EXHIBIT 10.38
LEASE PARTICULARS
1. Date : 14 March 2000
2. Parties
2.1 Landlord BRITEL FUND TRUSTEES LIMITED (Company number:
1687153) whose registered office is at Xxxxxxx
Xxxxx 00 Xxxxxxx Xxxxxx Xxxxxx X0 0XX
2.2 Tenant : CMGI (UK) LIMITED (Company number 3871833) whose
registered office is at Xxxxxxxxx Xxxxx 00
Xxxxxxxxxxx Xxxxxx XX0X 0XX
2.3 Guarantor : CMGI INC (incorporated in Delaware) whose
principal place of business is at 000 Xxxxxxxxxx
Xxxxxx Xxxxxxx XX00000 XXX and whose address for
service in England is Xxxxxx Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx Xxxxxxxxx XX0 0XX
3. Building : The land and buildings known as Prospect House 80
to 000 Xxx Xxxxxx Xxxxxx Xxxxxx XX0 as registered
at H M Land Registry under Title Number NGL441887
4. Premises : The fifth floor of the Building shown for
identification only edged red on the fifth floor
plan annexed
5. Car Parking Spaces : the 4 spaces shown for identification only edged
blue on the basement plan annexed or such other
spaces (being not less than 4 in number) in lieu
thereof at basement level as the Landlord may
from time to time allocate for use by the Tenant
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6. Contractual Term : the term of years from and including 2000 up to
and including 2010
7. Principal Rent : FIVE HUNDRED AND TWENTY-EIGHT THOUSAND SEVEN
HUNDRED AND TWENTY POUNDS ((Pounds)528,720) per
annum subject to increase in accordance with the
Second Schedule
8. Rent Commencement Date : 2000
9. Rent Review Date : in 2005
10. Permitted Use : as to that part of the Premises on the fifth
floor of the Building as offices within Class B1
of the 1987 Order with ancillary parking in the
Car Parking Spaces
This Lease made on the date and between the parties specified in the Particulars
Witnesses as follows:
1. Definitions
In this Lease unless the context otherwise requires:
1.1 Adjoining Property means any adjoining or neighbouring premises in
which the Landlord or a Group Company of the Landlord holds or shall at
any time during the Term hold a freehold or leasehold interest;
1.2 Arbitration means arbitration in accordance with Clause 7.4;
1.3 Base Rate means the base rate from time to time of Royal Bank of
Scotland PLC, or (if not available) such comparable rate of interest as
the Landlord shall reasonably require;
1.4 Building means the building described in the Particulars, and includes
any part of it and any alteration or addition to it or replacement of
it;
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1.5 Car Lifts means the car lifts shown for identification only edged
xxxxx on the basement plan annexed
1.6 Common Parts means the toilets, accesses, lifts (including without
limitation the Car Lifts), car parks and other areas of the Building
from time to time designated by the Landlord for common use by the
tenants and occupiers of the Building but excluding any such areas as
may be within the Premises or any other Lettable Units; 1.7 Conduit
means any media for the passage of substances or energy and any
ancillary apparatus attached to them and any enclosures for them;
1.8 Contractual Term means the term specified in the Particulars;
1.9 Encumbrances means the obligations and encumbrances contained or
referred to in the documents specified in Part III of the First
Schedule;
1.10 Group Company means a company which is a member of the same group of
companies within the meaning of Section 42 of the Landlord and Xxxxxx
Xxx 0000;
1.11 Guarantor means the person so named in the Particulars and/or any
party which gives a guarantee pursuant to the provisions of clause
4.16 hereof
1.12 Insured Risks means fire, lightning, earthquake, explosion, aircraft
(other than hostile aircraft) and other aerial devices or articles
dropped therefrom, riot, civil commotion, malicious damage, storm or
tempest, bursting or overflowing of water tanks apparatus or pipes,
flood, impact by road vehicles and in so far as the same is available
at usual commercial rates in the UK insurance market acts of terrorism
(to the extent that insurance against such risks may ordinarily be
arranged with an insurer of good repute) and such other risks or
insurance as may from time to time be reasonably required by the
Landlord (subject in all cases to such exclusions and limitations as
may reasonably be imposed by the insurers), and Insured Risk means any
one of them;
1.13 Landlord means the person for the time being entitled to the immediate
reversion to this Lease being initially the person so named in the
Particulars;
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1.14 Landlord's Surveyor means the Landlord's surveyor or managing agent
(who may be an employee of the Landlord) and who shall be
appropriately qualified;
1.15 this Lease means this lease and any document supplemental to it or
entered into pursuant to it;
1.16 Lettable Unit means a part of the Building which is let, or
constructed or adapted for letting, from time to time;
1.17 Outside Service Hours Charge means the proper cost to the of providing
any of the Services at the Tenant's request outside the Service Hours
(or a fair proportion of such cost if requested or used by another
tenant also);
1.18 Particulars means the descriptions and terms on the page headed Lease
Particulars which form part of this Lease;
1.19 Permitted Part means a part of the Premises
1.19.1 where all of the following conditions are satisfied:
(a) the extent of the part intended to be sublet shall first have
been approved by the Landlord (such approval not to be
unreasonably withheld);
(b) the Landlord acting reasonably is satisfied that each part
intended to be sublet and the remainder of the Premises will in
each case be self-contained and capable of separate use and
occupation;
(c) no more than two separate occupations (including the occupation
of the Tenant itself if relevant) shall subsist at any time
(provided that during only such time as this Lease is vested in
CMGI (UK) Limited no more than three separate occupations
(including the occupation of the Tenant itself if relevant) shall
subsist at any one time); and
1.19.2 PROVIDED THAT before any Permitted Part is sublet the Tenant
shall have obtained (and produced to the Landlord) a valid Order of
the Court (together
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with the form of underlease to which such Order refers) excluding
in respect of such proposed sub-demise the provisions of Sections
24 to 28 inclusive of the Landlord and Xxxxxx Xxx 0000.
