|
Exhibit
10.44
DATED 12
th
June
2006
SLOUGH TRADING ESTATE
LIMITED
- and -
INTERCONNECT EXCHANGE EUROPE
LIMITED
AGREEMENT FOR
LEASE
- relating to
–
Building 2 Buckingham
Avenue
Trading Estate
Slough
Berkshire
NABARRO NATHANSON
Lacon House
Theobald’s
Road
London
WC1X 8RW
Ref:
PD/TNP/LM/S2884/
Tel: 020 7524 6000
Fax: 01753 512768
AN AGREEMENT made the
12 th
day of June the year Two
thousand and six BETWEEN
| (1) |
SLOUGH TRADING ESTATE LIMITED (Company Registration Number
1184323) whose registered office is at 234 Bath Road Slough
Berkshire SL1 4EE (“the Landlord”) |
| (2) |
INTERCONNECT EXCHANGE EUROPE LIMITED (Company Registration
Number 03672650) whose registered office is at Airport Gate Unit 1
Bath Road West Drayton Middlesex UB7 0NA (“the
Tenant”) |
WHEREBY IT IS AGREED as
follows:-
| 1. |
ACCESS DEFINITIONS AND INTERPRETATION |
“Access
Certificate”
The certificate issued by the
Architect in accordance with clause 3 (the Architect acting in a
professional and independent manner and having regard to the
interests of the parties pursuant to this Agreement) stating that
the Premises have reached such a state of readiness as to enable
the Tenant to enter the Premises for the purpose of carrying out
the Tenant’s Warehouse Works provided always that the
Landlord shall procure that the Access Certificate shall not be
issued before sufficient of the Works shall have been completed so
as to ensure that
| |
1.1 |
the Tenant shall have reasonable pedestrian and vehicular
access to and egress (including contractor’s access) from the
Premises |
| |
1.2 |
the Works to the warehouse part of the Premises shall have been
completed in all material respects |
| |
1.3 |
site temporary services relating to electricity and water are
available to the warehouse part of the Premises subject only to
service connections which require an occupier’s application
to a service or statutory undertaker |
| |
1.4 |
the Tenant’s Warehouse Works can be carried out without
any material interruption or delay by reason of any of the
Works |
| |
1.5 |
the warehouse part of the Premises shall be wind and water
tight. |
| |
1.6 |
the Tenant
shall have reasonable pedestrian and vehicular access to and egress
from the Premises to enable the plant machinery and equipment of
the Tenant
|
1
| |
its contractors and
sub-contractors to be delivered and to remain on that part of the
Premises shown edged red on the early access site plan in
the form of Annexure 1 for the purposes of and in the course of
carrying out the Tenant’s Warehouse Works.
|
| |
1.7 |
the concrete floor slab to the ground floor of the building on
the Premises shall have be completed for a period of 28
days |
| |
1.8 |
the Premises shall comply with health and safety legislation
allowing the Tenant’s Warehouse Works to be undertaken
legally |
Provided that the Tenant
shall be entitled to waive any one or more of the foregoing
conditions as a condition precedent to the issue of the Access
Certificate (but without prejudice to the obligation of the
Landlord to procure fulfilment of any conditions so waived) by
notice in writing to the Landlord provided always the Access
Certificate shall not be issued as a result of conditions being
waived in the event that access would impede to a material degree
the carrying of the Works and/or result in a breach of health and
safety regulations provided further the Landlord shall not be
precluded from having access to the warehouse part of the Premises
to complete any outstanding works thereto
“Access
Date”
means the date of the Access
Certificate
“Approvals”
means all approvals consents
permissions and licences of any local or other competent authority
or person which may from time to time be necessary to enable the
Contractor lawfully to commence and to carry out and complete the
Works
“Appointments”
means the deeds appointing
the Professional Team to be substantially in the form of Annexure 2
with any amendments thereto approved by the Tenant such approval
not to be unreasonably withheld or delayed
“the
Architect”
means Langley Hall Associates
Limited or the person appointed from time to time by the Landlord
or the Contractor to act in the capacity of the Architect and
approved by the Tenant such approved not to be unreasonably
withheld or delayed
2
“Building
Contract”
means a contract in form of
JCT Standard Form of Building Contract with Contractors Design 1998
Edition incorporating amendments 1. (1999), 2. (2000), 3. (2001),
4. (2002) and 5. (2003) (with the amendments annexed
hereto in the form of Annexure 3) subject to the prior approval of
the Tenant such approval not to be unreasonably withheld or
delayed
“Building
Documents”
means the specification and
drawings relating to the Works in the form of Annexure 4
“Certificate”
has the meaning specified in
Schedule A
“Certificate
