EXHIBIT 10.52
Dated 3 August 2000
WITTAYU REALTY LIMITED
And
RAZORFISH LIMITED
And
RAZORFISH INC
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AGREEMENT FOR LEASE
Relating to
▇▇▇▇▇ House ▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ OAA
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CONTENTS
1. Definitions ........................................................ 1
2. Interpretation ..................................................... 7
3. National Conditions ................................................ 8
4. The Landlord's Works and Off-Site Works ............................ 8
5. Certificates and Inspection ........................................ 13
6. Ascertainment of Net Internal Area ................................. 15
7. Defects and Duty of Care ........................................... 16
8. The Tenant's Works and the Tenant's Fitting Out Works and Access ... 16
9. Licence Fee ........................................................ 20
10. Insurance .......................................................... 20
11. Title .............................................................. 21
12. Matters to which the Premises are subject .......................... 21
13. Grant Of the Lease ................................................. 22
14. Alienation and Non-Severability .................................... 23
15. Acknowledgement and Interest ....................................... 23
16. Termination ........................................................ 24
17. VAT ................................................................ 25
18. Notices ............................................................ 25
19. Guarantor's Obligations ............................................ 26
20. Disputes ........................................................... 27
21. Applicable Law and Jurisdiction .................................... 29
22. Non Merger ......................................................... 29
AGREEMENT
Dated 3 August 2000
PARTIES
(1) WITTAYU REALTY LIMITED (incorporated in Jersey) care of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Limited of ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the Landlord); and
(2) RAZORFISH LIMITED (registered number 3016034) having its registered office
at ▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the Tenant); and
(3) RAZORFISH INC (file number 333-30410) having its registered office at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ (the Guarantor)
NOW IT IS HEREBY AGREED as follows:
1. Definitions
In this Agreement unless the context otherwise requires:
1.1 Access Certificate: means the certificate of the Architect certifying the
Access Date;
1.2 Access Date: means the date not more than 28 days before the date of
Practical Completion upon which the Landlord's Works have reached such a
state of readiness as to enable the Tenant to commence the fitting out of
the Premises which will not be until:
1.2.1 the Landlord's Works have reached a state sufficient for the
Tenant to gain unrestricted access to the whole of the
Premises for fitting out so as to ensure
(a) that the Tenant shall have reasonable pedestrian and vehicular
access to and egress from the Premises and to the public
highway at all times
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(b) that the foul drainage to the Premises are connected to the
public sewer
(c) that electricity gas telephone and water services are
available to the Premises subject only to service connections
which require an occupier's application to a service or
statutory undertaking
(d) that the Tenant shall be able to proceed with the Tenant's
Fitting Out Works without any material interruption or delay
by reason of any of the remainder of the Landlord's Works and
(e) there shall be laid out an area immediately adjacent to the
Premises to sufficient standard to enable the plant and
machinery and equipment of the Tenant its contractors and
sub-contractors to be delivered to the building for the
purposes of and until completion of the Tenant's Fitting Out
Works
1.2.2 the Premises are secure water tight and weather proof
1.3 Alternative Approved Documents: means the whole of the plans drawings
sections elevations specifications copies of which have been identified
and signed by the parties hereto as modified from time to time in
accordance with this Agreement;
1.4 Approved Documents: means the plans drawings sections elevations
specifications copies of which have been identified and signed by the
parties hereto as modified from time to time in accordance with this
Agreement relating to the Landlord's Works excluding those which relate to
the construction of additional space on the west elevation of the Premises
at third floor level but including the Mezzanine Works;
1.5 Architect: ▇▇▇▇▇▇ ▇▇▇▇▇▇ of ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇ or such other reputable architect (being a
professional associate or fellow of the Royal Institute of British
Architects) or firm or company (one at least of whose members or directors
shall be so qualified) notified in advance of appointment to the Tenant as
may be appointed by the Landlord;
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1.6 Building Contract: the building contract for the Landlord's Works made or
to be made between the Landlord (1) and the Building Contractor (2) in
substantially the form of JCT 80 Standard Form Management Contract with
such amendments which will not materially adversely affect the Tenant as
the Landlord and the Building Contractor may agree
1.7 Building Contractor: ▇▇▇▇ ▇▇▇▇▇▇ or such other reputable building
contractor or contractors notified in advance to the Tenant to be employed
by the Landlord;
1.8 Certificate of Making Good Defects: the certificate of making good defects
to be issued by the Architect pursuant to the Building Contract following
the expiry of the Defects Period;
1.9 Certificate of Practical Completion: the certificate of practical
completion to be issued by the Architect pursuant to the Building
Contract;
1.10 Date of Practical Completion: the date stated in the Certificate of
Practical Completion as being the date on which the Landlord's Works have
reached practical completion;
1.11 Defects Period: twelve months after the Date of Practical Completion;
1.12 Deed of Release: the Deed of Release and Grant and Covenant to be made
between (1) Choice Win Investment Ltd and (2) the Landlord in the form of
the draft annexed with such amendments which will not materially affect
the Tenant as the parties thereto may agree;
1.13 Force Majeure: fire, ▇▇▇▇▇, ▇▇▇▇▇▇▇, flood or other adverse weather
conditions, civil war hostilities, revolution, military or usurped power
and war, labour lock-outs, strikes and other industrial disputes, riot,
commotion, disorder, Government decree and other matters reasonably beyond
the control of the relevant party caused otherwise than as a result of the
negligence of the relevant party and provided that the members of the
professional team appointed by the Landlord are properly qualified to
carry out the works for which they have been appointed;
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1.14 Landlord's Consents and Tenant's Consents: all permissions licences and
approvals under the Planning Acts the building regulations and under any
other statute bye-law or regulation of any competent authority and which
respectively are necessary in relation to the Landlord's Works and/or the
Tenant's Fitting Out Works;
1.15 Landlord's Solicitors: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ of ▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇ (Reference: SAP/216718);
1.16 Landlord's Surveyor: Stirling ▇▇▇▇▇▇▇ of ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇;
1.17 Landlord's Warranties: the deeds of collateral warranties to be procured
by the Landlord in accordance with Clause 7.3 hereof;
1.18 Landlord's Works: the works including the Mezzanine Works described in the
Approved Documents or (if the Landlord gives notice pursuant to Clause
4.1.2) the Alternative Approved Documents;
1.19 Landlord's Works Completion Date: 16 March 2001 or such other date as may
be fixed pursuant to clause 4.2 of this Agreement;
1.20 Lease: a lease of the Premises in the form of the draft annexed hereto;
1.21 Long Stop Date: 30 June 2001;
1.22 Licence for Alterations: a licence to carry out the Tenant's Fitting Out
Works in the form of the draft licence annexed hereto;
1.23 Mechanical and Electrical Engineer: Fulcrum Consulting or such other
reputable mechanical and electrical engineer as may be appointed by the
Landlord and notified in advance of appointment to the Tenant;
1.24 Mezzanine Documents: the plans drawings sections elevations and
specifications describing the Mezzanine Works forming part of the Approved
Documents as modified from time to time in accordance with this Agreement
which shall include drawing number 1568/1/105 Revision P3 unless the
Tenant requests in writing that
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the drawing contained in the Approved Documents titled "Alternative
Mezzanine Floor Layout" is substituted for that drawing on or before 30
September 2000;
1.25 Mezzanine Works: the construction of a new mezzanine floor at third floor
level constructed from a light steel frame with timber floor infill;
1.26 Net Internal Area: the net internal area in square feet of the Premises
ascertained in accordance with the latest Code of Measuring Practice of
the Royal Institution of Chartered Surveyors and the Incorporated Society
of Valuers and Auctioneers;
1.27 Off Site Works: means the works to be carried out on the site adjoining
the Premises the comprising:
1.27.1 The construction of the Piazza in front of the Building
including (for the avoidance of doubt) the link bridge between
the Premises and the access route referred to in 1.27.2 below
and
1.27.2 The provision of a vehicular access route linking St ▇▇▇▇
Street to the Piazza in all material respects of the form
shown on the planning permission drawing marked "A" annexed
hereto Provided Always that the landlord shall be entitled to
alter the location of such access route
1.28 Planning Acts: the Town and Country Planning ▇▇▇ ▇▇▇▇ the. Planning
(Listed Buildings and Conservation Areas) ▇▇▇ ▇▇▇▇ the Planning (Hazardous
Substances) ▇▇▇ ▇▇▇▇ the Planning (Consequential Provisions) ▇▇▇ ▇▇▇▇ and
the Planning and Compensation ▇▇▇ ▇▇▇▇;
1.29 Premises: part of the Landlord's freehold property known as ▇▇▇▇▇ ▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ as the same is registered at HM Land
Registry under title number ▇▇▇▇▇▇▇▇▇ more particularly described in the
Lease;
1.30 Prescribed Rate: interest at four per centum per annum above the base
lending rate of the Royal Bank of Scotland plc from time to time;
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Dated 2000
CHOICE WIN INVESTMENT LTD (1)
WITTAYU REALTY LIMITED (2)
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DEED OF RELEASE GRANT AND COVENANT
in respect of premises at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ and
adjoining premises to the west between ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
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HM Land Registry
Land Registration Acts
County and District (or : London Borough of Islington
London Borough)
Title Numbers : ▇▇▇▇▇▇▇▇▇ and NGL362768
Property : premises at ▇▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ and adjoining
premises to the west between
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇
THIS DEED is dated 2000
Particulars
Choice Win CHOICE WIN INVESTMENT LTD whose registered office is at
Trident ▇▇▇▇▇▇▇▇ P0 Box 146 Roadtown Tortola British
Virgin Islands (registered number 331180)
Wittayu WITTAYU REALTY LIMITED whose registered office is at ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Channel
Islands (registered number 73884)
Choice Win Land The land and buildings thereon known as part of the
former Allied Brewery Site at St ▇▇▇▇ Street and ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ together with other land registered
at HM Land Registry with freehold title absolute under
title number NGL362768 more particularly shown edged in
blue the Plan
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▇▇▇▇▇ House The land and buildings thereon known as ▇▇▇▇▇ ▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ on the north side of Northburgh
Street registered at HM Land Registry with freehold
title absolute under title number ▇▇▇▇▇▇▇▇▇ and shown
more particularly edged in red on the Plan
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Recitals
1) Choice Win is the registered proprietor of the freehold title absolute of
the Choice Win Land and Wittayu is the registered proprietor of the
freehold title absolute of ▇▇▇▇▇ House
2) The parties hereto are desirous of releasing certain rights and covenants
affecting the Properties and granting and providing for new rights and
covenants
THIS DEED WITNESSETH as follows:-
1. Definitions and Interpretation
In these presents
1.1 The words defined in this sub-clause and in the Particulars shall have the
meanings specified unless the context otherwise requires
"▇▇▇▇▇ House Transfer" means the transfer of ▇▇▇▇▇ House dated 3 August
1999 and made between Sandalbeech Limited (1) and Wittayu (2)
"Common Parts Access" means such roads or other means of vehicular or
pedestrian access as may be constructed on the Choice Win Land leading
from St ▇▇▇▇ Street to the Piazza in accordance with the general layout
thereof shown on the Plan and thereon coloured ▇▇▇▇▇ or such other layout
thereof as may from time to time be constructed and which shall be as
reasonably commodious for the owners/occupiers of ▇▇▇▇▇ House
"Common Parts" means the Common Parts Access and the Piazza
"Habitable Room" means a bedroom or living room in a residential unit
"Maintenance Charge" means the contribution in relation to the Common
Parts Access and the Piazza more particularly described in paragraph 6 of
Part 1 of Schedule 2
"Perpetuity Period" means the period of 21 years commencing on the date
hereof
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"Piazza" means the land immediately adjacent to the southern elevation of
▇▇▇▇▇ House to be laid out as a piazza and shown more particularly edged
green on the Plan
"Piazza Seating Area" means that part of the Piazza as is shown hatched
blue on the Plan being ten feet in width
"Plan" means the plan attached to this Deed
"Properties" means the Choice Win Land and ▇▇▇▇▇ House or any part thereof
as the context so admits
"Service Media" means all drains channels sewers flues conduits ducts
pipes wires cables watercourses gutters mains culverts soakaways and other
transmission media and installations and all fixings louvres cowls and
other ancillary apparatus in on or under or through the Properties
1.2 Unless the context otherwise requires:-
1.2.1 Choice Win and Wittayu shall include their successors in title
and in the case of an individual shall include personal
representatives
1.2.2 the singular shall include the plural and one gender shall
include another
1.3 References to clauses paragraphs and schedules are to clauses and
paragraphs and schedules to this deed
1.4 The headings to clauses paragraphs and schedules shall not affect the
construction of this Deed
1.5 Any covenant by a party hereto not to do any act is to be deemed to
include an obligation on that party not to allow or suffer or permit any
such act
1.6 Any references in this Deed to any rights exercisable by Choice Win or
Wittayu should be construed as including (where appropriate) the exercise
of such right by and in common with all persons authorised by them or any
of them and all other persons having the same right
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2. Release and Discharge
2.1 In consideration of these presents the parties hereto hereby agree that:-
2.1.1 the exceptions and reservations contained in clause 5 of the
▇▇▇▇▇ House Transfer are hereby released and discharged and
shall no longer be of any effect
2.1.2 the covenants and provisos contained in clauses 6, 8 and 12 of
the ▇▇▇▇▇ House Transfer and also the protective restriction
imposed entered on the titles relating thereto in clauses 7,
8.3 and 13 thereof are hereby released and discharged and
shall no longer be of any effect
2.1.3 the rights granted or to be granted in clauses 9 and 10 of the
▇▇▇▇▇ House Transfer are hereby released and discharged and
shall no longer be of any effect
2.1.4 the provisions of clauses 3, 4 and 11 of the ▇▇▇▇▇ House
Transfer shall no longer be of any effect
3. Grant of rights and new covenants
In consideration of these presents:-
3.1 Choice Win will to the extent of its ownership grant to Wittayu by way of
deed with full title guarantee (subject to clause 4)
3.1.1 SUBJECT to payment of the Maintenance Charge the rights set
out in paragraph 1 of Part 1 of Schedule 1 with effect from
the date of completion of the construction of the Common Parts
Access and
3.1.2 SUBJECT to payment of the Maintenance Charge and to payment of
the Amount (as defined in paragraph 1 of Part 2 of Schedule 2)
from the date of completion of construction of the Piazza the
rights comprised in paragraphs 2, 3, 4, 6 and 8 of the said
Part 1
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3.2 Choice Win grants to Wittayu with full title guarantee (subject to clause
4) the rights set out in paragraphs 5 and 7 of Part 1 of Schedule 1
3.3 Wittayu grants to Choice Win with full title guarantee (subject to clause
4) the rights set out in Part 2 of Schedule 1
3.4 Wittayu covenants with Choice Win for the benefit of the Choice Win Land
as provided for in Part 1 of Schedule 2 hereto and it is hereby agreed and
declared that:-
3.4.1 The covenants on the part of Wittayu contained herein (so far
as the same remain to be observed and performed) will attach
to and enure for each and every part of the Choice Win Land
that remains unsold by Choice Win or has been sold by Choice
Win with the express benefit of this covenant
3.4.2 The burden of the covenants on the part of Wittayu is intended
to bind and binds each and every part of ▇▇▇▇▇ House into
whosoever hands it may come but not so as to render Wittayu
personally liable for the breach of any restrictive covenant
after Wittayu has parted with all its interest in ▇▇▇▇▇ House
3.5 Choice Win covenants with Wittayu for the benefit of ▇▇▇▇▇ House as
provided for in Part 2 of Schedule 2 and it is hereby agreed and declared
that:-
3.5.1 The covenants on the part of Choice Win contained herein (so
far as the same remain to be observed and performed) will
attach to and enure for each and every part of ▇▇▇▇▇ House
that remains unsold by Wittayu or has been sold by Wittayu
with the express benefit of this covenant
3.5.2 The burden of the covenants on the part of Choice Win is
intended to bind and binds each and every part of the Choice
Win Land into whosoever hands it may come but not so as to
render Choice Win personally liable for the breach of any
restrictive covenant after Choice Win has parted with all its
interest in the Choice Win Land
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3.6 If Choice Win shall fail to comply with its covenants to build the Piazza
contained in paragraphs 1 to 4 of Part 2 of Schedule 2 otherwise than for
reasons outside its control and shall not (save as aforesaid) have
commenced construction of the Piazza within four months from the date
hereof nor (save as aforesaid) completed the same within nine months of
such commencement date in accordance with the provisions hereof Wittayu
shall be entitled to give not less than 28 days' notice in writing to
Choice Win and of any tenants of Choice Win of land to the south of the
Piazza of which it shall have notice of its intention to exercise its
rights pursuant to this clause and in the event Choice Win continue to be
in default on the expiration of such notice then Wittayu shall (provided
it shall so enter within one month from the date thereof and unless any
tenant of Choice Win has already exercised a like right and is diligently
proceeding to build or complete the building of the Piazza) be entitled to
enter upon the land upon which the Piazza is to be constructed and to
build the same at its own cost and the following provisions shall apply
to the exercise of such right:-
3.6.1 Wittayu will carry out the said works as though it had given
the covenants given by Choice Win in respect thereof insofar
as the same are applicable to the works being carried out by
Wittayu and
3.6.2 the works will be carried out and completed with due diligence
and completed in any event within eight months from the date
of such entry and
3.6.3 the works will be carried out strictly in accordance with the
provisions of this Deed and
3.6.4 if Wittayu shall be in breach of the provisions of this clause
its rights hereunder shall cease and determine without
prejudice to any other right or action that the parties may
have the one against the other
3.6.5 if having done so Wittayu shall be in material breach of the
aforesaid provisions relating to the exercise of its rights
then its rights (if any) remaining under the provisions of
this clause 3.6 shall be subject to the rights of the tenants
of Choice Win of land to the south of the Piazza to
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construct the Piazza pursuant to their development as part of
the Choice Win Land in the event of the default of Choice Win
in constructing the Piazza
3.6.6 if having exercised a right to enter upon the Piazza to build
or complete the building of the Piazza any tenant of Choice
Win is not diligently proceeding to build or complete the
building of the Piazza then Wittayu will be entitled to serve
not less than 28 days' notice in writing on such tenant of its
intention to exercise its rights under this clause 3.6 and in
the event that the tenant continues not diligently to proceed
on the expiry of the notice then Wittayu shall (provided it
shall so enter within one month from the date thereof) be
entitled to enter upon the land upon which the Piazza is to be
constructed and to build the same at its own cost and the
above provisions shall apply to the exercise of such right
3.7 Wittayu covenants with Choice Win not to transfer any freehold interest in
▇▇▇▇▇ House or grant a Lease exceeding twenty one years of the whole or
any part of ▇▇▇▇▇ House without ensuring that the transferee or lessee
contemporaneously enters into a deed of covenant for the benefit of the
owner or the owners for the time being of the Choice Win Land to perform
and observe the covenants contained in paragraphs 5 and 6 of Part 1 of
Schedule 2 insofar as the same remain to be performed and observed and
Wittayu hereby consents to the placing of the following restrictions of
the Proprietorship Register of the title to ▇▇▇▇▇ House:-
"except under an Order of the Registrar no transfer of the freehold
interest or the grant of a Lease exceeding twenty one years of the whole
or any part of ▇▇▇▇▇ House as defined in the Deed of Release Grant and
Covenant dated the [ ] day of [ ] 2000 and made between (i)
Choice Win Investment Ltd and (ii) Wittayu Realty Limited ("the Deed") by
the registered proprietor or any chargee is to be registered unless there
furnished to the Registrar a certificate or certificates from the
solicitors for the time being to the registered proprietors of the Choice
Win Land (as defined in the Deed) and each part of it that a deed of
covenant complying in all respects with the provisions of clause 3.7 of
the Deed has been delivered to the registered proprietor or proprietors of
the Choice Win Land PROVIDED THAT in the
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event that within fourteen days of notification to the said registered
proprietors of the Choice Win Land and the proffering of the said deed of
covenant the said certificate or certificates has or have not been given
to the registered proprietor or chargee (as the case may be) for lodging
with the Registrar then the said certificate or certificates may be given
to the Registrar by the solicitor to the registered proprietor or chargees
of the land in this title (who shall also adduce evidence to the Registrar
that the aforesaid procedure has been followed)
3.8 Choice Win covenants with Wittayu not to transfer any freehold interest in
the Common Parts Access or any part thereof or grant a Lease exceeding 21
years of the whole of the Common Parts Access without ensuring that the
Transferee or Lessee contemporaneously enters into a deed of covenant for
benefit of the owner or owners for the time being of ▇▇▇▇▇ House (and
providing for release of the covenantor on the provision of a new like
deed of covenant from any successor in title to the Transferee or Lessee)
to perform and observe the covenants contained in paragraph 4 of Part 2 of
Schedule 2 insofar as the same remain to be performed and observed and
insofar as the premises transferred or let include the Common Parts Access
and in the case of a lease during the subsistence of the lease and Choice
Win hereby consents to the placing of the following restriction on the
Proprietorship Register of the title to the Choice Win Land:-
"except under an Order of the Registrar no transfer of the freehold
interest or the grant of a Lease exceeding 21 years of the whole or any
part of the Common Parts Access as defined in the Deed of Release Grant
and Covenant dated the [ ] day of [ ] 2000 and made between (i)
Choice Win Investment Ltd and (ii) Wittayu Realty Limited ("the Deed") by
the registered proprietor or any chargee is to be registered unless there
is furnished to the Registrar a certificate or certificates from the
solicitors for the time being to the registered proprietor or proprietors
of ▇▇▇▇▇ House (as defined in the Deed) and each part of it that a deed of
covenant complying in all respects with the provisions of clause 3.8 of
the Deed has been delivered to the registered proprietor or proprietors of
▇▇▇▇▇ House PROVIDED THAT in the event that within 14 days of notification
to the said registered proprietors and the proffering of the said deed of
covenant the said certificate or certificates has or have not been
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given to the said registered proprietor or chargee (as the case may be)
for lodging with the Registrar then the said certificate or certificates
may be given to the Registrar by the solicitor to the registered
proprietor or chargee of the land in this title (who should also adduce
evidence to the Registrar that the aforesaid procedure has been followed)"
4. Provisos
PROVIDED ALWAYS and it is agreed and declared by the parties as follows:-
4.1 Any rights granted by this Deed in respect of anything which does not
exist at the date of this Deed shall be effective only if it comes into
existence before the expiry of the Perpetuity Period
4.2 Choice Win shall be entitled to suspend for as short a period on each
occasion as is reasonably practicable the right of way over the Common
Parts Access and the Piazza for the purpose of completing final surfacing
works and for any subsequent repairs renewal or maintenance
4.3 Where a party is expressed to grant rights with full title guarantee then
for the purposes of the Law of Property (Miscellaneous Provisions) Act
1994:-
4.3.1 The covenant implied by 2.1(b) of that Act shall be amended by
deleting from that section the words "at its own cost" and
substituting therefor the words "the cost of the person to
whom he disposes of the Property"
4.3.2 Section 6(2)(a) of that Act is to be construed as if all
entries made in any public register are within the actual
knowledge of the grantee
4.4 The rights granted in this Deed are granted subject to the person
exercising the rights causing as little inconvenience and damage as
reasonably practicable and making good as soon as reasonable practicable
any damage caused to the Property
4.5 Any dispute or difference in relation to the covenants contained in
paragraphs 1-4 of Part 2 of Schedule 2 shall be determined by a chartered
surveyor appointed in default of agreement by the President for the time
being of the Royal Institution of Chartered Surveyors on the application
of either party which surveyor shall act as an Expert and
- 16 -
not as an Arbitrator and whose decision shall be final and binding on the
parties as to all matters including for the avoidance of doubt all
questions as to the construction of this paragraph
4.6 Any references in this Deed to rights by one party to carry out works to
an adjoining property of another or to enter the property of another to
carry out works to its own property shall include the right to carry out
such works with or without workmen and (where appropriate) with all
necessary plant equipment machinery and scaffolding PROVIDED THAT the
party carrying out such works shall provide full details in writing of its
works at least 48 hours before the works commence and shall carry out the
works as expeditiously as possible in a good and workmanlike manner with
good materials of their respective kind in accordance with all requirement
of the local authority or other competent authority and shall use all
reasonable endeavours to minimise noise fumes and dust and will cause as
little disturbance and damage as possible and shall forthwith make good
any damage thereby caused to the reasonable satisfaction of the adjoining
owner
5. HM Land Registry
The parties hereto apply to HM Land Registry to note the provisions of this Deed
in the registers of the above numbered titles and to remove the restrictions
from the registers of title number NGL362758 and ▇▇▇▇▇▇▇▇▇ which were entered
