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EXHIBIT 10.6
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THIS LEASE IS A NEW TENANCY FOR THE PURPOSES OF
THE LANDLORD AND TENANT (COVENANTS) ACT 1995
Dated 26 July 2000
ETOYS UK LIMITED
and
MOMENTUS LIMITED
and
DIAMOND TECHNOLOGY PARTNERS INCORPORATED
UNDERLEASE
relating to Premise known as Sixth and Seventh Floors,
St Albans House, Haymarket, London SW1
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TABLE OF CONTENTS
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Contents Page
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PARTICULARS.............................................................
1 Definitions....................................................... 1
2 Interpretation.................................................... 2
3 Demise, Term and Rent............................................. 3
3.1 Demise and Term................................................... 3
3.2 Rent.............................................................. 3
4 Tenant's Covenants................................................ 4
4.1 To Pay Rent....................................................... 4
4.2 To Pay Outgoings.................................................. 4
4.3 Comply with Acts.................................................. 4
4.4 Repair............................................................ 4
4.5 Window Cleaning................................................... 5
4.6 To Permit the Landlord and/or The Superior Landlord to Repair
in Default........................................................ 5
4.7 Alterations....................................................... 5
4.8 Signs and Advertisements.......................................... 6
4.9 Overloading....................................................... 6
4.10 User.............................................................. 6
4.11 Restrictions on User.............................................. 6
4.12 Alienation........................................................ 6
4.13 Registration...................................................... 8
4.14 To Permit Viewing................................................. 8
4.15 To Inform the Landlord of Notices................................. 8
4.16 Reimburse Fees Incurred by Landlord............................... 8
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4.17 The Planning Acts.................................................. 8
4.18 Encroachment and Easements......................................... 9
4.19 Indemnity.......................................................... 9
4.20 To Pay Charges..................................................... 9
4.21 Interest on Overdue Payments....................................... 9
4.22 VAT................................................................ 9
4.23 Management: Common Parts........................................... 9
4.24 Superior Interests................................................. 10
5 Landlord's Covenants............................................... 10
5.1 Quiet Enjoyment.................................................... 10
5.2 Superior Lease..................................................... 10
5.3 Superior Landlord's Covenants...................................... 10
6 Agreements......................................................... 10
6.1 Re-entry........................................................... 10
6.2 Cessor of Rent..................................................... 11
6.3 No Easements....................................................... 11
6.4 Service of Notices................................................. 11
6.5 Superior Landlord's Consent........................................ 11
6.6 Contracts (Rights of Third Parties) Act 1999....................... 12
6.7 Exclusion of Landlord and Tenant Act 1954.......................... 12
7 Guarantee.......................................................... 12
8 Certification...................................................... 12
The First Schedule...................................................... 13
PART I Description of Demised Premises................................ 13
PART II Easements and Rights Granted................................... 14
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PART III Easements and Rights Reserved.................................. 14
The Second Schedule..................................................... 16
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PARTICULARS
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Landlord: eToys UK Limited
Registered Office: 50 Victoria Embankment, Blackfriars, London EC4Y ODX
Company Number: 03726048
Tenant: Momentus Limited
Registered Office: 21 St Thomas Street, Bristol BS1 6JS
Company Number: 3312894
Guarantor: Diamond Technology Partners Incorporated
(a company incorporated in Delaware)
Registered Office: Prentice-Hall Corporation System, Inc. of
1013 Centre Road, City of Washington,
County of New Castle, State of Delaware 19805
Demised Premises: Sixth and Seventh Floor, St Albans House
Building: St Albans House, Haymarket, London SW1
Term Commencement Date: 26 July 2000
Length of Term: Two years and six months
Expiration Date: 25 January 2003
Initial Rent: L453,987 (exclusive of VAT)
Rent Commencement Date: 26 August 2000
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This Lease is made the 26 July 2000 between:
(1) eTOYS UK LIMITED, company number 03726048, whose registered office is at
50 Victoria Embankment, Blackfriars, London EG4Y ODX (the "Landlord"); and
(2) MOMENTUS LIMITED, company number 3312894, whose registered office is at
21 St Thomas Street, Bristol (the "Tenant"); and
(3) DIAMOND TECHNOLOGY PARTNERS INCORPORATED (a company registered in the
state of Delaware) whose registered office is at Prentice-Hall Corporation
System, Inc. of 1013 Centre Road, City of Wilmington, County of New Castle,
State of Delaware 19805 (the "Guarantor").