1.20 Planning Acts means the Town and Country Planning Xxx 0000, the
Planning (Listed Buildings and Conservation Areas) Xxx 0000, the
Planning (Hazardous Substances) Xxx 0000 and the Planning
(Consequential Provisions) Xxx 0000;
1.21 Premises means the premises described in the Particulars and any
part of them and includes:
1.21.1 the floorboards, scReed, plaster and other finishes on
the floors, walls, columns and ceilings, and all carpets;
1.21.2 the raised floors and false ceilings (including light
fittings), and the voids between the ceilings and false ceilings
and the floor slab and the raised floors;
1.21.3 non-load-bearing walls and columns wholly within the
Premises and one half of the thickness of such walls dividing the
Premises from other parts of the Building;
1.21.4 all doors and internal windows and their frames, glass
and fitments;
1.21.5 all Conduits, plant and machinery within and solely
serving the Premises;
1.21.6 all Landlord's fixtures and fittings in the Premises;
1.21.7 all alterations and additions made to the Premises;
but excludes:
1.21.8 all structural and external parts of the Building;
1.21.9 load bearing framework roof foundations and joists;
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1.21.10 all Conduits, plant and machinery serving other
parts of the Building;
1.21.11 all external windows and their frames glass and
fitments;
1.22 Principal Rent means the rent stated in the Particulars;
1.23 Quarter Days means 25 March, 24 June, 29 September and
25 December in evyear and Quarter Day means any of them;
1.24 Service Charge means the service charge as specified in
the Fourth Schedule;
1.25 Service Hours means 8 a.m. to 8 p.m. on Monday to
Friday and 8 a.m. to 2 p.m. on Saturday, excluding all
public holidays;
1.26 Services means the services set out in Parts 11(A) and
11(B) of the Fourth Schedule;
1.27 Tenant means the person so named in the Particulars,
and includes its successors in title;
1.28 Term means the Contractual Term together with any
continuation of the term or the tenancy (whether by
statute or common law but not by renewal);
1.29 VAT means Value Added Tax and any similar tax
substituted for it or levied in addition to it;
1.30 1987 Order means the Town and Country Planning (Use
Classes) Order 1987 (as originally made);
1.31 1995 Act means the Landlord and Tenant (Covenants) Xxx
0000.
2. Interpretation
In this Lease unless the context otherwise requires:
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2.1. If the Tenant or the Guarantor is more than one person then their
covenants are joint and several;
2.2. Any reference to a statute includes any modification, extension
or re-enactment of it and any orders, regulations, directions,
schemes and rules made under it;
2.3 Any covenant by the Tenant not to do any act or thing includes an
obligation not knowingly to permit or suffer such act or thing to
be done;
2.4 If the Landlord reserves rights of access or other rights over or
in relation to the Premises then those rights extend to persons
properly authorised by it;
2.5 References to the act or default of the Tenant include acts or
default or negligence of any undertenant, or of anyone at the
Premises with the Tenant's or any undertenant's permission or
sufferance;
2.6 The Clause headings in this Lease are for ease of reference only;
2.7 References to the last year of the Term shall mean the twelve
months ending on the expiration or earlier termination of the
Term;
2.8 The perpetuity period applicable to this Lease shall be the Term
or 80 years from the commencement of the Term (whichever is the
shorter);
2.9 References to Costs include all lawful liabilities, claims,
demands, damages, losses and proper costs and expenses.
3. Demise and Rents
The Landlord DEMISES the Premises to the Tenant for the Contractual
Term, TOGETHER WITH the rights set out in Part I of the First Schedule,
EXCEPT AND RESERVING as mentioned in Part II of the First Schedule,
subject to all rights enjoyed by the owners or occupiers of any
neighbouring property over the Premises and subject to the Encumbrances,
the Tenant paying by way of rent during the Term without any deduction,
counterclaim or set off:
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3.1 the Principal Rent and any VAT by equal quarterly payments in advance
on the Quarter Days, to be paid by Banker's Standing Order to an
account and bank within the United Kingdom if the Landlord so
requires, the first payment for the period from and including the Rent
Commencement Date to (but excluding) the next Quarter Day to be made
on the Rent Commencement Date;
3.2 the Service Charge and any VAT at the times and in the manner set out
in the Fourth Schedule, and the Outside Service Hours Charge and any
VAT within 14 days of demand;
3.3 the following amounts and any VAT:
3.3.1 the sums specified in Clauses 4.2 (interest) and 4.5
3.3.2 the sums specified in Clause 6.2.1 (insurance);
3.3.3 all Costs incurred by the Landlord as a result of any breach
of the Tenant's covenants in this Lease.
