EXECUTION COPY
EXHIBIT 10.16
SUBSCRIPTION AND EXCHANGE AGREEMENT
AMONG
RAZORFISH, INC.
SPRAY VENTURES AB
AND
COMMUNICADE INC.
DATED AS OF OCTOBER 1, 1998
DATED 23rd December 1998
LONDON CENTRAL MARKETS
THE MAYOR AND COMMONALTY AND
CITIZENS OF THE CITY OF LONDON
-and-
C.H.B.I RAZORFISH LIMITED
LEASE
-of-
Second Floor (Suite P)
West Meat Market Building
2 East Poultry Avenue
London Central Markets London ECI
Commencing 31st January 1999
Expiring 24th December 2008
RENT: Pounds 108,300 per annum (in advance)
(subject to review) plus additional
charges as within mentioned
(subject to determination)
THIS LEASE made the 23rd day of December 1998 BETWEEN THE MAYOR AND
COMMONALTY AND CITIZENS OF XXX XXXX XX XXXXXX xx Xxxxxxxxx Xxxxxx XX0X 0XX
(hereinafter called "the Landlords" which expression shall where the context so
requires or admits include the person or persons for the time being entitled to
the reversion immediately expectant on the determination of the term hereby
created) of the one part and the person or persons or Company named in Paragraph
1 of the Schedule hereto (hereinafter whether one or more persons called "the
Tenant" which expression shall include also the persons deriving title under the
Tenant where the context so requires or admits) of the other part
W I T N E S S E T H as follows:-
1. (1) WHENEVER the Tenant shall be more than one person the obligations of
the Tenant shall be deemed to be joint and several
(2) "the Wholesale Market" shall mean the land and buildings shown on the
plan deposited at the office of the Xxxxxxxxxxx and numbered 468/1
(hereinafter called "the deposited plan") forming the East and West
Meat Market Buildings and the Poultry Market Building of the London
Central Markets in the City of London or such other area as the
Landlords shall from time to time designate as being the Wholesale
Market
(3) (i) "the BUILDING" shall mean the West Meat Market Building forming
part of the Wholesale Market
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(ii) "Common Parts" shall mean those parts of the ground first and
second floor of the north and south wing of the Building not
exclusively demised or intended to be demised to tenants shown
coloured blue on the plans attached hereto
(4) (i) "the Xxxxxxxxxxx" shall mean the Town Clerk and Xxxxxxxxxxx to
the Landlords
(ii) "the Comptroller and City Solicitor" shall mean the Comptroller
of the Chamber and Bridge House Estates and City Solicitor
(iii) "the City Surveyor" shall mean the Surveyor to the Landlords
(iv) "the Clerk and Superintendent" shall mean the Clerk and
Superintendent of London Central Markets
(vi) "the Director of Technical Services" shall mean the Director of
Technical Services to the Landlords
(5) "the Byelaws" shall mean the Byelaws for the time being governing the
London Central Markets
(6) "the Committee" shall mean the Central Markets Committee for the time
being of the Landlords or such other Committee to which the Landlords
shall from time to time delegate the functions of the Wholesale Market
or any other authorised person or persons who may from time to time
exercise the functions of the Committee in respect thereof
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(7) "The Quarter Days" shall mean the 1st January 1st April 1st July and
1st October in each year
(8) "The Service Charge" shall mean the total cost each year of providing
the various services set out in Paragraph 5(C) of the Schedule hereto
(9) "Financial Year" shall mean the 1st day of April to the following 31st
day of March or such other dates as the Landlords shall specify
(10) "The Insured Perils" shall mean fire lightning explosion (including
terrorist activity) aricraft earthquake riot civil commotion storm
tempest flood and bursting of pipes leakage or overflow of water tanks
or apparatus impact by road vehicles and malicious damage and where
the context permits any other reasonable risks from time to time
covered by any insurance maintained by the Landlords in respect of the
Wholesale Market and loss of rent for three years or such period as
the Landlords shall reasonably require Provided Always that the
Landlords are able to obtain insurance cover for the insured perils
from a reputable insurance company
(11) "The Interest Rate" shall mean the base rate of Barclays Bank plc from
time to time or such comparable rate as the Landlords may from time to
time specify
(12) Reference to any officer of the Landlords shall be deemed to include
where the context so admits any person for the time being appointed
for the purpose of the Officer's functions hereunder
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(13) Reference to a statute shall refer to the statute as amended at the
date of this lease and shall include any subsequent statutory
amendment or re-enactment thereof
(14) "Normal Business hours" shall mean 8.30 a.m to 6.30 p.m Monday to
Friday inclusive in each week excluding Bank Holidays
2. THE Landlords hereby demise unto the Tenant ALL THOSE premises described
in Paragraph 2 of the Schedule (hereinafter called "the Premises") together with
the rights set out in Paragraph 2(B) of the Schedule EXCEPT AND RESERVING to the
Landlords the easements and rights specified in Paragraph 3 of the Schedule to
hold the Premises for the term specified in Paragraph 4 of the Schedule and
paying on and from the start date of the term of this Lease the rent as set out
in paragraphs 5(A) and 5(B) of the Schedule hereto
All rent to be payable quarterly in advance at the office of the Clerk and
Superintendent or at the office of such other person as may be appointed by the
Landlords and notified to the Tenant by four equal payments on the Quarter Days
ALSO yielding and paying unto the Landlords at the office of the Clerk and
Superintendent or at the office of such other person as may be appointed by the
Landlords and notified to the Tenant with effect on and from the date hereof
(1) a charge for any additional works carried out to the Premises by the