pursuant to the provisions of the ▇▇▇▇▇ House Transfer
IN WITNESS whereof this Deed has been duly executed as a deed but not delivered
until the day and year first above written
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SCHEDULE 1
Part 1
Grant of rights for the benefit of ▇▇▇▇▇ House
1. The right to use the Common Parts Access for pedestrian access and
appropriate vehicular access between ▇▇▇▇▇ House and St ▇▇▇▇ Street but
not otherwise provided that such rights shall at all times be exercised in
accordance with the regulations relating to their proper use reasonably
stipulated from time to time by Choice Win and the requirements of the
local planning authority
2. The right to use the Piazza and every part thereof as a means of
pedestrian access to and egress from the ▇▇▇▇▇ House but (save as
hereafter provided) not otherwise provided that such rights shall at all
times be exercised in accordance with the regulations relating to its
proper use reasonably stipulated from time to time by Choice Win
3. The pedestrian right of way at all times and for all purposes to and from
Northburgh Street across the Piazza to ▇▇▇▇▇ House over and along the land
shown coloured pink on the Plan together with the right to place on the
said land a notice or sign indicating the business carried on at ▇▇▇▇▇
House by Wittayu and its permitted occupiers of ▇▇▇▇▇ House such sign to
be of size and location first approved by Choice Win in writing such
approval not to be unreasonably withheld
4. The right to place (but not affix) and use tables and chairs on the Piazza
Seating Area (subject to obtaining all necessary consents from all
competent authorities required therefor) which shall be for the use of
Wittayu the owners and occupiers and customers of the basement and ground
floors of ▇▇▇▇▇ House PROVIDED THAT such use shall not be exercised in any
manner which is likely to cause a nuisance annoyance disturbance or
interference to the users of the remainder of the Piazza or the owners and
occupiers of the Choice Win Land
5. The right to build or rebuild upon any part of ▇▇▇▇▇ House or alter any
buildings on ▇▇▇▇▇ House in any manner whatsoever and (subject as
otherwise herein provided) to
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use ▇▇▇▇▇ House or any buildings on ▇▇▇▇▇ House for any purpose or
otherwise deal with the same notwithstanding that the light or air to the
Choice Win Land is in any such case diminished or any other easement right
or advantage belonging the same is diminished or prejudicially affected
6. The right to use all Service Media now laid in on or under the Piazza
Seating Area together with the right to enter upon the Piazza Seating Area
to carry out any works of repair maintenance or renewal of such Service
Media strictly in accordance with the provisions clause 4.6
7. The right until such time as the refurbishment and any additional building
works under planning permission number and/or 31534/AR/980376 of
19.10.1998 and/or 31534/AR/990668 of 10.6.1999 (or any variation thereof
agreed between the parties hereto (such agreement not to be unreasonably
withheld or delayed)) ("the Wittayu Works") has been completed:-
7.1 for cranes and other construction equipment to be used in connection with
construction work to be carried out on Beny House to oversail the Choice
Win Land provided that Wittayu will if required by Choice Win first enter
into an oversail agreement in a form to be agreed with Choice Win (such
agreement not to be unreasonably withheld or delayed)
7.2 of entry onto the Piazza at such times and in such manner that shall be
agreed with Choice Win (such agreement not to be unreasonably withheld but
so that the exercise of such rights shall not interfere with the carrying
out by Choice Win of its obligation the construction of the Piazza) but
only insofar and to the extent as is necessary to carry out and complete
the Wittayu Works subject to obtaining all necessary consents from all
competent authorities
8. The right to enter to onto the Piazza Seating Area to carry out any works
of repair or maintenance to the southern elevation of Beny House where
such works cannot reasonably be carried out without such entry but so as
to minimise any loss of use of the Piazza to Choice Win and occupiers of
the Choice Win Land and the public such entry rights to be exercised
strictly in accordance with the provisions of this Deed
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Part 2
Grant of rights for the benefit of the Choice Win Land
1. During the construction of the Piazza the right on giving Wittayu not less
than 14 days prior notice in writing to enter ▇▇▇▇▇ House to excavate
along the boundary of the Piazza between ▇▇▇▇▇ House and the Choice Win
Land and for landscaping and creating the means of access to the Piazza
and to lay and forever retain all footings and foundations as a foundation
for an intended wall of the Piazza and/or a gatehouse and/or walkways to
be constructed by Choice Win on the Choice Win Land with the right to
bring onto ▇▇▇▇▇ House and to use scaffolding equipment and material for
all usual building purposes
2. The right until such time as the whole of the Choice Win Land and the
adjoining land of Choice Win registered under title number NGL656797 ("▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇") has been redeveloped for cranes and other construction
equipment to be used in connection with construction work to be carried
out on the Choice Win Land and the Adjoining Land to oversail ▇▇▇▇▇ House
provided that Choice Win will if required by Wittayu first enter into an
oversail agreement in a form to be agreed with Choice Win (such agreement
not to be unreasonably withheld or delayed)
3. The right to build or rebuild on any part of the Choice Win Land or alter
any buildings on the Choice Win Land in any manner whatsoever and to use
the Choice Win Land or any buildings on the Choice Win Land for any
purpose or otherwise deal with it notwithstanding that light or air to
▇▇▇▇▇ House is in such case diminished or any other liberty easement right
or advantage belonging to ▇▇▇▇▇ House is diminished or prejudicially
affected
4. The right to enter to onto ▇▇▇▇▇ House to carry out any works of repair or
maintenance to the Choice Win Land and buildings thereon where such works
cannot reasonably be carried out without such entry and so as to minimise
any loss of use of ▇▇▇▇▇ House to Wittayu and occupiers of ▇▇▇▇▇ House
such entry rights to be exercised strictly in accordance with the
provisions of this Deed
- 20 -
SCHEDULE 2
Part 1
Covenants for the benefit of Choice Win
1. For a period of 10 years from the date of this Deed Wittayu will not
construct or use or permit the construction or use on ▇▇▇▇▇ House of more
than 30 Habitable Rooms
2. Not to cause or permit any noxious or offensive effluvia to be omitted
from any machinery or equipment or apparatus on ▇▇▇▇▇ House in breach of
any regulations made by any competent authority
3. Not to install or use in or upon ▇▇▇▇▇ House any machinery or apparatus
causing undue noise or vibration that interferes in a material way with
the use and enjoyment of the Choice Win Land or that may cause structural
damage
4. Not to make any refuse collections from ▇▇▇▇▇ House over the Choice Win
Land
5. To pay the Amount as hereinafter provided and to pay interest at 5% above
base rate from time to time of the Royal Bank of Scotland plc on any sums
not so paid from the date the same were due and payable until the date of
payment provided always the Amount will be paid in stages within seven
days of presentation to Wittayu's Surveyor by Choice Win's Architect or
quantity surveyor of a certificate of the value of the work comprised in
such stage (such certificates (save for the last certificate) not to be
submitted for shorter periods than one month nor for lesser sums than One
hundred thousand pounds ((pounds) 100,000.00)) and such stages may include
all or part of professional fees and VAT
6. To pay within 14 days of demand a fair and proper proportion to be
determined by Choice Win's surveyor (such determination to be based on
principles of good estate management) of the expenses properly incurred by
Choice Win or its tenants (including a reasonable management charge in
each case) in respect of repairing and (where uneconomic to repair)
renewing cleansing maintaining marking and lighting
- 21 -
and keeping secure (and also of complying with all statutory or other
requirements or the requirements of insurers relating to) the Common Parts
Access and the Piazza ("the Estate Services") but so that the same shall
not include the cost of the original construction of the Common Parts
Access (or the later bringing of the same to an adoptable standard prior
to their adoption by the Local Authority) or of the Piazza
Part 2
Covenants for the benefit of Wittayu
1. Choice Win will within three months of the date of this Deed deliver to
Wittayu a costed scheme ("the Choice Win Scheme") not exceeding Four
hundred thousand pounds ((pounds) 400,000) plus Value Added Tax and
professional fees ("the Amount") for the construction of the Piazza and
Wittayu shall within one month from receipt of the Choice Win Scheme
provide any proposed revisions thereto to which Choice Win shall have due
regard but the ultimate decision as to what is to comprise the Choice Win
Scheme shall remain with Choice Win
2. Choice Win will construct the Piazza at the entire cost of Wittayu but not
exceeding the Amount within nine months from the date of the expiry of the
period of one month from receipt by Wittayu of the Choice Win Scheme
unless prevented from doing so by reasons outside its control in which
event such construction will be completed as soon as reasonably
practicable thereafter
3. Choice Win will construct the Piazza in a good and workmanlike manner
using good materials of their respective kind in accordance with the
requirements of the Local Authority or any other competent authority
4. Choice Win will construct or procure the construction of the Common Parts
Access at its own cost within the period of two years from the date hereof
(unless prevented from so doing by reasons outside its control in which
event such construction will be completed as soon as reasonably
practicable thereafter) in a good and workmanlike manner using good
materials of their respective kinds in accordance with the
- 22 -
requirements of the Local Authority or any other competent authority and
will SUBJECT TO the payment of the Maintenance Charge provide the Estate
Services (unless prevented from so doing for reasons outside its control)
or (subject as aforesaid) procure the same save to the extent that the
whole or any part of the Common Parts shall be adopted or otherwise become
maintainable by the Local or other competent authority but so that Choice
Win and (as applicable) its successors in title shall have no liability
under the provisions of this covenant after it or they shall have parted
with all interest in the Common Parts or the relevant part thereof
provided that it or they shall have complied with the provisions of clause
3.8
THE COMMON SEAL of CHOICE WIN
INVESTMENT LTD was hereunto affixed in
the presence of:
Director
Director
THE COMMON SEAL of WITTAYU
REALTY LIMITED was hereunto affixed in
the presence of:
Director
Director
- 23 -
1.31 Professional Team: the Architect the Mechanical Engineer the Structural
Surveyor and such other professionals with a design input in the
Landlord's Works appointed by the Landlord;
1.32 Regulations: the Construction (Design and Management) Regulations 1994 and
all regulations and orders included by clause 2.1.2;
1.33 Rent Commencement Date: the date falling three months after the Term
Commencement Date;
1.34 Rental Uplift Date: means the later of:
the date two years after the Access Date; and
the date following completion of the Off Site Works that written
notification is given by the Landlord to the Tenant;
1.35 Structural Engineer ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Associates or such other reputable
structural surveyor as may be appointed by the Landlord and notified in
advance of appointment to the Tenant;
1.36 Tenant's Fitting-Out Works: the fitting out works described as such in
outline in the Approved Documents which are to be carried out and
completed by the Tenant in accordance with the Licence for Alterations;
1.37 Tenant's Solicitors: Macfarlanes of ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
(Reference CPH/558197);
1.38 Tenant's Surveyor: Cluttons of ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇;
1.39 Tenant's Works: the works described as such in the Approved Document to be
carried out and completed by the Tenant to the Premises but (subject to
the provisions hereof) at the Landlord's cost;
1.40 Term Commencement Date: the earlier of the date following the Access Date
of actual access to the Premises by the Tenant or the Date of Practical
Completion
- 24 -
1.41 VAT: Value Added Tax and any tax or duty of a similar nature substituted
for or in addition to it;
1.42 Working Day: any day from Monday to Friday (inclusive) which is not
Christmas Day Good Friday or a statutory Bank Holiday and Working Days
shall be construed accordingly.
2. Interpretation
2.1 In this Agreement unless there be something in the subject or context
inconsistent therewith:
2.1.1 words importing the masculine gender only shall include the
feminine and neuter genders and words importing persons shall
include firms companies and corporations and vice versa;
2.1.2 any reference in this agreement to a statute or order includes
any statutory extension or modification or reenactment of such
statute or order and any regulations or orders made under such
statute or order;
2.1.3 words importing the singular number only shall include the
plural and where there are two or more persons included in the
expressions Landlord and/or Tenant then obligations on the
part of the Landlord and/or the Tenant shall respectively be
obligations by such persons jointly and severally;
2.1.4 references to clauses and schedules are to clauses of and
schedules to this Agreement.
2.2 This Agreement contains the whole agreement between the parties hereto
relating to the matters herein provided for and supersedes previous
agreements between the parties hereto (if any) relating thereto and there
shall be deemed to be comprised in this Agreement the terms of all letters
and acknowledgements exchanged between the parties contemporaneously
herewith and expressed to be ancillary hereto.
- 25 -
2.3 This Agreement may only be varied in writing signed by or on behalf of the
parties hereto.
2.4 Any obligation in this Agreement on the part of not to do any act or thing
includes an obligation not to suffer such act or thing to be done and to
use all reasonable endeavours to prevent such act or thing being done by
another person.
2.5 It is hereby expressly agreed in this Agreement that any references to the
parties hereto shall only include their successors in title where
expressly so stated to be the case.
2.6 The headings to clauses and schedules shall not affect the construction of
this Agreement.
3. National Conditions
The National Conditions of Sale (20th edition) shall be incorporated herein (so
far as they apply to a sale by private treaty and are not varied by or
inconsistent with the conditions herein contained) except that:
3.1 Conditions 9(2) 15(2) and (3) and 21(2) and (3) shall not apply.
3.2 Landlord shall be substituted therein for Vendor and Tenant for Purchaser
and references to property being sold or subject to sale shall be
construed as references to property being let or subject to lease.
3.3 designated bank or clearing bank means a bank which is a member of CHAPS
and Town Clearing Company Limited.
3.4 All monies payable under this Agreement shall be paid by direct credit
transfer for the credit of the relevant party's Solicitors' bank account
or for the credit of such other bank account in the United Kingdom as the
relevant party shall specify.
4. The Landlord's Works and Off-Site Works
4.1 The Landlord agrees with the Tenant to use all reasonable endeavours:
- 26 -
4.1.1 to obtain such of the Landlord's Consents as have not been
obtained prior to the date hereof and (subject to their being
obtained and continuing in force) to procure that the
Landlord's Works and the Off-Site Works are completed in
conformity with the Landlord's Consents;
4.1.2 to obtain a variation to planning consent number 980376 dated
9/10/1998 to remove the obligation to construct additional
space on the west elevation of the Premises at third floor
level but for the avoidance of doubt not the Mezzanine Works
prior to 31 October 2000 failing which the Landlord may
thereafter give written notice to the Tenant electing to
substitute the Alternative Approved Documents for the Approved
Documents and thereafter all references in this Agreement to
the Approved Documents shall be construed as referring to the
Alternative Approved Documents Provided Always that the
Landlord shall be under no obligation to appeal against any
refusal or deemed refusal or decision of the planning
authority in relation to any application for such variation
aforesaid;
4.1.3 to procure that the Landlord's Works are carried out
diligently in accordance with the Approved Documents and in a
good and workmanlike manner using good quality suitable new
materials and in accordance with relevant British Standard
Specification the Regulations and the terms of this Agreement;
4.1.4 to procure that the Landlord's Works are practically completed
by the Landlord's Works Completion Date;
4.1.5 to procure compliance with the covenants and obligations on
the part of Choice Win Investment Ltd contained in the Deed of
Release at the Landlord's cost including taking proceedings
through the courts where necessary;
- 27 -
4.1.6 to appoint or procure the appointment of the Professional Team
in connection with the Landlord's Works and to supply to the
Tenant certified copies of the terms of their appointments
within 14 days of the dates of the appointment;
4.1.7 if the Landlord shall appoint any other consultants in
substitution for those originally appointed the Landlord will
at its own expense procure delivery to the Tenant of a deed
from any substituted consultant in accordance with clause 7
below.
4.2 It is recognised between the parties that the Approved Documents in some
areas contain insufficient detail to constitute a detailed specification
of the Landlord's Works and the Landlord agrees to procure that detailed
plans drawings sections elevations and specifications are prepared and
copied to the Tenant as soon as reasonably practicable after the date of
this Agreement and to the extent that the detail relates to any part of
the roof main iron staircase external brickwork Mezzanine Works windows
and paint specification or contains any material inconsistencies with the
Approved Documents they will be subject to the Tenant's prior written
approval (such approval not to be unreasonably withheld or delayed) which
shall be deemed to have been given if not withheld by notice in writing to
the Landlord with reasons within 7 Working Days of receipt of the detail
and any dispute relating to the obligations of either party in this clause
shall be immediately referred by either party to ▇▇▇▇▇▇▇ ▇▇▇▇ Company who
shall act as an expert and who shall be instructed to give his decision
within 7 working days of receipt of instructions whose decision shall be
final and binding and whose costs shall be borne equally by the Landlord
and Tenant or in such other manner as he shall direct.
4.3 If the progress of the Landlord's Works has been delayed or is likely to
be delayed for any of the reasons set out in clause 4.3.1 to 4.3.7
inclusive and completion of such works is likely to be delayed beyond the
Landlord Works Completion Date then a new Landlord Works Completion Date
shall be fixed by the Architect. The said reasons are:
- 28 -
4.3.1 any other cause which would entitle the Architect to certify an
extension of time under the Building Contract;
4.3.2 any modifications to the Approved Documents requested by the Tenant
and implemented by the Landlord or any dispute referred to the
expert pursuant to in clause 4.2 hereof;
4.3.3 there being any noxious harmful dangerous or deleterious material in
the Premises which have not been identified prior to the date of
this Agreement and which a properly qualified surveyor could not
have reasonably been able to identify (save for any latent materials
in areas that have not been investigated by the Landlord's Surveyor
prior to the date of this Agreement) which properly results in the
Landlord's Works being delayed;
4.3.4 any act or proceedings by or on behalf of the Tenant in breach of
the terms of this Agreement;
4.3.5 any failure by the Tenant to comply with any of its obligations owed
to the Landlord pursuant to the terms of this Agreement;
4.3.6 the carrying out by the Tenant of the Tenants Fitting-Out Works; or
4.3.7 any change in any law rule or regulation of any competent authority.
4.4 If the Landlord is unable to obtain at a reasonable cost or within a
reasonable period any of the materials referred to in the Approved
Documents the Landlord may substitute for them alternative materials as
nearly as practicable of the same or better quality and of the same
appearance (if visible).
4.5 The Landlord may make such modifications to the Approved Documents and to
the details of the Landlord's Works contained in them as may be:
4.5.1 required by any local or other competent authority or required to
comply with any of the Landlord's Consents; or
- 29 -
4.5.2 reasonably required by the Architect with the approval of the Tenant
(such approval not to be unreasonably withheld); or
4.5.3 not material and which do not significantly alter the character
layout and appearance of the Premises.
4.6 The Landlord shall promptly notify the Tenant's Surveyor in writing of any
such substitution of materials and/or modification to the Approved
Documents.
4.7 If the Tenant shall wish to make any minor modifications to the Approved
Documents relating to the Landlord's Works it shall deliver to the
Landlord a written application specifying such modifications for the prior
written approval of the Landlord (such approval not to be unreasonably
withheld or delayed) and the following provisions shall apply:-
4.7.1 in the event that such modifications are approved the Landlord shall
as soon as practicable procure the preparation and the delivery to
the Tenant of such amended drawings and other documents as may be
necessary and estimates of the reasonable and proper additional cost
of such modifications and the likely delay (if any) to the Access
Date or the Date of Practical Completion or the Landlords Works
Completion Date or the Long Stop Date;
4.7.2 if the Tenant wishes such modifications to be made the Tenant shall
within five Working Days of receipt of such drawings documents and
estimates notify the Landlord in writing of its acceptance;
4.7.3 whether or not such modifications are made (unless modifications are
not made or refused in breach of the terms of this Agreement) the
Tenant shall within 14 days of receipt of a written demand pay to
the Landlord for the amount of all reasonable and proper costs fees
and expenses incurred in connection with the preparation of such
drawings documents and estimates;
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4.7.4 after completion of the said modification the Landlord will confirm
to the Tenant in writing the actual cost of carrying out the
modification and the Tenant will pay to the Landlord within 7
Working Days after receipt of a written demand from the Landlord
such reasonable and proper costs.
4.8 With effect from the expiry of the Defects Period the Landlord shall be
under no liability to the Tenant in respect of any failure to carry out
the Landlord's Works in accordance with the terms of this Agreement.
4.9 In carrying out any proposed works to the Piazza adjoining the Premises
the Landlord shall consult with and have due regard to the representations
of the Tenant.
5. Certificates and Inspection
5.1 The Landlord shall procure that the Tenant and the Tenant's Surveyor shall
have the right at reasonable times and after reasonable prior notice to
the Architect (and so that no delay is caused in the carrying out of the
Landlord's Works) to inspect the Landlord's Works but the Tenant or the
Tenant's Surveyor shall make all representations in writing to the
Architect (a copy simultaneously being sent to the Landlord) and the
Tenant shall not give or be entitled to give any instructions or to make
any complaint whatsoever to the Building Contractor any sub-contractor or
any other person employed or engaged by the Landlord in relation to the
Landlord's Works but the Landlord shall procure that all representations
made and any breaches identified by the Tenant or the Tenant's Surveyor
are brought to the attention of the Architect with instructions that the
representations are fully considered.
5.2 The Landlord shall ensure that the Tenant is kept fully appraised of the
progress of the Landlord's Works throughout the period the Landlord's
Works are being carried out.
5.3 The Landlord shall procure the Architect to issue the Access Certificate
on or as soon as reasonably practicable after the Access Date.
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5.4 The Landlord shall instruct the Architect to give to the Tenant's Surveyor
not less than 7 Working Days' notice of each of the dates upon which the
Architect intends to inspect the Landlord's Works with a view to issuing:-
5.4.1 the Access Certificate;
5.4.2 the Certificate of Practical Completion; and
5.4.3 the Certificate of Making Good Defects.
5.5 The Tenant's Surveyor shall be entitled to accompany the Architect on each
such inspection and the Landlord shall instruct the Architect to allow the
Tenant's Surveyor to make representations as to whether or not in the view
of the Tenant's Surveyor the Access Certificate or Certificate of
Practical Completion or the Certificate of Making Good Defects (as the
case may be) shall be issued and the Landlord shall procure that the
Architect shall properly consider any such representations.
5.6 If the Architect shall decide (having taken into account any such
representations) that the time has not yet been reached when it is
appropriate for the Access Certificate or the Certificate of Practical
Completion or the Certificate of Making Good Defects (as the case may be)
to be issued then the Landlord shall procure that the Architect shall
immediately give not less than five Working Days' notice to the Tenant's
Surveyor as to the date upon which the Architect intends to reinspect the
Landlord's Works with a view to issuing the relevant certificate and so
that the procedure shall be repeated in each case as often as may be
necessary.
5.7 The existence of minor defects and omissions in the Landlord's Works at
the time of any such inspection with a view to issuing the Access
Certificate which are capable of being made good afterwards without
interfering with the carrying out of the Tenant's Works or the use and
enjoyment of the Premises by the Tenant shall not delay the issue of the
Access Certificate.
- 32 -
5.8 Subject to the provisions of clauses 5.3 to 5.7 inclusive having been
observed by the Landlord the Access Certificate and the Certificate of
Practical Completion shall be conclusive evidence binding on the parties
to this Agreement:-
5.8.1 as to the Access Date in the case of the Access Certificate; and
5.8.2 that the Landlord's Works have reached practical completion in
accordance with the provisions of the Building Contract.
5.9 Immediately following their respective issues the Landlord shall instruct
the Architect to issue to the Tenant's Surveyors copies of the Access
Certificate and the Certificate of Practical Completion and the
Certificate of Making Good Defects.
5.10 The Tenant (notwithstanding completion of the Lease) will allow the
Landlord the facilities necessary to enable the Landlord in consultation
with the Tenant to prepare a schedule of defects for delivery to the
Building Contractor pursuant to the provisions of the Building Contract
(incorporating defects brought to the attention of the Landlord by the
Tenant) and for any such defects to be remedied which the Landlord shall
procure.
6. Ascertainment of Net Internal Area
6.1 As soon as practicable after the Access Date the Landlord shall procure
the Landlord's Surveyor and the Tenant shall procure the Tenant's Surveyor
to try to agree with the other the Net Internal Area of the Premises.
6.2 If the Landlord's Surveyor and the Tenant's Surveyor shall not be able to
agree the Net Internal Area within ten Working Days after the Access Date
then the question shall immediately be referred to an independent surveyor
pursuant to clause 20.2 and the decision of such independent surveyor
shall be final and conclusive as to the Net Internal Area of the Premises.
6.3 If the Net Internal Area has not been agreed or determined by the date on
which the Lease falls to be granted then the licence fees payable pursuant
to this Agreement shall be at the annual rate of(pound)898,000 but
immediately the Net Internal Area is agreed or
- 33 -
determined the licence fee and the initial yearly rent shall be
recalculated and the Tenant shall pay to the Landlord or the Landlord
shall repay to the Tenant the amount by which the payments made by the
Tenant fall short of or exceed (as the case may be) the amounts which
would have been payable had the recalculated licence fee or rent been paid
on the Rent Commencement Date.