4. Tenant's covenants
The Tenant covenants with the Landlord throughout the Term, or until
released pursuant to the 1995 Act, as follows:
4.1 Rents
To pay the rents and other sums reserved by this Lease on
the due dates;
4.2 Interest
If the Landlord does not receive any sum due to it by the
due date, to pay on demand interest on such sum at 4 per
cent above Base Rate (compounded on the Quarter Days) from
the due date until payment (both before and after any
judgment), provided this Clause shall not prejudice any
other right or remedy for the recovery of such sum;
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4.3 Outgoings
To pay all existing and future rates, taxes, charges,
assessments and outgoings in respect of the Premises (whether
assessed or imposed on the owner or the occupier), except any
tax (other than VAT) arising as a result of the receipt by the
Landlord of the Principal Rent and any tax arising on any
dealing by the Landlord or any superior landlord with its
reversion to this Lease;
4.4 VAT
4.4.1 Any payment or other consideration to be provided to the
Landlord is exclusive of VAT, and subject to receipt
within 14 days thereafter of a valid VAT invoice the
Tenant shall in addition pay any VAT chargeable on the
date the payment or other consideration is due;
4.4.2. Any obligation to reimburse or pay the Landlord's
expenditure extends to irrecoverable VAT on that
expenditure, and the Tenant shall also reimburse or pay
such VAT;
4.5 Utilities
To pay for all gas, electricity, water, telephone and
other utilities used on the Premises, and all charges for
meters and all standing charges, and a fair proportion of
any joint charges as reasonably determined by the
Landlord's Surveyor;
4.6 Repair
4.6.1 To put, keep and maintain the Premises (excluding
air conditioning, ventilation and fire systems) and any
Conduits, plant and equipment serving only the Premises in
good and substantial repair and condition (damage by the
Insured Risks excepted save to the extent that insurance
moneys are irrecoverable as a result of the act or default
of the Tenant);
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4.6.2 To make good any disrepair for which the Tenant is liable
within 2 months after the date of written notice from the
Landlord (or sooner if the Landlord reasonably requires);
4.6.3 If the Tenant fails to comply with any such notice the
Landlord may enter and carry out the work, and the proper cost
shall be reimbursed by the Tenant on demand as a debt;
4.7 Decoration
4.7.1 To clean, prepare and paint or treat and generally
redecorate all internal parts of the Premises in the fifth year
and in the last year of the Term;
4.7.2 The work described in Clause 4.7.1 is to be carried out:
(i) in a good and workmanlike manner to the Landlord's
reasonable satisfaction; and
(ii) in colours which (if different from the existing
colour) are first approved in writing by the Landlord
(approval not to be unreasonably withheld or delayed);
4.8 Cleaning
4.8.1 To keep the Premises clean, tidy and free from rubbish;
4.8.2 To clean the inside of windows and any washable surfaces at
the Premises as often as reasonably necessary;
4.9 Overloading
Not to overload the floors or ceilings of the Premises, or the
structure of the Building, or any plant, machinery or electrical
installation serving the Premises or the Building nor to do anything
which adversely interferes with the heating, air conditioning or
ventilation of the Building;
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4.10 Conduits
To keep the Conduits in or exclusively serving the Premises clear and
free from any noxious, harmful or deleterious substance, and to remove
any obstruction and repair any damage to such Conduits caused as a
result of any breach of this covenant by the Tenant as soon as
reasonably practicable to the Landlord's reasonable satisfaction;
4.11 Prohibited Uses
Not to use the Premises:
4.11.1 for any purpose which is noisy, offensive, dangerous,
illegal, immoral or a nuisance or causes damage to the Landlord or its
other tenants of the Building, or to owners or occupiers of any
neighbouring property, or which involves any substance which may be
harmful, polluting or contaminating;
4.11.2 for residential purposes;
4.11.3 for any auction, public or political meeting, public
exhibition or show, or as a betting office or for gaming or playing
amusement machines, or as a sex shop (as defined in the Local
Government (Miscellaneous Provisions) Act 1982), or for the business
of an undertaker, or for the business of a staff agency, employment
agency or Government Department at which the general public call
without appointment;
4.12 Permitted Use
Not to use the Premises otherwise than for the Permitted Use specified
in the Particulars;
4.13 Signs
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Not to erect any sign, notice or advertisement which is visible
outside the Premises without the Landlord's prior written consent;
4.14 Alterations
4.14.1 Not to make any alterations or additions which:
(a) merge the Premises with any adjoining premises;
(b) affect the external appearance of the Premises;
(c) would permanently diminish the lettable floor area of the
Premises
4.14.2 Not to make any alterations or additions to the Premises which
affect the structure of the Building (including without
limitation the roofs and foundations and the principal or load-
bearing walls, floors, beams and columns) without the Landlord's
prior written consent (not to be unreasonably withheld or
delayed)
4.14.3 Not to make any other alterations or additions to the Premises
provided that the Tenant may make internal non-structural
alterations to the Premises if the Tenant has first provided the
Landlord with all such details specifications and drawings of
such internal non-structural alterations as the Landlord may
reasonably require and provided further that if such non-
structural alterations affect the heating, air conditioning or
