Common use of Open Market Rent Clause in Contracts

Open Market Rent. The Open Market Rent will be the annual rent at which the Premises might be expected to be let in the open market on the Review Date: 2.1 as a whole by a single lease; 2.2 by a willing landlord to a willing tenant; 2.3 with vacant possession; 2.4 following the expiry of any period at the beginning of the term which might be negotiated in the open market for the purpose of fitting out only, during which no rent or a concessionary rent is payable; 2.5 without a fine or premium; 2.6 for a term of 5 years commencing on the Review Date with a tenant’s break option at the end of the second and third years; 2.7 otherwise on the same terms (other than as to the amount of the Yearly Rent but including provisions for rent review at 5 yearly intervals) as contained in this Lease; 2.8 on the assumptions that: (a) the Premises are ready to receive the willing tenants fitting out works but are otherwise fit and available for immediate occupation and use; (b) all obligations contained in this Lease on the part of the Landlord and the Tenant have been fully complied with; (c) if the Premises or any premises of which they form part or any part of them have been damaged or destroyed they have been fully reinstated; (d) the Premises may be lawfully used for the Permitted Use; 2.9 but disregarding any effect on rent of: (a) the fact that the Tenant or any undertenant or any of their respective predecessors in title or any other occupier of the Premises has been or is in occupation of the Premises; (b) any goodwill attaching to the Premises by reason of any business carried on at the Premises the Tenant or any permitted undertenant or other permitted occupier of the Premises or any predecessor in title to such business; (c) any effect on rent attributable to the existence of any alteration or improvement to the Premises completed at the expense of the Tenant or a permitted undertenant or any of their respective predecessors in title or any other authorised occupier (including the Tenant’s fit out works) with the consent of the Landlord during the Term or prior to the Term under an agreement for the grant of this lease and not in pursuance of an obligation to the Landlord or its predecessors in title provided that any obligation in any licence for alterations requiring the work thereby permitted to be carried out to a certain standard or regulating the manner or the time within which such works are to be carried out or obligations requiring compliance with any statute, order or regulations or requirements of the Landlord’s insurers shall not be deemed to be an obligation to the Landlord or its predecessors In title; (d) any work carried out to the Premises which has diminished the rental value of the Premises at the Review Date; and (e) so far as may be permitted by law any Rent Restrictions.

Open Market Rent. The Subject to the annual increment in the Base Rents payable during the Review Period (as hereinafter defined) as provided in Section E of Summary, the Base Rents payable during Months 121 to 156 of the Lease Term (being the period commencing on and from 10th November 2010 to 9th November 2013 (both days inclusive)) (the “Review Period”) shall be the Open Market Rent will be the annual rent at which (as hereinafter defined) of the Premises might which shall be expected determined as follows:- (i) by agreement between the parties hereto; (ii) failing agreement per sub-clause (i) above not later than thirty (30) days before the commencement date of the Review Period then by an independent professional valuer or firm of professional valuers (“valuer”) to be let jointly appointed by the parties hereto before the commencement date of the Review Period; (iii) failing such a joint appointment then by a valuer to be appointed on the application of either party by the Chairman (or in his absence, a Vice-Chairman) for the time being of the Hong Kong Institute of Surveyors; (iv) in the open market on event that the rent in respect of the Premises for the Review Date: 2.1 Period has not been determined as a whole by a single leasehereinafter provided before the date of commencement of the Review Period then the rent payable immediately prior to such date in respect of the Premises shall continue to be paid until the rent has been so determined but shall be adjusted retrospectively to the date of the commencement of the Review Period and the rent having been so determined shall be paid and accounted for (or any excess amount shall be refunded) accordingly within 14 days of such determination; 2.2 by a willing landlord (v) the valuer shall act as an expert and not as an arbitrator and shall be required to a willing tenant; 2.3 determine the sum which in his opinion represents the Open Market Rent for the same type of premises as the Premises in the same district of Hong Kong as if the same were being let with vacant possession; 2.4 following the expiry of any period at the beginning of the term which might be negotiated in possession on the open market for the purpose of fitting out only, during which no rent or a concessionary rent is payable; 2.5 without a fine or premium; 2.6 for a term of 5 years commencing on equal to the Review Date with a tenant’s break option at Period without reference to any other adjustment of rent during the end said term but otherwise having regard to all issues which in the sole opinion of the second and third years; 2.7 otherwise on valuer appear relevant except that the same terms valuer shall disregard those matters mentioned in items (other than as 1) to the amount (4) of the Yearly Rent but including provisions for rent review at 5 yearly intervalssub-clause (vi) as contained in this Lease; 2.8 on the assumptions that: (a) the Premises are ready to receive the willing tenants fitting out works but are otherwise fit and available for immediate occupation and useimmediately following; (bvi) all obligations contained in this Lease on the part of valuer shall determine the Landlord and the Tenant have been fully complied with;Open Market Rent disregarding:- (c1) if the Premises or any premises of which they form part or any part of them have been damaged or destroyed they have been fully reinstated; (d) the Premises may be lawfully used for the Permitted Use; 2.9 but disregarding any effect on rent of: (a) of the fact that the Tenant or any undertenant or any of their respective predecessors in title or any other occupier of the Premises has may have been or is in occupation of the Premises; (b2) any goodwill attaching attached to the Premises by reason of any