Landlords at the request of the Tenant provided that the whole of any
such charge shall be payable within 14 days of receiving written
request for payment
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(2) on account hereof by way of Service Charge such sum or such other sums as
shall be in the opinion of the Landlords a fair and proper percentage or
percentages of the cost of providing the services specified in Paragraph
5(C) of the Schedule hereto being estimated Service Charge for the
following Financial Year calculated by the Clerk and Superintendent in a
sum which shall be a proper and reasonable estimate of what the annual
expenditure is likely to be Together with if required by the Landlords such
sum as shall be a reasonable part of all other expenditure hereinbefore
described which is of a periodically recurring nature (whether recurring by
regular or irregular periods) whenever disbursed incurred or made and
whether prior to the commencement of the term or otherwise including a sum
or sums of money by way of reasonable provision for anticipated expenditure
in respect thereof as the Clerk and Superintendent may in his discretion
allocate to the period in question as being fair and reasonable in the
circumstances PROVIDED THAT:-
(i) the percentage or percentages may from time to time vary to represent
the proportion fairly and properly attributable to the Premises in
relation to the Building (in accordance with good estate management
principles)
(ii) if the actual Service Charge for any Financial Year shall exceed the
provisional sum collected for that Financial Year
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the proportion of the excess fairly and properly attributable to the
Premises shall be due to the Landlords on demand
(iii) if the actual Service Charge for any Financial Year shall be less
than such provisional sum collected the overpayment shall be
credited to the Tenant against the next quarterly payment of the
Service Charge except in respect of the final year of the term when
unless this Lease is being renewed it shall be refunded to the
Tenant
(3) The cost of insuring the Premises against the Insured Perils being a fair
and proper percentage of the cost to the Landlord of insurance and any
increased or additional premiums payable in respect of the whole or any
part of the Building as a result of the use of the Premises by the Tenant
or any person occupying the Premises with the consent or by the sufferance
of the Tenant
(4) Until such time as the Premises shall be separately metered and charged by
the appropriate undertaker quarterly in arrears on demand on the Quarter
Days a fair and proper electricity charge for current used at the Premises
by the Tenant
AND PROVIDED FURTHER that such sums as are prescribed by sub-clause (1) (2) and
(3) hereof shall be recoverable by action or distress in the same manner as for
rent in arrears
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3. THE Certificate of the Xxxxxxxxxxx and the Clerk and Superintendent shall
be conclusive as to the amount actually spent of any of the charges mentioned in
Clause 2 hereof (save for manifest error)
4. THE Tenant HEREBY covenants with the landlords that the Tenant:-
(1) WILL pay the said yearly rents and other sums hereinbefore mentioned on the
days and in the manner hereinbefore appointed for payment thereof
(2) WILL pay on demand the proportion properly attributable to the Premises of
all rates not included in the service charge taxes including value added tax and
other impositions whether local or parliamentary which shall from time to time
become payable in respect of the Premises or of any property of which the
Premises form part such proportion to be determined from time to time by the
Xxxxxxxxxxx and the Clerk and Superintendent acting fairly and properly and in
accordance with good estate management principles (except tax payable by the
Landlords in respect of rents and other payments arising under this Lease or tax
payable by the Landlords as a result of any dealing with any reversion
immediately or mediately expectant on the tenancy hereby created) and once
separately assessed will pay the Uniform Business Rates and all other taxes
rates charges assessments duties outgoings Value Added Tax and impositions
whatsoever parliamentary municipal and parochial which now are or at any time
during the term shall be charged assessed or imposed upon the Premises or upon
the landlord or tenant thereof in respect of the same whether newly or by way of
increase and whether any such future taxes rates charges assessments duties
outgoings or impositions shall or shall
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not be in the nature of those now in being (except income tax deductible by the
Tenant under any statutory provision for the time being in force)
(3) WILL at all times observe obey and comply with
(i) any statutory requirements and byelaws including all laws rules orders
or regulations or directives which may from time to time be made and
affect the Premises and will indemnify the Landlords against all
claims costs losses demands or damages which may become payable as a
result of the breach by the Tenant or its employee or employees
servants or licenses of such laws rules orders or regulations or
directives or byelaws and
(ii) the proper and reasonable directors of the Clerk and Superintendent in
relation to the matters set out in sub-clause (i) hereof AND
particularly and without prejudice to the generality of the foregoing
provisions of this sub-clause will at the expense of the Tenant do and
execute all of such works as under or by virtue of any Act of
Parliament or regulation or directive of the European Community for
the time being in force shall be required to be done or executed upon
the Premises whether by the landlord or by the tenant thereof save to
the extent that the Landlords covenant to provide the relevant
services or to carry out any such works set out in Paragraph 5(C) of
the Schedule hereto.