Witnesses as follows:
1 Definitions
In this Lease, unless the context requires otherwise:
"ACT" means any Act of Parliament (including any consolidation,
amendment or re-enactment of it) and any subordinate legislation,
regulation or bye-law made under it;
the "BUILDING" means the Building and its curtilage (and each and every
part of it) known as St Albans House, Haymarket, London SW1 as registered
at HM Land Registry under Title Number NGL 604885, with all Landlord's
Plant and machinery in it;
the "COMMON PARTS" means the structure, exterior, roof and foundations
of the Building and all lavatories, fire escapes, pavements (if any),
entrances, lobbies, passages, lifts, staircase, plant, equipment and other
features and facilities (both functional and decorative) not demised
exclusively to any tenant and either available for use by the Tenant in
common with others and/or used by the Landlord in connection with the
Services;
the "CONTRACTOR" means Jarvis Newman Limited;
"CONDUCTING MEDIA" means gutters, pipes, wires, cables, sewers, ducts,
drains, mains, channels, conduits, flues and any other medium for the
transmission of Supplies;
the "DEED OF COLLATERAL WARRANTY" means the deed of collateral
warranty dated 3 May 2000 provided to the Landlord by the Contractor;
the "DEMISED PREMISES" means the premises (and each and every part of
them) described in Part I of the First Schedule;
the "GUARANTOR" means the person so named in the Particulars and in the
case of an individual includes his personal representatives;
the "INSURED RISKS" means such of the risks of fire (including
lightning), explosion, storm, tempest, earthquake, flood, bursting or
overflowing of water tanks apparatus or pipes, impact and (in peacetime)
aircraft and any articles dropped from aircraft, riot, civil commotion and
malicious damage for which cover at the time the insurance is effected is
generally available on normal commercial terms, and such other risks
against which the Superior Landlord from time to time reasonably insures;
this "LEASE" means this deed (whether it be a Lease or an Underlease)
and any licence deed or other document supplemental to it;
the "PLANS" means the plans annexed to this Lease;
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"QUARTER DAYS" means 25 March 24 June 29 September and 25 December in
every year and Quarter Day means any of them;
the "SERVICES" means the works, services, facilities and charges listed
in Part III of the Third Schedule of the Superior Lease;
the "SERVICE CHARGE" means the sum equal to the sum payable by the
Landlord to the Superior Landlord in accordance with the terms of the
Superior Lease;
"SUPERIOR LANDLORD" means Land Securities Plc whose registered office is
at 5 Strand, London WC2N 5AF;
"SUPERIOR LEASE" means the lease dated 24 JULY 2000 made between (1)
the Superior Landlord and (2) the Landlord;
"SUPPLIES" means water, steam, gas, air, soil, electricity, telephone,
heating, telecommunications, data communications and other like supplies;
the "TERM" means the term granted by this Lease;
the "TERMINATION DATE" means the expiration date of the Term (however
arising);
"VAT" means Value Added Tax or any similar tax from time to time
replacing it or performing a similar fiscal function;
"VAT SUPPLY" has the meaning which "supply" has for the purpose of the
Value Added Tax Act 1934.
2 INTERPRETATION
In this Lease
2.1.1 The clause heading shall not affect the construction.
2.1.2 Words respectively denoting the singular include the plural
and vice versa and one gender includes each and all genders.
2.1.3 Obligations owned by or to more than one person are owed by or
to them jointly and severally.
2.1.4 The "Superior Landlord" includes the person entitled to the
reversion expectant on the Superior Lease, the "Landlord"
includes the person entitled to the reversion expectant on this
Lease, and the "Tenant" includes the successors in title and
persons deriving title under the original Tenant, and the
"Landlord's surveyor" may be an employee of the Landlord or of
an associated company of the Landlord.
2.1.5 An obligation not to do or omit to do something includes an
obligation not to suffer or permit the doing or omission (as
appropriate) of that thing.
2.1.6 A reference to an act or omission of the Tenant includes
reference to an act or elimination of any person having the
Tenant's express or implied authority.
2.1.7 Any sums payable by reference to a year or any other period
shall be payable proportionately for any fraction of a year or
other period (as appropriate). Apportionments of rent will be
computed using the method set out at paragraphs K2.6.4-K2.6.6
of the Law Society's Conveyancing Handbook 1989. If
apportionment on that basis is impossible, the method set out
in paragraph K2.6.8 of the above Handbook will be used.
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2.1.8 All sums payable under this Lease must be paid at the
discretion of the Tenant by direct debit or in sterling
through (or by cheque drawn on) a clearing bank in the United
Kingdom.
2.1.9 Reference to a fair proportion of a sum is reference to such
fair and reasonable proportion of that sum as determined by
the Landlord's and/or Superior Landlord's surveyor acting
reasonably and properly (whose decision except in case of
manifest error will be binding on the parties).
2.1.10 Fights of entry revised to the Landlord and/or the Superior
Landlord (whether under Clause 4 or under Part III of the
First Schedule) may also be exercised by those authorised by
the Landlord and/or the Superior Landlord (and with plant and
equipment where appropriate) but entry shall (save in
emergency or in case of default by the Tenant) only be
exercised pursuant to 48 hours' prior notice; and as little
inconvenience and disturbance as reasonably practicable shall
be caused; and all damage caused to the Demised Premises shall
as soon as possible be made good.