ventilation systems or any other services at the Building or any
Conduit or other plant or machinery providing services within the
Premises or the Building then the Tenant must obtain the
Landlord's prior written consent (not to be unreasonably withheld
or delayed)
4.15 Preservation of Easements
4.15.1 Not to prejudice the acquisition of any right of light for
the benefit of the Premises by obstructing any window or opening,
or giving any acknowledgment that the right is enjoyed by consent
or any other act or default of the Tenant;
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4.15.2 To preserve all rights of light and other easements enjoyed
by the Premises, and not to grant to or permit or suffer anyone to
acquire any right of light or other easement or right over the
Premises and in the event of anyone otherwise claiming any such
right if required by and at the cost of the Landlord to join in any
action to be implemented by the Landlord in relation to such claim;
4.15.3 To give the Landlord immediate notice if any easement enjoyed
by the Premises is obstructed, or any new easement affecting the
Premises is made or attempted;
4.16 Alienation
4.16.1 Not to:
(a) assign, charge, or (save as permitted in
clause 4.16.4) underlet nor to part with
possession of part only of the Premises nor
to agree to do so;
(b) part with the possession of the whole of the
Premises except by an assignment or
underletting permitted by this Clause 4.16;
(c) share the possession or occupation of the
whole or any part of the Premises except as
permitted by clause 4.16.7;
4.16.2 Not to assign or agree to assign the whole of the Premises
without the Landlord's written consent (not to be unreasonably
withheld or delayed), provided that:
(a) the Landlord may withhold consent in
circumstances where in the reasonable opinion
of the Landlord the proposed assignee is not
of sufficient financial standing to enable it
to comply with the Tenant's covenants in this
Lease;
(b) the Landlord's consent shall in every case be
subject to conditions (unless expressly
excluded) requiring that:
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(i) the assignee covenants with the
Landlord to pay the rents and observe
and perform the Tenant's covenants in
this Lease during the residue of the
Term, or until released pursuant to the
1995 Act;
(ii) the Tenant enters into an authorised
guarantee agreement guaranteeing the
performance of the Tenant's covenants
in this Lease by the assignee in the
form set out in the Third Schedule with
such reasonable additional provisions
and other amendments as the Landlord
may from time to time reasonably
require;
(iii) such other persons as the Landlord
reasonably requires act as guarantors
for the assignee and enter into direct
covenants with the Landlord in the form
set out in the Third Schedule (but
referring in paragraph 1.2 to the
assignee) with such reasonable
additional provisions and other
amendments as the Landlord may from
time to time reasonably require;
(iv) all rent and other payments then due
under this Lease are paid before
completion of the assignment;
4.16.3 The provisos to Clause 4.16.2 shall not prejudice the
Landlord's right to withhold consent in other circumstances, or to
impose other conditions, where it would be reasonable to do so;
4.16.4 Not to underlet or agree to underlet the whole of the
Premises or any Permitted Part unless:
(a) the rent payable under the underlease is:
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(i) not less than the best rent reasonably
obtainable in the open market for the
Premises or Permitted Part without fine
or premium;
(ii) payable no more than one quarter in
advance;
(iii) to be subject to upward-only reviews at
five yearly intervals to coincide with
the rent reviews under this Lease;
(b) the undertenant covenants with the Landlord
and in the underlease:
(i) to observe and perform the Tenant's
covenants in this Lease (except for
payment of the rents) during the term
of the underlease or until released
pursuant to the 1995 Act;
(ii) not subject as herein provided to sub-
underlet part only nor to share or part
with possession or occupation of the
whole or any part of the underlet
premises, nor to assign or charge part
only of the underlet premises;
(iii) not to assign or sub-underlet the whole
of the underlet premises or (in the
case of an underlease of the whole of
the Premises) to sub-underlet a
Permitted Part without in the case of a
sub-underletting (whether of the whole
of the Premises or of a Permitted Part)
obtaining and producing to the tenant
and to the Landlord an Order as
referred to in clause 1.19.2 in
relation to the tenancy created by such
sub-underlease nor without the
Landlord's prior written consent (which
shall not be unreasonably withheld or
delayed
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if the other requirements of this
clause 4.16 are fulfilled); and
(iv) to include in any sub-underlease
pursuant to paragraph (iii) an absolute
prohibition against further
underlettings of whole or part
(c) all rents and other ascertainable payments
then due under this Lease are paid before
completion of the underletting;
(d) in the case of an underletting of a Permitted
Part the Order referred to in clause 1.19 has
first been obtained and produced to the
Landlord;
4.16.5 Without prejudice to Clause 4.16.4, not to underlet the whole
of the Premises or any Permitted Part nor vary the terms of any
underlease without the Landlord's written consent (not to be
unreasonably withheld or delayed);
4.16.6 To take all necessary steps and proceedings to remedy any
breach of the covenants of the undertenant under the underlease, and
not to permit any reduction of the rent payable by any undertenant;
4.16.7 Notwithstanding Clause 4.16.1 the Tenant and any permitted
undertenant may share occupation of the whole or any part of the