(4) WILL during the term at the Tenant's own cost (other than during such
period as the relevant items are covered under any guarantee period):-
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(i) Keep the Premises together with the entrance doors in good and
substantial repair and decoration in such colours and materials as
may be reasonably required by the City Surveyor (damage by the
Insured Perils excepted to the extent that the insurance money shall
not have been irrecoverable because of some act or default of the
Tenant its servants or authorised agents) but excluding any work
which may be required to remedy inherent defects or faults arising
from the works of refurbishment carried out by the Landlords
(ii) Replace all fixtures and fittings that may be cracked or broken or
beyond repair with items of equal standard and quality and pay the
cost of replacement or reglazing of any window glass that may be
broken or cracked (damage by the Insured Perils excepted)
(iii) Make good to the reasonable satisfaction of the Landlords all damage
occurring to the Premises or to the Building or any part thereof
caused wilfully or by negligence on the part of the Tenant or its
servants or authorised agents save to the extent that the Landlords
as the insured party under its insurance against the Insured Perils
are compensated by any policy in force and excluding any works
required to remedy inherent defects or faults as set out in sub-
clause (a) above
(iv) Keep the Premises in a proper tidy clean and sanitary condition
(v) Keep in repair and maintain the electrical installation including all
switchgear and services exclusively serving the Premises and will
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not carry out any electrical work or any alteration to the said
electrical installation switchgear and services without the previous
consent in writing of the Landlords which shall not be unreasonably
withheld or delayed PROVIDED that the Tenant shall at all times comply
with the current edition of the regulations for electrical equipment
of buildings as published by the Institution of Electrical Engineers
(vi) Carpet the Premises with good quality carpet to the reasonable
satisfaction of the City Surveyor within 6 weeks of the date hereof
(5) WILL permit the Landlords their representatives and others authorised by
them with or without workmen and others at all reasonable times after making
prior appointment for that purpose except in cases of emergency to enter upon
the Premises for the purpose of examining into the state and condition and user
thereof PROVIDED that all reasonable steps shall be taken by the persons
exercising such right so as to minimise disruption to the Tenant and in case any
defect or want of reparation shall appear for which the Tenant is liable
hereunder the Tenant will upon notice thereof in writing being given to the
Tenant or left upon the Premises cause the same to be repaired in compliance
with the aforesaid covenants within three months of the date of such notice or
within such other reasonable period as may be agreed between the parties and
will pay all architects and/or surveyors and/or legal fees properly and
reasonably incurred in respect of any such notice as aforesaid PROVIDED THAT in
case of default it shall be lawful for the workmen or agents of the Landlords
(without prejudice to their right of re-entry) to enter the
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Premises and execute such works of repair or remediation as appropriate and all
costs and expenses incurred in relation thereto shall be a debt payable on
demand by the Tenant to the Landlords and shall be recoverable as if the same
were rent in arrears together with interest thereon calculated at the rate of
four per centum (4%) above the Interest Rate calculated on a daily basis with
rests on the Quarter Days for the whole period from the date of expenditure
until the date of payment to the Landlords (whether before or after any
judgement) AND will permit the agents or workmen engaged or authorised by the
Landlords to enter and remain upon the Premises at all reasonable times after
making prior appointment for such purpose except in cases of emergency so far as
may be necessary or useful in order to carry out any works or repairs to the
Premises or electrical conduits air conditioning plant and equipment adjoining
or passing through over or under the same for which the Landlords may be liable
or desire to carry out or to repair or rebuild any adjoining or contiguous
premises belonging to the Landlords including the installation of any new
services in the electrical conduits pipes wires ducts or other conducting media
pipes wires ducts or other conducting media adjoining or passing through over or
under the Premises or to cleanse empty replace or repair any of the sewers
drains or gutters or other conducting media belonging to the same or to carry
out any works in connection with matters referred to in Paragraph 5(C) of the
Schedule hereto the persons exercising the right doing as little damage as
possible causing as little nuisance and interference to the Tenants' business as
may be possible and making good all damage to the Premises or any chattels
thereon occasioned by the exercise of such right but without payment of
compensation for any annoyance nuisance
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damage noise vibration or inconvenience caused to the Tenant in connection with
the use by the Tenant of the Premises And also that in the event of any dispute
or controversy may at any time or times arise between the Tenant and the tenants
or occupiers of any adjoining or contiguous premises belonging to the Landlords
relating to the said sewers drains gutters or other conducting media or to any
easements or privileges whatsoever affecting or relating to the Premises or any
adjoining or contiguous premises belonging to the Landlords the same shall from
time to time be settled and determined by the Landlords in such manner as they
shall direct to which determination the Tenant shall from time to time submit
(6) WILL at the end or sooner determination of the term deliver up
peaceable and quiet possession of the Premises to the Landlords in the state and
condition in which they should be in accordance with the provisions hereof to
the satisfaction of the City Surveyor and if required by the Landlords with all
additions and alterations removed with the removal thereof being made good so
that the Premises are restored and reinstated to the condition that they were in
before the alteration or addition was made
(7) WILL not carry on or permit to be carried on upon the Premises or any
part thereof the business to be carried on thereon in a noisy noisome offensive
or dangerous manner or do or permit to suffer to be done in or upon the Premises
or any part thereof any act matter or thing which may in the reasonable opinion
of the Landlords be or grow to be or become a nuisance or an annoyance to or to
the prejudice of the Landlords their tenants or lessees or to the owners lessees
or occupiers for the time being of any premises in the neighbourhood
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(8) WILL not use the Premises otherwise than as set out in paragraph 6 of the
Schedule hereto
(9) WILL not make any material change in the use of the Premises nor make any
application under the Town and Country Planning Xxx 0000 to any local planning
authority for permission for any change of use of the Premises without the
Landlord's consent which shall not be unreasonably withheld or delayed
