250,000 in the case of and Event of Default falling within
clause 7.2; and
(b) in the case of any other Event of Default, an amount equal to the Rent
current at the date of the occurrence of the Event or Default in
question,
7.4 London Switch shall not be liable to the Customer in respect of any Event
of Default for loss of profits, contracts or goodwill or any type of
special, indirect, consequential or economic loss (including loss or
damamge suffered by the Customer as a result of of an action brought by a
third party) even if such loss was reasonably forseeable or London Switch
had been advised of the possibility of the Customer incurring such loss.
8 Insurance
The Equipment shall at all times be at the Customer's entire risk and the
Customer shall be responsible for insuring the Equipment against all risks
(including without limitation, consequential loss and loss of profits
cover) as may be appropriate, taking into account the provisions of Clause
7.
9 Duration and termination
9.1 This Lease shall automatically terminate on the expiry of the Term (or if
earlier) by operation of this Clause 9.
9.2 London Switch may immediately terminate this Lease without payment of
compensation or other damages caused to the Customer solely by such
termination by giving notice in writing to the Customer if any one or more
of the following events happens:
(a) the Customer commits a material breach of any of its obligations under
this Lease which is incapable of remedy;
(b) the Customer fails to remedy, where it is capable of remedy, any
breach of its obligations under this Lease (save as to payment) within
a period of 30 days after having been required in writing to remedy or
desist from such breach;
(c) if any sum payable under this Lease is not paid within seven days of
its due date for payment in accordance with this Lease;
(d) the Customer is deemed to be unable to pay its debts within the
meaning of Section 123 of the Insolvency Xxx 0000, or calls a meeting
for the purpose of passing a resolution to wind it up, or such a
resolution is passed, or a resolution is passed by the directors of
the Customer to seek a winding up or administration order, or the
Customer presents, or has presented, a petition for a winding up
order, or presents, or has presented, a petition to appoint an
administrator, or has an administrative receiver, or receiver
appointed over all or any part of its business, undertaking, property
or assets.
9.3 Termination of this Lease shall be without prejudice to the other rights
and remedies of either party both under this Lease and at law.
9.4 Forthwith upon the termination of this Lease or the expiry of the Term, any
right to use the Equipment in the Location (or elsewhere in the Building)
shall automatically cease and the Customer shall make arrangements (at the
Customer's own cost) to remove the Equipment from the Building at a time to
be agreed with London Switch.
10 Confidentiality
10.1 Each party shall keep and procure to be kept secret and confidential all
information belonging to the other party disclosed or obtained as a result
of the relationship of the parties under this Lease and shall not use nor
disclose the same save for the purposes of the proper performance of this
Lease or with the prior written consent of the other party.
10.2 Neither party shall disclose the contents of this Lease to any third party
without the other party's prior written consent.
10.3 As part of its security procedures London Switch reserves the right to
refuse any person entry to the Building or the Location or access to the
Equipment including any employee in respect of whom the Customer has failed
to request rights of access from London Switch as well as any third party
telecommunications carrier or maintenance representative in respect of whom
the Customer has failed to give London Switch prior notice (with the name
of such person seeking entry or access and the date and time for which
entry or access to the Equipment is required). London Switch will not be
responsible for the consequences of any such refusal or failure or delay by
the Customer in notifying it of its access requirements.
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11 Force Majeure
11.1 If either party is affected by Force Majeure it shall immediately notify
the other party in writing of the matters constituting the Force Majeure
and shall keep that party fully informed of their continuance and of any
relevant change of circumstances whilst such Force Majeure continues.
11.2 The party affected by Force Majeure shall take all reasonable steps
available to it to minimise the effects of Force Majeure on the performance
of its obligations under this Lease.
12 Assignment and Sub-Contractors
12.1 Save as provided in this Clause 12, the Customer shall not be entitled to
assign, transfer, underlet or otherwise dispose of or deal with this Lease
in whole or in part or any of its rights under it.