7. Defects and Duty of Care
7.1 The Landlord will procure at no cost to the Tenant that the Building
Contractor complies with its obligations under the Building Contract to
make good works not in accordance with the Building Contract (the Defects)
specified in a written notice from the Tenant to the Landlord given not
less than ten working days prior to the expiry of the Defects Period (time
being of the essence).
7.2 The Tenant will permit the Landlord and all persons authorised by the
Landlord to enter the Premises upon reasonable prior notice for the
purpose of inspecting the Landlord's Works and making good any such
Defects provided that disturbance to the Tenant shall be kept to a minimum
and any damage caused remedied.
7.3 The Landlord shall use all reasonable endeavours to procure deeds of
collateral warranty from the Building Contractor and all the Professional
Team appointed in connection with the Landlord's Works in the form of the
drafts annexed or as near thereto as the Landlord using all reasonable
endeavours can procure and the warrantor reasonably requires and have been
approved by the Tenant (such approval not to be unreasonably withheld) and
will hand over such deeds of warranty as soon as practicable but in any
event shall produce such deeds of warranty on or before completion of the
Lease.
8. The Tenant's Works and the Tenant's Fitting Out Works and Access
8.1 The Tenant shall carry out the Tenant's Works:
- 34 -
8.1.1 diligently in a good and workmanlike manner using good quality
suitable new materials in accordance with Relevant British Standard
Specification the Regulations and the terms of this Agreement;
8.1.2 so as to cause as little obstruction to or interference with the
carrying out of the Landlord's Works and any other work being
carried out to the Premises as is reasonable;
8.1.3 employing a reputable building contractor and reputable consultants
whose forms of contract/appointment shall be supplied to the
Landlord within 14 days of the date of the contract/appointment;
8.1.4 in compliance with the Tenant's Consents and with any reasonable
requirements of the Landlord in relation to access to the Premises;
8.1.5 subject to having first obtained the Landlord's approval of a
detailed specification and full drawings of the same (approval not
to be unreasonably withheld or delayed and which shall be deemed to
have been given if not withheld by notice in writing to the Tenant
with reasons within 7 Working Days of receipt of the details).
8.2 The Landlord shall pay the Tenant for the carrying out the Tenant's Works
within ten Working Days of presentation to the Landlord by the Tenant or
the Tenant's Surveyor of a certificate by the Tenant's Surveyor that the
relevant part of the Tenant's Works have been carried out and the relevant
costs incurred and are due for payment together with all reasonable
supporting documents and a VAT invoice (such certificate shall be
presented not more frequently than once in every month) and subject to the
presentation of the said certificate the Landlord shall make the payments
required to the Tenant provided that the relevant part of the Tenant's
Works have been completed to the Landlord's reasonable satisfaction.
8.3 In no circumstances shall the Landlord be obliged to pay to the Tenant
sums exceeding those listed on the Schedule entitled "Total of Landlord's
Contribution" annexed hereto plus Value Added Tax in respect of the item
of Tenant's Works to which each sum corresponds and which shall not in
aggregate exceed (pound)653,511.43 (plus VAT) pursuant to the provisions
of clause 8.2.
- 35 -
8.4 The Tenant shall within three months after commencement of the Landlord's
Works at its own cost prepare in triplicate and submit to the Landlord's
Surveyor a plan or plans and a specification of the Tenant's Fitting Out
Works for approval by the Landlord (which approval shall not be
unreasonably withheld or delayed either in respect of the original
application or in respect of any variation or alteration which the
Landlord's Surveyor may reasonably require or which the Tenant may
subsequently submit for approval as variations of the Tenant's Fitting Out
Works for the purposes of this agreement) and immediately upon such
approval being obtained the Tenant shall apply for and use all reasonable
endeavours to obtain as soon as practicable all Tenant's Consents.
8.5 On the Access Date the Tenant shall have licence and authority to occupy
the Premises and to carry out the Tenant's Fitting Out Works.
8.6 Pending the grant of the Lease the Tenant's occupation of the Premises
shall be as licensee as if the Lease had been granted in respect of the
part of the Premises actually occupied (so far as applicable and not
inconsistent with occupation as licensee under this Agreement:
8.6.1 subject to and with the benefit of the same exceptions reservations
rights (including the same right to relief from forfeiture as a
lessee enjoys pursuant to Section 146 of the Law of Property Act
1925) agreements covenants conditions and other provisions as are
contained in the Lease; and
8.6.2 so that the Landlord shall have and be entitled to all remedies by
distress action or otherwise for recovering money in arrear and for
breach of any of the obligations on the part of the Tenant as if the
Lease had been granted; but
8.6.3 so that nothing in this clause 8 shall be construed as creating a
legal demise or greater interest in the Tenant than as licensee
pursuant to the terms of this agreement pending the grant of the
Lease.
- 36 -
8.7 The Tenant shall carry out the Tenant's Fitting Out Works:
8.7.1 in compliance with all the provisions of the Licence for Alterations
(but if there shall be any conflict between the same and any
Agreement the provisions of this Agreement shall prevail);
8.7.2 so as to cause as little obstruction to or interference with the
carrying out of the Landlord's Works and any other works being or to
be carried out to the Premises as is practicable;
8.7.3 employing a building contractor and consultants approved by the
Landlord whose forms of contract/appointment shall also be approved
in writing by the Landlord such approvals not to be unreasonably
withheld or delayed;
8.7.4 in compliance with the Tenant's Consents the Regulations and with
any reasonable requirements of the Landlord in relation to access to
the Premises;
8.7.5 so that the Tenant's Fitting Out Works are completed so far as is
possible within 6 months after the Access Date; and
8.7.6 at its own expense.
8.8 The Tenant shall (subject to the Landlord using all reasonable endeavours
to mitigate any loss suffered) keep the Landlord indemnified from and
against any breach or non-performance of any conditions which may be
imposed or implied by any Tenant's Consents relating to the Tenant's Works
and or the Tenant's Fitting-Out Works and from and against all claims
actions demands losses expenses costs and all legal liabilities whatsoever
suffered by the Landlord and which arise by reason of or incidental to any
negligence in the carrying out of the Tenant's Works and/or the Tenant's
Fitting Out Works or the breach of any of the terms hereof and the Tenant
will make good as soon as reasonably practicable to the reasonable
satisfaction of the Landlord any damage or injury caused by the Tenant or
by anyone for whom the Tenant is legally responsible to the Premises and
the liability of the Tenant under or
- 37 -
pursuant to the terms and provisions of this Agreement shall not be
released diminished or in any other way affected by any inspection or
investigation by the Landlord or its consultants or any certificate issued
by the Landlord or the Consultants or by it or its consultants
acknowledging its satisfaction with the Tenant's Works and/or the Tenant's
Fitting-Out Works.
9. Licence Fee
9.1 On and from the Rent Commencement Date the Tenant shall pay to the
Landlord within 14 days of receipt of a written demand an annual licence
fee calculated by multiplying by (pound)20 the number of square feet
comprised in the Net Internal Area of the Premises.
9.2 If the issue of the Certificate of Practical Completion shall be delayed
by the execution of the Tenant's Fitting Out Works and the extension of
time is certified by the Architect the Landlord shall be entitled upon
giving notice in writing to the Tenant at any time before the grant of the
Lease to require the Tenant to pay an amount equal to the licence fee for
each week of the delay or proportionately for part of a week as certified
by the Architect by way of compensation for such delay.
10. Insurance
10.1
10.1.1 The Landlord shall procure that the Premises are kept insured in
accordance with the Building Contract up to and including the Date
of Practical Completion.
10.1.2 The Tenant shall within 14 days of demand pay any increased or
additional premium which the insurers of the Premises or of any
adjoining or neighbouring property may properly require by reason of
the carrying out or completion of the Tenant's Fitting Out Works.
10.2 During the period from the Date of Practical Completion until the date of
actual completion of the Lease the covenants and provisions as to
insurance in the Lease
- 38 -
(other than as to the Tenant's obligation to pay the Insurance Rent) and
the Licence for Alterations shall apply as though the Lease and the
Licence for Alterations had been completed.
11. Title
11.1 Title to the Premises having been deduced the Tenant shall raise no
objection thereto or requisition thereon save in respect of matters
arising after the date of this Agreement.
11.2 The Tenant or its solicitors having been supplied with Office Copy Entries
of Title Number ▇▇▇▇▇▇▇▇▇ dated 2 March 2000 and the Deed of Release on or
before the signing hereof shall be deemed to take the Lease with full
knowledge of the terms and conditions thereof and of any matter referred
to therein and shall raise no objection thereto or requisition thereon.
12. Matters to which the Premises are subject
12.1 The Premises are let subject to and as the case may be with the benefit of
the matters contained or referred to in the Property Register and the
Charges Register (other than charges to secure the repayment of money) of
title number ▇▇▇▇▇▇▇▇▇ on 2 March 2000.
12.2 The Premises by the Lease are let subject to:
12.2.1 all matters registrable by any competent authority pursuant to
statute;
12.2.2 all requirements of any competent authority; and
12.2.3 all matters disclosed by searches or as the result of enquiries
made in writing by or for the Tenant or which a prudent tenant ought
to make.
12.3 In this clause:
12.3.1 competent authority means a local authority or other body
exercising powers under statute or by Royal Charter; and
- 39 -
12.3.2 requirement includes (whether or not subject to confirmation) any
notice order or proposal.
13. Grant Of the Lease
13.1 Subject to the above provisions of this Agreement the Landlord shall grant
or procure the grant of and the Tenant shall accept the Lease and the
Licence for Alterations which shall both be completed on the date falling
five Working Days from the latest of the Date of Practical Completion the
date of determination of the Net Internal Area of the Premises pursuant to
clause 6 and the provision of the final warranty agreement pursuant to
clause 7.
13.2 The initial annual rent first reserved by the Lease shall be ascertained
by multiplying by (pound)20 the number of square feet comprised in the Net
Internal Area of the Premises and shall be payable on and from the Rent
Commencement Date up to and including the Rental Uplift Date Provided
Always that if the Landlord's Works have not been practically completed by
the Landlord's Works Completion Date then such initial annual rent shall
not be payable during the period commencing on the Rent Commencement Date
for a period equal to the number of days commencing on the Landlord's
Works Completion Date and expiring on the Date of Practical Completion.
13.3 On and from the Rental Uplift Date until the First Review Date the annual
rent reserved by the Lease shall be ascertained by multiplying by
(pound)25 the number of square feet comprised in the Net Internal Area of
the Premises.
13.4 The Tenant shall on and from the date of completion of the Lease in
accordance with clause 13.1 pay to the Landlord
13.4.1 the Rent payable on and from the Rent Commencement Date;
13.4.2 the insurance rent and service charge payable on and from the Term
Commencement Date
credit being given for any licence fee or other monies paid in advance and
attributable to any period arising after the grant of the Lease.
- 40 -
13.5 The Rent Review Dates specified in the Particulars of the Lease shall be
the dates of expiry of the fifth and tenth years of the term of the Lease.
13.6 The Lease shall be for a term of 15 years from and including the Term
Commencement Date.
13.7 Engrossments of the Lease and the Licence for Alterations and their
respective counterparts shall be prepared and delivered to the Tenant by
the Landlord's Solicitors not less than ten Working Days prior to the date
of completion as defined in clause 13.1.
13.8 The Tenant shall provide the Landlord's Solicitors with four complete sets
of all plans drawings and other documents referred to in the Licence for
Alterations.
13.9 The Tenant and the Landlord shall execute the originals and counterparts
(as appropriate) and return them unconditionally to the other's
Solicitors.
13.10 On or before the date of completion as defined in clause 13.1 the Tenant
shall provide the Landlord's solicitors with a duly signed opinion letter
in the form of the draft annexed hereto or such other form as the parties
acting reasonably shall agree.
13.11 Without prejudice to any other provision of this Agreement the Tenant
shall subject to the Landlord using all reasonable endeavours to mitigate
any loss suffered indemnify the Landlord against any loss suffered by the
Landlord resulting from any failure by the Tenant to comply with the
provisions of clause 13.1
14. Alienation and Non-Severability
14.1 The benefit of this Agreement is personal to the Tenant and the Tenant not
shall assign or part with its interest under this Agreement or any part
thereof or otherwise dispose of the same or any part thereof and the
Tenant named herein shall personally accept the Lease and the Licence for
Alterations.
- 41 -
15. Acknowledgement and Interest
15.1 The Tenant acknowledges that it has not entered into this Agreement in
reliance upon any representations made by or on behalf of the Landlord
other than in respect of such reliance as may be placed upon the
Landlord's Solicitors' written replies to the Tenant's Solicitors'
preliminary enquiries.
15.2 Without prejudice to any other right remedy or power of either party
hereto if any sums shall have become due from either party to the other
under this Agreement but shall remain unpaid for a period exceeding
fourteen days the party whose liability it is to pay shall pay on demand
to the other interest thereon at the Prescribed Rate (before and after any
judgement) from the date when they become due until payment thereof
calculated on a daily basis and compounded with rests on the usual quarter
days.
16. Termination
If:
16.1 either party (being a body corporate) has a winding up petition or
petition for an administration order presented against it or passes a
winding up resolution (other than in connection with a members' voluntary
winding up for the purposes of amalgamation or reconstruction or calls a
meeting of its creditors for the purpose of considering a resolution that
it be wound up voluntarily) or resolves to present its own winding up
petition or is wound up (whether in England or elsewhere) or the directors
or shareholders of that party resolve to present a petition for an
administration order in respect of it or an administrative receiver or a
receiver or a receiver and manager is appointed in respect of the Premises
or any part thereof of that party; or
16.2 either party (being a body corporate) calls or a nominee calls on its
behalf a meeting of its creditors or any of them or makes an application
to the court under section 425 of the Companies ▇▇▇ ▇▇▇▇ or submits to its
creditors or any of them a proposal pursuant to Part I of the Insolvency
Act 1986 or enters into any arrangement scheme compromise moratorium or
composition with its creditors or any of them (whether pursuant to Part I
of the Insolvency ▇▇▇ ▇▇▇▇ or otherwise); or
- 42 -
16.3 there shall be any material breach of the obligations under the Agreement
which the defaulting party fails to remedy in a reasonable time after
reasonable written notice from the other
THEN the innocent party may by notice in writing to the other at any time
thereafter terminate this Agreement (without prejudice to any right or remedy of
either party in respect of any antecedent breach of this Agreement).
16.4 the Date of Practical Completion shall not have been reached by the Long
Stop Date then either party may determine this Agreement by written notice
to the other but without prejudice to the rights of either party in
respect of any antecedent breach.
Provided that if the Tenant serves notice in accordance with this Clause 16
(other than pursuant to Clause 16.4) the notice shall not take effect if any
person or company providing finance for the development of the Premises shall
within 15 working days of service of the said notice deliver to the Tenant a
duly perfected covenant in such form as the Tenant shall reasonably require by
such person or company providing finance for the development of the Premises to
procure the completion of the Landlord's Works and the performance of the
Landlord's obligations under this Agreement on the terms contained in this
Agreement.
17. VAT
All sums payable by any party under the terms of this Agreement shall be
exclusive of any VAT in respect thereof howsoever arising and the paying party
shall pay to the other all VAT for which the paying party is liable to account
to HM Customs and Excise in relation to any supply made or deemed to be made for
VAT purposes pursuant to this Agreement.
18. Notices
18.1 Any notice or other document to be given or sent hereunder shall be in
writing and may be delivered personally or sent by first class registered
post to the party to be served (at that party's address appearing in this
Agreement or such other address as that party shall notify in writing to
the other) or to its solicitors. Any such notice or document shall be
deemed to have been served:
- 43 -
18.1.1 (if delivered) at the time of delivery;
18.1.2 (if posted) at the expiration of 48 hours after the envelope
containing the same shall have been put into the post properly
addressed and stamped.
18.2 In proving such service it shall be sufficient to prove (as the case may
be) that delivery was made or that the envelope containing such notice or
document was properly addressed and posted as a prepaid first class
registered letter or that the sender of the facsimile transmission has his
copy and can show that it was duly transmitted.
19. Guarantor's Obligations
19.1 In consideration of this Agreement being made at the request of the
Guarantor the Guarantor agrees with and guarantees to the Landlord and
without the need for express assignment the successors in title of the
Landlord that the Tenant will observe and perform this Agreement and will
when called upon so to do execute the counterpart of the Lease and in the
case of default by the Tenant will procure the granting of the Underlease
and will on receipt of a written demand pay and make good to the Landlord
or losses damages costs and claims arising out of such default.
19.2 The obligations of the Guarantor set out in this clause 19 shall remain in
full force and effect notwithstanding:-
19.2.1 any modification of whatsoever nature which may be made in the
structure style or legal form of the Tenant; or
19.2.2 any forbearance time indulgence or other concession which may be
granted to the Tenant; or
19.2.3 any variation amendment or modification of the terms conditions or
other provisions of this Agreement (whether or not such variation
amendment or modification is effected with the consent of the
Guarantor and whether or not such variation amendment or
modification may increase or otherwise vary the liability of the
Guarantor under this Agreement); or
- 44 -
19.2.4 any invalidity in or irregularity or unenforceability of the
obligations of the Tenant under this Agreement or any invalidity in
or irregularity in the execution of this Agreement by the Tenant or
any deficiency in the powers of the Tenant to enter into this
Agreement; or
19.2.5 any delay on the part of the Landlord to take steps to enforce
performance or observance of the or any of the Tenant's obligations
in this Agreement or which may be allowed by the Landlord to the
Tenant; or
19.2.6 any assignment of this Agreement or the liquidation of the Tenant;
or
19.2.7 any other act or thing or omission which but for this provision
might operate to exonerate or release the Guarantor.
19.3 In the event of liquidation of the Tenant and the liquidator of the Tenant
disclaiming this Agreement the Landlord may within three months after such
disclaimer by notice in writing given to the Guarantor require this
Agreement to be deemed to continue in effect with the Guarantor as if it
had entered into this Agreement as Tenant and not as Guarantor and in that
event the Guarantor shall perform and observe the Tenant's obligations
under this Agreement and in due course execute and deliver a counterpart
of the Lease as tenant.
20. Disputes
All differences and questions that will arise between the Landlord and the
Tenant or the Guarantor concerning this Agreement (excluding any relating to the
issuing of certificates by the Architect; the Access Date; the Date of Practical
Completion; the Term Commencement Date or any dates relating to the payment of
rents hereunder or licence fees other than the determination of the date of
completion of the Off Site Works for the purposes of determining the Rental
Uplift Date) shall:
20.1 so far as any such difference or question relates to the building or
construction work normally falling within the scope of competence of an
architect be referred to an architect agreed upon by the parties hereto,
but in default of such agreement
- 45 -
appointed on the application of either party by or on behalf of the
President of the Royal Institution of British Architects; and
20.2 so far as any such difference or question relates to building construction
work (not falling within the matters provided for in clause 20.1) all
measurement or defects/snagging lists or otherwise to matters normally
falling with the scope of competence of a surveyor to be referred to an
independent surveyor who shall be a fellow of the Royal Institution of
Chartered Surveyors to be agreed upon by the Landlord and the Tenant but
in default of such agreement as appointed on the application of either
party by or on behalf of the President of the Royal Institution of
Chartered Surveyors; and
20.3 so far as any such difference relates to methods of accounting or
otherwise to matters usually and properly within the knowledge of a
qualified accountant to be referred to a chartered accountant agreed upon
by the parties hereto, but in the default of such agreement appointed on
the application of either party by or on behalf of the President of the
Royal Institute of Chartered Accountants in England and Wales; and
20.4 So far as any such difference or question relates to the rights and
liabilities of the parties hereto or to the terms or conditions to be
embodied in any deed or document appertaining hereto referred to a Queen's
Counsel agreed upon by the parties hereto, but in default of such
agreement appointed on the application of either party by or on behalf of
the Chairman for the time being of the Bar Council; and
20.5 in determining any such matter referred to such architect, surveyor or
chartered accountant shall act as an expert but shall consider any written
submissions made to him by any of the parties hereto in making his
decision which he shall deliver in writing and the reference to him shall
include authority to determine in what manner the costs of the reference
shall be paid;
but such Counsel shall act as an arbitrator under the provisions of the
Arbitration ▇▇▇ ▇▇▇▇ and the question of his fees shall lie within his award
provided always that if the Landlord and the Tenant shall fail to agree as to
the nature of the difference or question then it shall be referred
- 46 -
to a Queen's Counsel agreed upon by them, but in default of agreement either of
them may apply to the Chairman of the Bar Council to appoint a Queen's Counsel
to decide in relation to any such matter which of the preceding sub-clauses is
applicable thereto and the decision of such Queen's Counsel acting as an expert
and not as an arbitrator shall be final.
21. Applicable Law and Jurisdiction
For the avoidance of doubt and not withstanding the domicile or place of
business of any party from time to time having an interest in this Agreement the
same shall be governed by and construed in all respects in accordance with the
laws of England and Wales and proceedings in connection therewith shall be
subject (and the parties hereby submit) to the non-exclusive jurisdiction of the
English and Welsh courts and for the purposes of Order 10 Rule 3 of the Rules of
the Supreme Court of England and any other relevant rules thereof and the
Landlord and the Tenant irrevocably agree that any process may be served upon
them by leaving a copy addressed to them at their own address as stated above or
such other address as may be notified in writing from time to time to the
Landlord in respect of the Tenant or such address as may be notified in writing
from time to time in England and Wales to the Tenant in respect of the Landlord.
22. Non Merger
Notwithstanding completion of the New Lease all the provisions of this Agreement
shall continue in full force and effect to the extent provided for in this
Agreement and to the extent that they remain to be implemented.
AS WITNESS the hands of the parties hereto or authorised persons on their behalf
the day and year first before written.