3. DEMISE, TERM AND MERIT
3.1 DEMISE AND TERM
The Landlord demises to the Tenant the Demised Premises together with
the rights specified in Part II of the First Schedule except and
receiving to the Landlord the Superior Landlord and those authorised by
them the rights specified in Part III of the First Schedule to hold for
a term at two years and six months (subject to determination as
hereinafter provided) commencing on the 26 JULY 2000 and expiring on
the 25 JANUARY 2003.
3.2 RENT
The Tenant shall pay the following sums, which are reserved as rent.
3.2.1 firstly, during the Term, yearly, the sum of L489,987. Such
rent shall be payable by equal quarterly payments in advance
on the Quarter Days in every year without any deduction or set
off. The first payment shall be for the period commencing on
(and to be paid on) the 26 JULY 2000 and ending on the day
prior to the Quarter Day next following that date;
3.2.2 secondly, the amount properly paid by the Landlord to the
Superior Landlord in accordance with Clause 3.2.2 of the
Superior Lease. Such rent shall be payable within seven days
of demand;
3.2.3 thirdly, the Service Charge together with the sum of L3 per
square foot in connection with the use of IT and telephone
cabling at the Demised Premises provided by the Landlord for
the use of the Tenant all such sums payable by equal quarterly
instalments in advance on the Quarter Days in every year
without any deduction or set off in the same manner as set out
in Part I of the Third Schedule of the Superior Lease PROVIDED
ALWAYS that the service charge shall exclude
(i) any costs or charges which the Landlord is properly
entitled to claim from the Contractor pursuant to the
Deed of Collateral Warranty; and
(ii) any sum included in the service charge pursuant to the
Superior Lease by way of provision towards the estimated
cost of the future renewal or replacement at the
appropriate time of the Superior Landlord's plant and
machinery and future repair renewal and redecoration of
the building;
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3.2.4 fourthly, any sums due under Clause 4.20;
3.2.5 fifthly, the sums due under Clause 4.21 (so far as they relate to
the rents above reserved);
3.2.6 sixthly, the sums due under Clause 4.22 (so far as they relate to
the rents above reserved).
4 TENANT'S COVENANTS
The Tenant covenants with the Landlord at all times during the Term.
4.1 TO PAY RENT
To pay the rents reserved by this Lease immediately they become due
without deduction or set off.
4.2 TO PAY OUTGOINGS
To pay all rates, taxes, duties, charges, assessments, impositions and
outgoings ("levies") whatsoever whether parliamentary, local or
otherwise charged upon the Demised Premises or upon their owner or
occupier and a fair proportion of any levies on the Landlord in respect
of the Building (except income tax on the rents reserved properly
payable by the Landlord and/or the Superior Landlord and any levy
occasioned by any dealing with the reversion immediately expectant on
this Lease).
4.3 COMPLY WITH ACTS
To comply with all notices served by any public, local or statutory
authority and with the requirements of any present or future Acts,
regulation or directive (whether imposed on the owner or occupier) which
affects the Demised Premises or their use provided always that any such
matter served or imposed on the owner as relates to the Demised Premises
or their use shall be notified forthwith to the Tenant.
4.4 REPAIR
4.4.1 To keep the Demised Premises including without limitation all
Landlord's and/or Superior Landlord's plant and machinery in it
in good and substantial repair and good working order PROVIDED
ALWAYS that the Tenant shall not be required to yield up the
Premises at the end of the Term in any better state or condition
than as evidenced by the attached photographic schedule of
condition.
4.4.2 To replace by new articles of similar kind and quality any
fixtures, fittings, plant or equipment (other than Tenant or
Trade fixtures and fittings) upon the Demised Premises which are
in need of replacement.
4.4.3 Damage by any of the Insured Risks is excepted from the Tenant's
obligation under sub-clauses 4.4.1 and 4.4.2 save to the extent
that payment of the whole or part of the insurance moneys is
refused in consequence of some act or default of or suffered by
the Tenant.
4.4.4 At the Termination Date to yield up the Demised Premises in the
state of repair and working order above referred to.
4.4.5 Promptly to notify the Landlord as soon as the Tenant becomes
aware of any defect in the Demised Premises capable of giving
rise to a duty under any Act or under this Lease on the Landlord
and/or the Superior Landlord.
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4.5 WINDOW CLEANING
To clean the inside of all windows and their frames, of the Demised
Premises as often as reasonably necessary.