(10) WILL not permit or suffer any person other than and except the Tenant or an
associated company of the Tenant (as defined by Section 42(1) of the Landlord
and Tenant Act 1954) or a related company of the Tenant (as defined by Section
736 of the Companies Act 1985) to occupy or use the Premises Provided Always
that any such occupation shall not create the relationship of landlord and
tenant
(11) (i) In this Clause 4(11) the following definitions shall apply;-
"permitted assignment" means an assignment of the whole of the
Premises
"permitted underletting" means an underletting of the whole of the
Premises or the whole of either or both of the individual suites
compromised in the Premises
(ii) Will not at any time during the term by any ways or means whatsoever
(except by testamentary disposition) assign underlet share or part
with possession or occupation of the Premises or any part thereof or
any interest therein for all or any part of the term except by way of
a permitted assignment or a permitted underletting and then only with
the Licence in writing of the Landlords first
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obtained and paying the reasonable and proper costs of the Comptroller and City
Solicitor therefor such Licence not to be unreasonably withheld or delayed and
otherwise in accordance with the following provisions:-
(a) Prior to any permitted assignment will procure that the assignee enters
into direct covenants with the Landlords to perform and observe all the
tenant covenants of this tenancy as defined in the Landlord and Tenant
(Covenants) Xxx 0000 ("the tenant covenants" and the "the 1995 Act"
respectively) during the residue of the term or until the assignee is
released from such performance and observance in accordance with the 1995
Act
(b) Prior to any permitted assignment will enter into an authorised guarantee
agreement (as defined in Section 16 of the 0000 Xxx) in such form as the
Landlords may reasonably require under which:-
(i) The Tenant agrees to be liable as sole or principal debtor in respect
of each of the tenant covenants to the extent that and for so long as
the assignee has any liability therefor
(ii) the Tenant guarantees the assignee's performance of those covenants
for so long as the assignee has any liability therefor
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(iii) The Tenant agrees that in the event of this Lease being
disclaimed it will enter into a new Lease whose term
expires no later than the term of this Lease and whose
tenant covenants are no more onerous than those under
this Lease
(iv) the Tenant enters into other provisions incidental or
supplementary to any provisions made by virtue of
paragraphs (i) to (iii) of this Clause 4(11)(ii)(b)
(c) If the Tenant desires to assign the Premises to a limited company
the Landlords shall be entitled (in addition to imposing such
other reasonable requirements or conditions as may be
appropriate) to require one or two directors of such company or
its parent company or some other person or persons reasonably
acceptable to the Landlords to join in the Licence to Assign as
guarantors and to covenant with the Landlords in such term as the
Landlords reasonably require and the Tenant shall procure that
the guarantors so covenant
(d) If at a time when an application for the Landlords' Licence or
consent to an assignment of the premises is made there exists any
material breach of any of the tenant covenants the Tenant shall
(if the Landlords reasonably so require) remedy such breach of
covenant to the reasonable satisfaction of the
15
Landlords before the Tenant shall be permitted to complete
the proposed assignment
(iii) Will not enter into a permitted underletting otherwise
than by means of an underlease which complies with the
provisions of Clause 4(11)(iv) granted at a full open
market rent without any fine or premium being taken
(iv) In any permitted underletting referred to in Clause
4(11)(i):
(a) such underlease shall contain the same provisions as
those contained in this Lease save as to rent with
such amendments as may be approved in writing by the
Landlords
(b) the rent reserved by such underlease shall not be
payable more than three months in advance
(c) if the term of the underlease shall extend beyond a
date upon which the yearly rent payable under this
Lease is to be reviewed such underlease shall contain
provisions for the upwards only review of rent to
take effect at the same intervals on the same dates
as those provided in this Lease and on like terms
(d) no underlessee shall have the right to underlet hold
on trust share or part with the possession or
occupation of the whole or any part of the premises
contained in such underlease (or to assign or charge
part only of the said premises) but shall
16
have only the right (with the prior consent in writing of the
Landlords) to assign or charge the whole of the premises
contained in such underlease
(e) the Tenant shall not demise any part of the structure or common
parts of the Premises and such underlease shall contain
provisions for a service charge under which the underlessee is
liable to pay a fair proportion of the cost of repairing the
structure and common parts and of other services provided in
connection with the Premises
(v) Will procure that the operation of the Landlord and Xxxxxx Xxx 0000
Sections 24-28 (inclusive) is excluded in relation to the tenancy
created by each and every permitted underletting and will produce to
the Landlords before the grant of any such tenancy an Order of the
Court authorising an agreement between the parties to such tenancy
excluding the operation of the said Sections from such tenancy
(vi) Will within one month next after the making thereof without any demand
by the Landlords produce for registration at the office of the
Comptroller and City Solicitor a certified copy of all assignments
underleases (or the counterparts thereof) mortgages charges by way of
legal mortgage probates of xxxxx letters of administration and other
dispositions which shall be made of the Premises and leave the same
with him for that purpose and shall pay the reasonable costs of
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the Comptroller and City Solicitor for the registration of every
such disposition
(vii) Will not release or waive any of the covenants set out in Clause
4(11)(iii) and (iv) but will use all reasonable endeavours to
enforce the performance thereof by every such underlessee and the
persons deriving title under him
(12) WILL not at any time during the term cut injure alter or divide the
Premises or any part thereof or unite or annex the Premises or any part thereof
to any premises adjoining without the consent of the Landlords PROVIDED THAT the
Tenant may carry out the works detailed in the schedule and plans annexed at the
end of this Lease ("the Works") (but for the avoidance of doubt not the
installation of a shower) provided that the Tenant
(i) provides full details of the Works to the Director and obtains his
prior written approval to the materials method and detail of
construction and any connection into any of the services within the
Building
(ii) carried out the Works in accordance with any conditions imposed in
such consent
(iii) obtains supplies and complies with any other consent(s) necessary in
order to carry out the Works and
(iv) if required by the Landlords at the end or sooner determination of
the term hereby granted at the Lessee's cost removes the Works and
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makes good any damage caused by such removal to the satisfaction of