- 47 -
ANNEXURE 1
(Lease)
- 48 -
Dated 2000
WITTAYU REALTY LIMITED (1)
and
RAZORFISH LIMITED (2)
and
RAZORFISH INC (3)
--------------------------------------------------------------------------------
LEASE
relating to ▇▇▇▇▇ House ▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
OAA
--------------------------------------------------------------------------------
- 49 -
CONTENTS
1. INTERPRETATION .......................................................... 1
2. DEFINITIONS ............................................................. 2
3. DEMISE AND RENTS ........................................................ 7
4. TENANT'S COVENANTS ...................................................... 8
5 LANDLORD'S COVENANTS .................................................... 29
6. PROVISOS ................................................................ 31
7. DELIVERY AND 1995 ACT ................................................... 35
THE FIRST SCHEDULE .......................................................... 35
THE SECOND SCHEDULE ......................................................... 36
THE THIRD SCHEDULE .......................................................... 38
THE FOURTH SCHEDULE ......................................................... 41
THE FIFTH SCHEDULE .......................................................... 41
- 50 -
11. Rent Review Date: the fifth and tenth anniversaries of the Term
Commencement Date and as more particularly provided for in the Third
Schedule
12. Term: fifteen years from and including the Term Commencement Date and as
more particularly provided in clause 2.19
13. Term Commencement Date:
- 51 -
PARTICULARS
DATE 2000
1. Landlord: WITTAYU REALTY LIMITED whose registered office is at ▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
2. Tenant: RAZORFISH LIMITED (Company Number 3016034) whose registered office
is at ▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
3. Surety: RAZORFISH INC (File Number 33-30410) whose registered office is at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇
4. Premises: The Ground First Second Third Third Floor Mezzanine and Fourth
Floors of the Building shown for identification purposes edged red on the
attached plans numbered 1 to 5
5. The Estate: All that land at Clerkenwell shown edged blue on the attached
plan numbered 6 together with the buildings from time to time erected
thereon and all appurtenances belonging to it and all alterations and
additions to it from time to time
6. Off Site Works: the works to be carried out in the Estate adjoining the
Premises described in the Fifth Schedule
7. Permitted Use: High class offices within the meaning of paragraph (a) of
Class B1 of the Town and Country Planning (Use Classes) Order 1987
together with ancillary storage
8. Rent: [ ] ((pound)[ ]) per annum (exclusive of VAT) subject to
review in accordance with the terms of the Third Schedule
9. Rent Commencement Date: [See Agreement for Lease]
10. Rental Uplift Date: the later of the day of and the date
notified to the Tenant by the Landlord as being the date of completion of
the Off Site Works
- 52 -
THIS LEASE is made on the date set out in the Particulars
BETWEEN
(1) The Landlord specified in the Particulars
(2) The Tenant specified in the Particulars
WITNESSETH as follows:-
1. INTERPRETATION
In these Presents unless there is something in the subject or context
inconsistent therewith:-
1.1 words importing the masculine gender only shall include the feminine
gender and vice versa
1.2 words importing persons shall include firms companies and corporations and
vice versa
1.3 words importing the singular number shall include the plural number and
vice versa
1.4 where the Landlord and/or the Tenant and/or the Surety consists of two or
more persons all covenants by the Landlord and/or the Tenant and/or the
Surety shall be deemed to be made by such persons jointly and severally
1.5 save for any reference to the Town and Country Planning (Use Classes)
Order 1987 references in this Lease to any Enactment shall be deemed to
include every statutory amendment re-enactment and replacement thereof for
the time being in force and every statutory instrument rule order notice
regulation and direction for the time being made issued or given
thereunder or deriving validity therefrom and from time to time thereunder
1.6 any covenant by the Tenant and/or the Surety not to do any act or thing
shall be deemed to include a covenant not to permit or suffer the doing of
such act or thing
- 53 -
1.7 any rights of entry or other rights hereby granted to the Landlord shall
be deemed also to be granted to any Superior Landlord and all persons
properly authorised by them and to be granted to them not only in respect
of their interest in the Premises but also in respect of any other
adjoining or neighbouring property owned by them (but only to the extent
that entry is essential)
1.8 the clause and schedule headings are for the purpose of reference only and
do not form part of this document nor affect its interpretation or
construction
1.9 the details and descriptions appearing in the Particulars shall be
included and form part of this Lease
2. DEFINITIONS
For the purposes of this Lease the terms defined in the Particulars and this
clause have the meanings specified
2.1 Building: shall mean ▇▇▇▇▇ House ▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ OAA together
with its appurtenances and other areas as is registered at HM Land
Registry with Title Number ▇▇▇▇▇▇▇▇▇
2.2 Common Parts shall mean the entrances lobbies halls staircases landings
corridors lifts refuse areas internal and external fire escapes and any
external pedestrian ways or forecourts of the Building not forming part of
the Premises
2.3 Conduits: shall mean and include ventilating ducts cisterns tanks
radiators water and fuel oil and gas and electricity supply pipes sewers
drains channels gutters tubes meters soil pipes waste water pipes
sprinkler systems and also wires or cables used for the conveyance of
electrical current and telephone or similar communications all manner of
telecommunications and all similar conducting media and all valves meters
traps and switches appertaining thereto
2.4 the Contractual Term: shall mean the term of years specified in the
Particulars
2.5 the Deed of Grant: shall mean the deed brief particulars of which are set
out in the Sixth Schedule
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2.6 Development: shall bear the same meaning as in the Planning Acts
2.7 Enactment: shall mean any and every Act of Parliament already or hereafter
to be passed and any statute instrument rule order direction regulation or
bye-law already or hereafter to be made under or in pursuance of or
deriving validity from any such Act
2.8 the Full Reinstatement Value: shall mean such sums (including VAT thereon
where applicable) as the Landlord shall determine to be the full cost from
time to time in respect of demolition site clearance (and related costs
incurred in shoring up any land or buildings) reconstruction rebuilding
and reinstatement of the Building in accordance with all statutory and
other requirements regulations and conditions for the time being in force
and to such state of repair and condition as shall be commensurate with a
high-class development together with incidental expenses and for the
avoidance of doubt it is declared that the Landlord may take account of
the increase in costs which it considers likely to arise during such
period as may be involved in drawing up plans and specifications applying
for and obtaining all consents and completing demolition site clearance
reconstruction rebuilding and reinstatement as aforesaid
2.9 Group Company: shall mean any company which is for the time being a group
company of that party within the meaning of section 42 of the Landlord and
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
2.10 the Insurance Rent: shall mean a fair and proper proportion reasonably
attributable to the Premises of the premium or premiums expended or
incurred by the Landlord in effecting or procuring to be effected
insurances and any excesses required by the Landlord or required by
insurers that would otherwise be borne by the Landlord from time to time
2.10.1 against loss or damage by any of the Insured Risks for the Full
Reinstatement Value of the Building together with a sum sufficient
to cover architects' surveyors' and other professional fees
remuneration and
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expenses incidental thereto (if required) and including VAT thereon
where applicable)
2.10.2 against the loss of all rents from time to time payable hereunder
for such period (being not less than three years) as is reasonably
required by the Landlord from time to time having regard to the
likely period required for demolition site clearance reconstruction
rebuilding and reinstatement as the case may be in the event of both
partial and total destruction and in an amount would take into
account potential increases of rent which are likely to take place
upon review during the period in question
2.10.3 against third party risks and property owners' and public
liability
2.10.4 against such other risks as the Landlord may from time to time
require
2.11 the Insured Risks: shall mean risks in respect of loss or damage by fire
smoke storm or tempest lightning explosion aircraft and other aerial
devices or missiles or projectiles or other articles dropped therefrom
earthquake riot civil commotion malicious damage bursting or overflowing
of water tanks apparatus or pipes flood impact and such other risks or
insurances as may from time to time be effected by the Landlord or
reasonably requested by the Tenant (including during such time as the
United Kingdom may be at war with any foreign power and if and so long as
such risk shall be insurable acts of or on account of the Queen's enemies)
2.12 the Landlord: shall mean the Landlord named in the Particulars and where
the context so admits shall include the reversioner for the time being
immediately expectant on the determination of the Term
2.13 this Lease: shall mean this deed together with any licence granted
pursuant hereto any deed of variation of the provisions hereof and any
instrument made supplemental hereto
2.14 the Particulars: shall mean the particulars set out in the preceding pages
and affixed hereto
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2.15 the Planning Acts: shall mean the Town and Country Planning ▇▇▇ ▇▇▇▇ the
Planning (Listed Buildings and Conservation Areas) ▇▇▇ ▇▇▇▇ and the
Planning (Hazardous Substances) ▇▇▇ ▇▇▇▇ and any future legislation of
similar nature or any legislation amending or repealing the same
2.16 Planning Permission: shall mean any permission consent or approval given
or deemed to be given under the Planning Acts
2.17 the Premises: shall mean all those premises comprising the ground first
second third and fourth floors of the Building bounded by and including
2.17.1 the interior plaster and other finishes of the external walls of
such premises (but excluding any other part of such walls)
2.17.2 the inner half and interior plaster and other finishes of the
non-load-bearing internal walls dividing such premises from other
parts of the Building (but excluding any other part of such walls)
2.17.3 the flooring raised floors floor screeds and any voids beneath them
down to (but excluding) the joists slabs or other structures
supporting such flooring
2.17.4 the ceiling finishes and any suspended or false ceilings and any
voids between the ceiling and any suspended or false ceiling (but
excluding any other part of the ceilings)
2.17.5 the whole of any non-load-bearing walls columns and partitions
within such premises
2.17.6 the interior plaster and other finishes of load-bearing walls and
columns within such premises (being excluding any other part of such
walls and columns)
2.17.7 the internal doors door frames interior windows (and glass
contained therein) and fittings at such premises
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2.17.8 Landlord's fixtures from time to time within such premises but if
those fixtures are Conduits then only if they fall within paragraph
10 below
2.17.9 Conduits within and from time to time exclusively serving such
premises and which are owned by the Landlord (but excluding any
other Conduits)
2.17.10 The passenger lifts shown coloured pink on plans 1-5 including the
lift shafts lift motor room and all plant and ancillary equipment
relating thereto
but excluding the windows and window frames of the Building
2.18 the Prescribed Rate: shall mean interest calculated at the rate of Four
per centum (4%) per annum above the base rate for lending of The Royal
Bank of Scotland plc applicable from time to time during any period during
which any payment of interest accrues due under this Lease or (in the
event that such base rate is no longer published and used) such other
comparable rate of interest as the Landlord may from time to time
reasonably stipulate
2.19 the Service Charge: shall mean the Service Charge calculated and payable
as provided in the Fourth Schedule
2.20 the Structural Parts: shall mean all parts of the Building other than the
Common Parts and the Premises and any other parts which are let or
intended for letting by the Landlord
2.21 the Surety: shall mean the Surety named in the Particulars (if any) and
shall include if it is an individual its personal representatives
2.22 the Tenant: shall mean the Tenant named in the Particulars and where the
context so admits shall include the successors in title and assigns of the
Tenant
2.23 the Term: shall mean the term of years specified in the Particulars hereby
created and any period of holding over or extension thereof whether by
statute or common law where in this Lease the context so admits
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2.24 VAT: shall mean Value Added Tax or any similar tax which shall replace or
supplement Value Added Tax (and unless otherwise stated all references to
rent or other monies payable by the Tenant are exclusive of any VAT
charged or chargeable thereon)
2.25 1995 Act: shall mean the Landlord and Tenant (Covenants) ▇▇▇ ▇▇▇▇
3. DEMISE AND RENTS
In consideration of the rents hereby reserved and of the covenants on the part
of the Tenant and the Surety hereinafter contained the Landlord HEREBY DEMISES
unto the Tenant the Premises together with the rights in common with the
Landlord and any other tenants and occupiers of the Building and other persons
properly authorised by them specified in Part 1 of the First Schedule EXCEPT AND
RESERVING unto the Landlord and any mortgagee and all other persons entitled or
properly authorised by it the rights specified in Part 2 of the First Schedule
and so far as the same now affect the Premises and are still subsisting and
capable of being enforced SUBJECT TO AND WITH THE BENEFIT OF the matters
referred to in the property and charges registers of title number ▇▇▇▇▇▇▇▇▇ and
in the documents referred to in the Sixth Schedule TO HOLD the Premises unto the
Tenant for the Term YIELDING AND PAYING therefor unto the Landlord yearly during
the Term and so in proportion for any less period than a year the following
rents:-
FIRST:
From and including the Rent Commencement Date until and excluding the Rental
Uplift Date the sum of pounds ((pounds) ) per annum
from and including the Rental Uplift Date and to excluding the First Rent Review
Date the sum of pounds ((pounds) ) per annum
thereafter during the Term such rent as may be payable in accordance with the
provisions of the Third Schedule (the rent so specified or as increased as
aforesaid hereinafter called the "Principal Rent") such rent in each case to be
paid by equal quarterly payments in advance on the 25th March 24th June 29th
September and 25th December in every year the first such payment (being the
proportionate payment due in respect of the period from the Rent
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Commencement Date to the quarter day next following) to be made on the Rent
Commencement Date
SECONDLY:
From and including the Term Commencement Date or the date of occupation if
earlier the Insurance Rent which shall be paid without deduction or abatement
within fourteen days of demand therefore
THIRDLY:
The Service Charge Payable in accordance with the provisions of the Fourth
Schedule
FOURTHLY:
Interest as shall be required to be paid pursuant to this Lease which shall be
paid at the time of payment of the sum bearing the interest and
FIFTHLY:
Any VAT payable on the rents hereby reserved
4. TENANT'S COVENANTS
The Tenant hereby covenants with the Landlord as follows:-
4.1 To pay rents
To pay the reserved rents at the times and in manner aforesaid without any
set-off deduction or abatement whatsoever (save as required by law) and to
pay the same (if so reasonably required by the Landlord) by banker's
direct debit or standing order
4.2 To pay outgoings
4.2.1 To pay and discharge all rates taxes duties charges assessments
outgoings and impositions whatsoever (whether parliamentary
parochial or otherwise and including but without prejudice to the
generality of the foregoing all present and fixture payments for
works under any
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Enactment concerning buildings sewerage drainage public health and
any other public purposes) (excluding any tax payable by the
Landlord occasioned by the receipt of the rents payable hereunder or
any disposition of or dealing with the reversion to this Lease)
which are now or may at any time hereafter during the Term be
payable in respect of the Premises or charged on the owner or
occupier in respect thereof
4.2.2 To pay all VAT which may from time to time (whether by the election
by the Landlord or otherwise) be charged or payable on the reserved
rents
4.2.3 To pay for all gas electricity and water consumed on the Premises
and for all telephone charges and all rent in respect of the
telephone with any rent in respect of the telephone for a period
partly before or after the Term being apportioned and to observe and
perform at the Tenant's expense all present and future regulations
and requirements of the supply authorities
4.2.4 TO pay the Landlord within fourteen days of demand a fair and proper
proportion of the Maintenance Charge payable by the Landlord under
the Deed of Grant
4.3 To repair
At all times during the Term well and substantially to repair replace and
rebuild reinstate and renew (where beyond economic repair) maintain and
cleanse and keep the Premises in good and substantial repair and condition
(excepting damage or destruction of the Premises resulting from the
occurrence at the Premises of any of the Insured Risks save to the extent
(if at all) that the insurance moneys shall be irrecoverable in
consequence of any act or default of the Tenant or persons under its
control unless the Tenant has repaid such monies to the Landlord under
clause 4.14.5) And also as and when necessary to replace any landlord's
fixtures belonging to the Premises with new ones which are similar in type
and quality
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4.4 To redecorate
Without prejudice to the generality of the provisions of clause 4.3 in the
fifth year and every subsequent fifth year after that date and also in the
last six months of the Term (whether determined by effluxion of time or
otherwise but not so as to require decoration twice in the same year or in
two consecutive years) to have professionally prepared and to paint
redecorate or paper with paper of a suitable quality or otherwise treat as
the case may be all internal parts of the Premises previously or usually
so treated and to wash down all washable surfaces such painting and
redecorating to be in the last year of the Term (unless the Tenant is to
be granted a new lease) of a colour previously approved by the Landlord
all such works to be carried out in a good and workmanlike manner to the
reasonable satisfaction of the Landlord
4.5 To yield up
At the expiration or sooner determination of the Term peaceably and
quietly to yield up the Premises together with all additions and
improvements made thereto in the meantime and all fixtures and fittings
which during the Term may be affixed or fastened to or upon the Premises
(excluding Tenant's fixtures and fittings) and in such state and condition
as shall in all respects be consistent with a full and due performance by
the Tenant of the covenants contained in these Presents
4.6 To comply with statutes
At all times during the Term to observe and comply in all respects with
the provisions and requirements of any and every Enactment (including but
without prejudice to the generality of the foregoing the Offices Shops and
Railway Premises Act 1963 and the ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ the Fire Precautions
▇▇▇ ▇▇▇▇ the Defective Premises ▇▇▇ ▇▇▇▇ and the Health and Safety at Work
etc. Act 1974) so far as they relate to or affect the Premises or any
additions or improvements thereto or the user thereof for any purpose or
the use or employment therein of any person or persons or any fixtures
machinery plant or chattels for the time being affixed thereto or being
thereupon or used for the purposes thereof and to execute all works and
provide and maintain all arrangements which by or under any Enactment or
by any government department local authority or other public authority or
duly authorised officer or
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Court of competent jurisdiction acting under or in pursuance of any
Enactment are or may be directed or required to be executed provided and
maintained at any time during the Term upon or in respect of the Premises
or any additions or improvements thereto or in respect of any such user
thereof or employment therein of any person or persons or fixtures
machinery plant or chattels as aforesaid whether by the owner or occupier
thereof
4.7 To comply with notices
Within seven days of the receipt of notice of the same to give full
particulars to the Landlord of any permission notice order or proposal for
a notice or order made given or issued to the Tenant by any government
department local or public authority under or by virtue of any Enactment
and if so required by the Landlord to produce such permission notice order
or proposal for a notice or order to the Landlord And also without delay
to take all reasonable and/or necessary steps to comply with any such
notice or order And also at the request and joint cost of the Landlord and
Tenant to make or join with the Landlord in making such objections or
representations against or in respect of any such notice order or proposal
as aforesaid as the Landlord shall reasonably deem expedient
4.8 To comply with Planning Acts
4.8.1 At all times during the Term to comply in all respects with the
provisions and requirements of the Planning Acts and of all consents
permissions and conditions (if any) granted or imposed or having
effect thereunder so far as the same respectively relate to or
affect the Premises or any part thereof or any operations works acts
or things already or hereafter to be carried out executed or done or
omitted thereon or the use thereof for any purpose and
4.8.2 During the Term as often as occasion shall require at the expense in
all respects of the Tenant to obtain from (as the case may be) the
local planning authority or the Secretary of State for the
Environment all such consents and permissions (if any) as may be
required for the carrying out
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of any operations on the Premises or the institution or continuance
thereon of any use thereof which may constitute Development but so
that no application for Planning Permission shall be made without
the previous written consent of the Landlord (such consent not to be
unreasonably withheld or delayed where consent for such operations
under this lease cannot be unreasonably withheld or delayed) and
4.8.3 To pay and satisfy any charge which may hereafter be imposed under
the Planning Acts in respect of the carrying out or maintenance of
any such operations or the institution or continuance of any such
use as aforesaid and
4.8.4 Notwithstanding any consent which may be granted by the Landlord
under these Presents not to carry out or make any alteration or
addition to the Premises or any change of use thereof (being an
alteration or change of use which is prohibited by or for which the
Landlord's consent is required to be obtained under these Presents
and for which a Planning Permission needs to be obtained) before a
Planning Permission therefor has been produced to the Landlord and
acknowledged by the Landlord in writing (acting reasonably) as
satisfactory to it but so that the Landlord may refuse so to express
its satisfaction with any such Planning Permission on the ground
that the period thereof or any condition contained therein or
anything omitted therefrom in the reasonable opinion of the
Landlord's surveyor would be or be likely to be prejudicial to its
interest in the Premises
4.8.5 Unless the Landlord shall otherwise direct to carry out and complete
before the expiration or sooner determination of the Term any works
stipulated to be carried out to the Premises by a date subsequent to
such expiration or sooner determination as a condition of any
Planning Permission granted on the application of the Tenant or any
permitted subtenant for any Development begun before such expiration
or sooner determination and
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4.8.6 If the Landlord reasonably so directs to make application to the
relevant planning authority for a determination whether any
alteration change of use or other action or proposal by the Tenant
requires permission under the Planning Acts and to give written
notice to the Landlord of the decision of the relevant authority
upon any such application forthwith and
4.9 To permit entry
To permit the Landlord and its Surveyors or properly authorised agents at
all reasonable hours in the daytime on reasonable prior notice being given
(or without prior notice in emergency) but not more frequently than is
reasonable to enter the Premises or any part thereof to view the same and
examine the state and condition thereof or to take inventories of the
fixtures and fittings therein or to make any inspection which may be
required for the purposes of valuation and/or the Landlord and Tenant Acts
1927 and 1954 or any other Enactment for the time being affecting the
Premises or to deal at the relevant time with the assessment of Current
Market Rent and the revised rent pursuant to the provision of the Third
Schedule the person or persons entering making good to the Tenant in a
reasonable manner any damage thereby occasioned to the Premises and
causing as little inconvenience to the Tenant as reasonably possible
4.10 To remedy defects
To repair and make good to the reasonable satisfaction of the Landlord's
surveyor all breaches of covenant defects and wants of reparation for
which the Tenant may be liable under the covenants herein contained of
which notice shall have been given by the Landlord to the Tenant and to
have started and be diligently proceeding with the same within 60 days
after the giving of such notice or sooner if requisite
4.11 To permit Landlord to enter to remedy defects
That if the Tenant shall at any time make default in the performance of
any of the covenants herein contained relating to the repair maintenance
rebuilding renewing reinstating decoration cleansing or condition of the
Premises or any part thereof
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within the period specified in clause 4.10 after notice has been given as
aforesaid it shall be lawful for the Landlord and its agents and workmen
(but without prejudice to the right of re-entry hereinafter contained) to
enter upon the Premises or any part thereof and at the expense of the
Tenant to carry out such repairs maintenance rebuilding renewing or
reinstating cleansing or decoration as may be necessary in accordance with
the covenants and provisions herein contained and the costs and expenses
thereof including any Surveyors' or agents' fees together with interest at
the Prescribed Rate calculated from day to day from the date on which the
Landlord or its agents or workmen first incurred such costs and expenses
shall be paid by the Tenant to the Landlord on demand and such amount
shall be a debt recoverable by the Landlord
4.12 To permit Landlord's notices
To permit the Landlord or its agents at any reasonable time to enter upon
the Premises and to fix and retain without interference upon any suitable
part or parts thereof a notice board or ▇▇▇▇ for re- letting the same or
selling the Landlord's interest therein and in a form and of a size
previously approved by the Tenant acting reasonably and without delay and
that the Tenant will not remove or obscure the same and will permit all
persons by order in writing of the Landlord or its agents to view the
Premises at reasonable hours in the daytime on reasonable notice (not
being more than 48 hours) without interruption
4.13 To pay fees
To pay to the Landlord all costs charges and expenses (including but
without prejudice to the generality of the foregoing solicitors' costs
counsels' architects' and surveyors' and other professional fees) properly
incurred by the Landlord:
4.13.1 Incidental to or in contemplation of the preparation and service of
a notice under Section 146 of the Law of Property ▇▇▇ ▇▇▇▇ or in or
in the contemplation of any proceedings under Section 146 or 147 of
the said Act (whether or not any right of re-entry or forfeiture
has been waived by the Landlord or a notice served under the said
Section 146 is complied
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with by the Tenant or the Tenant has been relieved under the
provisions of the said Act and notwithstanding forfeiture is
avoided otherwise than by relief granted by the Court)
4.13.2 Incidental to or in contemplation of the preparation and service of
a schedule of dilapidations or notice to repair at any time during
or within three months after the expiration of the Term
4.13.3 In connection with or in procuring the remedying of any breach of
covenant on the part of the Tenant contained in this Lease
including (but without prejudice to the generality of the
foregoing) Bailiff's fees and commissions
4.13.4 In connection with any application for consent required by this
Lease (such costs to include management fees and expenses and costs
relating to the preparation or negotiation of any authorised
guarantee agreement under the ▇▇▇▇ ▇▇▇) whether or not such
application is withdrawn by the Tenant or consent be granted
refused or proffered subject to qualification save where such
refusal or qualification is held to be unreasonable
4.13.5 In connection with any application or notice or claim with regard
to improvements or alleged improvements to the Premises pursuant to
the Landlord and Tenant Acts 1927 and 1954 or similar Enactments
4.13.6 In connection with the approval and supervision of any permitted
works or any works required by or in pursuance of any Enactment to
or affecting the Premises
4.13.7 In connection with or in procuring an independent professional
valuation of the Premises no more frequently than once every three
years for the purposes of determining the amount for which the
Premises should be insured
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4.14 Insurance
4.14.1 Not to vitiate insurance
Not to do or omit any act matter or thing whatsoever the doing or
omission of which would make void or voidable the whole or any part
of any policy of insurance effected on the Premises or cause the
premiums payable in respect of any insurance effected in relation
to the Premises to be increased beyond the normal rate
4.14.2 To pay additional premium
To pay to the Landlord on demand the amount of any increase in the
insurance premium payable where such increase is attributable to
the use or occupation of the Premises or any act or omission of the
Tenant
4.14.3 To give notice of damage
In the event of the Premises or any part thereof being destroyed or
damaged by any of the Insured Risks to give notice thereof to the
Landlord immediately upon its coming to the knowledge of the Tenant
4.14.4 To comply with requirements
At all times during the Term to comply with all requirements and
recommendations from time to time of the appropriate authority and
of the insurers in relation to fire precautions affecting the
Premises and at the expense of the Tenant to keep the Premises
sufficiently supplied and equipped with fire fighting extinguishing
apparatus and appliances of a type to be approved from time to time
by the Landlord acting reasonably and suitable in all respects to
the type of user of or business or trade carried on upon the
Premises which shall be open to the inspection and maintained to
the satisfaction of the Landlord and also not to obstruct the
access to or means of working such apparatus and appliances by
their operations at or connected with the Premises
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4.14.5 To fund rebuilding if insurance avoided
In the event of the Premises or any part thereof being destroyed or
damaged by any of the Insured Risks and the insurance money under
any insurance against the same effected thereon by the Landlord
being wholly or partly irrecoverable by reason solely or in part of
any act or default of the Tenant then and in every such case the
Tenant will forthwith (in addition to the rents reserved by these
Presents) pay to the Landlord the whole or (as the case may
require) a fair proportion of the cost of completely rebuilding and
reinstating the same including professional fees and interest on
capital and all incidental costs and expenses
4.15 Not to alter services
Not at any time during the Term to make any material alteration or
addition to the electrical installation or other services in the Premises
without also first obtaining the previous consent in writing of the
Landlord such consent not to be unreasonably withheld or delayed and in
any event not to make any alteration or addition to the electrical
installation of the Premises save in accordance with the terms and
conditions laid down by the Institution of Electrical Engineers and the
Regulations of the Electricity Supply Authority or other competent
statutory authority or undertaker (as the case may be)
4.16 Alterations
4.16.1 Structural
Not to cut maim alter or remove any part of the Premises or to make
any structural alteration or any alteration in the plan or
elevation or affect alter or modify the external appearance of the
Premises or make any addition thereto save that the Tenant may with
the previous consent in writing of the Landlord (which shall not be
unreasonably withheld or delayed) cut holes in the walls or floor
slabs in order to install internal
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cabling to service the Tenant's fittings and equipment so far as
such cabling does not affect any plant or equipment outside the
Premises
4.16.2 Non-structural
Subject to clause 4.16.1 not without the previous consent in
writing of the Landlord (such consent not to be unreasonably
withheld or delayed and if granted to be without prejudice
nevertheless to the provisions of clauses 4.8 4.15 and 4.24 hereof)
nor except in accordance with plans and specifications (with such
additional copies thereof as the Landlord may require) previously
submitted to and approved by the Landlord nor except to the
satisfaction of the Landlord's surveyor to make any non-structural
alteration to the Premises or any part thereof provided that the
Landlord may (if reasonable) as a condition of giving its consent
require that the Tenant shall on the expiration or other
determination (howsoever determined) of the Term restore and
reinstate the Premises or the part or parts affected to the
condition they were in prior to the giving of such consent
4.16.3 Partitioning
Notwithstanding clause 4.16.2 but subject to clause 4.16.1 the
Tenant may erect, alter or remove internal demountable partitioning
without the consent of the Landlord subject to providing the
Landlord with detailed plans of such works not less than one month
before carrying out the same
4.17 Use of the Premises
Not to use the Premises or any part thereof otherwise than for the Permitted Use
and for no other purpose whatsoever
4.17.1 Not to sell by auction
Not to permit or suffer any sale by auction to be held within or
upon the Premises and not to allow or suffer any goods or wares
whatsoever to be sold or exhibited otherwise than from within the
Premises and not to
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solicit for customers or transaction business on the pavement