Date”
has the meaning specified in
paragraph 5.3 of Schedule A
“Critical
Date”
means 11 th August 2006
“Code of Measuring
Practice”
means The Royal Institution
of Chartered Surveyors Code of Measuring Practice relevant at the
time of measurement of the Premises pursuant to clause 12 hereof
Fifth Edition
“Completion
Date”
means the fifth working day
following the later of:-
| |
2. |
The date the Deeds of Warranty are available for
completion |
| |
3. |
The date the Environmental Deed of Warranty is available for
completion |
| |
4. |
The date the Contractors Warranty is available for
completion |
| |
5. |
the date the Landlord approves any application for
Tenant’s alterations as referred to and subject to the
provisions of paragraph 3 of Schedule B made at least five working
days prior to the Certificate Date |
| |
6. |
the date the Landlord and Tenant’s Representative agree
the Gross External Area of the building part of the Premises under
Clause 12 or the date of the Experts determination of any dispute
over such area if appropriate |
“Construction
Documents”
means collectively the
Appointments, the Building Contract, the Contractor Deed of
Warranty, the Deeds of Warranty, the Environmental Deed of Warranty
and the Sub-Contractor Warranty
3
“Contractor”
means the party appointed by
the Landlord to be the contractor pursuant to the Building
Contract
“the Contractor Deed
of Warranty”
means a warranty
substantially in the form of Annexure 5 to be granted to the Tenant
by the Contractor
“Deposit
Deed”
means the deed pursuant to
which the Tenant shall deposit with the Landlord a sum equivalent
to six months of the Rent together with a sum equivalent to Value
Added Tax thereon such deed to be in the form of Annexure
6
“Deeds of
Warranty”
means warranties
substantially in the form of Annexure 7 to be granted to the Tenant
by the Professional Team
“Environmental
Consultant”
means WSP Environmental
Limited of Buchanan House 24-30 Holborn London EC1N 2HS
“Environmental Deed
of Warranty”
means a warranty
substantially in the form of Annexure 8 to be granted to the Tenant
by the Environmental Consultant
“Landlord’s
Solicitors”
means Nabarro Nathanson of
Lacon House 84 Theobald’s Road London WC1X 8RW (Ref:
JP/TNP/S2884/959)
“Lease”
means the Lease of the
Premises for a term (“the Term”)of twenty years
commencing on the Certificate Date at the Rent payable from the
Rent Commencement Date with five yearly rent reviews at the
expiration of every consecutive fifth year of the said term such
lease to be in the form of Annexure 9
“Licence to
Alter”
means the licence authorising
the Tenant to make the Tenant Fit Out Works to the Premises such
licence to be in the form of Annexure 10
“Long Stop
Date”
means 22 nd September 2007
4
“Other
Rent”
means all sums payable as
rent pursuant to the Lease other than the Rent
“Mechanical and
Electrical Engineer”
means Kier Building Services
Engineers or the person appointed by the Landlord or the Contractor
to act in the capacity of Mechanical and Electrical Engineer and
approved by the Tenant such approval not to be unreasonably
withheld or delayed
“Power Supply
Agreement”
means the agreement for the
supply of power to the Premises of even date and made between
Slough Heat and Power Limited (1) and the Tenant
(2)
“Premises”
means the land and building
known as Building 2 Buckingham Avenue Trading Estate Slough
Berkshire as the same are more particularly described in the
Lease
“Professional
Team
means the Architect the
Structural Engineer the Mechanical and Electrical
Engineer
“Project
Manager”
means an employee appointed
by the Landlord to act in the capacity of a project
manager
“Rent”
means the yearly rent
determined pursuant to clause 12 of this agreement and payable
under the Lease
“Rent Commencement
Date”
means the date being sixteen
months from and including the Certificate Date in respect of the
Rent and the Certificate Date in respect of the Other
Rent
“Report”
means the environmental
report Ref: 12040267/002 dated April 2004 undertaken by the
Environmental Consultant
“Representative”
means the person or persons
appointed from time to time by the Tenant to be its project manager
for the purposes of this Agreement and whose identity shall have
been notified in writing to the Landlord
5
“Structural
Engineer”
means John Tooke &
Partners Limited or the person appointed from time to time by the
Landlord or the Contractor to act in the capacity of the Structural
Engineer and approved by the Tenant such approval not to be
unreasonably withheld or delayed
“Sub-Contractor
Warranty”
means a warranty
substantially in the form of Annexure 11 to be granted to the
Tenant by a sub-contractor undertaking a design obligation pursuant
to clause 3.3
“Target
Area”
means 77,737 square feet (
7,221.9 square metres)
“Target
Date”