Premises or the underlet premises with any company which is a Group
Company of the Tenant or the undertenant (as the case may be)
PROVIDED THAT
(a) the relationship of landlord and tenant is
not created; and
(b) occupation by any Group Company shall cease
upon it ceasing to be a Group Company of the
Tenant; and
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(c) the Tenant informs the Landlord in writing
before each occupier commences occupation
(with evidence that the occupier is a Group
Company of the Tenant or the permitted
undertenant as the case may be) and after it
ceases occupation;
4.16.8 Not to permit any other person to use the Car Parking Spaces
except
(a) by way of written licence;
(b) for a period of not less than 3 months;
(c) so that the relationship of landlord and
tenant is not created;
(d) to a person who is a direct tenant of the
Landlord in or a permitted underlessee of
office premises in the Building; and
(e) with the prior written approval of the
Landlord (not to be unreasonably withheld or
delayed)
4.17 Registration
4.17.1 Within 21 days to give to the Landlord's solicitors (or as
the Landlord may direct) written notice of any assignment, charge,
underlease or other devolution of the Premises or sharing of
occupation together with three certified copies of the relevant
document (and in a case to which clause 4.16.7 applies due evidence
that the occupier is a Group Company of the Tenant) and a reasonable
registration fee of not less than (Pounds)30;
4.17.2 Within 14 days of request to supply to the Landlord details
of the persons using or permitted to use any of the Car Parking
Spaces with details of the terms on which they use them and a
certified copy of every licence issued and then current of which the
Tenant has not previously supplied a copy
4.18 Statutory Requirements
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To comply promptly with all notices served by any public, local or
statutory authority, and with the requirements of any present or
future statute European Union law regulation or directive (whether
imposed on the owner or occupier), which affects the Premises or
their use;
4.19 Planning
4.19.1 To comply with the Planning Acts;
4.19.2 Not to apply for or implement any planning permission
affecting the Premises without first obtaining the Landlord's written
consent;
4.19.3 If a planning permission is implemented the Tenant shall
complete all the works permitted and comply with all the conditions
imposed by the permission before the determination of the Term
(including any works stipulated to be carried out by a date after the
determination of the Term unless the Landlord requires otherwise);
4.19.4 If the Landlord reasonably so requires, to produce evidence
to the Landlord that the provisions of this Clause 4.19 have been
complied with;
4.20 Notices
4.20.1 To supply the Landlord with a copy of any notice, order or
certificate or proposal for any notice, order or certificate
affecting or capable of affecting the Premises as soon as it is
received by or comes to the notice of the Tenant;
4.20.2 At the request of the Landlord and at the joint cost of the
Landlord and the Tenant (but at the cost of the Tenant if the notice,
order certificate or proposal is as a result of any breach by the
Tenant) to make or join the Landlord in making such objections or
representations against or in respect of any such notice, order or
certificate as the Landlord may reasonably require;
4.21 Contaminants and Defects
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4.21.1 To give the Landlord written notice of the existence of any
contaminant, pollutant or harmful substance on or any defect in the
Premises as soon as it comes to the notice of the Tenant;
4.21.2 If so requested by the Landlord to remove from the Premises
or remedy to the Landlord's satisfaction any such contaminant
pollutant or harmful substance which the Tenant has brought on or
caused or allowed to be brought on to the Premises;
4.22 Entry by Landlord
To permit the Landlord at all reasonable times and on reasonable
notice (except in emergency) to enter the Premises in order to:
4.22.1 inspect and record the condition of the Premises or any other
parts of the Building or the Adjoining Property;
4.22.2 remedy any breach of the Tenant's obligations under this
Lease;
4.22.3 repair, maintain, clean, alter, replace, install, add to or
connect up to any Conduits which serve the Building or the Adjoining
Property;
4.22.4 repair, maintain, alter or rebuild any part of the Building
or the Adjoining Property;
4.22.5 comply with any of its obligations under this Lease;
Provided that the Landlord shall cause as little inconvenience as
reasonably practicable in the exercise of such rights, and shall make
good all damage to the Premises and the Tenant's fixtures and
fittings caused by such entry as soon as reasonably practicable;
4.23 Landlord's Costs
To pay to the Landlord on demand amounts equal to such reasonable and
proper Costs as it may incur:
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4.23.1 in connection with any application for approval or consent
made necessary by this Lease (including where consent is lawfully
refused or the application is withdrawn);
4.23.2 incidental to or in reasonable contemplation of the
preparation and service of a schedule of dilapidations (whether
before or within 3 months after expiry of the Term) or a notice or
proceedings under Section 146 or Section 147 of the Law of Property
Xxx 0000 (even if forfeiture is avoided other than by relief granted
by the Court);
4.23.3 in connection with the enforcement or remedying of any
breach of the covenants in this Lease on the part of the Tenant and
any Guarantor;
4.23.4 incidental to or in reasonable contemplation of the
preparation and service of any notice under Section 17 of the 1995
Act;
4.24 Indemnity
To indemnify the Landlord against all Costs reasonably and properly
incurred arising directly or indirectly from the use or occupation