outside the Premises or suffer the same to be done
4.17.2 Signs notices etc.
Not to place on the exterior of the Premises or on the windows or
inside the windows or showcase or other frontage display area
within the Premises so as to be visible from the exterior of the
Premises any name writing notice sign placard sticker or
advertisement other than a suitable sign of a size and kind first
approved in writing by the Landlord (such approval not to be
unreasonably withheld or delayed) showing the Tenant's name and
business
4.17.3 Not to use for certain purposes
Not at any time to use the Premises or any part thereof or allow
the same to be used for any public meeting exhibition or
entertainment or for any illegal or immoral purpose or for any
noisy noxious or offensive trade business or occupation nor permit
any musical instrument gramophone wireless loud speaker or similar
apparatus to be played or used thereon so as to be audible from
outside the Premises nor permit or suffer any part of the Premises
to be used as a sex shop or as a residence or sleeping place for
any person or persons nor the whole or any part thereof for the
purpose of any betting transaction within the meaning of the
Betting Gaming and ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ or for gaming within the
meaning of the Gaming ▇▇▇ ▇▇▇▇ with or between persons resorting to
the Premises or for a club where intoxicating liquor is supplied to
members or their guests and not to make or permit or suffer to be
made any application for a betting office licence or a licence or
registration under the Gaming ▇▇▇ ▇▇▇▇ in respect of the Premises
or any part thereof
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4.18 Not to cause nuisance
Not to do in or upon the Premises or any part thereof anything which shall
or may be or become or cause a nuisance disturbance injury or damage to
the Landlord or the owners lessees or occupiers of any adjoining or
neighbouring premises
4.19 Not to permit encroachments
Not knowingly to permit any person or body to acquire any right of light
or air or other easement wayleave right privilege or encroachment over the
Premises nor to stop up darken or obstruct any window belonging to the
Premises and forthwith to notify the Landlord of any attempt thereat and
to permit the Landlord and their agents to enter upon the Premises for the
purpose of ascertaining the nature of any such encroachment wayleave
easement right or privilege and at the request of the Landlord but at the
joint cost of the Landlord and the Tenant to adopt such means as may be
required or deemed proper for preventing any such encroachment or the
acquisition of any such easement right or privilege
4.20 Alienation
4.20.1 That the Tenant (which expression in this clause shall include any
person deriving title under the Tenant including any undertenant
whether immediate or not) will not in any circumstances whatsoever:
(a) assign underlet part with or share possession or occupation of
the Premises as a whole except as regards an assignment or
underletting where the conditions of clauses 4.20.2 to 4.20.11
(inclusive) have been fulfilled nor to charge or mortgage the
whole without giving notice first to the Landlord of the
intention so to do or
(b) charge mortgage assign underlet part with or share possession
or occupation of any part or parts only of the Premises except
as regards an underletting where the conditions of clauses
4.20.3 to 4.20.11 (inclusive) have been fulfilled
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(c) execute any declaration of trust with regard to the whole or
any part of the Premises or these presents or hold the same on
trust for any person
4.20.2 That the Tenant will not assign the Premises:-
(a) Except to an assignee who shall (if reasonably required by the
Landlord) first have procured a covenant with the Landlord by
an acceptable guarantor or guarantors in the terms (mutatis
mutandis) set out in the Second Schedule hereto
(b) Unless the tenant for the time being has first entered into an
authorised guarantee agreement with the Landlord pursuant to
section 16 of the 1995 Act guaranteeing the performance by the
assignee of the covenants on the part of the Tenant contained
in this Lease in the terms (mutatis mutandis) set out in the
Second Schedule hereto until the assignee is released from its
covenants by virtue of the 1995 Act or the expiry of the
Contractual Term (whichever shall be the sooner)
(c) Unless any guarantor of the tenant for the time being has
first entered into a sub-guarantee (in a form reasonably
required by the Landlord) guaranteeing the obligations of the
tenant contained in any authorised guarantee agreement
provided pursuant to clause 4.20.2 (a) above
(d) To a Group Company:
(e) Unless the proposed assignee at the date of application is in
the reasonable opinion of the Landlord a company which is
capable of paying the rents and performing the tenant's
covenants under this Lease
(f) Unless the Tenant has paid all Principal Rent Insurance Rent
and any other material sums due under this Lease prior to the
date of
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assignment which (in the case of those other sums) are not the
subject of a genuine dispute
(g) Unless the proposed assignee and any proposed guarantor are
not entitled to claim sovereign or diplomatic immunity from
any of the material covenants and obligations contained in
this Lease
4.20.3
Not to underlet the whole of the Premises without the consent of
the Landlord (not to be unreasonably withheld or delayed) PROVIDED
THAT:-
(a) The rent to be reserved by the Tenant shall not be less than
the market rent reasonably obtainable without taking a fine or
premium and
(b) Any underlease shall contain:-
(i) An absolute prohibition against charging or assigning
part of the Premises parting with possession or sharing
occupation of the Premises or part thereof or
sub-underletting part of the Premises and
(ii) A covenant on the part of the undertenant to pay the
rents and other sums reserved by and observe and perform
the covenants on the lessee's part contained in the
underlease and not suffer or permit at or in relation to
the sub-let premises any or thing which would or might
be constitute a breach of such covenants or conditions
(iii) A covenant on the part of the undertenant not to do or
omit suffer or permit at or in relation to the sub-let
premises any act or thing which would or might cause the
Tenant to be in breach of or which if done omitted
suffered or permitted by the Tenant would or might
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constitute a breach of the covenants on the lessee's
part of conditions contained in this Lease
(c) Prior to entering into any underlease of part of the Premises
or an underletting of the whole of the Premises for a term of
5 years or less the parties thereto shall obtain and produce
to the Landlord an order from the court authorising the
exclusion of Section 24 to 28 inclusive of Landlord and ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ in relation to the underletting
(d) Such exclusion provisions shall be duly contained in the
underlease
4.20.4 Not to underlet part only of the Premises except with the consent
of the Landlord (not to be unreasonably withheld or delayed)
PROVIDED THAT:-
(a) No more than 10 such underlettings shall be permitted to exist
at any one time
(b) The Premises shall not at any time being in the occupation of
more than 10 persons as tenants or sub-tenants of whom the
Tenant (including any Group Company) whilst in occupation
shall count as one
(c) Such rent shall be the market rent reasonably obtainable
without taking fine or premium
(d) Any underlease shall contain:-
(i) An absolute prohibition against charging or assigning of
part of the underlet premises parting with possession or
sharing occupation of the underlet premises or part
thereof or sub-underletting the whole or part of the
underlet premises
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(ii) A covenant on the part of the undertenant to pay the
rents and other sums reserved by and observe and perform
the covenants on the lessee's part contained in the
underlease and not suffer or permit at or in relation to
the sub-let premises any act or thing which would or
might constitute a breach of such covenants or
conditions (provided that any underletting for a term of
five years or less need not contain any provision for
rent review nor a full repairing liability)
(iii) A covenant on the part of the undertenant not to do omit
suffer or permit at or in relation to the sub-let
premises any act or thing which would or might cause the
Tenant to be in breach of or which if done omitted
suffered or permitted by the Tenant would or might
constitute a breach of the covenants on the lessee's
part of the conditions contained in this Lease
(iv) Prior to entering into any underlease the parties
thereto shall obtain and produce to the Landlord an
order from the court authorising the exclusion of
Sections 24 to 28 inclusive of the Landlord and ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ in relation to the underletting and
(v) Such exclusion provisions shall be duly contained in the
underlease
4.20.5 To incorporate or procure the incorporation in every permitted
mediate or immediate underlease such provisions as are necessary to
ensure that any such underlease is in all respects consistent with
the provisions of this Lease and that the rent thereunder is
reviewed on the dates provided for review of rent hereunder and
that (subject to clause 4.20.4 above) any further dealing with the
premises thereby demised shall be subject to the consent of the
Landlord
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4.20.6 Not without the consent of the Landlord (not to be unreasonably
withheld or delayed) to vary or permit or suffer any variation of
the terms of any mediate or immediate underlease or accept any
surrender of all or part of the premises comprised in any such
underlease
4.20.7 Upon a review of the rent reserved by any such underlease to keep
the Landlord informed at all times of the progress of such review
and to obtain the approval of the Landlord to the amount of any
reviewed rent the identity of any expert or arbitrator and the form
and content of any submission made to any expert or arbitrator and
at the expense of the Tenant to submit to any expert or arbitrator
such representations as the Landlord shall reasonably require
4.20.8 Nothing in this clause 4.20 shall prevent the Tenant from sharing
occupation of the whole or any part of the Premises with any
company which is for the time being a Group Company of the Tenant
subject to (a) the Tenant giving the Landlord written notice of the
sharing of occupation and the name of the Group Company concerned
within 10 working days after the sharing begins (b) the Tenant and
that Group Company remaining Group Companies whilst the sharing
lasts and (c) the sharing not creating the relationship of Landlord
and Tenant between the Tenant and that Group Company
4.21 To register devolutions
To give notice in writing of every assignment assent transfer underlease
mortgage charge or devolution of or other instrument relating to or
affecting the Premises and of the name address and description of the
assignee or person upon whom the relevant term may have devolved or of the
undertenant mortgagee or chargee and to produce a certified copy of such
assignment assent transfer underlease mortgage or charge or any Probate or
Letters or Administration or other instrument in any way relating to or
affecting the Premises within fourteen days after the execution or grant
thereof to the solicitors of the Landlord and to pay their reasonable fees
for the
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registration in respect of each such instrument including any fee payable
to any Superior Landlord
4.22 Not to display advertisements
Not (except in accordance with the provisions of clause 4.17.2 hereof) to
place affix or exhibit to or upon the outside of the Premises or in or
upon the windows thereof any sign signboard advertisement hoarding fascia
placard ▇▇▇▇ notice poster or other notification whatsoever and on the
expiration or sooner determination of the Term to remove or efface any
sign signboard advertisement hoarding fascia placard ▇▇▇▇ notice poster or
other notification as aforesaid and to make good any damage caused thereby
to the reasonable satisfaction of the Landlord
4.23 Not to overload
Not to suspend or permit or suffer to be suspended or permit or suffer to
be suspended any heavy load from the ceilings or main structure of the
Premises nor to load or to use or permit or suffer to be loaded or used
the floor or structure of the Premises in any manner which will in any way
impose a weight or strain in excess of that which the Tenant has
previously been notified in writing such premises are constructed to bear
with due margin for safety or which will in any way strain or interfere
with the main supports thereof and in the event of any dispute between the
Landlord and the Tenant as to the safety margin in relation to the weight
or strain placed on the Premises the Tenant shall if reasonably required
forthwith arrange at its own cost and expense for a suitably qualified and
experienced structural engineer to be instructed by it to inspect the
Premises and to prepare a report on the result of such inspection to
establish whether there will be any overloading as aforesaid and will
provide a copy for the Landlord and the decision of the said structural
engineer in this matter shall be final but for the avoidance of doubt the
risk of proceeding shall lie with the Tenant in any event
4.24 Not to store inflammable or dangerous substances
Not to keep store or use in the Premises any petrol benzol or any other
highly inflammable spirit liquor fluid or substance or any materials which
may attack or in
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any way injure by percolation corrosion vibration or otherwise the
structure of any building comprised therein or the keeping storage or
using whereof may contravene any general or local Acts of Parliament or
any local regulation or bye-law or constitute a nuisance to the occupiers
of neighbouring or adjoining premises
4.25 Not to obstruct drains
Not to obstruct the drains by oil grease or other deleterious matter but
to clean the same as often as may be necessary
4.26 To clean windows and lighting
To clean the windows (including the plate glass therein and any roof and
pavement lights) of the Premises internally and externally at least once
in every quarter
4.27 To comply with regulations
To comply With all reasonable regulations imposed from time to time by the
Landlord for the orderly and convenient management of the Estate
4.28 To indemnify
To indemnify and keep indemnified the Landlord from liability (and from
all proceedings costs claims and demands whatsoever in respect thereof) in
respect of any injury to or the death of any person or damage to any
property movable or any immovable out of the breach of any of the tenant's
covenants contained in this Lease or any act omission neglect or default
of the Tenant or any persons in the Premises expressly or impliedly with
the Tenant's authority
4.29 To give notice of defects
To give immediately written notice to the Landlord of any defect in or
damage to the Premises or any part thereof of which the Tenant is aware
which might reasonably give rise to a duty imposed by common law or any
Enactment on the Landlord in favour of the Tenant or any other person
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4.30 To disclose information
Upon making any application or request in connection with the Premises or
the provisions of this Lease to disclose to the Landlord such information
as the Landlord may reasonably require and from time to time on demand
during the Term (but not more frequently than is reasonable) and to
furnish the Landlord with full particulars of all derivative interests of
or in the Premises howsoever remote or inferior including particulars of
the rent or rents and service and maintenance charges payable in respect
of such derivative interests
4.31 To pay interest
On all sums payable under this Lease (including rent) to pay interest at
the Prescribed Rate on any sum not paid within 14 days of the date upon
which any such sum or sums become due such interest to be payable from the
date upon which any such sum or sums become due until the date of payment
thereof such interest to be recoverable as if the same were so much rent
in arrear reserved by these Presents and to be paid hereunder before as
well as after any judgment
4.32 To observe covenants etc
At all times during the Term to observe and perform the covenants
conditions or other matters (if any) contained or referred to in the
entries on the Title Number ▇▇▇▇▇▇▇▇▇ so far as the same are for the time
being enforceable and capable of taking effect
4.33 Surety
Within fourteen days after the death during the Term of the Surety or of
any person who has or shall have guaranteed to the Landlord the payment of
the said rents and the observance and performance of the covenants on the
part of the Tenant herein contained or if such person becomes bankrupt or
has a receiving Order or an interim Order under Part VIII of the
Insolvency ▇▇▇ ▇▇▇▇ made against him or being a company suffers a receiver
to be appointed or has a winding up resolution made against it or it
enters into liquidation or it has an Administration Order under the said
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Act made against it or enters into a creditors' voluntary arrangement
under Part I of the said Act then to give notice thereof to the Landlord
and if so required by the Landlord at the expense of the Tenant within
twenty-eight days of any such requirement to procure from some other
person acceptable to the Landlord acting reasonably covenants in the form
set out in the Second Schedule hereto
5. LANDLORD'S COVENANTS
The Landlord hereby covenants with the Tenant as follows:-
5.1 Quiet enjoyment
That the Tenant paying the said rents hereby reserved and observing and
performing the covenants conditions and agreements hereinbefore contained
on the Tenant's part to be observed and performed shall and may quietly
enjoy the Premises during the Term without any interruption by the
Landlord or persons lawfully claiming under the Landlord
5.2 To insure
To insure the Building and to keep the same insured in the Full
Reinstatement Value against the Insured Risks and in respect of the loss
of rent payable hereunder for not less than three years and if so required
(not more often than once per year) to produce evidence of payment of the
current premium for such insurance to the Tenant and reasonable evidence
from the insurers of the terms of the insurance policy and the fact that
the policy is subsisting and in effect and to notify the Tenant of any
material change from time to time to the policy which affects the Premises
and in case of destruction or damage to the Premises by any of the Insured
Risks save to the extent (if at all) that
5.2.1 Payment of any money payable under any policy of insurance shall be
refused by reason of any act neglect or default of the Tenant (or
persons under its control) (unless such monies have been paid to the
Landlord pursuant to clause 4.14.5)
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5.2.2 Any national or local public or other proper authority shall
lawfully refuse permission or otherwise lawfully prevent any
rebuilding repair or reinstatement as necessary of the Premises
to procure that all moneys (except for insurance moneys received in
respect of loss of rent) received under or by virtue of any such policy of
insurance as aforesaid shall with all due speed (subject to the necessary
labour and materials being procurable) be laid out and applied in
rebuilding repairing or otherwise reinstating the Building with the
Landlord meeting any shortfall out of its own resources and it is hereby
agreed and declared that if rebuilding repairing or reinstating of the
Building shall be frustrated or incapable of performance the whole of the
insurance moneys shall as between the Landlord and the Tenant belong to
the Landlord with the exception of any insurance monies received in
respect of the Tenant's fixtures and fittings which shall belong to the
Tenant provided that on any material reconstruction rebuilding or
reinstatement of the Building the Landlord shall use all reasonable
endeavours either to procure from any contractor architect or engineer
employed by the Landlord in any such reconstruction or reinstatement
appropriate warranties in a form to be approved by the Tenant (such
approval not to be unreasonably delayed) recording that the contractor or
architect or engineer or other professional employed by the Landlord owe a
duty of care to the Tenant or to procure that the duty of care owed to the
Landlord in such building contract or contract of engagement is expressed
also to benefit the Tenant and the rights of the Tenant under the Contract
(Rights of Third Parties) ▇▇▇ ▇▇▇▇ are not excluded under such building
contract or contract of engagement and provided also that in the event of
substantial damage to or the destruction of the Premises by an Insured
Risk the above provisions shall have effect as if they obliged the
Landlord to rebuild or reinstate either in the form in which they were
immediately before the occurrence of the destruction or damage or in that
form with such modifications as:
5.2.3 as may be required by any competent authority as a condition of
granting any permissions
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5.2.4 the Landlord may reasonably make with the Tenant's prior written
consent (such consent not to be unreasonably withheld or delayed) to
reflect the current good building practice
but so that the Landlord shall in any event provide in the Premises as
rebuilt and reinstated accommodation for the Tenant in the same location
which are no less convenient than those which existed immediately before
the occurrence of such destruction or damage
5.3 Deed of Grant
To comply with the obligations on the part of the Landlord under the Deed
of Grant and to procure compliance by Choice Win Investment Limited of its
obligations under the Deed of Grant
5.4 Structural Parts
The Landlord shall keep the Structural Parts in good and substantial
repair and condition
6. PROVISOS
Provided always and it is hereby agreed:-
6.1 Forfeiture
That these Presents are made upon the express condition that if:
6.1.1 the said rents or any part thereof shall be unpaid for fourteen days
after any of the days hereinbefore appointed for payment thereof
whether the same shall have been lawfully demanded or not or
6.1.2 Any covenant on the Tenant's part herein contained shall not be
observed or performed or
6.1.3 The Tenant being an individual or firm shall become bankrupt or
compound or arrange with his or its creditors or be the subject of
an
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interim order under the provisions of Part VIII of the Insolvency
▇▇▇ ▇▇▇▇ or being a Company shall without the previous consent in
writing of the Landlord under the Companies ▇▇▇ ▇▇▇▇ be
re-registered with unlimited liability or shall go into liquidation
either compulsory or voluntary (except for the purpose of
reconstruction or amalgamation not involving insolvency) or shall
have a winding-up order or an administration order made in respect
of it or be unable to pay its debts within the meaning of Section
123 of the Insolvency ▇▇▇ ▇▇▇▇ or if an administrator or
administrative receiver or receiver or manager shall be appointed or
shall enter into a composition with its creditors or a scheme of
arrangement of its affairs or
6.1.4 The Tenant shall suffer any distress or execution to be levied on
the goods of the Tenant at the Premises or becomes insolvent
then and in any of the said cases and at any time thenceforth it shall be
lawful for the Landlord or any person or persons authorised by the
Landlord to re-enter into or upon the Premises or any part thereof in the
name of the whole and to repossess and enjoy the same as if these Presents
had not been made but without prejudice to any right of action or remedy
of the Landlord in respect of any antecedent breach of any of the
covenants by the Tenant pursuant to these Presents
6.2 Abatement of rent
That if during the Term the Premises shall be destroyed or damaged by any
Insured Risk so as to be unfit for occupation or use and save to the
extent (if at all) that the policy or policies of insurance effected by
the Landlord shall have been vitiated or payment of the policy moneys
withheld or refused in consequence of any act neglect or default of the
Tenant (or persons under its control) the Rents hereinbefore reserved or a
fair proportion thereof according to the nature and extent of the damage
sustained shall be suspended until the Premises shall have again been
rendered fit for occupation and use by the Tenant or the expiration of the
period in respect of which the Landlord shall have insured loss of rent
(whichever shall be the earlier)
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6.3 Disputes
That any dispute arising as between the Tenant and the Landlord or the
lessee or occupier of any adjacent or neighbouring premises belonging to
the Landlord as to any easement right or privilege enjoyed or used in
common as between the Premises and such adjacent or neighbouring premises
shall be referred to a single surveyor who shall be appointed and who
shall act in the same manner as the independent expert provided for in the
Third Schedule insofar as appropriate and whose decision shall be binding
upon all parties to the dispute
6.4 Rights
The Tenant shall not be or become entitled to any right of access to light
or air to the Premises or to any other right privilege or easement which
would in any way restrict or interfere with the user of any adjoining or
neighbouring property for building or any other purpose and section 62 of
the Law of Property Act will not apply to this Lease
6.5 No warranty as to Planning Acts
That nothing in these Presents shall be deemed to constitute a warranty by
the Landlord that the Premises are authorised for use under the Planning
Acts for any specific purpose or that the same are fit or usable or
authorised for any purpose or in any other manner or way
6.6 Notices
The provisions of Section 196 of the Law of Property ▇▇▇ ▇▇▇▇ as amended
by the Recorded Delivery Service ▇▇▇ ▇▇▇▇ shall apply to all notices
requires to be served hereunder
6.7 Acceptance of rent
That no acceptance of or demand or receipt for rent by the Landlord after
knowledge or notice received by the Landlord or its agents of any breach
of any of the Tenant's covenants herein contained or implied shall operate
as a waiver in whole or part of
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any such breach or of the Landlord's rights of forfeiture or re-entry in
respect thereof and no person taking any estate or interest under the
Tenant shall be entitled to set up any such acceptance of or demand or
receipt for rent as a defence in any action or proceedings by the Landlord
6.8 Compensation
That upon quitting the Premises the Tenant shall (if and in so far as it
is lawful for the parties hereto to make such arrangement) not be entitled
to any compensation whatsoever whether under the provisions of any
legislation enacted before or after the date hereof or otherwise
6.9 Jurisdiction
6.9.1 This Lease and all documents supplemental to it are and shall be
governed by and construed in all respects in accordance with the law
of England
6.9.2 Each party hereto submits to the non-exclusive jurisdiction of the
High Court of Justice of England in relation to any claim dispute or
difference which may arise under this Lease and all documents
supplemental to it and in relation to the enforcement of any
judgment rendered pursuant to any such claim dispute or difference
and for the purpose of Order 10 rule 3 of the Rules of the Supreme
Court of England (or any modification or re-enactment thereof) each
party situated out of the jurisdiction irrevocably agrees that any
process may be served on it by leaving a copy thereof either at the
address of any person registered with the Registrar of Companies
pursuant to Part XXIII of the Companies ▇▇▇ ▇▇▇▇ (or any
modification or re-enactment thereof) as being resident in Great
Britain and authorised to accept on behalf of that party service of
process and any notices required to be served on that party or at
the Premises
6.10 Rights of Entry
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Any rights of entry reserved in favour of the Landlord or any other party
in this Lease are subject to the following conditions:-
6.10.1 they shall only be exercised upon reasonable written notice being
not less than 48 hours (save in the case of emergency, when no
notice shall be required);
6.10.2 they shall only be exercised at reasonable times of day save in the
case of emergency;
6.10.3 the Landlord shall or shall procure that party exercising such
right shall cause as little damage and interference as possible to
the property and business of the Tenant and to the Premises and
shall or shall procure that the party exercising such shall as soon
as practicable remedy any damage so caused at its own cost and
6.10.4 they shall only be exercised if the matter requiring entry
could not reasonably be carried out without entry to the Premises
6.11 Contracts (Rights of Third Parties) Act 1999