4.6 TO PERMIT THE LANDLORD AND/OR THE SUPERIOR LANDLORD TO REPAIR IN DEFAULT
To permit the Landlord and/or the Superior Landlord (and in accordance
with the provisions of Clause 2.10) to enter and view the condition of
the Demised Premises. If the Landlord serves on the Tenant or leaves on
the Demised Premises notice in writing requiring that any repairs or
other works or matters for which the Tenant is liable under the terms of
this Lease be undertaken, and the Tenant does not within two months
following such notice (or sooner if requisite) commence to comply with
the requirements and thereafter diligently proceed with the same to the
reasonable satisfaction of the Landlord and/or the Landlord's Surveyor
the Landlord may enter the Demised Premises and do everything necessary
to comply with such notice. All costs properly incurred by the Landlord
in so doing shall be repaid by the Tenant as a debt within seven days of
demand. Any such entry is without prejudice to the Landlord's rights
under Clause 6.1.
4.7 ALTERATIONS
4.7.1 Not to make any structured or external alterations or additions
in or to the Demised Premises or cut into any structural part of
the Building.
4.7.2 Not otherwise to carry out any internal non-structural
alterations or additions to the Demised Premises without the
prior written approval of and in accordance with drawings and
specifications approved by the Landlord (such approvals not to be
unreasonably withheld or delayed) and by the Superior Landlord.
4.7.3 If a breach of sub-clause 4.7.1 occurs the Landlord may (without
obligation) at the Tenant's expense remove or fill up (as the
case may be) any unauthorised buildings, structures, alterations
or additions.
4.7.4 The terms of any approval may require the Tenant to covenant in
such form as the Landlord and/or the Superior Landlord shall
reasonably require in regard to the execution of any works to the
Demised Premises and as the Landlord may absolutely require their
reinstatement at the Termination Date.
4.8 SIGNS AND ADVERTISEMENTS
Not to display on or from the Demised Premises so as to be visible from
the outside any sign, advertisement, lettering or notice of any kind
except as previously approved by the Landlord and/or the Superior
Landlord.
4.9 OVERLOADING
Not to exceed the designed floor loading of the Building.
4.10 USER
Not to use the Demised Premises otherwise than as high class offices.
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4.11 RESTRICTIONS ON USER
Not to:
4.11.1 use the address of the Demised Premises (whether for advertising
purposes or otherwise) in a manner which the Landlord and/or the
Superior Landlord acting reasonably considers detrimental to the
reputation of the Building;
4.11.2 install any window box or receptacle for flowers outside the
Demised Premises;
4.11.3 cook or heat food on the Demised Premises other than by
microwaving pre-cooked food;
4.11.4 do anything which may invalidate any insurance or render any
additional premium payable for the insurance of the Demised
Premises or the Building against any Insured Risk;
4.11.5 use the Demised Premises as a dwelling place or for sleeping, as
a betting office or in connection with gaming, for the sale of
intoxicants for consumption on or off the premises, for public
entertainment, or for any sale by auction (which for the
avoidance of doubt does not prohibit the use of the Demised
Premises for the purposes of the Tenant's business as an
e-commerce company); or
4.11.6 use the Demised Premises for any illegal or immoral purpose or
cause in the opinion of the Landlord and/or the Superior
Landlord any nuisance, damage or disturbance to the Landlord
or the occupiers of the Building.
4.12 ALIENATION
4.12.1 In this sub-clause:
"PERMITTED PART"
shall mean the whole or a part of any floor of the Demised
Premises (excluding the landings, lifts, toilets and service
ducts) together with (in common with other occupiers) the right to
use the entrances staircases, lifts and landings for access
thereto and egress therefrom and the right to use appropriate
toilet accommodation so that a Permitted Part comprises a viable
independent suite of offices.
"PERMISSIBLE UNDERLEASE"
means an underlease created by Deed, not created on payment of a
fine or premium, and containing the Stipulated Covenants; and a
reservation of and an underlessee's covenant to pay a rent not
less than the open market rent (obtainable without taking a fine
or premium) for the Demised Premises or any Permitted Part and
provisions for change of use and alienation and recovery of
Insurance Premium and Service Charge no less onerous than those
in this Lease.
"PERMISSIBLE UNDERLESSEE"
means a person who has executed a Deed giving the Stipulated
Covenants directly to the Landlord.
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"STIPULATED COVENANTS"
means the Tenant's covenants and conditions in this Lease (except
the Tenant's covenant to pay the rents reserved by this Lease)
to the extent applicable to the premises to be underlet.
4.12.2 Not (save herein expressly permitted) to assign, share, part with the
possession or occupation of, charge or underlet any part of the
Demised Premises.
4.12.3 Not to underlet the whole of the Demised Premises or a Permitted Part
except to a Permissible Underlessee by a Permissible Underlease in
accordance with the provisions of clause 4.12.5.
4.12.4 Not to part with, or share the possession or occupation of the
Demised Premises except by virtue of an assignment or underlease
authorized under this sub-clause 4.12.