means 21 st May 2007
“Tenant’s
Solicitors”
means Druces &
Attlee of Salisbury House London Wall London EC2M 5PS (Reference
61/55/10432.5)
“Tenant’s
Variation Form”
means the form recording a
Variation (as defined in paragraph 3 to Schedule A) to the Works in
the form of Annexure 12
“Tenants Fit Out
Works”
means the works to be carried
out by the Tenant at its own expense in accordance with the
provisions of Schedule B
“Tenant’s
Warehouse Works”
Means the works to be carried
out to the warehouse part of the Premises by the Tenant at its own
expense in accordance with the provisions of Schedule B
“Value Added
Tax”
means Value Added Tax as
referred to in the Value Added Tax Act 1994 (or any tax of a
similar nature which may be substituted for or levied in addition
to it
“Works”
means the works which are to
be carried out at the Premises by the Contractor and which are
briefly described in the Building Documents and which are to be
carried out pursuant to and with regard to the provisions of
Schedule A to provide a warehouse with ancillary offices of
approximately 77,737 square feet gross external area (excluding the
gross external area of the second floor plant room and the gross
external area of the staircase from the first floor to the said
plant room)
6
| |
1.1 |
The clause headings in this Agreement (except for the
definitions) are for ease of reference and are not to be used for
the purposes of construing this agreement. |
| |
1.2 |
References in this Agreement to clause numbers or schedules or
paragraphs in schedules mean the clauses of or schedules to or
paragraphs in schedules to this agreement. |
| |
1.3 |
Obligations undertaken by more than one person are joint and
several obligations. |
| |
1.4 |
Words importing persons include firms, companies and
corporations and vice versa. |
| |
1.5 |
Words importing one gender will be construed as importing any
other gender. |
| |
1.6 |
Words importing the singular will be construed as importing the
plural and vice versa. |
| |
1.7 |
Unless otherwise specified, a reference to legislation is to
that legislation as consolidated, amended or re-enacted from time
to time and includes all orders, regulations, consents, licences
and bye-laws made or granted under such legislation and references
to legislation generally are to all legislation (local, national
and supra-national) having effect in relation to the
Premises. |
| |
1.8 |
Where any act is prohibited no party will permit or omit to do
anything which will allow that act to be done. |
| |
1.9 |
Where any party agrees to do something it will be deemed to
fulfil that obligation if it procures that it is done. |
| |
1.10 |
Where any notice, consent, approval, permission or certificate
is required to be given by any party to this agreement such notice,
consent, approval, permission or certificate must be in writing and
will not constitute a valid notice, consent, approval, permission
or certificate for the purpose of this agreement unless it is in
writing. |
| |
1.11 |
References in this agreement to the Standard Conditions are to
the Standard Commercial Property Conditions (First
Edition). |
The Tenant shall pay to the
Landlord on the date hereof the sum of £248,904.15 which the
Landlord shall hold in accordance with and subject to the terms and
conditions of the Deposit Deed notwithstanding the Deposit Deed
will not be completed until the Completion Date but provided that
the said sum shall be returned to the Tenant with interest if this
agreement is terminated under clause 12.4 or 16
| |
3.1 |
Subject to
obtaining all Approvals the Landlord shall procure the execution of
the Construction Documents in substantially the forms annexed
hereto and to procure the carrying out of the Works in accordance
with the provisions relating thereto as specified in Schedule A. In
the event of any material alteration to the Construction Documents
being
|
7
| |
requested, the Landlord shall
submit written particulars thereof to the Tenant for its approval,
such approval not to be unreasonably withheld. Such approval or
notice that approval is withheld shall be given to the Landlord
within 10 working days after written particulars are submitted. Any
dispute as to whether or not such approval is unreasonably withheld
shall be referred for determination in accordance with clause
15
|
| |
3.2 |
The Landlord will procure that the Works until the Certificate
Date are insured against the Insured Risks (as defined in the
Lease) and in such manner as provided for in the Lease and in the
event that the Works or any part or parts thereof are destroyed or
damaged the Landlord shall comply with its obligations under the
Lease as if the Lease had been granted |
| |
3.3 |
The Tenant shall have the right to make representations in
respect of the appointment of any sub-contractors appointed by the