No term of this Lease may be enforced solely by virtue of section 1 of the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇
7. DELIVERY AND 1995 ACT
7.1 The provisions of this Lease (other than those contained in this clause)
shall have no effect until this Lease has been dated
7.2 It is hereby recorded that the tenancy created by this Lease is a new
tenancy within the meaning of Section 1(3) of the 1995 Act
IN WITNESS whereof the parties hereto have executed this Lease as a Deed in
manner hereinafter appearing the day and year first above written
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THE FIRST SCHEDULE above referred to
Part 1
Rights Granted
1. The right at all times and for all purposes connected with the Premises to
enter and exit the Premises on foot over the Common Parts
2. The right to use the Conduits which do not form part of the Premises at
the date of this Lease
3. Rights of support and protection from the rest of the Building to the
extent existing at the date of this Lease
4 The right for the Tenant (here meaning Razorfish Limited and Group
Companies only) to name the Building subject to the Landlord's prior
written consent (not to be unreasonably withheld or delayed)
Part 2
(Rights excepted and reserved)
1. The right of support and protection by the Premises for any adjoining
subjacent and superimposed property of the Landlord or any extension
thereof as requires such support and protection as the same is at present
enjoyed from the Premises
2. The right at any time to build or alter add to extend or redevelop any
adjoining or neighbouring premises notwithstanding any interference with
the access of light or air to the Premises
3. The right of entry on to the Premises to enable the Landlord to comply
with its obligations contained in the Deed of Grant
4. The right to
4.1 inspect connect into repair and replace any Conduits in on under or over
the Premises but which do not form part of the Premises
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4.2 construct Conduits within the perpetuity period in on over or under the
Premises in connection with the provision of services
4.3 connect into and use any Conduits which within that time form part of the
Premises and
4.4 cut into any walls floors or ceilings at the Premises for these purposes
5. The right to attach any equipment or notices to the Premises to comply
with any legislation or any requirements of the insurers of the Building
in a position to be approved by the Tenant (such approval not to be
unreasonably withheld or delayed)
6. The right to enter the Premises
6.1 to view the state and condition of the Premises to measure and undertake
surveys of the Premises and to prepare schedules of condition or of
dilapidations at the Premises
6.2 to show prospective purchasers of any interest in the Landlord's reversion
or in the last six months of the Term (unless the Tenant has applied to
the Court for a new tenancy under the 1954 Landlord and Tenant Act and is
actively pursuing the same) to show prospective tenants over the Premises
6.3 to determine whether the Tenant is complying with its obligations in this
Lease and on any occasion when the Tenant's covenants permit the Landlord
to enter to remedy any breach of those obligations
6.4 in connection with the provision of the Services
6.5 in connection with any requirements of the insurers of the Premises
6.6 A right of escape through the Premises in emergency only if the usual
escape routes provided within the Common Parts are either unusable or not
available in whole or in part and if occupants of the Building or any part
thereof can only escape from the Building by passing through the Premises
or part or parts thereof
THE SECOND SCHEDULE above referred to
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(Surety Covenants)
1. The Surety in consideration of the demise or licence (or as the case may
be) being made by the Landlord at its instance and request hereby
covenants with and guarantees to the Landlord that the Tenant will at all
times during the continuance of the demise pay the rents reserved by the
Lease and all other sums and payments agreed to be paid by the Tenant at
the respective times and in manner appointed for payment thereof and will
also duly perform and observe and keep the several covenants and
stipulations on the part of the Tenant contained in the Lease or any
variation thereof and that the Surety will pay and make good to the
Landlord all losses costs and expenses sustained by the Landlord through
the default of the Tenant in respect of the before mentioned matters
provided always that any neglect or forbearance of the Landlord in
endeavouring to obtain payment of the said rents and payments as and when
the same become due or its delay to take steps to enforce performance or
observance of the several stipulations on the part of the Tenant and any
time which may be given by the Landlord to the Tenant or the fact that the
Tenant for the time being under the Lease may have ceased to exist shall
not release or in any way lessen or affect the liability of the Surety
under the guarantee on its part hereinbefore contained which shall
continue notwithstanding any act or thing whereby but for this provision
the Surety would have been released other than a release by deed of the
Tenant by the Landlord
2. The Surety hereby further covenants with the Landlord that:
2.1 if the Tenant (being a Company) shall go into liquidation and the
liquidator shall disclaim the Lease or
2.2 if the Tenant (being a Company) shall be dissolved and the Crown
shall disclaim the Lease or
2.3 if the Tenant (being an individual) shall become bankrupt and the
trustee in bankruptcy shall disclaim the Lease or
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2.4 if the Tenant shall apply under the Insolvency ▇▇▇ ▇▇▇▇ for an
interim order or
2.5 if the Lease shall be forfeited under the provisions in that behalf
therein contained
then in any such event the Landlord may within three months after any such
disclaimer or application or forfeiture by notice in writing require the
Surety to accept a lease of the Premises for a term equivalent to the
residue which if there had been no disclaimer or forfeiture would have
remained of the term granted by this Lease at the same rents and subject
to the like covenants and conditions as are reserved by and contained in
this Lease the said new lease and the rights and liabilities thereunder to
take effect as from the date of such disclaimer or forfeiture and in such
case the Surety shall pay the Landlord's proper costs of and accept such
new lease accordingly and will execute and deliver to the Landlord a
counterpart thereof
3. The Surety hereby further covenants with the Landlord that from time to
time upon written request by the Landlord or its successors acting
reasonably the Surety or the survivor of them or their respective personal
representatives will enter into covenants with any successors in title of
the Landlord or other party for the time being entitled to the reversion
immediately expectant on the termination of this Lease in terms identical
mutatis mutandis with the provisions of this Schedule
THE THIRD SCHEDULE above referred to
(Rent Review)
1. Terms
In this Schedule the following expressions shall have the following
meanings respectively viz:-
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1.1 "Rent Review Date" shall mean each of the dates set out in the Particulars
1.2 "the Principal Rent" shall mean the annual rent first reserved or as
subsequently increased in accordance with the provisions hereof
1.3 "Current Market Rent" shall mean the yearly rent at which the Premises
might reasonably be expected to be let as a whole at the relevant Rent
Review Date in the open market without a fine or premium and with vacant
possession for a term equal to the unexpired residue of the Term by a
willing landlord to a willing tenant on the relevant Rent Review Date with
rent reviews at similar intervals and otherwise on the same terms and
conditions in all other respects as this Lease other than the amount of
rent reserved and any rent free period but including these provisions for
rent review
1.4 upon the supposition (if not a fact) that
1.4.1 the Premises remain in existence and have been fitted out by the
Landlord at its own cost to the standard set out in the
Specification annexed hereto and are fit for use by the incoming
tenant for the purpose permitted by this Lease and that such
purposes are permitted uses under the Planning Acts and
1.4.2 the covenants and conditions on the part of the Tenant contained in
this Lease have been duly observed and performed and
1.4.3 if the Premises have been destroyed or damaged they have been fully
restored and
1.4.4 no work has been carried out to the Premises either before or after
the date of this Lease by the Tenant or any permitted undertenant
which has diminished the Current Market Rent
- 92 -
1.4.5 any rent free period or rent concession which may be offered in the
case of a new letting in the open market for fitting out purposes
shall have expired or been given
1.5 there being disregarded
1.5.1 any effect on rent of the fact that the Tenant or any permitted
undertenant or their respective predecessors in title has been in
occupation of the Premises and any goodwill attached to the Premises
by reason of the carrying on thereat of the business of the Tenant
or any permitted undertenant and
1.5.2 any effect on rent of any improvement (which is authorised by the
Landlord where this Lease so requires) of the Premises or any part
thereof carried out by the Tenant or any permitted undertenant or
any improvement of the Premises carried out by the Landlord entirely
at the Tenant's cost both before and after the date of this Lease
1.6 "Independent Valuer" shall mean an independent Valuer appointed pursuant
to paragraph 4 of this Schedule
2. Increase
The Principal Rent shall be subject to increases in accordance with the
following provisions of this Schedule
3. Notice
The Landlord shall be entitled by notice in writing given to the Tenant at
any time after the commencement of any period of twelve months preceding a
Rent Review Date or at any time after a Rent Review Date to require a
review of the Principal Rent and if upon any such review it shall be
ascertained or determined that the Current Market Rent of the Premises at
the Rent Review Date in question is greater than the Principal Rent
payable immediately prior to such Rent Review Date then as
- 93 -
from the Rent Review Date in question the Principal Rent shall be
increased to the Current Market Rent so ascertained provided that in no
circumstances shall the Principal Rent following any such review be less
than the Principal Rent payable by the Tenant immediately prior to such
Rent Review Date
4. Determination
4.1 The Landlord and the Tenant may agree the amount of the Current Market
Rent at any time but if they do not agree the Current Market Rent the
amount of the Current Market Rent may be determined by the Independent
Valuer acting as an independent expert
4.2 The Independent Valuer shall be nominated by the Landlord and the Tenant
jointly or in the absence of an agreed nomination he shall be nominated by
the President for the time being of the Royal Institution of Chartered
Surveyors on the application either of the Landlord or of the Tenant
4.3 The Independent Valuer to be nominated shall be a valuer and chartered
surveyor having not less than 10 years experience of leasehold valuation
of property in the Centre of London being put to the same or similar use
as the Premises
4.5 The provisions in paragraph 5 of this Schedule relating to expert
determination proceedings shall apply as supplemented by the provisions of
this paragraph 4
4.6 If the Independent Valuer refuses to act becomes incapable of acting or
dies the Landlord or the Tenant may require the appointment of a
replacement arbitrator or expert (as the case may be) in the same manner
as applied to the original appointment but without further right of
election under paragraph 4.1 on the part of the Landlord
4.7 Either party may pay such costs of the rent review required to be paid by
the other as have been determined by the Independent Valuer if they remain
unpaid for more than
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21 days after they have become due and then recover these and any
incidental expenses incurred from the other party on demand
5. Expert Determination
5.1 If an independent expert is appointed pursuant to the above provisions
he shall be required to:-
5.1.1 give notice to the Landlord and the Tenant allowing each of them to
submit to him within such reasonable time as he may stipulate
representations accompanied (if either of them so wish) by a
statement of reasons and professional valuations or reports (as the
case may be) of which copies are supplied to the other party and
5.1.2 permit each of the Landlord and the Tenant to make a submission in
respect of the other's reasons valuation and reports provided under
paragraph 5.1.1 but
5.1.3 neither the Landlord nor the Tenant may without the consent of the
other disclose to the expert correspondence or other evidence to
which the privilege of non-production ("without prejudice") properly
attaches or refer to the same.
But the expert shall not be bound by any such submission and he may
make his determination as he thinks fit
5.2. The determination of the independent expert shall be final and binding on
the parties except in the case of manifest error
6. Payment of increased rent
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If upon any Rent Review Date the amount of any increased rent shall not be
ascertained or determined the Tenant shall continue to pay the Principal
Rent at the yearly rate thereof payable immediately prior to the Rent
Review Date in question until the quarter day next following the
ascertainment or determination of any increased rent whereupon there shall
be due as a debt payable by the Tenant to the Landlord on demand a sum
equal to the amount by which the increased yearly rent shall exceed the
Principal Rent previously payable apportioned on a daily basis from the
Rent Review Date in question together with interest thereon at the base
rate of the Royal Bank of Scotland plc or such other base rate as is used
for the purpose of calculating the Prescribed Rate such interest to be
calculated on the amount of each quarterly shortfall on a day to day basis
from the date on which it would have been payable if the reviewed rent had
been agreed on the relevant Rent Review Date
7. Interim reviews
If on any Rent Review Date there shall be in force any enactment which
relates to the control of rents and which shall restrict interfere with or
affect the right to revise the Principal Rent in accordance with the terms
hereof then the Landlord shall be entitled once following each removal
relaxation or modification of such enactment to serve notice (hereinafter
called an "Interim Notice") upon the Tenant and from and after the date of
service of each Interim Notice until the next Rent Review Date or the
service of the next Interim Notice (whichever shall first occur) the
Principal Rent shall be increased to the Current Market Rent at the date
of service of the Interim Notice (if higher than the Principal Rent
payable immediately prior thereto) and the provisions of this Schedule
shall apply accordingly with the substitution of the said date of service
of the Interim Notice for the relevant Rent Review Date provided that this
procedure may be repeated as often as necessary
8. Memorandum
If upon any such review as aforesaid it shall be agreed or determined that
the Principal Rent previously payable hereunder shall be increased the
Landlord and the
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Tenant shall forthwith complete and sign a written memorandum recording
the increased rent thenceforth payable
THE FOURTH SCHEDULE
Part 1
(Service Charge)
1. Definitions and Interpretation
In this Schedule the following expressions shall have the meanings specified
unless the context otherwise requires
1.1 "Annual Expenditure" the aggregate expenditure incurred or to be incurred
by the Landlord during a Service Year in or incidental to all or any of
the following items:
1. fuel and Utilities used on the Common Parts or in
providing the matters listed in this definition
2. maintenance and other contracts entered into' for
the provision of the matters listed in this
definition
3. making such provisions as the Landlord reasonably
considers appropriate for anticipated future
expenditure including the provision and
replacement of any plant machinery lifts or
equipment used or to be used in connection with
the matters listed in this definition
4. leasing any item used in providing the matters
listed in this definition
5. the fees of managing agents retained by the
Landlord for the management of the Building the
provision of the matters listed in this definition
(or where any of those tasks is carried out by the
Landlord a similar charge of the Landlord for that
task) not exceeding 10 per cent of the Service
Charge
- 97 -
6. any other works services or facilities which the
Landlord from time to time reasonably considers
desirable for the purpose of maintaining or
improving the services o facilities in or for the
Building which are for the general benefit of all
the occupiers of the Building and are in
accordance with the principles of good estate
management and which the Tenant approves such
approval not to be unreasonably withheld or
delayed
7. Providing the Services
1.2 "Provisional Service Charge" the amount which in the reasonable opinion of
the Landlord shall represent a fair estimate of the Service Charge for the
Service Year in question provided that if it should appear necessary or
appropriate to adjust the Provisional Service Charge during the Service
Year the Provisional Service Charge may be increased or decreased as the
case may be at any time
1.3 "Services" the services facilities amenities and items of expenditure
specified in Part 2 of this Schedule
1.4 "Service Charge" a fair and proper proportion reasonably attributable to
the Premises of the Annual Expenditure provided that if any lettable areas
of the Building remain unlet then the Landlord shall be responsible for
the proportionate part of the service charge which relates to such
lettable areas and such cost shall not form part of the Service Charge
1.5 "Service Year" a calendar year expiring on 31 December or such other
annual period as the Landlord shall decide
2. Provision of the Services
2.1 The Landlord shall throughout the Term provide and carry out the Services
in accordance with the principles of good estate management
2.2 The Landlord shall not be liable to the Tenant in respect of
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2.2.1 any failure or interruption in any of the Services by reason of
necessary repair maintenance or replacement of any installations or
apparatus or their damage or destruction or by reason of mechanical
or other defect or breakdown or frost or other inclement conditions
or shortage or fuel materials or labour or any other cause beyond
the control of the Landlord but the Landlord shall use all
reasonable endeavours to restore any such Services as soon as
practicable
2.2.2 any act or omission or negligence of any properly qualified person
undertaking the Services or any of them employed in good faith on
behalf of the Landlord
2.2.3 any loss damage interference or annoyance suffered by the Tenant
during the carrying out of the development of the remainder of the
Estate and any other building construction repairs decorations
additions alterations or other works whether structural or otherwise
which are necessary or (in the reasonable opinion of the Landlord)
desirable to the Estate
2.3 The Landlord may withhold add to or extend vary or alter the Services or
any of the them from time to time with the consent of the Tenant (such
consent not to be unreasonably withheld) so long as in doing so the
Landlord complies with the principles of good estate management and acts
reasonably in all the circumstances
3. Statement of Annual Expenditure
3.1 The Landlord shall as soon as practicable after the end of each Service
Year prepare and submit to the Tenant a statement of the Annual
Expenditure for that Service Year containing a fair summary of the
expenditure referred to in it and showing the Service Charge for that
Service Year
3.2 The Landlord may include in any such statement such reasonable and proper
provision calculated in accordance with the principles of normal
accounting practice and good estate management for expenditure in any
subsequent year as the Landlord acting reasonable shall from time to time
consider appropriate
- 99 -
3.3 Any omission by the Landlord to include in any such statement any sum
expended or liability incurred in that Service Year shall not preclude the
Landlord from including such sum or the amount of such liability in an
account for any subsequent year
4. Payment of the Service Charge
4.1 The Tenant shall pay to the Landlord on account of the Service Charge on
the 25th March 24th June 29th September and 25th December in each year (or
such other quarterly or half yearly days as shall be notified in writing
to the Tenant) one quarter of the Provisional Service Charge (or one half
where the Landlord shall specify half yearly days for payment)
4.2 If the Service Charge for any Service Year shall:-
4.2.1 exceed the Provisional Service Charge payments made on account
thereof the excess shall be paid by the Tenant to the Landlord
within ten working days after written demand or at the option of the
Landlord on the next day for payment by the Tenant
4.2.2 be less than such payments on account the overpayment shall be
allowed by the Landlord to the Tenant as a credit against payments
to become due or (in the Service Year ending on or after the expiry
of the Term) shall be repaid by the Landlord to the Tenant
5. Continuation
The provisions of this schedule shall continue to apply for 12 months
notwithstanding the expiration or sooner determination of the Term but only for
the purposes of calculation and payment of the Service Charge for the period
down to such expiration or sooner determination
6. Exclusions
For the avoidance of doubt, the costs of the following shall not form part of
the Annual Expenditure
- 100 -
6.1 the repair renewal maintenance or otherwise of any part of the Building
(save where such insurance is vitiated through an act or default of the
Tenant and the Tenant has not made good any shortfall) to the extent that
any monies are recovered by the Landlord from any other insurance policy
or third party and
6.2 any fees and expenses attributable to the recovery or review of rents
payable by the tenants and other occupiers of the Estate or attributable
to the letting of any other part of the Estate of any disposition or
dealing with the Landlord's interest in the Estate or any part thereof
Part 2
(The Services)
1. Cleaning renewing maintaining decorating lighting treating and repairing
the Common Parts and the Structural Parts
2. Heating and cooling the internal areas of the Common Parts between such
hours and at such times of the year as the Landlord in its discretion
considers appropriate
3. Providing and replacing refuse containers for occupiers of the Building
and arranging for the collection of refuse
4. cleaning the outside and (where forming part of the Common Parts) the
inside of all windows and glass at the Building
5. providing operating inspecting maintaining repairing and replacing
Conduits (other than Conduits which form part of the Premises or which do
not belong to the Landlord)
6. removing any obstruction on the Common Parts
7. providing operating inspecting insuring and maintaining repairing and
replacing any equipment plant and machinery and other materials which are
used in providing the matters listed in this part of this Schedule
8. maintaining furniture and fittings for use on the Common Parts
- 101 -
9. maintaining and when reasonably necessary replacing or altering such
security systems for the benefit of the whole (or substantially the whole)
of the Building which the Landlord (in the interests of good estate
management) reasonably considers appropriate and which may include subject
to the Tenant giving its consent (not to be unreasonably withheld) the
provision of alarms closed circuit television barriers and other equipment
and security guards and patrols (whether employed by the Landlord or
engaged as contractors)
10. providing fire detection prevention and fighting equipment and any signs
notices or equipment required by the fire authority for the Common Parts
and the Structural Parts and maintaining repairing and when necessary
replacing such items
11. paying all present and future rates taxes duties and assessments of
whatever nature charged on or payable in respect of the Common Parts or
Structural Parts or in respect of the Building as a whole
12. complying with any legislation relating to the Common Parts or the
Structural Parts or the Building as a whole
13. complying with or where the Landlord reasonably considers it appropriate
contesting the requirements or proposals of the local or any other
competent authority in respect of the Common Parts or the Structural Parts
or of the Building as a whole
14. complying with the matters referred to in clause 6.1 in so far as they
relate to the Common Parts the Structural Parts or the Building as a whole
15. abating any nuisance to the Building
any of the other items referred to in the definition of Annual Expenditure
which the Landlord in its reasonable discretion and from time to time
provides for the management or maintenance of the Building
THE FIFTH SCHEDULE
(Off Site Works)
1. The construction of a Piazza in front of the Building including (for the
avoidance of doubt) the link bridge between the Premises and the access
route referred to in paragraph 2 below
- 102 -
2. the provision of a vehicular access route linking St ▇▇▇▇ Street to the
Piazza in all material respects in the form shown on the planning
permission drawing marked "A" annexed Provided Always that the Landlord
shall be entitled to alter the location of such access route
THE SIXTH SCHEDULE
(Documents affecting the Premises)
Date Document Parties
[ ] Deed of Release Grant and (1) Choice Win Investment Limited
Covenant (2) Wittayu Realty Limited
EXECUTED AS A DEED by a duly )
authorised attorney for and on behalf )
of WITTAYU REALTY LIMITED )
the presence of:- )
- 103 -
▇▇▇▇▇ HOUSE
(Internal Fit-Out for Rent Review Purposes
The Specification of Landlord's Fit Out Works for Rent Review Purposes)
The Landlord has carried out at its cost the Category "A" Fit Out (here meaning
the installation of new fittings that will become Landlord's fittings, to a
standard needed to meet its incoming Tenant's requirements including (but not
limited to) the items listed below
1. Lighting
Category 2 reflectors in light fittings face fixed or hung from the ceiling to
provide a maintained illuminance of 500 lux
2. Decoration to Ceiling Columns and Non Tiled Areas
Decorated repaired and plastered where relevant and finished with a standard BS
paint finish of uniform colour
3. Raised Access Floor
A fully accessible metal encapsulated floor with floor void and suitable for
laying carpet tiles
4. Installation of Floor Boxes
Type and manufacture to be compatible with raised access floor
5. Carpeting or other relevant floor finishes
Installation of a floor covering comprising 500 x 500mm tiles with a fibre
content of 80% polyproplene and 20% polymide or of equivalent quality
6. Air Conditioning/Heating and Cooling (including all necessary plant)
Perimeter four pipe fan coil units with a continuous metal encasement with the
system
7. Fire Alarm
A fully addressable system of L1 classification which meets all relevant
statutory regulations
8. Lifts
2 new 8 person passenger lifts
- 104 -
9. Lavatories and Kitchen Areas
To meet Building Regulation Standards
10. Staircases and other accesses to the Building
11. Secondary Glazing/Double Glazing
12. Decorative lighting and emergency signage throughout
13. All Fire Doors and Lobby Doors required by Building Regulation
- 105 -
ANNEXURE 2
(Licence for Alterations)
- 106 -
Dated 2000
WITTAYU REALTY LIMITED
to
RAZORFISH LIMITED
--------------------------------------------------------------------------------
LICENCE FOR ALTERATIONS
relating to ▇▇▇▇▇ House ▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
OAA
--------------------------------------------------------------------------------
- 107 -
CONTENTS
Page
1. INTERPRETATION .......................................................... 1
2. DEFINITIONS ............................................................. 1
3. GRANT OF LICENCE ........................................................ 2
4. TENANT'S COVENANTS ...................................................... 2
5. AGREEMENT AND DECLARATION ............................................... 2
6. DELIVERY ................................................................ 4
THE SCHEDULE ................................................................ 4
- 108 -
LICENCE FOR ALTERATIONS
PARTICULARS
DATE 2000
1. Landlord: WITTAYU REALTY LIMITED
2. Tenant: RAZORFISH (UK) LIMITED
3. Demised Premises: The premises more particularly described in the Lease
but in short known as ▇▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ OAA
4. Lease:
Date Parties Term
(1) The Landlord 15 years from the
(2) The Tenant day of 2000
(3) Razorfish Inc