or condition of the Premises, or any breach of the Tenant's
obligations under this Lease, or any act or default of the Tenant in
relation to the Premises, or the exercise of the rights set out in
Part I of the First Schedule;
4.25 Reletting Notices
To allow a letting or sale board to be displayed on the Premises
(but not so that it restricts or interferes unreasonably with the
light enjoyed by the Premises) and to allow prospective tenants or
purchasers to view the Premises on reasonable notice;
4.26 Yielding up
4.26.1 Immediately before the end of the Term:
(i) to give up the Premises repaired and decorated and otherwise
in accordance with the Tenant's covenants in this Lease;
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(ii) if and to the extent the Landlord so requires, to remove all
alterations made during the Term or any preceding period of
occupation by the Tenant and reinstate the Premises as the
Landlord shall reasonably direct and to its reasonable
satisfaction;
(iii) if and to the extent the Landlord so requires to remove all
signs, tenant's fixtures and fittings and other goods from the
Premises, and make good any damage caused thereby to the
Landlord's reasonable satisfaction;
(iv) to replace (if beyond repair) any damaged or missing
Landlord's fixtures with ones of no less quality and value;
(v) to pay to the Landlord a sum equal to any rating relief which
the Landlord will be unable to claim because the Premises
shall be unoccupied for any period immediately before the end
of the Term;
4.26.2 If the Tenant fails to comply with Clause 4.26.1 to pay to the
Landlord on demand as liquidated damages:
(i) any Costs incurred by the Landlord in remedying the breach;
and
(ii) a sum equivalent to the Principal Rent payable immediately
before the end of the Term (disregarding any abatement) for
the period reasonably required to remedy the breach
4.27 Encumbrances
Not to do or omit to do anything which would or might be a breach of
the Encumbrances;
4.28 Regulations
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4.28.1 To observe all reasonable rules and regulations relating to
the Building from time to time made by the Landlord and notified to
the Tenant ;
4.28.2 Not to cause any obstruction to the Common Parts, nor to
park, load or unload vehicles otherwise than in the areas designated
for such purpose from time to time.
5. Landlord's Covenants
The Landlord covenants with the Tenant as follows:
5.1 Quiet Enjoyment
That, subject to the Tenant paying the rents reserved by and
complying with the terms of this Lease, the Tenant may peaceably
enjoy the Premises during the Term without any interruption by the
Landlord or any person lawfully claiming under or in trust for it;
5.2 Provision of Services
The Landlord will provide the Services in a reasonably economic and
efficient manner and in accordance with the principles of good estate
management, Provided that:
5.2.1 the Services need only be provided during the Service Hours
unless the Tenant requests other hours for which it is liable to pay
the Outside Service Hours Charge whereupon the Landlord will provide
such Services during such other hours;
5.2.2 the Landlord will not be in breach of this Clause as a
result of any failure or interruption of any of the Services:
(a) resulting from circumstances beyond the Landlord's
reasonable control, so long as the Landlord uses its
reasonable endeavours to remedy the same as soon as
reasonably practicable after becoming aware of such
circumstances; or
(b) to the extent that the Services (or any of them) cannot
reasonably be provided as a result of works of inspection,
maintenance and repair or
22
other works being carried out at the Building provided that
the Landlord uses its reasonable endeavours (having regard
to the interests of good estate management) to keep the
disruption caused by such works to the minimum reasonably
practicable.
5.3.1 To provide at the cost of the Tenant adequate heating and
hot water air conditioning and operating chillers to the Premises at
all times during the Term provided that:
5.3.1.1 such costs shall be paid by the Tenant in the manner and
at the times set out in Part I of the Fourth Schedule (which
shall apply mutatis mutandis) save where clause 5.3.1.3 applies
5.3.1.2 the Tenant's Share for the purposes of this clause 5.3.1
shall be 100%
5.3.1.3 in the event that any such costs are payable direct to
the supplier by the Tenant clause 4.5 shall apply
5.3.2 To install and make operational as soon as reasonably
practicable electricity check meters to each of the Lettable Units to
enable the charge for power consumed in each of the Lettable Units to
be assessed and charged at the service providers tariff rates
5.3.3 To provide security staff to the Building at all times
during the Term and the cost of so doing shall form part of the
Service Costs referred to in paragraph 7 of Part II(B) of the Fourth
Schedule
6. Insurance
6.1 Landlord's insurance covenants
The Landlord covenants with the Tenant as follows:
6.1.1 To insure the Building (other than tenant's and trade
fixtures and fittings) on usual and reasonable commercial terms
unless the insurance is invalidated in whole or in part by any act or
default of the Tenant:
23
(a) with an insurance office or underwriters of repute;
(b) against loss or damage by the Insured Risks;
(c) subject to such excesses as may be imposed by the
insurers;
(d) in the full cost of reinstatement of the Building (in
modern form if appropriate) including shoring up,
demolition and site clearance, professional fees, VAT
and allowance for building cost increases;
6.1.2 To insure against loss of the Principal Rent and the
Service Charge and VAT thereon payable or reasonably estimated by the
Landlord to be payable under this Lease arising from damage to the
Premises by the Insured Risks for four years or such shorter period