Contractor. No sub-contractor undertaking a design obligation
relating to floor slab, frame, mechanical and electrical
engineering services shall be appointed except on terms that the
sub-contractor shall enter into a deed of warranty in respect of
such design in substantially the terms of the Sub-Contractor
Warranty. The Sub-Contractor Warranty shall provide for appropriate
professional indemnity insurance cover in the case of the floor
slab and frame elements and appropriate product liability insurance
cover in respect of the other design elements. The Landlord will
use all reasonable endeavours to obtain product guarantees for
cladding/roofs and lifts |
| |
3.4 |
The Landlord shall prior to the Certificate Date provide to the
Tenant for approval full details of the professional indemnity
cover in respect of the Contractor, Professional Team and
Environmental Consultant |
| |
3.5 |
The Building Contract shall not be subject to assignment by the
Landlord save in the event of any insolvency of the
Landlord |
| |
3.6 |
If during the carrying out of the Works any pollution or
contamination of the Premises is found which is additional to that
referred to in the Report the Landlord at its own expense shall
procure the removal/neutralisation of the same in accordance with
Environmental Agency Recommendations and as approved by the
Representative such approval not to be unreasonably withheld or
delayed and to the reasonable satisfaction of the Environmental
Consultant and the Environmental Deed of Warranty shall be varied
to cover the further pollution/contamination. |
| |
3.7 |
Within the period of thirty days after the Certificate Date the
Landlord shall provide the Tenant with a complete and detailed
“as built” specification and related drawings in
respect of the Works both in paper form and on computer disc and
all instruction and operation manuals for all plant and machinery
in the Premises |
| |
3.8 |
The Landlord shall procure the issue by the Architect of the
Access Certificate as soon as reasonably possible and shall permit
early access to the Premises in accordance with and where the
provisions of Schedule B shall apply |
| |
3.9 |
The Landlord will provide a copy of the Access Certificate to
the Tenant on the day it is issued in Email format the Tenant
having supplied to the Landlord the relevant Email address with a
hard copy thereof to be forwarded by first class post within 48
hours of issue of the Access Certificate |
8
| |
4.1 |
Upon the Completion Date the Landlord shall:- |
| |
4.1.1 |
grant the Lease and the Licence to Alter and the Tenant shall
accept the said Lease and the Licence to Alter and |
| |
4.1.2 |
the parties shall enter into the Deposit Deed |
| |
4.1.3 |
on completion the definition in the Lease of “Term”
“Commencement Date” “Rent” “Rent
Commencement Date” and “Review Dates” shall be
completed so as to correspond to the provisions contained in clause
1 |
| |
4.2 |
The Lease Deposit Deed and the Licence to Alter and
Counterparts thereof shall be prepared by the Landlord’s
Solicitors and shall be executed respectively by the Landlord and
the Tenant |
| |
4.3 |
Completion shall take place at the offices of the
Landlord’s Solicitors or at such other place in London or
Slough as they shall reasonably require |
| |
4.4 |
If the Tenant has not provided full details of its works for
the purpose of the Licence to Alter 14 days prior to the Completion
Date completion of such Licence shall take place within 14 days of
the Landlord’s Solicitors submitting the engrossment of a
Counterpart Licence to Alter. |
| |
4.5 |
On the Completion Date the Tenant shall pay to the Landlord
such sum which when added together with the sum paid pursuant to
clause 2 represents the Deposit (as defined in the Deposit
Deed) |
| |
5.1 |
“Restrictions” means all matters affecting the
Premises or its use registered or capable of registration as local
land charges and all notices charges orders resolutions demands
proposals requirements regulations restrictions agreements
directions or other matters affecting the Premises or its use or
affecting the Works served or made by any local or other competent
authority or otherwise arising under any statute or any regulation
or order made under any statute |
| |
5.2 |
The Premises shall be demised subject to all (if any)
Restrictions affecting the Premises (whether in existence at the
date of this Agreement or arising at any later date) |
| |
5.3 |
No representation is made or warranty given by the Landlord as
to whether any restrictions exist or as to the permitted use of the
Premises for planning purposes |
9
| |
6.1 |
Save as provided in paragraph 6.2 hereof no agent adviser or
other person acting for the Landlord has at any time prior to the
making of this Agreement been authorised by the L |
| 