5. Works means all those alterations and works to the Demised Premises
comprising [ ] as shown in drawings numbered
- 109 -
LICENCE FOR ALTERATIONS
THIS LICENCE is made on the date set out in the Particulars
BETWEEN
(1) The Landlord
(2) The Tenant
IT IS AGREED as follows:-
1. INTERPRETATION
In this Licence save where the context otherwise requires:
1.1 words importing the masculine gender only shall include the feminine
gender and vice versa
1.2 words importing persons shall include firms companies and corporations and
vice versa
1.3 words importing the singular number shall include the plural number and
vice versa and where the Tenant consists of two or more persons all
covenants by the Tenant shall be deemed to be made by such persons jointly
and severally
1.4 references (if any) in this Licence to any statute rule or order shall be
deemed to include every statutory amendment re-enactment or replacement
therefor for the time being in force and every statutory instrument rule
order notice regulation and direction for the time being made issued or
given thereunder or deriving validity therefrom and from time to time
thereunder
1.5 the headings in this Licence shall not affect its interpretation or
construction
2. DEFINITIONS
The following expressions shall have the following meanings:
- 110 -
2.1 For all purposes of this Licence the terms defined in the Particulars and
this clause have the meanings specified
2.2 Particulars means the particulars affixed hereto
2.3 Landlord and Tenant respectively mean the parties set out in the
Particulars and their successors in title
3. GRANT OF LICENCE
The Landlord hereby grants unto the Tenant licence and consent to carry out in
and upon the Demised Premises the Works in accordance with the covenants by the
Tenant hereinafter contained and to the reasonable satisfaction of the
Landlord's Surveyor
4. TENANT'S COVENANTS
In consideration of this Licence the Tenant hereby covenants with the
Landlord that it will:-
4.1 comply in all respects with all and singular the conditions set out in the
Schedule
4.2 pay any increased or extra premium payable for the insurance of the
Demised Premises against the risks referred to in the Lease in consequence
of the Works and in respect of any increase in insurance cover required as
a result of the Works
4.3 during the period of six months immediately preceding the end or sooner
determination of the term granted by the Lease (or any continuation or
extension thereof) if requested in writing so to do by the Landlord at its
own expense reinstate the Demised Premises as the same were prior to the
execution of the Works and make good all consequential damage to the
reasonable satisfaction of the Landlord and so that the provisions and
conditions of the Schedule shall apply mutatis mutandis in relation to
such reinstatement
5. AGREEMENT AND DECLARATION
It is hereby agreed and declared that:-
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5.1 this Licence is granted subject to the rights of the owners tenants and
occupiers of all adjoining and neighbouring premises and other interested
persons
5.2 nothing herein contained shall be deemed to authorise any other or further
works to the Demised Premises or any part thereof or in any way lessen the
liabilities of the Tenant under the tenant's covenants contained in the
Lease or in any deeds or documents (hereinafter called the Documents)
prior to the date hereof affecting the Lease or the Demised Premises
5.3 on the completion of the Works all the tenant's covenants provisions and
agreements contained in the Lease shall apply mutatis mutandis to the
Demised Premises in their then altered state
5.4 the proviso for re-entry contained in the Lease shall be exercisable not
only in the case of the breach of any of the covenants therein contained
but also in the case of the breach of any of the covenants provisions and
conditions expressly or impliedly contained in this Licence or in the
Documents
5.5 no claim for compensation shall be made by the Tenant in respect of the
Works upon the expiration or sooner determination of the term granted by
the Lease (or any continuation or extension thereof) or at any other time
5.6 the approval by the Landlord or its managing agents architects surveyors
or engineers of the Works shall not imply any warranty by or on behalf of
the Landlord and no liability whatsoever shall attach to the Landlord in
respect thereof
5.7 this Licence hereby granted shall cease to be of effect if the Works shall
not be commenced within three months of the date hereof and completed to
the satisfaction of the Landlord as hereinafter mentioned within six
months of the date hereof (or within such further period of time as the
Landlord shall consider reasonably necessary to enable the Tenant to
complete the same in the event of its being prevented from so doing solely
because of matters arising outside its control) but without prejudice to
any right of action or remedy of the Landlord in respect of any antecedent
breach of any of the covenants by the Tenant herein contained
- 112 -
6. DELIVERY
The provisions of this Licence (other than those contained in this clause) shall
have no effect until this Licence has been dated
IN WITNESS whereof the parties hereto have executed this Licence as a Deed the
day and year first above written
THE SCHEDULE
1. In this Schedule the following expressions bear the following meanings
namely:-
Planning Acts means ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and The
Planning (Listed Buildings and Conservation Areas) ▇▇▇ ▇▇▇▇ and any Act or
Acts for the time being amending or replacing the same and any instruments
or orders rules and regulations for the time being in force issued under
or by virtue of such Acts or any of them
Planning Permission means any permission consent or approval given or
deemed to be given under the Planning Acts
2. Before commencing the Works at the expense in all respects of the Tenant:-
2.1 to obtain all necessary Planning Permissions building regulation approvals
bye-law consents and other necessary permissions including (but without
prejudice to the generality of the foregoing) all consents and approvals
in connection with the means of escape in case of fire and to serve all
notices as may be required for carrying out the Works and to deliver to
the Landlord a copy of any notice given under the Planning Acts and any
necessary Planning Permissions and other permissions and thereafter to
obtain from the Landlord or its duly authorised agent its acknowledgement
in writing that these are satisfactory to the Landlord provided that the
Landlord may refuse so to express its satisfaction with any such notice
and/or Planning Permission and/or other permission on the ground that
anything contained
- 113 -
therein or omitted therefrom or (as regards Planning Permission) the
period thereof in its reasonable opinion would be or be likely to be
prejudicial to the Landlord's interest in the Demised Premises whether
during the term created by the Lease or following the determination or
expiration thereof
2.2 to obtain the approval of the Works by the Insurance Office with which the
Demised Premises are insured
3. To comply with the provisions of all relevant Acts of Parliament and with
the lawful requirements of all Local or other interested authorities and
in particular (but without prejudice to the generality of the foregoing)
with the provisions and requirements of the Planning Acts and of all
Planning Permissions or other permissions so far as the same respectively
relate to or affect the Works or any operations acts or things already or
hereafter to be carried out executed done or omitted in connection with
the Works
4. Without prejudice to the generality of the foregoing paragraph to accept
appointment by the Landlord to act as the only client in respect of the
Works for the purposes of The Construction (Design and Management)
Regulations 1994 (hereinafter referred to in this paragraph as the
Regulations) (but save as hereinbefore provided it is hereby declared and
affirmed that the Tenant is not the agent of the Landlord in respect of
the Works) and accordingly to comply fully with all the duties
requirements and prohibitions imposed by the Regulations on a client and
on a person so appointed including (without limitation) the duty to make
and send to the Health and Safety Executive a declaration in accordance
with Regulation 4(4) of the Regulations and furthermore -
4.1 to send to the Landlord a copy of the said declaration and of the notice
given by the Health and Safety Executive to the Tenant under Regulation
4(5) of the Regulations
4.2 to enter into contractually binding agreements with the Tenant's
architects engineers quantity surveyors other designers contractors
subcontractors and other persons employed by the Tenant in connection with
the Works which shall require them to comply with the Regulations and with
the lawful requirements of the planning
- 114 -
supervisor and the principal contractor (within the meaning of the
Regulations) and which shall require the contractors and the
subcontractors not to commence the Works or any part of the Works unless a
health and safety plan complying with Regulation 15(4) of the Regulations
has been prepared in respect of the Works
4.3 to provide the Landlord with evidence of the Tenant's procedures for
ensuring that the Tenant is reasonably satisfied that -
4.3.1 the said planning supervisor and the said principal contractor have
the necessary competence and resources
4.3.2 that every designer within the meaning of the Regulations has the
competence to prepare the designs which the Tenant has arranged for
him to prepare and
4.3.3 that every contractor within the meaning of the Regulations has the
competence to carry out or as the case may be manage the
construction work (forming part of the Works) which the Tenant has
arranged for him to carry out or manage
4.4 to ensure that a health and safety plan containing the information
specified in Regulation 15(3) of the Regulations is included in the
invitations to persons to tender for the Works
4.5 if the Tenant appoints itself as planning supervisor or as principal
contractor to comply fully with all the duties imposed by the Regulations
on the planning supervisor or (as the case may be) on the principal
contractor
4.6 to deliver to the Landlord as soon as reasonably practicable and in any
event within two months after the date upon which the Works are is
practically completed the health and safety file for each structure
comprised in the Works together with a licence authorising the Landlord to
use and copy all and any documents and information contained in the said
health and safety file for all purposes connected with the Demised
Premises
- 115 -
5. To give to the Landlord not less than fourteen days notice in writing of
the Tenant's intention to commence the Works and also to give to the
Landlord notice in writing of completion of the Works within fourteen days
thereof
6. To carry out and complete the Works in a proper and workmanlike manner and
in accordance with all relevant codes of practice with good and proper
materials (which materials shall first be approved in writing by the
Landlord) and under the inspection of and to the satisfaction of and in
accordance with the conditions laid down by (where applicable) the
managing agents architects surveyors and engineers for the time being of
the Landlord
7. In so far as any alterations to gas electricity and water installations or
services in the Demised Premises form part of the Works to obtain the
approval thereto of the relevant service authorities or boards and to
comply with their respective regulations and requirements and to employ
accredited contractors to carry out such alterations in accordance with
current codes of practice
8. To comply with the requirements of the insurers of the Demised Premises in
respect of the Works
9. To permit the Landlord and where appropriate its managing agents
architects surveyors and engineers at all reasonable times on prior notice
(save in case of emergency) to enter the Demised Premises to inspect the
progress of the Works and the quality of the materials and the workmanship
used therein
10. Subject only to any statutory direction to the contrary to pay and satisfy
any charge tax or levy that may now or hereafter be imposed under the
Planning Acts in respect of the carrying out of the Works
11. Unless the Landlord shall otherwise direct to carry out and complete
before the expiration or sooner determination of the term created by the
Lease any works stipulated to be carried out to the Demised Premises by a
date subsequent to such expiration or sooner determination as a condition
of any Planning Permission granted in connection with the Works
- 116 -
12. To carry out the Works with the least possible inconvenience or annoyance
to the owners or occupiers of adjoining or neighbouring properties and to
make good with all despatch all damage arising out of or incidental to the
Works and to indemnify the Landlord effectually against all actions
proceedings costs claims damages or demands whatsoever arising in relation
to the carrying out and completion of the Works
THE COMMON SEAL of WITTAYU )
REALTY LIMITED was hereunto affixed )
in the presence of: )
Director
Director/Secretary
THE COMMON SEAL of RAZORFISH )
(UK) LIMITED was hereunto affixed in the )
presence of: )
Director
Director/Secretary
- 117 -
Dated
(1)
---------------------------------------
(Contractor)
and
(2)
---------------------------------------
(Beneficiary)
--------------------------------------------------------------------------------
MAIN CONTRACTOR'S WARRANTY
relating to works of refurbishment as offices with some
residential
at ▇▇▇▇▇ House and 148 to ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Ref: TAR/ADL/111276/309198-1
Date: 14/07/00 15:57 [0.0]
- 118 -
CONTENTS
PARTICULARS
PARTIES
RECITALS
COMPLIANCE CLAUSE
DOCUMENTS CLAUSE
ASSIGNMENT CLAUSE
POST-COMPLETION WORKS CLAUSE
PROFESSIONAL INDEMNITY INSURANCE CLAUSE
LIABILITY CLAUSE
BENEFICIARY CLAUSE
FURTHER SECURITY CLAUSE
NOTICE CLAUSE
YEAR 2000 CLAUSE
JURISDICTION CLAUSE
DEFINITIONS CLAUSE
RESTRICTED MATERIALS SCHEDULE
FURTHER SECURITY SCHEDULE
EXECUTION
119
ANNEXURE 3
(Landlord's Warranties)
120
SIGNED for and on behalf of
WITTAYU REALTY LIMITED
/s/ C ▇▇▇▇▇▇
-----------------------------------
SIGNED for and on behalf of
RAZORFISH LIMITED
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
SIGNED for and on behalf
of RAZORFISH INC.
121
ANNEXURE 2
(Licence for Alterations)
122
ANNEXURE 3
(Landlord's Warranties)
123
sheet 1
RAZORFISH - TOTAL OF LANDLORD'S CONTRIBUTION (based on area of 44,900 sq. ft.)
-------------------------------------------------------------------------------------------------------------------
ITEM LL's CONTRIBUTION
-------------------------------------------------------------------------------------------------------------------
Temporary Disabled Access Ramp (pound) 10,000.00
Lighting ((pound) 115/ fitting ((pound) 59/ fitting based on 1 fitting
based on 1 fitting per 75 sq. ft.) or:- per 35 sq. ft.) (pound) 75,688.57 (higher one)
Upper Floor Window Fittings (hig level
opening mechanisms) ((pound) 25 per window (94 windows) (pound) 2,350.00
False Floor and Carpet (pound) 43/ sqm i.e (pound) 4 sq. ft. (pound) 179,600.00
Floor Boxes (pound) 60 per box/ 1 per 10 sq. m (pound) 25,027.86
Glazed Screen Contribution (pound) 50,000.00
Metal Staircase (pound) 15,000.00
Toilet/ Kitchen areas 2,100 sq. ft. (pound) 50/ sq. ft. (pound) 105,000.00
Fan Coil Encasements (pound) 250 per linear metre
300 linear metres (pound) 75,000.00
Door Contribution: ((pound) 1030/
double door - 25 doors) (pound) 25,750.00
Door Contribution: ((pound) ▇▇▇/
▇▇▇▇▇▇ ▇▇▇▇ - ▇ ▇▇▇▇▇) (▇▇▇▇▇) 5,400.00
Paint Finish (standard BS Paint) to
ceilings, columns and non tiled areas (pound) 45,000.00
Enhancement to Lift Car Finishes (pound) 15,000.00
Emergency Lighting (lettable areas) (pound) 0.25/ sq. ft. (pound) 11,225.00
Fire Detection (lettable areas) (pound) 0.30/ sq. ft. (pound) 13,470.00
------------------------------------------------------------------------------------------------------
TOTAL (pound) 653,511.43
------------------------------------------------------------------------------------
Page 1
124
PARTICULARS
--------------------------------------------------------------------------------
Agreement Date
--------------------------------------------------------------------------------
Contractor
--------------------------------------------------------------------------------
Contractor's Address
--------------------------------------------------------------------------------
Beneficiary
--------------------------------------------------------------------------------
Beneficiary's Address
--------------------------------------------------------------------------------
Employer WITTAYU REALTY LIMITED
--------------------------------------------------------------------------------
Development Speculative refurbishment as offices with some
residential
--------------------------------------------------------------------------------
Property ▇▇▇▇▇ House and 148 to ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
--------------------------------------------------------------------------------
Minimum Sum
Insured
--------------------------------------------------------------------------------
Premises The [Property] [Development]
OR
-----------------------------------------------------
-----------------------------------------------------
forming part of the [Property] [Development]
--------------------------------------------------------------------------------
Warranting All subcontractors undertaking any part of the design
Subcontractors(1) of the Development for which the Contractor does not
consider itself responsible to the Employer.
--------------------------------------------------------------------------------
----------
(1) Instead of the text provided, subcontractors may be named or their
elements described.
125
THIS AGREEMENT by deed is made on the Agreement Date
BETWEEN:
(1) the Contractor of or whose registered office is at the Contractor's
Address
(2) the Beneficiary of or whose registered office is at the Beneficiary's
Address and all permitted assignees under this Agreement
RECITALS:
(A) The Development has been, is being or will be designed and constructed at
the Property.
(B) The Contract is an agreement between the Employer and the Contractor [for
the completion of design and] for the construction of the Development by
the Contractor.
(C) The Contractor currently maintains professional indemnity insurance (the
Insurance) in the Minimum Sum Insured.
(D) The Beneficiary has or will have an interest in the Premises.
(E) The consideration for this Agreement is the payment of one pound by each
party to every other party if demanded and the mutual undertakings
contained in it.
(F) Certain expressions are defined in the Particulars, in the Definitions
clause, and in the clause or schedule in which they are used.
NOW IT IS HEREBY AGREED as follows:
1. COMPLIANCE
1.1 The Contractor warrants -
1.1.1 that it has complied and shall comply with -
(a) the Contract; and
(b) the Construction (Design and Management) Regulations 1994 with
respect to the Development.
1.1.2 without prejudice to the generality of the foregoing subclause, that
it has seen and shall see that, unless authorised by the Employer in
writing or, where such authorisation is given orally, confirmed by
the Contractor to the Employer in writing, the Contractor has not
used or specified for use and will not use or specify for use in the
construction of the
126
Development any of the materials, or any substance or method of use
or incorporation, which is -
(a) included in the list of restricted materials contained in the
Contract or (if no such list is contained in the Contract)
which is described in Part 1 of the Restricted Materials
Schedule, or
(b) described in Part 2 of the Restricted Materials Schedule.
1.1.3 that any Warranting Subcontractor which has not executed a
Collateral Warranty in favour of the Beneficiary which has been
delivered to the Beneficiary has complied and shall comply with all
the terms of its subcontract with the Contractor.
2. DOCUMENTS
2.1 The copyright in all drawings, reports, specifications, bills of
quantities, calculations and other documents provided by the Contractor in
connection with the Development (the Documents) shall remain vested in the
Contractor.
2.2 The Beneficiary shall have an irrevocable, royalty-free, freely assignable
and non-exclusive licence to copy and use the Documents, to reproduce the
designs and any inventions contained in them, and to grant sublicences,
for any purpose related to the Premises including, but without limitation,
the construction, completion, extension, maintenance, letting, promotion,
advertisement, reinstatement and repair of the Premises.
2.3 The Contractor shall not be liable for any use by the Beneficiary of any
of the Documents for any purposes other than those for which they were
prepared and provided by the Contractor.
2.4 The Contractor shall at the Beneficiary's request and upon payment or
tender of the Contractor's reasonable copying and administrative charges
provide the Beneficiary with copies (including negatives and CAD disks) of
the Documents, and of the subcontracts for the Development, or any of
them.
2.5 The Contractor shall use reasonable endeavours to procure that there shall
be granted to the Beneficiary an irrevocable licence as described in
clause 2.2 in relation to documents of the same nature as the Documents
provided by all sub-contractors for the purposes of or in connection with
the Contract
3. ASSIGNMENT
3.1 The Beneficiary may, without the consent of the Contractor [or the
Employer] being required, assign the benefit of this Agreement by way of
absolute legal assignment -
3.1.1 twice to an Interested Party;
127
3.1.2 without limit to any company which is in the same group of companies
as the Beneficiary;
save where the Contractor has already executed a Collateral Warranty in
favour of such person and delivered it as required by this Agreement.
3.2 Such assignment shall be effective upon written notice of it being given
to the Contractor.
4. POST-COMPLETION WORKS
4.1 Post-Completion Works are any works of repair, improvement or alteration
carried out by any person (whether or not the Contractor is or is employed
by such person) after Practical Completion, otherwise than under the
Contract.
4.2 For the avoidance of doubt -
4.2.1 the Contractor shall not under this Agreement be liable to the
Beneficiary for any loss or damage which the Beneficiary may suffer
by reason of Post-Completion Works; and
4.2.2 no Post-Completion Works shall of themselves invalidate this
Agreement, or, subject to the foregoing paragraph, limit or
otherwise affect any of the Contractor's obligations under it.
5. PROFESSIONAL INDEMNITY INSURANCE
5.1 The Contractor shall, subject to the next subclause, maintain the
Insurance with insurers carrying on business in the European Union (the
Insurers) for at least the Minimum Sum Insured each and every claim and in
all in any one period of insurance for a period commencing on the Date of
Possession under the Contract or (if sooner) on the date when the
Contractor commenced the design and/or construction of the Development and
ending twelve years after Practical Completion.
5.2 If the Insurance ceases to be generally available to contractors in the
market at commercially reasonable rates, the Contractor shall -
5.2.1 immediately notify the Beneficiary of the circumstances in which and
the reasons why the Insurance has ceased to be so available;
5.2.2 in good faith discuss with the Beneficiary means of best protecting
the respective positions of the Beneficiary and the Contractor in
respect of the Development in the absence of the Insurance; and
5.2.3 unless the only or main reason why the Insurance ceased to be so
available was the Contractor's negligent acts or omissions, and
subject to the Contractor's compliance with the foregoing
paragraphs, cease to
128
be liable to maintain the Insurance unless and until it subsequently
becomes so available in the market.
5.3 The Insurance shall be subject to no unusual or unreasonable exclusions,
conditions or excess.
5.4 The Policy shall include no Pay to be Paid Clause.
5.5 As and when it is reasonably requested to do so by or on behalf of the
Beneficiary, the Contractor shall deliver to the person making the request
documentary evidence that the Contractor is maintaining the Insurance.
5.6 The Contractor shall not knowingly do or omit any thing whereby the Policy
may become void or voidable.
5.7 The Contractor shall give notice to the Beneficiary of any claim arising
under the Policy relating to the Development.
5.8 The Contractor shall not, without the prior approval in writing of the
Beneficiary -
5.8.1 settle or compromise with the Insurers any claim which the
Contractor may have against the Insurers and which relates to a
claim by the Beneficiary against the Contractor; or
5.8.2 by any act or omission lose or prejudice the Contractor's right to
make or proceed with its claim against the Insurers.
6. LIABILITY
6.1 The Contractor shall be liable to the Beneficiary for any breach of this
Agreement for which the Beneficiary or its insurers have submitted any
claim to the Contractor, or commenced any action or proceedings (including
adjudication or arbitration) against the Contractor, before the expiry of
twelve years after Practical Completion.
6.2 The Beneficiary shall after the expiry of twelve years from Practical
Completion commence no action or proceedings (including adjudication or
arbitration) against the Contractor for any breach of this Agreement,
except where the Beneficiary or its insurers have submitted any claim to
the Contractor for the breach before such expiry.(2)
7. BENEFICIARY
7.1 For the avoidance of doubt -
----------
(2) Where contractor is an SB client, see document 289721.
129
7.1.1 the Beneficiary has no authority to issue any direction or
instruction to the Contractor in relation to the performance of the
Contractor's duties under the Contract; and
7.1.2 the Beneficiary has no liability to the Contractor in respect of the
moneys payable to the Contractor under the Contract.
8. NOTICE
8.1 Each party's Notice Address shall be any of the following addresses:
8.1.1 its address stated in the Particulars, unless it has notified some
other address to the party giving the relevant communication; or
8.1.2 such address (if any) as it may have last notified to the party
giving the relevant communication; or
8.1.3 if it is a corporation having a registered office, its registered
office; or
8.1.4 its principal business address for the time being.
8.2 Any notice or other communication to be given under this Agreement shall
be in writing and shall be duly given if it is addressed to the party to
whom it is to be given and sent or delivered to that party's Notice
Address either -
8.2.1 by hand; or
8.2.2 by registered post or recorded delivery, in which case it shall be
deemed to have been given 48 hours after being sent; or
8.2.3 by facsimile transmission and by post, in which case it shall be
deemed to have been given on the date of delivery of a sufficiently
legible facsimile transmission or (if sooner) upon delivery of the
communication by post.
9. JURISDICTION
9.1 The construction, validity and performance of this Agreement shall be
governed by English law and the parties agree to submit to the
non-exclusive jurisdiction of the English courts.
10. DEFINITIONS
10.1 In this Agreement the following expressions shall where the context allows
have the meanings assigned to them:
10.1.1 Agreement Date: see Particulars;
10.1.2 Beneficiary: see Particulars;
130
10.1.3 Beneficiary's Address: see Particulars;
10.1.4 Contract: see recitals;
10.1.5 Contractor: see Particulars;
10.1.6 Contractor's Address: see Particulars;
10.1.7 Date of Possession: means the Date of Possession under the
Contract;
10.1.8 Development: see Particulars;
10.1.9 Documents: see Documents clause;
10.1.10 Employer: see Particulars;
10.1.11 Employer's Address: see Particulars;
10.1.12 Insurance: see recitals;
10.1.13 Insurers: see Professional Indemnity Insurance clause;
10.1.14 Interested Party: means any person who has acquired or agreed to
acquire, or who intends to acquire, the Beneficiary's interest in
the Premises;
10.1.15 Minimum Sum Insured: see Particulars;
10.1.16 Notice Address: see Notices clause;
10.1.17 Particulars: means the particulars at the start of this
Agreement;
10.1.18 Pay to be Paid Clause: means any term or condition to the effect
that the Contractor must discharge any liability before being
entitled to recover from the Insurers, or any other term or
condition which might adversely affect the rights of any person to
recover from the Insurers under the Third Parties (Rights Against
Insurers) ▇▇▇ ▇▇▇▇ or any amendment or re-enactment of it;
10.1.19 Policy: means the policy of the Insurance for the time being;
10.1.20 Post-Completion Works: see Post-Completion Works clause;
10.1.21 Practical Completion: means the date of practical completion of
the Development under the Contract;
10.1.22 Premises: see Particulars;
10.1.23 Property: see Particulars.
131
IN WITNESS WHEREOF the parties hereto haveexecuted and delivered this document
as a deed the day and year first before written.
132
RESTRICTED MATERIALS SCHEDULE
See Compliance clause
RESTRICTED MATERIALS
Part 1
The list (if any) of restricted materials contained in the Contract shall apply.