the Director
(13) WILL not permit any sale by auction to be held upon the Premises or any
part thereof without the written consent of the Landlords
(14) WILL not by building or otherwise stop or obstruct any access of light as
enjoyed in fact by any premises the estate or interest whereof in possession or
reversion now is or hereafter may be in the Landlords or in any person in trust
for them not knowingly permit any new window light opening doorway path passage
drain or other encroachment right or easement to be made or acquired into
against or upon the Premises which might be or grow to the damage annoyance or
inconvenience to the Landlords their tenants or other occupiers or users of the
Wholesale Market And in case any such window light opening doorway path passage
drain or other encroachment shall be made or attempted to be made or any such
right or easement attempted to be acquired the Tenant upon being aware of an
encroachment and/or easement shall give notice to the Landlords and will at the
request of the Landlords and at the Landlord's cost adopt such means as may be
reasonably required or deemed proper for preventing any such encroachment or the
acquisition of any such easement
(15) WILL not suffer the Premises or any part thereof to be used for the
purpose of any exhibition of pictures or views or other things or any kind of
show or spectacle to which admission shall be by payment or where although no
payment be asked for admission to the Premises any kind of payment or fee shall
be charged or demanded after admission has been obtained or where the purchase
of any article is
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made a condition of such admission but this agreement is not to limit prejudice
or affect any other agreement condition or stipulation herein contained
(16) WILL not at any time during the term affix or exhibit or permit to be
affixed or exhibited upon any part of the Premises any sign notice placard or
advertisement without the prior consent of the Clerk and Superintendent
(17) WILL not so far as the Landlord and Xxxxxx Xxx 0000 permits agreement
excluding the right of the Tenant to claim compensation make any claim for
compensation under the provisions of the said Act on the determination of the
tenancy
(18) (i) Will not without the prior written approval of the Clerk and
Superintendent whose approvals shall not be unreasonably withheld
or delayed remove from or bring into the Premises via the front
entrance hall any furniture or heavy or bulky goods between the
hours of 5.00 p.m and 9.00 a.m and will not install safes and
or heavy articles except as and where approved by the Landlords
whose approvals shall not be unreasonably withheld or delayed
(ii) Will only bring furniture bulky or heavy goods into the Premises
between the hours of 9.30 am to 3.30 pm
(iii) Will not without the prior consent of the Clerk and
Superintendent whose approvals shall not be unreasonably withheld
or delayed use the passenger lifts for the carrying of furniture
bulky or heavy goods
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(19) WILL not permit any goods to remain in or adjacent to the entrance to the
Building or Wholesale Market or upon the lifts or upon any other part of the
Building or Wholesale Market used in common with other occupiers thereof
(20 SAVE where the Tenant has expressed a willingness to remain in the Premises
by service of the appropriate statutory notice or counternotice will permit the
Landlords at any time during the three months immediately preceding the
determination of the term to enter upon the Premises and affix and retain
without interference upon any part thereof a notice for reletting or selling
the same which does not obstruct the Tenant's enjoyment or use of the Premises
AND WILL permit all persons with authority from the Landlords on giving
reasonable prior notice and at all reasonable times during the day-time to enter
and view the Premises or any part thereof
(21) WILL pay all proper and reasonable costs charges and expenses (including
Solicitors' costs and Surveyors' fees) properly incurred by the Landlords for
the purpose of or incidental to
(i) the preparation and service of a notice under Section 146 of the Law
of Property Xxx 0000 requiring the Tenant to remedy a breach of any
of the agreements conditions and stipulations herein contained
notwithstanding that forfeiture for such breach shall be avoided
otherwise than by relief granted by the Court PROVIDED that before
serving any such Notice as aforesaid upon the Tenant the Landlords
shall advise the Tenant in writing of their intention to serve such
Notice specifying the particular clause or clauses in
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respect of which the breach or non-performance is alleged
and no such costs charges and expenses as aforesaid shall
be payable by the Tenant unless the Tenant shall
thereafter make default
(a) in commencing the works or other step necessary to
remedy such breach or non-performance within two
calendar months or such other reasonable period as
may be agreed or
(b) in proceeding to complete such works or other step
with due diligence
(ii) in preparing a Schedule of Dilapidations recording breaches
of the Tenant's covenant to yield up the Premises in repair
and decoration at the termination of the term hereby
granted
(22) WILL if the rent or additional rent or any part thereof or any
payment due under this Lease or any part thereof (whether formally
demanded or not) shall be in arrear and unpaid for twenty one days
after the date upon which the same ought to have been paid pay
interest to the Landlords upon the sum of money owing calculated at
the rate of four per centum (4%) above the Interest Rate calculated on
a daily basis with rests on the Quarter Days for the whole period from
the date upon which such sum ought to have been paid until the date of
payment (whether before or after any judgment) Nothing in this clause
entitles the Tenant to withhold or delay any payment or affects the
rights of the Landlords in relation to non-payment
5. PROVIDED ALWAYS and it is hereby agreed and declared as follows:-
(1) If the yearly rent and other sums payable hereunder or any part
thereof shall be in arrear for fourteen days after the same shall
have become due whether
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the same shall have been legally demanded or not or if the Tenant shall
fail to observe or perform any of the agreements conditions and
stipulations herein contained on the part of the Tenant to be observed and
performed or if the Tenant not being a limited company shall become
bankrupt or enter into any composition or arrangement for the benefit of
creditors or being a limited company shall enter into liquidation whether
compulsory or voluntary (save for the purposes of reconstructions or
amalgamation) or if the Tenant shall suffer any distress or execution to be
levied on his or their goods on the Premises then and in any or either of
the said cases it shall be lawful for the Landlords to re-enter upon the
Premises or any part thereof in the name of the whole and to repossess and
enjoy the same as in their former estate
(2) The Premises are demised to the Tenant and this Lease is made subject and
without prejudice to all such rights and privileges as the Tenant and all
persons resorting to the Wholesale Market may have under the provisions of
all or any of the Acts of Parliament relative to or concerning the
Wholesale Market or otherwise
(3) Nothing herein contained or implied shall impose or be deemed to impose any