12.2 London Switch shall not unreasonably withhold consent to an assignment of
this Lease as a whole where:
(a) the prosepective assignee has covenanted with London Switch that from
the date of assignment of this Lease to it for the remainder of the
Term it will pay the Rent reserved by and other charges payable under
this Lease and will observe and perform all the covenants and
obligations on the part of the Customer contained in this Lease such
covenant to be prepared by London Switch and completed at the cost of
the Customer; and
(b) if London Switch so requires the prospective assignee (unless it is a
company the whole of whose issued share capital is listed on a
recognised stock exchange in the United Kingdom) will provide a
guarantor or guarantors approved by London Switch (such approval not
to be unreasonably withheld or delayed) who will enter into a covenant
(if more than one jointly and severally) with London Switch in a form
to be prepared by London Switch.
12.3 London Switch shall not unreasonably withhold consent to an assignment of
the whole of this Lease but the parties have agreed that for the purposes
of Section 19(1)(A) Landlord and Xxxxxx Xxx 0000 that London Switch may
withhold that consent unless the following conditions are satisfied;
(a) The Customer and any former tenant who by virtue of there having been
an "excluded assignment" (as defined in Section 11 Landlord and Tenant
(Covenants) Act 1995) has not been released from the Customer's
covenants of this Lease joins into and executes such licence to assign
as the Customer and covenants with London Switch as provided in it;
(b) Any sum due from the Customer to London Switch under this Lease is
paid and any other material breach of the Customer's covenants in this
Lease is remedied.
12.4 London Switch shall not unreasonably withhold or delay consent to an
underletting of the whole or part of the Location where:
(a) the prospective underlessee has covenanted with London Switch not to
underlet any further and otherwise to observe and perform all the
covenants and obligations on the part of the Customer contained in
this Lease (except for the covenant to pay Rent) so far as they apply
to the part being underlet such covenant to be prepared by London
Switch and completed at the cost of the Customer; and
(b) the proposed underlease is not granted at a premium nor at a rent less
(when calculated per square foot of the part being underlet) than the
then passing Rent (when calcuated per square foot of the Location as a
whole); and
(c) both the part of the Location being underlet and the remainder of the
Location are capable of separate occupation and beneficial use; and
(d) the total number of underlettings is no more than four at any time;
and
(e) the underlease shall be execluded from the operation of sections 24-28
Landlord and Xxxxxx Xxx 0000.
12.5 London Switch shall be entitled to assign this Lease and shall also be
entitled to engage sub-contractors to carry out all or any of the Services,
but London Switch shall remain liable to the Customer under the terms of
this Lease for the provision of any Services by its sub-contractors.
13 General
13.1 This Lease contains the entire agreement and understanding between the
parties in relation to its subject-matter.
13.2 If at any time any part of this Lease (including any one or more of the
clauses of this Lease or any sub-clause or paragraph or any part of one or
more of these clauses) is held to be or becomes void or otherwise
unenforceable for any reason under any
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applicable law, the same shall be deemed omitted from this Lease and the
validity and/or enforceability of the remaining provisions of this Lease
shall not in any way be affected or impaired as a result of that omission.
14 Proper Law and Jurisdiction
14.1 This Lease and any disputes arising out of or in relation to this Lease
shall be governed by and construed in accordance with English law. The
parties agree to submit to the exclusive jurisdiction of the English
Courts. If the Customer shall be incorporated or registered outside England
and Wales its address stated in the Particulars shall be its address for
service for the purpose of proceedings brought in the English Courts.
15 Additional Terms and Conditions
15.1 If the Customer shall have paid the Rent in accordance with this Lease and
shall have complied with all of its obligations in this Lease then the
Customer may on not less than 3 months' prior notice in writing to London
Switch terminate this Agreement on the date which falls 6 months after [the
date when the Commitment Agreement has become unconditional] 2000.
15.2 London Switch may or not less than 3 months' prior notice in writing to the
Customer terminate this Agreement on the date which falls 6 months after
[the date when the Commitment Agreement has become unconditional] 2000.
AS WITNESS their acceptance of the terms and conditions set out in this Lease
the parties have signed the Particulars on the date set out in the Particulars.
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