4.12.5 Not without the prior consent in writing of the Landlord (such consent
not to be unreasonably withheld or delayed subject in the case of an
assignment to sub-clauses 4.12. 6-12.9) and (where required under
the terms of the Superior Lease) of the Superior Landlord;
(a) to assign the whole of the Demised Premises; or
(b) to underlet the whole of the Demised Premises by a Permissible
Underlease (which shall exclude by Court Order Sections 24-28
(inclusive) of the Landlord and Tenant Act 1954) to a
Permissible Underlessee; or
(c) to underlet a Permitted Part except by a Permissible Underlease
(which shall exclude by Court Order Sections 24-28 (inclusive) of
the Landlord and Tenant Act 1954) and not at any time during the
term to grant or permit to be granted Permissible Underleases of
Permitted Parts so that there are more than two occupiers of any
floor of the Demised Premises at any one time.
4.12.6 A refusal of consent to assign will be reasonable if on the ground
(whether or not with other grounds) that in the reasonable opinion
of the Landlord the proposed assignee is unlikely to be able to meet
its obligations under this Lease having regard to all relevant
circumstances.
4.12.7 Sub-clause 4.12.6 shall be without prejudice to the right of the
Landlord to refuse consent on any other ground or grounds where
such refusal would be reasonable.
4.12.8 It will be reasonable for any consent to assign to be subject to a
condition that the assigning Tenant execute as a deed and in a form
reasonably required by the Landlord and deliver to the Landlord prior
to the assignment in question an authorized guarantee agreement
(as defined in and for the purposes of section 16 of the Landlord and
Tenant (Covenants) Act 1995).
4.12.9 Sub-clause 4.12.8 shall be without prejudice to the right of the
Landlord to impose further conditions upon a grant of consent where
such condition and its imposition would be reasonable (subject at all
times to the provisions of clause 4.12.7).
4.12.10 Not to waive any breach by any underlessee of any of the Stipulated
Covenants, but on any such breach to take all reasonable steps to
enforce the Stipulated Covenants by re-entry or otherwise.
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4.12.11 The Tenant may (without prejudice to clause 4.12.4) without
the necessity of obtaining any consent of the Landlord share
occupation of the whole or any part or parts of the Demised
Premises with a company that is a member of the same group as
the Tenant (as defined by Section 42 of the Landlord and Tenant
Act 1954) provided that:
(a) the Landlord shall be notified of the commencement and
termination of each such arrangement;
(b) such arrangement shall cease forthwith upon any such
company or companies ceasing to be a members of the same
group as the Tenant; and
(c) no relationship of Landlord and Tenant is thereby
created.
4.13 REGISTRATION
To produce two certified copies of every document evidencing any
transmission of any interest (however remote) in the Demised Premises
to the Landlord's Solicitors for registration within one month after
the date of such document, and to pay to the Landlord's Solicitors a
fee of Twenty Five Pounds plus Value Added Tax for each such
registration together with any fee properly payable to any Superior
Landlord.
4.14 TO PERMIT VIEWING
To permit prospective purchasers of the reversion or persons
carrying out a valuation for insurance purposes (once in any year of
the Term) with written authority from the Landlord and/or the
Superior Landlord or their agents at reasonable times in the day
and upon reasonable prior notice to view the Demised Premises.
4.15 TO INFORM THE LANDLORD OF NOTICES
To give Immediate notice to the Landlord upon becoming aware of any
notice or claim effecting the Demised Premises.
4.16 REIMBURSE FEES INCURRED BY LANDLORD
To reimburse the Landlord on written demand all expenditure
properly incurred in connection with:
4.16.1 any breach of any Tenant's covenant in this Lease including
the preparation and service of a notice under Section 146
of the Law of Property Act 1925; and
4.16.2 the preparation and service of a Schedule of Dilapidations.
4.17 THE PLANNING ACTS
4.17.1 In this sub-clause:
"Planning Acts" means every Act for the time being in force
relating to the use, development and occupation of land and
buildings; and
"Planning Permission" means any permission, consent or
approval given under the Planning Acts.
4.17.2 To comply with the requirements of the Planning Acts and of
all Planning Permissions relating to or affecting the Demised
Premises.
4.17.3 Not to apply for or implement any Planning Permission
without (in each case) the prior written consent of the
Landlord.
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4.18 ENCROACHMENT AND EASEMENTS
Not to obstruct any windows belonging to the Demised Premises or
the Building nor to permit any encroachment or easement to be made
or threatened against the Demised Premises.
4.19 INDEMNITY
To indemnify the Landlord and/or the Superior Landlord from all
losses, actions, claims, demands, costs, damages and expenses:
4.19.1 In respect of any personal injury or death or damage to any
property or any infringement of any right or otherwise
arising directly or indirectly in respect of the Demised
Premises or their use; and
4.19.2 arising out of any breach of any obligation owed by the
Tenant under this Lease.
4.20 TO PAY CHARGES
To pay the reasonable charges (including Solicitor's and Surveyor's
charges) and disbursements properly incurred by the Landlord and/or
the Superior Landlord in connection with any application by the
Tenant for consent under any provision of this Lease where such
application is withdrawn or consent is granted or lawfully refused.