restriction on the use of any land or buildings not comprised in this Lease
or give the Tenant the benefit of or the right to enforce or to have
enforced or to prevent the release or modification of any covenant
agreement or condition entered into by any purchaser from or any lessee
tenant or occupier of the Landlords in respect of property not comprised in
23
this Lease or to prevent or restrict in any way the development of any land
not comprised in this Lease
(4) Section 23 of the Landlord and Xxxxxx Xxx 0000 shall apply to all notices
required to be served hereunder
(5) The Landlords shall not be liable to the Tenant in respect of any claims
arising from the breakdown from any cause whatsoever of any water cooling
or heating or air conditioning and ancillary apparatus from any cause
outside the reasonable control of the Landlords acting as Landlords and not
as a public authority save to the extent that such loss injury or damage is
covered by the Insured Perils
(6) (i) if the Tenant wishes to determine this Lease on the 25th day of
December 2003 and gives to the Landlords not less than six months
previous notice in writing then on the expiration of such notice
provided that there are no outstanding material breaches of covenant
on the part of the Tenant this Lease and the term shall cease and
determine but without prejudice to any rights and remedies that may
have accrued to either party against the other PROVIDED THAT time
shall be of the essence in respect of the serving of such notice
(ii) within 4 weeks of such notice the Landlords shall inspect the
Premises and notify the Tenant in writing whether or not there are
any outstanding material breaches of covenant on the part of the
Tenant under this Lease
24
(iii) if the Landlords fail to notify the Tenant within the said 4 week
period then the Tenant shall have the right at its own cost to request
the appointment by the President of the RICS for the time being of an
independent expert who shall be deemed to act jointly for the
Landlords and the Tenant and who shall determine whether there are any
outstanding material breeches of covenant on the part of the Tenant
(iv) the Tenant shall act with due diligence on any notification from the
Landlords or on the findings of the independent expert (as
appropriate) and shall remedy any identified material breaches of
covenant forthwith and the Landlords or the independent expert (as
appropriate) shall reinspect the Premises on completion of such works
and confirm in writing whether or not the Tenant has remedied any
relevant material breaches of covenant PROVIDED THAT on expiry of the
said notice the Tenant shall leave the Premises in no worse condition
than as required either to comply with the notification from the
Landlords or as deemed necessary by the independent expert to comply
with the terms of the Lease
(v) for the avoidance of doubt the provisions of Clauses 5(6)(ii) to (iv)
relate only to the validity of a notice pursuant to Clause 5(6)(i) and
do not affect the rights of either party against the other in respect
of any breach of any covenant contained within this Lease
6. THE Landlords hereby covenant with the Tenant that:-
25
(1) the Landlords will subject to the proviso in Clause 1(10) hereof insure
and keep insured at all times during the term of the lease at a valuation
of not less than that recommended by the City Surveyor to be the full
reinstatement value thereof (acting reasonably and in accordance with good
estate management principles) the buildings comprised in the Wholesale
Market and all additions thereto and any landlords' fixtures of an
insurable nature against loss or damage by the Insured Perils (subject to
obtaining insurance cover for the same from a reputable insurance office)
TOGETHER WITH fifteen per centum of the amount of such valuation for
architects' and others fees in relation to the reinstatement of the
Wholesale Market and three years loss of rent and the Tenant will accept
the Certificate of the Xxxxxxxxxxx that insurance in such form has been
effected and is in force In case the Premises or any part thereof or
access thereto shall from time to time be destroyed or damaged by any of
the Insured Perils then as often as the same shall happen the Landlords
will with all due diligence take such steps as may be requisite and proper
to obtain any and all necessary planning consents building licences and
permits under any regulations or enactments for the time being in force to
enable the Landlords to rebuild and reinstate the same and will as soon
as such consents licences and permits have been obtained rebuild reinstate
replace and make good the same free of expense to the Tenant PROVIDED
ALWAYS that if for any reason other than the fault of the Landlords the
obligation on their part hereinbefore contained to rebuild or otherwise
make
26
good such destruction or damage as aforesaid becomes impossible of
performance within three years commencing on the date of damage or
destruction to the Premises the said obligation shall thereupon be deemed
to have been discharged and the Landlords shall stand possessed of all
moneys paid to them under any by virtue of the policy of insurance
hereinbefore required to be maintained upon trust to pay to the Tenant
such portion (if any) of the said moneys as may be agreed in writing
between the Landlords and the Tenant or in default of agreement as
aforesaid as shall be determined by a Surveyor appointed by the President
for the time being of the Royal Institution of Chartered Surveyors upon
the request of the Landlords or the Tenant to be fair and reasonable
having regard only to the relative values of the respective interests of
the Landlords and the Tenant in the Premises immediately before the
occurrence of the said destruction or damage and it is hereby declared
that any such determination as aforesaid shall be deemed to be made by the
said Surveyor as an expert and not as an arbitrator and that in such an
event this Lease will cease and absolutely determine but without prejudice
to the rights of either party in respect of any antecedent breach hereof
(2) the Landlords will use all reasonable endeavours promptly and efficiently
unless prevented by strikes lock-outs or matters outside the Landlords'
control to perform the services in as reasonable and diligent fashion as
possible PROVIDED THAT the Landlords shall not be liable to the Tenant in
respect of any loss damage or inconvenience occasioned by the failure or
27
breakdown at any time or times in respect of water electricity gas
fuel or other supplies or by any breakdown bursting stopping leak or
defect in the pipes or apparatus connected thereto caused for any
reason other than the default of the Landlord nor shall the Landlords
be obliged to provide the services outside Normal Business Hours
(3) the Tenant duly paying the said rent and other sums hereinbefore
mentioned and performing and observing the agreements conditions and
stipulations on the part of the Tenant hereinbefore contained may
peaceably hold and enjoy the Premises during the term without any
interruption by the Landlords or any person claiming through under or
in trust for them
(4) if during the term the Premises or any part thereof or the Common
Parts or the means of access thereto shall be destroyed or damaged by
any of the Insured Perils so as to be unfit for occupation and use by
the Tenant than (if the insurance effected by the Landlords pursuant
to the terms of this Lease shall not have been vitiated or prejudiced
by some act or default of the Tenant in its obligations under the