If no list of restricted materials is contained in the Contract, the following
list shall apply:
1. High alumina cement in structural elements.
2. Wood wool slabs in permanent formwork to concrete.
3. Calcium chloride in admixtures for use in reinforced concrete.
4. Asbestos products.
5. Naturally occurring aggregates for use in reinforced concrete which do not
comply with British Standard 882:1992 and/or naturally occurring
aggregates for use in concrete which do not comply with British Standard
8110:1985.
Part 2
6. Any other substance or method of use or incorporation which is or may
reasonably be suspected to be unstable, inadequate, dangerous or otherwise
unsuitable for building purposes or for the type of building or conditions
for which it is used, or which is in breach of statutory control, or which
does not conform to relevant British Standards or Codes of Practice
current at the date of specification.
133
THE COMMON SEAL of the Contractor )
was hereunto affixed )
in the presence of: )
---------------------------------------------
Director
---------------------------------------------
Director/Secretary
OR
EXECUTED as a DEED by the )
Contractor acting by: )
---------------------------------------------
Director
---------------------------------------------
Director/Secretary
134
THE COMMON SEAL of the Beneficiary )
was hereunto affixed )
in the presence of: )
---------------------------------------------
Director
---------------------------------------------
Director/Secretary
OR
EXECUTED as a DEED by )
the Beneficiary acting by: )
---------------------------------------------
Director
---------------------------------------------
Director/Secretary
135
DATED
-----------------------------------------------------------------------------(1)
and
-----------------------------------------------------------------------------(2)
________________________________________________________________________________
CONSULTANT'S WARRANTY BY
-----------------------------------------------------------------------------
TO TENANT
relating to works of refurbishment as offices with some residential at ▇▇▇▇▇
House and 148 to ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
________________________________________________________________________________
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Ref: TAR/ADL/111276/309194-1
Date: 14/07/00 15:57 [0.0]
136
PARTICULARS
--------------------------------------------------------------------------------
Agreement Date
--------------------------------------------------------------------------------
Consultant
--------------------------------------------------------------------------------
Consultant's Address
--------------------------------------------------------------------------------
Beneficiary
--------------------------------------------------------------------------------
Beneficiary's Address
--------------------------------------------------------------------------------
Client WITTAYU REALTY LIMITED
--------------------------------------------------------------------------------
Development Refurbishment as offices with some residential
--------------------------------------------------------------------------------
Property ▇▇▇▇▇ House and 148 to ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
--------------------------------------------------------------------------------
Contractor
--------------------------------------------------------------------------------
Consultant's Profession
--------------------------------------------------------------------------------
Minimum Sum Insured
--------------------------------------------------------------------------------
Premises The [Property] [Development]
OR
-----------------------------------------------------
-----------------------------------------------------
-----------------------------------------------------
forming part of the [Property] [Development]
--------------------------------------------------------------------------------
137
THIS AGREEMENT by deed is made on the Agreement Date
BETWEEN:
(1) the current partners of the Consultant practising at the Consultant's
Address
OR
(1) the Consultant of or whose registered office is at the Consultant's
Address
(2) the Beneficiary of or whose registered office is at the Beneficiary's
Address and all permitted assignees of the Beneficiary under this
Agreement
WHEREAS:
(A) The Development has been, is being or will be designed and constructed at
the Property.
(B) The Building Contract is an agreement between the Developer and the
Contractor for the design and/or construction of the Development by the
Contractor.
(C) The Appointment is an agreement, between the Client and the Consultant,
appointing the Consultant to act for the Client in the capacity of the
Consultant's Profession in connection with the Development.
(D) The Consultant currently maintains professional indemnity insurance (the
Insurance) in the Minimum Sum Insured.
(E) The Client has paid all fees and expenses due and owing by it to the
Consultant under the Appointment up to the date of this Agreement.
(F) The Beneficiary has or will have an interest in the Premises.
(G) The consideration for this Agreement is the payment of one pound by each
party to every other party if demanded and the mutual undertakings
contained in it.
(H) Certain expressions are defined in the final clause of this Agreement or
in the clause or schedule in which it is used.
NOW IT IS HEREBY AGREED as follows:
1. DUTY OF CARE
1.1 The Consultant warrants to the Beneficiary that it has complied and will
continue to comply with the Appointment and, without prejudice to the
generality of the foregoing, that it has exercised and will continue to
exercise the skill, care and diligence to be expected of a properly
qualified member of the Consultant's Profession experienced in carrying
out services such as its services under the
138
Appointment in connection with work of a similar size, scope, nature and
complexity to the Development -
1.1.1 in the performance of its duties to and services for the Client
under the Appointment;
1.1.2 (without prejudice to the generality of the foregoing paragraph) -
(a) to see that, unless authorised by the Client in writing or,
where such authorisation is given orally, confirmed by the
Consultant to the Client in writing, none of the materials,
and no substance or method of use or incorporation, which is -
(i) included in the list of restricted materials contained
in the Appointment or (if no such list is contained in
the Appointment) which is described in Part 1 of
Schedule 1, or
(ii) described in Part 2 of Schedule 1,
has been or will be specified by the Consultant for use in the
construction of the Development;
(b) in complying with its duties under the Construction (Design
and Management) Regulations 1994 with respect to the
Development; and
(c) to see that its services under the Appointment and the designs
contained in them will not be adversely affected as a result
of the approaching change of century (for which purposes the
twentieth century shall be deemed to end and the twenty-first
century shall be deemed to begin on 1 January 2000 at 00:00
hours in the time zone local to the System) either prior to,
during or after the calendar year 2000, and that the
Beneficiary will not experience any adverse impact in those
services or in the performance of the Development as a result
of any of the services or the designs contained in them being
unable to function or unable to function reliably owing to the
change of century.
1.2 If and to the extent that the Consultant fails in any respect to comply
with clause 1.1.2(c), it shall indemnify the Beneficiary against any loss,
damage or expense (including legal fees) sustained or incurred directly or
indirectly as a result of such failure; and this indemnity is not subject
to any limitation or exclusion contained in this Agreement.
2. DOCUMENTS, COPYRIGHT AND LICENCES
2.1 The copyright in all drawings, reports, specifications, bills of
quantities, calculations and other documents provided by the Consultant in
connection with the Development (the Documents) shall remain vested in the
Consultant.
139
2.2 The Beneficiary shall have an irrevocable, royalty-free, freely assignable
and non-exclusive licence (including the right to grant sub-licences) to
copy and use the Documents and to reproduce the designs and any inventions
contained in them for any purpose relating to the Premises including, but
without limitation, the construction, completion, extension, maintenance,
letting, promotion, advertisement, reinstatement and repair of the
Premises.
2.3 The Consultant warrants to the Beneficiary that the Documents and any such
designs and inventions provided by the Consultant in connection with the
Development (save to the extent that duly appointed subconsultants have
been used) are the Consultant's own original work and that in any event
their use in connection with the Development will not infringe the rights
of any third party.
2.4 The Consultant shall not be liable for any use by the Beneficiary of any
of the Documents for any purposes other than those for which they were
prepared and provided by the Consultant.
2.5 The Consultant shall at the Beneficiary's request and (except with respect
to CAD disks) upon payment or tender of the Consultant's reasonable
copying and administrative charges provide the Beneficiary with copies
(including negatives and CAD disks) of the Documents or any of them.
3. ASSIGNMENT
3.1 The Beneficiary may, without the consent of the Consultant [or the Client]
being required, assign the benefit of this Agreement by way of absolute
legal assignment -
3.1.1 twice to an Interested Party;
3.1.2 without limit to any company which is in the same group of companies
as the Beneficiary;
3.1.3 save where the Consultant has already executed a Collateral Warranty
in favour of such person and delivered it as required by this
Agreement;
3.2 Such assignment shall be effective upon written notice of it being given
to the Consultant.
4. POST-COMPLETION WORKS
4.1 Post-Completion Works are any works of repair, improvement or alteration
carried out by any person after Practical Completion, otherwise than under
the Building Contract or in connection with the Consultant's services
under the Appointment.
4.2 For the avoidance of doubt -
4.2.1 the Consultant shall not under this Agreement be liable to the
Beneficiary for any loss or damage which the Beneficiary may suffer
by reason of Post-Completion Works; and
140
4.2.2 no Post-Completion Works shall of themselves invalidate this
Agreement or, subject to the foregoing paragraph, limit or otherwise
affect any of the Consultant's obligations under it.
5. PROFESSIONAL INDEMNITY INSURANCE
5.1 The Consultant shall maintain the Insurance with insurers carrying on
business in the European Union (the Insurers) for at least the Minimum Sum
Insured for any one occurrence or series of occurrences arising out of
each and every event for a period commencing on the date when the
Consultant's services under the Appointment commenced and ending years
after Practical Completion.
5.2 The Insurance shall be subject to no unusual or unreasonable exclusions,
conditions or excess.
5.3 The Policy shall include no Pay to be Paid Clause.
5.4 If the Insurance ceases to be available in the market to members of the
Consultant's profession at commercially reasonable rates, the Consultant
shall -
5.4.1 immediately notify the Beneficiary of the circumstances in which and
the reasons why the Insurance has ceased to be so available;
5.4.2 in good faith discuss with the Beneficiary means of best protecting
the respective positions of the Beneficiary and the Consultant in
respect of the Development in the absence of the Insurance; and
5.4.3 unless the only or main reason why the Insurance ceased to be so
available was the Consultant's negligent acts or omissions, and
subject to the Consultant's compliance with the foregoing
paragraphs, cease to be liable to maintain the Insurance unless and
until it subsequently becomes so available.
5.5 As and when it is reasonably requested to do so by or on behalf of the
Beneficiary, the Consultant shall deliver to the person making the request
documentary evidence that the Consultant is maintaining the Insurance.
5.6 The Consultant shall not knowingly do or omit any thing whereby the Policy
may become void or voidable.
5.7 The Consultant shall give notice to the Beneficiary of any claim arising
under the Policy relating to the Development.
5.8 The Consultant shall not, without the prior approval in writing of the
Beneficiary -
5.8.1 settle or compromise with the Insurers any claim which the
Consultant may have against the Insurers and which relates to a
claim by the Beneficiary against the Consultant; or
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5.8.2 by any act or omission lose or prejudice the Consultant's right to
make or proceed with its claim against the Insurers.
6. EXTENT OF CONSULTANT'S LIABILITY
6.1 The Consultant shall be liable to the Beneficiary for any breach of this
Agreement for which the Beneficiary or its insurers have submitted any
claim to the Consultant, or commenced any action or proceedings (including
adjudication or arbitration) against the Consultant, before the expiry of
twelve years after Practical Completion.
6.2 The Beneficiary shall after the expiry of twelve years from Practical
Completion commence no action or proceedings (including adjudication or
arbitration) against the Consultant for any breach of this Agreement,
except where the Beneficiary or its insurers have submitted any claim to
the Consultant for the breach before such expiry.
7. RELATIONSHIP BETWEEN CONSULTANT AND BENEFICIARY UNDER THE APPOINTMENT
7.1 For the avoidance of doubt -
7.1.1 the Beneficiary has no authority to issue any direction or
instruction to the Consultant in relation to the performance of the
Consultant's duties under the Appointment; and
7.1.2 the Beneficiary has no liability to the Consultant in respect of the
moneys payable to the Consultant under the Appointment.
8. NOTICES
8.1 Each party's Notice Address shall be any of the following addresses:
8.1.1 its address stated in the Particulars, unless it has notified some
other address to the party giving the relevant communication; or
8.1.2 such address (if any) as it may have last notified to the party
giving the relevant communication; or
8.1.3 if it is a corporation having a registered office, its registered
office; or
8.1.4 its principal business address for the time being.
8.2 Any notice or other communication to be given under this Agreement shall
be in writing and shall be duly given if it is addressed to the party to
whom it is to be given and sent or delivered to that party's Notice
Address either -
8.2.1 by hand; or
8.2.2 by registered post or recorded delivery, in which case it shall be
deemed to have been given 48 hours after being sent; or
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8.2.3 by facsimile transmission and by post, in which case it shall be
deemed to have been given on the date of delivery of a sufficiently
legible facsimile transmission or (if sooner) upon delivery of the
communication by post.
9. JURISDICTION
9.1 The construction, validity and performance of this Agreement shall be
governed by English law and the parties agree to submit to the
non-exclusive jurisdiction of the English courts.
10. INTERPRETATION
10.1 In this Agreement the following expressions shall where the context allows
have the meanings assigned to them:
10.1.1 Appointment: see recitals;
10.1.2 Beneficiary: see the Particulars;
10.1.3 Beneficiary's Address: see the Particulars;
10.1.4 Building Contract: see recitals;
10.1.5 Client: see the Particulars;
10.1.6 Consultant: see the Particulars;
10.1.7 Consultant's Address: see the Particulars;
10.1.8 Contractor: the person with whom the Developer enters into the
Building Contract, being the person (if any) named in the
Particulars;
10.1.9 Development: see the Particulars;
10.1.10 Documents: see clause 2.1;
10.1.11 Insurance: see recitals;
10.1.12 Insurers: see clause 5.1;
10.1.13 Interested Party: means any person who has acquired or agreed to
acquire, or who intends to acquire, the Beneficiary's interest in
the Premises;
10.1.14 Minimum Sum Insured: see the Particulars;
10.1.15 Notice Address: see clause 8.1;
10.1.16 Particulars: means the particulars at the start of this Agreement;
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10.1.17 Pay to be Paid Clause: means any term or condition to the effect
that the Consultant must discharge any liability before being
entitled to recover from the Insurers, or any other term or
condition which might adversely affect the rights of any person to
recover from the Insurers under the Third Parties (Rights Against
Insurers) ▇▇▇ ▇▇▇▇, or any amendment or re-enactment of it;
10.1.18 Policy: means the policy of the Insurance for the time being in
force;
10.1.19 Post-Completion Works: see clause 4.1;
10.1.20 Practical Completion: means the date of practical completion of
the Development under the Building Contract;
10.1.21 Premises: see the Particulars;
10.1.22 Property: see the Particulars.
10.2 Where the Consultant is a partnership, references in this Agreement to
"the Consultant" shall include every present and future partner of the
partnership, and the liability of each such partner under this Agreement
shall be joint and several.
IN WITNESS WHEREOF the Consultant has executed and delivered this document as a
deed the day and year first before written.
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SCHEDULE 1
TO CONSULTANT'S WARRANTY
Clause 1.1.2(a)
RESTRICTED MATERIALS
Part 1
The list (if any) of restricted materials contained in the Appointment shall
apply.
If no list of restricted materials is contained in the Appointment, the
following list shall apply:
1. High alumina cement in structural elements.
2. Wood wool slabs in permanent formwork to concrete.
3. Calcium chloride in admixtures for use in reinforced concrete.
4. Asbestos products.
5. Naturally occurring aggregates for use in reinforced concrete which do not
comply with British Standard 882:1992 and/or naturally occurring
aggregates for use in concrete which do not comply with British Standard
8110:1985.
Part 2
6. Any substance or method of use or incorporation which is or may reasonably
be suspected to be unstable, inadequate, dangerous or otherwise unsuitable
for building purposes or for the type of building or conditions for which
it is used, or which is in breach of statutory control, or which does not
conform to relevant British Standards or Codes of Practice current at the
date of specification.
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SIGNED and DELIVERED as )
a DEED by )
)
on behalf of )
the Consultant )
in the presence of: )
SIGNED and DELIVERED as )
a DEED by )
)
on behalf of )
the Consultant )
in the presence of: )
SIGNED and DELIVERED as )
a DEED by )
)
on behalf of )
the Consultant )
in the presence of: )
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SIGNED and DELIVERED as )
a DEED by )
)
on behalf of )
the Consultant )
in the presence of: )
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---------------------------
SIGNED for and on behalf of
WITTAYU REALTY LIMITED
---------------------------
SIGNED for and on behalf of
RAZORFISH LIMITED
---------------------------
SIGNED for and on behalf of
RAZORFISH
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M&F DRAFT
7/26/00
________,2000
Wittayu Realty Limited
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Re: Lease relating to ▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇,
dated as of _______, 2000, among Wittayu Realty Limited, Razorfish
Limited and Razorfish Inc.
Ladies and Gentlemen:
We have acted as counsel for Razorfish Inc., a Delaware corporation (the
"Company") in connection with the transactions contemplated by that certain
Lease (the "Lease") relating to ▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
(the "Premises"), dated as of _______, 2000, among Wittayu Realty Limited
("Landlord"), Razorfish Limited ("Razorfish Ltd.") and the Company.
We have examined originals or copies of the following documents (the
"Documents"):
(i) the Lease; and
(ii) Agreement for Lease (the "Agreement") relating to the Premises,
dated as of _______, 2000, among Landlord, Razorfish Ltd. and the Company.
In addition, we have examined such records, documents, certificates of
public officials and of the Company, including the Company's Certificate of
Incorporation and by-laws, made such inquiries of officials of the Company, and
considered such questions of law as we have deemed necessary for the purpose of
rendering the opinions set forth herein. We have made no independent
investigation as to whether such certificates are accurate or complete, but we
have no knowledge of any such inaccuracy or incompleteness.
Whenever our opinion herein with respect to the existence or absence of
facts is indicated to be based upon our knowledge, it is intended to signify
that, in the course of our representation
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Page Two
of the Company (in connection with the matter described in the first paragraph
hereof), we have not acquired actual knowledge of the existence or absence of
such facts. We have not undertaken any independent investigation to determine
the existence or absence of such facts, and no inference as to our knowledge of
the existence or absence of such facts should be drawn from the fact of our
representation of the Company.
Our opinion in paragraph (a) below as to the good standing of the Company
is based solely upon certificates of public officials in the state named in that
paragraph. We have made no independent investigation as to whether those
certificates are accurate or complete, but we have no knowledge of any such
inaccuracy or incompleteness.
Our opinion in paragraph (e) below is based on a review of those laws and
regulations which, in our experience, are normally applicable to transactions of
the type contemplated by the Documents.
We have assumed the genuineness of all signatures and the authenticity of
all items submitted to us as originals and the conformity with originals of all
items submitted to us as copies. We have also assumed that each party to the
Documents, other than the Company, has the power and authority to execute and
deliver, and to perform and observe the provisions of each Document to which it
is a party. We have assumed that each party to the Documents, other than the
Company, has duly authorized, executed and delivered each Document to which it
is a party and that such Documents constitute the valid and binding obligations
of such party. We have assumed that the transactions contemplated by the
Documents do not violate the public policy of any jurisdiction other than New
York having a substantial relationship to that transaction. We have also assumed
that no provision of the laws of England applicable to the Documents violates
the public policy of any jurisdiction having a substantial relationship to the
transactions contemplated by the Documents. We have also assumed that each
Document constitutes at the time of execution a valid and binding obligation of
Razorfish Ltd. enforceable against it in accordance with its terms.
The opinions hereinafter expressed are subject to the following further
qualifications and exceptions:
(1) The effect of bankruptcy, insolvency, reorganization, arrangement,
moratorium or other similar laws relating to or affecting the rights of
creditors generally, including, without limitation, laws relating to
fraudulent transfers or conveyances, preferences and equitable
subordination. Without limiting the generality of the foregoing
qualification, we advise you that, if the Company has not been given fair
or reasonably equivalent consideration for its agreement to guaranty the
obligations of Razorfish Ltd., and the Company is, or by executing the
Documents may become, insolvent, or will be rendered insolvent by the
transactions contemplated by the Documents, or, after giving effect to
such transactions, will be left with unreasonably small capital with which
to engage in its anticipated business, or will have intended to incur, or
will have believed it has incurred, debts beyond its ability to pay as
such debts mature, then the guaranty covenants may be voidable by
creditors of the
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Company or by a trustee or receiver of the Company in bankruptcy or
similar proceedings pursuant to bankruptcy, fraudulent conveyance or
similar laws.
(2) Limitations imposed by general principles of equity upon the
availability of equitable remedies or the enforcement of provisions of the
Documents, and the effect of judicial decisions which have held that
certain provisions are unenforceable where their enforcement would violate
the implied covenant of good faith and fair dealing, or would be
commercially unreasonable, or where their breach is not material.
(3) The effect on the opinions expressed herein on (A) the compliance or
non-compliance of any party to the Documents (other than the Company) with
any laws or regulations applicable to it, including without limitation,
any federal or state securities laws, or (B) the legal or regulatory
status or the nature of the business of any such party.
(4) The enforceability of provisions of the Documents providing for
indemnification or contribution, to the extent such indemnification or
contribution is unconscionable or against public policy.
(5) The enforceability of provisions of the Documents which purport to
establish evidentiary standards or to make determinations conclusive.
(6) We express no opinion as to the enforceability of provisions of the
Documents which purport to transfer rights under contracts, the transfer
of which is restricted by the terms thereof or by law.
(7) We express no opinion as to the enforceability of provisions of the
Documents which purport to establish evidentiary standards or to make
determinations conclusive or powers absolute.
(8) We express no opinion as to the enforceability of provisions of the
Documents which are construed as effectively imposing a penalty.
(9) The effect of judicial decisions which may permit the introduction of
extrinsic evidence to supplement the terms of the Documents or to aid in
the interpretation of the Documents.
(10) The effect of Sections 5301 et seq. of the New York Civil Practice
Law and Rules, which, in part, provide that a "foreign country judgment"
(as defined therein) shall not be conclusive and need not be recognized
if:
(a) the judgment was rendered under a system which does not
provide impartial tribunals or procedures compatible with the
requirements of due process of law;
(b) the foreign court did not have personal jurisdiction over the
defendant;
(c) the foreign court did not have jurisdiction over the subject
matter;
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(d) the defendant in the proceedings in the foreign court did not
receive notice of the proceedings in sufficient time to enable
him to defend;
(e) the judgment was obtained by fraud;
(f) the cause of action on which the judgment is based is
repugnant to the public policy of this state;
(g) the judgment conflicts with another final and conclusive
judgment;
(h) the proceeding in the foreign court was contrary to an
agreement between the parties under which the dispute in
question was to be settled otherwise than by proceedings in
that court; or
(i) in the case of jurisdiction based only on personal service,
the foreign court was a seriously inconvenient forum for the
trial of the action.
(11) We call to your attention that (a) effective enforcement of a claim
denominated in foreign currency may be limited by requirements that the
claim (or judgment in respect of such claim) be converted into United
States dollars at a rate of exchange prevailing on a specified date, and
(b) we express no opinion as to whether a court would award a judgment in
a currency other than U.S. dollars.
Based upon and subject to the foregoing, we are of the opinion that:
(a) The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
(b) The Company has the requisite corporate power and authority to execute
and deliver, and to perform and observe the provisions of, the Lease.
(c) The Lease has been duly authorized, executed and delivered by the
Company. The Lease constitutes the valid and binding obligation of the Company
enforceable against the Company in accordance with its terms.
(d) No registration with, consent or approval of, notice to, or other
action by, any United States governmental entity is required on the part of the
Company for the execution, delivery or performance by the Company of the Lease,
or if required, such registration has been made, such consent or approval has
been made, such consent or approval has been obtained, such notice has been
given or such other appropriate action has been taken.
(e) To our knowledge, the execution, delivery and performance of the Lease
by the Company will not (except as contemplated in the Lease) conflict with or
result in a violation of any provision of law, rule or regulation having
applicability to the Company in transactions such
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as those contemplated by the Lease or of the Certificate of Incorporation or
by-laws of the Company.
(f) The choice of English law to govern the Lease is valid and binding on
the Company.
(g) The submission by the Company under the terms of the Lease to the
non-exclusive jurisdiction of the courts of England is valid and binding on the
Company.
We express no opinion as to matters governed by any laws other than the
laws of the States of New York, the Delaware General Corporation Law and the
Federal laws of the United States of America, which are in effect on the date
hereof. We note that the parties to certain of the Documents have stated therein
their intention that the Documents are to governed by the laws of England. We
are licensed to practice law in the State of New York; therefore, with your
permission and without independent investigation, we have rendered the opinions
set forth herein as though the laws of England are the same in all relevant
respects as those of the State of New York. However, we draw your attention to
the fact that the laws of the State of New York may differ from those of England
with respect to guaranties, certain waivers of rights, remedies on default and
other matters relevant to the opinions expressed herein.
In addition, we express no opinion as to whether the courts of England
would accept jurisdiction to hear or determine any suit, action or proceeding,
or to settle any dispute, which may arise out of or in connection with any of
the Documents.
This opinion is given by us as counsel for the Company as of the date
hereof and we undertake no obligation, and hereby disclaim any obligation, to
update or supplement this opinion in respect to subsequent changes in the law or
future events affecting the transactions contemplated in the Documents.
This opinion is solely for your benefit and may not be relied upon by, nor
may copies be delivered to, any other person without our prior written consent.
Very truly yours,
153