as the Landlord may reasonably require having regard to the likely
period for reinstating the Premises;
6.1.3 At the request of the Tenant to produce evidence of the
terms of the insurance under this Clause 6.1 and of payment of the
current premium;
6.1.4 To notify the Tenant of any material change in the risks
covered by the policy from time to time which would affect the
Tenant;
6.1.5 To use its reasonable endeavours (but not being obliged to
change insurers) at the cost (if any) of the Tenant to procure (at
the discretion of the Landlord) either that a note of the Tenant's
interest and the interest of any lawful undertenant is endorsed on
the policy or that such interest is otherwise protected by means of
an "Any Other Interests" provision in such policy or that the
Landlord's insurers will issue in respect of the Tenant a waiver of
rights of subrogation in relation to the Premises;
6.1.6 If any part of the Building is destroyed or damaged by an
Insured Risk, then, unless payment of the insurance moneys is refused
in whole or part because of the act or default of the Tenant, and
subject to obtaining all necessary planning and other consents to use
the insurance proceeds (except those relating to loss of rent and
fees) and any insured excess paid by the Tenant under Clause 6.2.4(b)
in reinstating the
24
same (other than tenant's and trade fixtures and fittings) as quickly
as reasonably practicable, in modern form if appropriate but not
necessarily identical in layout and (in relation to the Premises)
substantially as they were before the destruction or damage;
6.2 Tenant's insurance covenants
The Tenant covenants with the Landlord throughout the Term or until
released pursuant to the 1995 Act as follows:
6.2.1 To pay to the Landlord within 7 days of demand sums equal
to:
(a) a fair proportion (reasonably determined by the
Landlord's Surveyors) of the amount which the Landlord
spends on insurance pursuant to Clause 6.1.1;
(b) the whole of the amount which the Landlord spends on
insurance pursuant to Clause 6.1.2;
6.2.2 To give the Landlord immediate written notice on becoming
aware of any event or circumstance which might affect or lead to an
insurance claim;
6.2.3 Not to do anything at the Premises which would or might
prejudice or invalidate the insurance of the Building or the
Adjoining Property or cause any premium for their insurance to be
increased;
6.2.4 pay to the Landlord within 7 days of demand:
(a) any increased premium and any Costs incurred by the
Landlord as a result of a breach of Clause 6.2.3;
(b) the whole of the irrecoverable proportion of the
insurance moneys if the Building or any part is
destroyed or damaged by an Insured Risk but the
insurance moneys are irrecoverable in whole or part due
to the act or default of the Tenant;
25
6.2.5 To comply with the requirements and reasonable
recommendations of the insurers of which the Tenant has received
written notice;
6.2.6 To notify the Landlord of the full reinstatement cost of
any fixtures and fittings installed at the Premises at the cost of
the Tenant which become Landlord's fixtures and fittings;
6.2.7 Not to effect any insurance of the Premises against an
Insured Risk, but if the Tenant effects or has the benefit of any
such insurance the Tenant shall hold any insurance moneys upon trust
for the Landlord and pay the same to the Landlord as soon as
practicable;
6.3 Suspension of Rent
6.3.1 If the Premises are unfit for occupation and use because of
damage by an Insured Risk then (save to the extent that payment of
the loss of rent insurance moneys is refused due to the act or
default of the Tenant) the Principal Rent and the Service Charge (or
a fair proportion according to the nature and extent of the damage)
shall be suspended until the earlier of:
(i) the date on which the Premises are again fit for
occupation and use; and
(ii) the expiry of the loss of rent insurance period;
PROVIDED THAT if the Premises or the appropriate part thereof (or
access thereto within the Building) have not been reinstated in
accordance with the Landlord's obligation contained in Clause 6.1.4
of this Lease so as to render the Premises fit for occupation and use
within four years after the date of the damage or destruction or if
earlier by the date on which the said cesser of rent shall determine
("the Relevant Date") then either party may determine this Lease by
serving one month's written notice on the other (such notice to
expire within two months of the Relevant Date) whereupon this Lease
shall cease and determine but without prejudice to any
26
antecedent claims and all insurance monies received by the Landlord
shall belong to it absolutely.
6.3.2 If the Premises or any part thereof (or access thereto
within the Building) have been damaged or destroyed by an Insured
Risk so as to render the Premises incapable of beneficial use, then
the Landlord will procure that the Landlord's architect will produce
to the Landlord and the Tenant a report (the "Report") as soon as
reasonably practicable and in any event within 90 days of the date of
the damage or destruction which shall confirm whether or not the
Premises can in the Landlord's architect's reasonable opinion be
reinstated within four years from the date of the damage or
destruction, so as to render the Premises again capable of beneficial
use. If the Report does not state that in the Landlord's architect's
reasonable opinion the Premises can be reinstated as expressed above,
then either the Landlord or the Tenant may within two weeks from
receipt of the Report terminate this Lease by giving two weeks'
written notice thereafter following receipt of the Report.
6.3.3 Time shall be of the essence for the purpose of Clause
6.3.2. Termination of this Lease pursuant to Clause 6.3.2 shall be
without prejudice to the rights of either party against the other in
respect of any antecedent breach of covenant.
6.3.4 Any dispute relating to this Clause 6.3 shall be referred
to Arbitration.