terms of this Lease) the said rent and other sums payable hereunder or
a fair proportion thereof according to the nature and extent of the
destruction or damage sustained shall as from the date of such
destruction or damage and until the Premises the Common Parts and/or
the means of access thereto shall have been completely rebuilt or
reinstated (so as to be fit for occupation and use as aforesaid) be
suspended and cease to be payable and any dispute as to the extent
proportion or period of such suspension shall be determined by an
arbitrator
28
to be agreed by both parties or failing agreement by two arbitrators (one
nominated by each party) or by the umpire appointed by such arbitrators
before proceeding with the reference under and in accordance with the
provisions of the Arbitration Xxx 0000
(5) The Landlords shall at their own expense remedy to the reasonable
satisfaction of the Tenant any latent or inherent defects in the Building
and any disrepair to the Building caused directly or indirectly by any such
latent or inherent defects
7. IF any dispute or difference shall arise between the Landlords and the
Tenant hereto as to their respective rights duties or obligations hereunder or
method or manner of performance thereof then (unless provision has been made
elsewhere in this Lease for settlement of the same and subject to the
jurisdiction of any Court of Law) such dispute or difference shall be referred
to the decision of a single arbitrator to be agreed between the Landlords and
Tenant or in default of agreement to be nominated upon the application of either
party to the President for the time being of the RICS (who shall be requested to
nominate a person with wide experience of the type of matter in dispute) and
every such arbitrator shall act under and pursuant to the provisions of the
Arbitration Xxx 0000
8. NOTHING herein contained (and in particular none of the provisions of
Clause 6(3) hereof) shall be deemed in any way to waive diminish or affect any
existing or future powers and duties of the Landlords in relation to the
Premises in any capacity other than their capacity as owners of the revision
expectant on the determination of the Lease
29
9. ANY sums from time to time payable to the Landlords under the provisions
of this Lease are exclusive of Value Added Tax and the Tenant will on production
of a suitable and valid V.A.T. invoice pay any Value Added Tax which may be or
become payable in respect of any such sum
10. BY executing this Lease the parties hereto certify that there is no
Agreement for Lease to which this Lease gives effect
11. THIS Lease is a New Lease under the 1995 Act
IN WITNESS whereof the Landlords and the Tenant have executed this Lease
as a Deed and delivered it the day and year first above written
THE SCHEDULE
------------
1.A Tenant: C.H.B.I. RAZORFISH LIMITED (registered in England No.
3016034) whose registered office is at Carmelite 50 Victoria Embankment
Xxxxxx XX0X ODY
2. Premises:
(A) ALL THOSE Offices known as Suite P situate on the second
floor of the south block of the Building shown coloured pink on the
attached plan which for the avoidance of doubt shall include the plaster
surfaces of the walls the raised floor system the underfloor trunking
and power distribution system and the void above the floor slab the
suspended ceilings and lighting and the void beneath the structural
ceiling slab but excluding therefrom the Landlords air-conditioning
equipment and conduits and other services which may pass through the
Premises but which do no exclusively serve the Premises
30
(B) Together with the following rights:
(i) The right in common with all others having the like
right to pass to and from the Premises and lavatories
and other communal facilities within the south block of
the Building over and along and through the relevant
common parts
(ii) to use the lavatories above referred to subject to any
reasonable rules which may be made by the Landlords as
to the appropriation of parts thereof for exclusive use
by ladies or gentlemen
(iii) of passage in the lifts situate in the Building during
Normal Business Hours in common with all others having
the like right and for the goods of the Tenant for the
purpose of gaining access to and from the Premises and
lavatories subject to any reasonable rules which may be
made by the Landlords for the operation of the said
lifts Provided always that the Landlords shall not be
responsible to any person using the said lifts for any
neglect or default of any servant or agent of the
Landlords in the operation of the said lifts or for any
loss damage or injury resulting therefrom or for any
interruption of the working of the said lifts for the
purpose of carrying our repairs or owing to a breakdown
strike lock-out shortage of fuel or labour or other
cause beyond the control of the Landlords
(iv) the right to place (at the cost and expense of the
Tenant) a name plate on the entrance board provided by
the Landlords in the ground
31
floor entrance to the Building and on the entrance door
to the Premises Such name to be displayed in a type
design material and colour to match existing names and
to the satisfaction of the City Surveyor
(v) The right (in common with all others having a like
right) of passage and running of water and soil gas
electricity telephone or other services or supplies from
and to the Premises through such of the sewers drains
conduits gutters watercourses pipes cables wires and
mains serving the Premises which now are or hereafter
during the tenancy may be in on or under adjoining
premises belonging to the Landlords Provided that the
foregoing shall not imply any right permitting the
Tenant to place in on or under such adjoining premises
any sewers drains conduits gutters watercourses pipes
cables wires or mains except such of the same and in
such position as may be approved by the City Surveyor
whose approval shall not be unreasonably withheld or
delayed
(vi) The right for the Tenant with the servants agents
contractors and workmen of the Tenant so far as may be
necessary at all reasonable times to enter on such
adjoining premises of the Landlords if authorised in
writing by the Landlords so to do save in case of an
emergency and in any event such consent not to be
unreasonably withheld for the purpose of connecting
laying repairing cleansing maintaining and amending such
sewers drains conduits gutters
32
watercourses pipes cables wires and mains and
for the purpose of undertaking any permitted
works additions and alterations to the Premises
the Tenant doing as little damage as possible
and making good all damage occasioned by the
exercise of such right but without payment of
compensation for any annoyance nuisance damage
noise vibration or inconvenience caused to the
lessees or tenants of such adjoining premises in
connection with their use thereof
(vii) The right of support and protection from the
remainder of the Building
3. Exceptions and Reservations
(i) the right of water gas electricity supply (including telephone lines)
and drainage through the existing pipes wires drains sewers and conduits in on
or under the Premises
(ii) the right of water gas electricity supply (including telephone lines)
and drainage through any pipes wires drains sewers or other conduits which the
Landlords may hereafter at any time or times within the period of eighty years
from the date hereof (which period shall be the perpetuity period applicale
hereto) lay construct or place in on or under the Premises for the benefit of
any other parts or parts of the Wholesale Market or for the purposes of the