4.21 INTEREST ON OVERDUE PAYMENTS
To pay to the Landlord interest on all sums payable under this
Lease not paid within 14 days following the due date (or if no
date is specified from the date of demand) at the rate of L3.00 per
cent. per annum above Lloyds TSB Bank Plc Base Lending Rate for the
time being in force from the due date (or if no date is specified
from the date of demand) until payment.
4.22 VAT
Any payment or other consideration to be provided to the Landlord
pursuant to the provisions of this Lease is exclusive of VAT and the
Tenant shall in addition pay:
4.22.1 VAT properly payable on any consideration in respect of a
VAT Supply to the Tenant by the Landlord; and
4.22.2 a fair proportion of the VAT properly charged in respect of
any VAT Supply to the Landlord in respect of the Demised
Premises or the Building where such VAT is not recoverable
by the Landlord from HM Customs & Excise.
4.23 MANAGEMENT: COMMON PARTS
4.23.1 Not to transport heavy or bulky items through the Common
Parts between 8.00 am and 8.00 pm unless the consent of the
Landlord and/or the Superior Landlord (such consent not to
be unreasonably withheld or delayed) has been obtained.
4.23.2 Not to damage or mark any surface of the Common Parts by
using unsuitable trolleys, or otherwise, or overload any
lift or raised floor (if any).
4.23.3 Not to obstruct, deposit goods or rubbish upon, cause any
nuisance or disturbance on, or endanger any person or vehicle
using any of the Common Parts.
4.23.4 To comply with reasonable regulations notified by the
Landlord and/or the Superior Landlord to the Tenant as to the
use of the Common Parts.
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4.24 SUPERIOR INTERESTS
To comply with all tenants covenants (except as to payment of
rents or other sums) relating to the Demised Premises and
contained or referred to in the Superior Lease and any other
lease to which this Lease is inferior and with all covenants
affecting the freehold interest in the Demised Premises (for the
avoidance of doubt in the case of any conflict between the Tenant's
covenants in this Lease and the covenants in the Superior Lease and
any other Lease to which this Lease is inferior this Lease shall
prevail).
5 LANDLORD'S COVENANTS
The Landlord covenants with the Tenant as follows:
5.1 QUIET ENJOYMENT
That so long as the Tenant pays the rents reserved by and complies
with the Tenant's covenants and conditions in this Lease, the Tenant
shall peaceably hold and enjoy the Demised Premises during the Term
without any lawful interruption by the Landlord or any person
rightfully claiming under or in trust for it.
5.2 SUPERIOR LEASE
To pay the rents reserved by the Superior Lease and to observe and
perform the Tenant's covenants under the Superior Lease unless the
obligation to do so falls upon the Tenant by virtue of this Lease.
5.3 SUPERIOR LANDLORD'S COVENANTS
5.3.1 To use its reasonable endeavours to procure that the Superior
Landlord complies with its covenants and obligations
contained in the Superior Lease.
5.3.2 To use its reasonable endeavours but at the Tenant's cost to
enforce any of the covenants and obligations on the part of the
Superior Landlord in the Superior Lease.
6 AGREEMENTS
It is agreed that:
6.1 RE-ENTRY
6.1.1 If any event specified in sub-clause 6.1.2 occurs the
Landlord may at any time afterwards re-enter the Demised
Premises or any part of them in the name of the whole and
this Lease will then immediately determine. In sub-clause
6.1.2 reference to the "1986 Act" means the Insolvency Act
1986.
6.1.2 The events referred to in Clause 6.1.1 are as follows:
(i) any rent reserved remaining unpaid for 21 days after
becoming due and payable; and in the case of the rent
first reserved this means whether formally demanded or
not;
(ii) the Tenant or the Guarantor failing to comply with any
obligation which it has undertaken or any condition to
which it is bound under this Lease;
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(iii) the Tenant or the Guarantor (if a company) entering
into liquidation or passing a resolution for
winding-up (otherwise than a voluntary winding-up of a
solvent company for the purpose of amalgamation or
reconstruction previously consented to by the Landlord
such consent not to be unreasonably withheld or
delayed) or being unable to pay its debts within the
meaning of Sections 122 and 129 of the 1986 Act or
summoning a meeting of its creditors or any of them
under Part I of the 1986 Act or allowing a petition
for an Administration Order in respect of it to be filed
in court or a receiver or an administrative receiver
for it being appointed;
(iv) the Tenant or the Guarantor (if an individual) having
a receiving order made against him or becoming bankrupt
or entering into a composition with his creditors or
being unable to pay or having no reasonable prospect of
being able to pay his debts within the meaning of
Sections 267 and 288 of the 1986 Act or an interim
order being made against him under Part VIII of the 1986
Act.