7. Provisos
7.1 Forfeiture
If any of the following events occurs:
7.1.1 the Tenant fails to pay any of the rents payable under this
Lease within 21 days of the due date (whether or not formally
demanded); or
7.1.2 the Tenant or Guarantor breaches any of its obligations in
this Lease; or
7.1.3 execution or distress is levied on the Tenant's goods in
the Premises; or
27
7.1.4 the Tenant or Guarantor being a company incorporated within
the United Kingdom:
(a) has an Administration Order made in respect of it; or
(b) passes a resolution, or the Court makes an Order, for
the winding up of the Tenant or the Guarantor,
otherwise than a member's voluntary winding up of a
solvent company for the purpose of amalgamation or
reconstruction previously consented to by the Landlord
(consent not to be unreasonably withheld); or
(c) has a receiver or administrative receiver or receiver
and manager appointed over the whole or any part of
its assets or undertaking; or
(d) is struck off the Register of Companies; or
(e) is deemed unable to pay its debts within the meaning
of Section 123 of the Insolvency Xxx 0000; or
7.1.5 proceedings or events analogous to those described in
Clause 7.1.4 shall be instituted or shall occur where the Tenant or
Guarantor is a company incorporated outside the United Kingdom; or
7.1.6 the Tenant or Guarantor being an individual:
(i) has a bankruptcy order made against him; or
(ii) appears to be unable to pay his debts within the
meaning of Section 268 of the Insolvency Xxx 0000;
then the Landlord may re-enter the Premises or any part of
the Premises in the name of the whole and forfeit this
Lease and the Term created by this Lease shall immediately
end, but without prejudice to the rights of the Landlord in
respect of any breach of the obligations contained in this
Lease;
28
7.2 No Compensation
Any right for the Tenant to claim compensation from the Landlord on
vacating the Premises or otherwise is excluded to the extent
permitted by law;
7.3 Notices
Section 196 of the Law of Property Xxx 0000 shall apply to any notice
which may be served under this Lease and as if the final words of
Section 196(4) "and that service... be delivered" were deleted and
replaced by "and that service shall be deemed to be made on the third
working day after posting";
7.4 Arbitration
7.4.1 Where this Lease provides for reference to Arbitration then
reference shall be made in accordance with the Arbitration Xxx 0000
to a single arbitrator of not less than ten years' qualification
experienced in the valuation and letting of property similar to and
in the locality of the Premises agreed between the Landlord and the
Tenant, or in the absence of agreement nominated on the application
of either party by the President for the time being of the Royal
Institution of Chartered Surveyors;
7.4.2 In the absence of a determination by the arbitrator as to
his fees they shall be borne equally by the Landlord and the Tenant;
7.4.3 If the arbitrator is ready to make his award, but is
unwilling to do so due to either party's failure to pay its share of
the costs in connection with the award, the Landlord may serve on the
Tenant a notice requiring the Tenant to pay such costs within 14
days, and if the Tenant fails to comply with such notice the Landlord
may pay to the arbitrator the Tenant's costs and any amount so paid
shall be a debt due forthwith from the Tenant to the Landlord;
7.5 No Implied Easements
29
The grant of this Lease does not confer any rights over the Building
or the Adjoining Property or any other property except those
mentioned in Part I of the First Schedule, and Section 62 of the Law
of Property Act 1925 is excluded from this Lease, nor shall this
Lease impose any restriction on the use of any property not comprised
in this Lease;
7.6 Planning Acts
The Landlord does not warrant that the Permitted Use complies with
the Planning Acts.
8. Applicable Law and Jurisdiction
8.1 This Lease shall be governed by and construed in accordance with
English law
8.2 The parties to this Lease
8.2.1 irrevocably submit to the non-exclusive jurisdiction of the
Courts of England and Wales to settle any disputes arising out of
this Lease; and
8.2.2 waive any objection to any legal action or proceedings in
such court on the grounds of venue or that it is an inconvenient or
inappropriate forum;
8.3 The bringing of any legal action or proceedings in any jurisdiction
shall not preclude the person bringing such action from bringing any
such legal action or proceedings in any other jurisdiction.
9. Guarantee
The Guarantor covenants with the Landlord in the terms set out in the Third
Schedule
10. It is hereby certified that there is no Agreement for Lease to which this
Lease gives effect
30
Executed by the parties as a Deed the day and year first before written.
31
THE COMMON SEAL of BRITEL FUND TRUSTEES )
--------------- --------------------
LIMITED was affixed to this Deed )
-------
in the presence of: )
/s/ illegible
Authorised Signing Officer
/s/ illegible
Authorised Signing Officer
32
THE COMMON SEAL of CMGI (UK) LIMITED )
--------------- -----------------
was affixed to this Deed in the presence of: )
/s/ Xxxxxx X. Xxxxxxxx, III
Director
/s/ Xxxxxxx Xxxxxxxx II
Director
33
Executed as a Deed by of CMGI INC )
--------
acting by: )
By: :/s/ Xxxxxx X. Xxxxxxxx III
--------------------------
Name: Xxxxxx X. Xxxxxxxx III
Title: Executive Vice President, CFO and Treasurer
Authorised Signatory
34
DATED 14 March 2000
------------------------------------------------------------------------------
BRITEL FUND TRUSTEES LIMITED
- and -
CMGI (UK) LIMITED
- and -
CMGI INC
-------------------------------------------------------------------------------
LEASE
of
the fifth floor of Prospect House
80 to 110 (Even) New Xxxxxx Xxxxxx Xxxxxx XX0
together with the right to use
4 basement car parking spaces