combined heat and power scheme of Citigen Limited or such other supplier
(iii) the rights of entry upon giving prior written notice for the purpose of
the foregoing exceptions and reservations and also the right to enter upon the
Premises
33
upon giving such notice as aforesaid and do any necessary works thereon for the
purpose of repair maintenance reconstruction or rebuilding of the Premises or
any part or parts of the Wholesale Market the person so entering causing as
little inconvenience and interference with the business of the tenant as
possible and making good all damage caused by such entry to the reasonable
satisfaction of the Tenant
(iv) the right of entry at reasonable times to read the electricity meter
4. Term:
To Hold (subject to determination) the Premises for a term commencing on and
from the 31st of January 1999 and expiring in the 24th day of December 2008 and
for the avoidance of doubt the expression "the term" shall include both the
contractual term of this Lease and any period of holding over or extension or
continuation of the contractual term whether by statute or common law
5. Yearly Rents (excluding VAT)
(A) Rent
On and from the 31st day of January 1999 until the 30th day of July 1999 the
yearly rent of a peppercorn (if demanded) thereon and from the 31st day of July
1999 the yearly rent of One hundred and eight thousand three hundred pounds
(/pounds/ 108,300)
(B) PROVIDED Further
(i) That the yearly rent shall be reviewed by the Landlords as at the 25th
day of December 2003 which date is hereinafter called "the review date" and if
upon any such review the Landlords consider that the open market value of the
Premises has
34
increased the yearly rent shall be increased to the open market value of the
Premises from the review date and if the Landlords and the Tenant shall fail to
agree the amount of the greater yearly rent within three months of the date of
the Landlord's notification to the Tenant in writing of the Landlords proposals
for the amount of the greater yearly rent the same shall be determined by an
independent Surveyor to be appointed by agreement the matter or failing
agreement shall be determined by an independent Surveyor to be nominated on the
application of either party by the President of The Royal Institution of
Chartered Surveyors for the time being the determination by the surveyor shall
be as an expert and not as an arbitrator and such determination shall be final
and binding upon the Landlord and the Tenant. The surveyor's costs in connection
with such determination shall be borne in equal proportions by the Landlords and
the Tenant
(ii) If any such independent surveyor shall die delay or be or become
unwilling or incapable of acting or if for any other reason the said President
shall in his absolute discretion think fit the President shall in his absolute
discretion and as often as necessary by writing discharge any surveyor and
appoint another in his place
(iii) For the purposes of this Lease "open market rental value" shall mean the
rent at which the Premises might reasonably be expected to be let in the open
market by a willing lessor to a willing lessee with vacant possession of the
whole of the Premises for a term of equal length to the residue of the length of
the term originally hereby created as is remaining at the date of the review
date but upon the assumption that the Tenant has complied with all the covenants
imposed by the
35
Lease upon the Tenant including the Tenant's obligations as to repair and
redecoration but disregarding the matters referred to in Section 34(1)(a) (b)
and (c) of the Landlord and Xxxxxx Xxx 0000 as amended by the Law of Property
Xxx 0000
(iv) The rent (hereinafter in this sub-clause called "the revised rent")
payable by the Tenant as from the review date shall be the greater of:
(a) any rent fixed by agreement between the parties or by an
independent surveyor as hereinbefore provided or
(b) the rent payable immediately prior to the review date and if the
revised rent has no been fixed as aforesaid before the review
date then rent shall continue to be payable at the existing rate
until the revised rent has been fixed and as soon as the revised
rent has been so fixed the Lessee shall pay to the Landlords a
sum equal to the amount (if any) by which the rent already paid
falls short of the revised rent together with interest upon the
whole of the revised rent or such shortfall (as the case may be)
at the Interest Rate calculated from the first Quarter Day
following the review date to the date of actual payment
(v) Time shall not be of the essence in respect of any part of the review
procedure hereinbefore contained
(C) The Service Charge shall be the reasonable and proper outlay on the
following:
PART I The Building
-------------------
36
(a) The maintenance renewal repair cleaning and decoration of the exterior
of the Building including the external wall and window frame roof
foundation main structure and foundations
(b) The maintenance repair renewal of all pipes wires sewers and conduits
and other conducting media
(c) Any ways roads pavements or structures party walls or anything which may
belong to or be used for the Building or any part of it exclusively
or in common with any other part of the Wholesale Market
(d) The Landlords liability insurance
(e) All tests of the Building and equipment installed therein or connected
thereto as the Landlords shall deem desirable and necessary
(f) The cost of valuations for the reinstatement of the Building for
insurance purposes but not more than once in every third year
(g) The mantenance repair renewal hire and servicing of all sprinkler
systems smoke detection and fire alarm systems emergency lighting and
fire extinguishers in the Common Parts
(h) The cost of all management fees
(i) The cost of any other services provided from time to time in the
interests of good estate management by the Landlords which are for the
benefit of all tenants or occupiers of the Building
PART II Common Services to the north and south blocks
-----------------------------------------------------
of the first and second floor of the Building
---------------------------------------------
37
(j) The cost of gas electricity and the supply of cooling and heating for
the Landlords air-conditioning system to the commercial offices
including the maintenance repair and replacement of the plant and
machinery forming the air-conditioning
(k) The cost of all management and accountancy fees incurred in relation to
the services provided
(l) any other services which are provided for the common benefit of the
commercial office tenants or occupiers of the north and south wings
(m) The cost of the provisions of water supplies environmental sewage and
other water company charges and refuse disposal charges
PART III Common Services to the south block first and second floors
------------------------------------------------------------------
(n) The repair maintenance and renewal of the common parts
(o) The supply of toilet requisites
(p) The supply of plants furnishings and such other fittings to the common
parts
(q) Repairing maintaining and renewing as appropriate the lifts
(r) The cost of electricity provided to common services and to the common
areas of the building including entrance halls passages toilets lifts
and all other areas not exclusively demised or intended to be demised to
tenants
(s) The cleaning of the common parts
(t) The cleaning of the internal and external surfaces of the windows
(u) The provision of signs notice boards directional signs as may be
required
38