6.1.3 Neither the existence of the Landlord's right under
sub-clause 6.1.1 above nor the consequences of any exercise
of that right are to effect any other right or remedy available
to the Landlord.
6.2 CESSER OF RENT
If the Building is destroyed or damaged by any insured Risk so as to
render the Demised Premises unfit for occupation and use and the
insurance effected by the Superior Landlord has not been [ILLEGIBLE] or
payment of the policy moneys refused in whole or in part because
of any act or default of the Tenant, then the rents first and third
reserved, or a fair proportion of those rents according to the
nature and extent of the damage, shall cease to be payable until
the Demised Premises shall again be fit for occupation and use or
until the expiration of three years from the date the destruction or
damage occurred (whichever period shall be the shorter).
6.3 NO EASEMENTS
The Tenant shall not be entitled to any rights whether of light and air
or otherwise (save as expressly granted by this Lease) which would
restrict the free user for building or otherwise of this Building or
any adjoining or neighbouring premises. Section 62 Law of Property
Act 1925 will not apply to this Lease.
6.4 SERVICE OF NOTICES
In addition to any other prescribed mode of service any notices
shall be validly served if served in accordance with Section 196 of
the Law of Property Act 1925 as amended by the Recorded Delivery
Service Act 1962 or, in the case of the Tenant, if left addressed to
it on the Demised Premises or sent to it by post.
6.5 SUPERIOR LANDLORD'S CONSENT
The giving of any Landlord's consent or approval required under the
terms of this Lease shall be conditional upon the consent or approval
(where required) of any Superior Landlords. The Landlord will apply
for such consent or approval and the terms of Clause 5.3 shall apply
thereto.
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6.6 CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
Unless it is expressly stated that the Contracts (Rights of Third
Parties) Act 1999 is to apply nothing in this Lease will create rights
in favour of any one other than the parties to this Lease.
6.7 EXCLUSION OF LANDLORD AND TENANT ACT 1954
Having been authorised so to do by an Order of the Mayor's and City
of London Court made on 12 July 2000 the Parties hereto agree and
declare that the provisions of Sections 24 to 28 of Part II of the
Landlord and Tenant Act 1954 (as amended) shall be excluded in
respect of the tenancy created by this Lease.
7. GUARANTEE
The Guarantor covenants with the Landlord in the terms set out in
the Second Schedule.
8. CERTIFICATION
It is hereby certified that there is no Agreement for Lease to which
this Lease gives effect.
In Witness the Parties have executed this Lease as a deed the day and
year first before written.
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THE FIRST SCHEDULE
PART I
DESCRIPTION OF DEMISED PREMISES
1 All that Sixth and Seventh Floors of the Building shown for the
purposes of identification only edged pink on the Plans and more
particularly described in paragraphs 2 and 3 below.
2 There is included in this demise:
2.1 all internal surfacing materials and finishes on the walls, floors
and ceilings of the Demised Premises and on the other structural
parts of the Building within or bounding the Demised Premises; and
2.2 all doors (including those giving access to the Demised Premises
from the Common Parts), windows and skylights (and in each case
their frames and glazing) of the Demised Premises; and
2.3 all Landlord's and/or Superior Landlord's plant, fixtures and
fittings (save as specified in paragraph 3.4 below); and
2.4 one half severed vertically of any non-structural walls separating
the Demised Premises from any adjoining premises; and
2.5 the entirety of any non-structural walls wholly within the Demised
Premises or bounding the same (other than as specified in paragraph
2.4 above); and
2.6 all Conducting Media within and exclusively serving the Demised
Premises (save as specified in paragraph 3.4 below);
2.7 the suspended ceiling, the raised floor (and the supports for each
of these) and the airspace between each of these and the slab or
other structural part respectively above and below them; and
2.8 window blinds (if any) and equipment for operating the same;
3 There is excluded from this demise:
3.1 the whole of the airspace above the Demised Premises;
3.2 all loadbearing and exterior walls and the floors and ceilings of
the Demised Premises (other than to the extent expressly included
by virtue of paragraph 2 above);
3.3 all structural parts of the Building;
3.4 any conducting media serving the remainder of the Building.
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[BLUEPRINT]
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PART II
EASEMENTS AND RIGHTS GRANTED
1 The right of subjacent and lateral support for the Demised Premises from
the remainder of the Building.
2 The free passage of Supplies from and to the Demised Premises through
Conducting Media at the Building.
3 The right of access to and exit from the Demised Premises through the
relevant Common Parts within the Building at all times.
4 The right of use of lavatory accommodation where provided for common use
in the Building.
5 The right to display the Tenant's name in size and manner previously
approved by the Landlord (such approval not to be unreasonably withheld
or delayed) and the Superior Landlord upon the nameboards at both
Haymarket and St Alban's Street reception areas at the Building.
6 The right to display the Tenant's name in size and manner previously
approved by the Landlord (such approval not to be unreasonably withheld
or delayed) and the Superior Landlord in the lobby areas outside each
of the floors in the Building comprising the Demised Premises.
PART III
EASEMENTS AND RIGHTS RESERVED
1 SUPPORT
The right to subjacent and lateral support for the remainder of the
Building from the Demised Premises.
2 RUNNING OF SERVICES
The free passage of Supplies from and to the remainder of the Building
through Conducting Media at any time within the Demised Premises.
3 ENTRY IN RESPECT OF SERVICES, ETC.
The right to install, clean, maintain, alter, make connections to,
replace or repair any Conducting Media within the Demised Premises but
serving the Building and the right to enter the Demised Premises for
those purposes.
4 ENTRY FOR MANAGEMENT PURPOSES
The right to enter on the Demised Premises to inspect, repair, alter,
decorate or execute any other works upon the Building which would
otherwise not be practicable to carry out, or to carry out any Services
or for any other reasonable management purpose.
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5 ESCAPE
The right of emergency escape over any parts of the Demised Premises as
are designated for such purpose.
6 SUPERIOR INTERESTS
All exceptions and reservations out of the Superior Lease and any other
lease to which this Lease is inferior, or out of the freehold interest
in the Demised Premises.
7 COMMON PARTS: REDEVELOPMENT
Causing as little inconvenience, interruption or nuisance to the Tenant as
possible:
7.1 the right, in emergency or when works are being carried out to them, to
close off or divert any of the Common Parts provided that such closing
off or diversion is ceased as soon as reasonably possible;
7.2 the right to stop up or divert any Conducting Media or other Common
Parts subject to a reasonable alternative being made available; and
7.3 the right to build upon, alter, add to or redevelop the Retained Premises
and/or the Building or any adjoining or neighbouring premises as the
Landlord and/or the Superior Landlord considers fit, whether or not the
access of light and air to the Demised Premises is interfered with.
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THE SECOND SCHEDULE
GUARANTEE
1 The Guarantor covenants with the Landlord as principal debtor that:
1.1 throughout the Term or until the Tenant is released from its covenants
pursuant to the 1995 Act:
1.1.1 the Tenant will pay the rents reserved by and perform its
obligations contained in this Lease;
1.1.2 the Guarantor will indemnify the Landlord on demand against all
Costs arising from any default of the Tenant in paying the
rents and performing its obligations under this Lease;
1.2 the Tenant (here meaning the Tenant so named in the Particulars) will
perform its obligations under any authorised guarantee agreement that
it gives with respect to the performance of any of the covenants and
conditions in this Lease.
2 The liability of the Guarantor shall not be affected by:
2.1 any time given to the Tenant or any failure by the Landlord to enforce
compliance with the Tenant's covenants and obligations;
2.2 the Landlord's refusal to accept rent at a time when it would or might
have been entitled to re-enter the Premises;
2.3 any variation of the terms of this Lease;
2.4 any change in the constitution, structure or powers of the Guarantor
the Tenant or the Landlord or the administration, liquidation or
bankruptcy of the Tenant or Guarantor;
2.5 any act which is beyond the powers of the Tenant;
2.6 the surrender of part of the Premises;
2.7 the transfer of the reversion expectant on the Term;
2.8 any other act or thing by which (but for this provisions) the Guarantor
would have been released.
3 Where two or more persons have guaranteed obligations of the Tenant the
release of one or more of them shall not release the others.
4 The Guarantor shall not be entitled to participate in any security held
by the Landlord in respect of the Tenant's obligations or stand in the
Landlord's place in respect of such security.
5 If this Lease is disclaimed, and if the Landlord within 6 months of the
disclaimer requires in writing, the Guarantor will enter into a new lease
of the Premises at the cost of the Guarantor on the terms of this Lease
other than Clause 7 and this Schedule (but as if this Lease had continued
and so that any outstanding matters relating to rent review or otherwise
shall be determined as between the Landlord and the Guarantor) for the
residue of the Contractual Term from and with effect from the date of the
disclaimer.
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6 If this Lease is forfeited and if the Landlord within 6 months of the
forfeiture requires in writing the Guarantor will (at the option of the
Landlord);
6.1 enter into a new lease as in paragraph 5 above with effect from the
date of the forfeiture; or
6.2 pay to the Landlord on demand an amount equal to the moneys which
would otherwise have been payable under this Lease until the earlier
of 6 months after the forfeiture and the date on which the Premises
are fully relet.
EXECUTED as a DEED by }
MOMENTUS LIMITED }
}
acting by: }
}
/s/ [ILLEGIBLE] }
Director }
/s/ [ILLEGIBLE]
Director/Secretary
EXECUTED as a DEED by }
DIAMOND TECHNOLOGY PARTNERS }
INCORPORATED }
}
acting by: }
Chief Financial Officer
/s/ [ILLEGIBLE]
Assis. Secretary
/s/ [ILLEGIBLE]
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