business carried on at the Premises the Tenant or any permitted undertenant or other permitted occupier of the Premises or any predecessor in title to such businessuse thereof by Tenant; (c3) any effect on rent attributable to the existence of any authorized improvement addition alteration or improvement to the Premises completed other work made or carried out by Tenant at the its own expense of the Tenant or a permitted undertenant or otherwise than under any of their respective predecessors in title or any other authorised occupier (including the Tenant’s fit out works) with the consent of the Landlord during the Term or prior to the Term under an agreement for the grant of this lease and not in pursuance of an obligation to the Landlord whether under this Lease or its predecessors in title provided that any obligation in any licence for alterations requiring the work thereby permitted to be carried out to a certain standard or regulating the manner or the time within which such works are to be carried out or obligations requiring compliance with any statute, order or regulations or requirements of the Landlord’s insurers shall not be deemed to be an obligation to the Landlord or its predecessors In titleotherwise; (d4) any abatement of rent under this Lease; and without making any allowance to reflect or compensate Tenant for the absence of any rent free period or contribution to fitting out works or other allowance which might then be the practice in open market lettings for a landlord to make. The Open Market Rent shall be defined as what would be payable after the expiry of any such rent free or concessionary rent period and after receipt of any such contribution or other allowance as would be negotiated in the open market upon a letting of the Premises as a whole by a willing landlord to a willing tenant in the open market at the renewal of a term equal to the unexpired balance of the term of this Lease with vacant possession without a fine or premium. but on the following assumption (if not facts):- (a) that all the terms and conditions herein contained have been fully observed and performed at all times; (b) that on the commencement date of the Review Period the Premises are fit for immediate occupation and use and that no addition alteration or other work had been made or carried out to by Tenant during the Premises term hereby granted which has diminished the rental value of the Premises at Premises. (vii) the Review Datecost and expenses of the valuer shall be borne by Tenant and Landlord in equal shares; and (eviii) the decision of the valuer shall be final and binding upon both parties (save in the case of manifest error) and shall determine the rent for the Review Period as it had been expressly provided for and stated herein.” 7. The following provisions shall be deemed to be added immediately after Clause 36 of the Lease as Clause 37 of the Lease:- 37.1 Tenant hereby covenants and undertakes with Landlord that Tenant will not at any time during the Lease Term enter into any letting arrangement (which expression shall mean and include leasing, sub-leasing and licensing or entering into an agreement so far to do or entering into physical possession or occupation by whatever means) (the “New Letting”) with any person or company other than Landlord (“Third Party”) in respect of any other premises in Hong Kong (“Additional Premises”) for the operation of its data center business unless Tenant shall have first notified Landlord in writing of its desire for Additional Premises and the essential requirements of such Additional Premises and the commercial terms upon which Tenant is prepared to enter into New Letting (collectively, the “Requirements”) and Landlord shall be unable and/or unwilling to offer to lease or licence any premises to Tenant which (in the opinion of Landlord) will have satisfied the Requirements. 37.2 For the better observance of Tenant’s obligations under Section 37.1, Tenant hereby further covenants and undertakes with Landlord that:- (i) If Tenant is desirous of entering into any New Letting of Additional Premises, Tenant shall before it commences any negotiation for such New Letting of Additional Premises with any Third Party serve written notice (the “Notice”) on Landlord of such its desire and the Notice shall include a detailed account of the Requirements. (ii) Landlord may within twenty one (21) days from the date of receipt of the Notice (the “Offer Period”) make an offer (the “Offer”) to lease or licence any of the premises of Landlord (the “Offer Premises”) to Tenant on such terms which (in the opinion of the Landlord) will have satisfied the Requirements as specified in the Notice. In which event, Tenant shall accept the Offer within seven (7) days from the date of the Offer and Landlord shall lease or (as the case may be) licence and Tenant shall take the Offer Premises on the terms set out in the Offer. For the avoidance of doubt, Tenant shall in any event be permitted deemed to have accepted the Offer irrespective of whether any formal acceptance of the Offer has been given by law Tenant within the said seven (7) days’ period. (iii) If Landlord shall fail to make the Offer during the Offer Period, then Tenant may make an offer to or accept an offer from any Rent RestrictionsThird Party (the “Third Party Offer”) in respect of a New Letting of Additional Premises with such Third Party Provided That such Third Party Offer shall at least contain all the Requirements specified in the Notice and if Tenant shall subsequently enter into any binding agreement in respect of a New Letting of Additional Premises pursuant to such Third Party Offer, the effective rent per square foot of the Additional Premises payable under such New Letting shall be no less than that offered by Landlord in the Offer and the other terms of such New Letting shall be (in the opinion of the Landlord) no more favourable than the terms of the Offer. Tenant shall notify Landlord in writing of the terms of the Third Party Offer before Tenant makes or (as the case may be) accepts the same and (where applicable) the terms of any New Letting of Additional Premises which Tenant has entered into pursuant to such Third Party Offer once Tenant has signed a binding agreement in respect of such New Letting. Landlord’s determination as to whether the Third Party Offer and (where applicable) the New Letting of Additional Premises with any Third Party have duly satisfied with the above requirements shall be conclusive and binding on Tenant. (iv) When the Offer has been accepted or deemed to have been accepted by Tenant as aforesaid, Tenant shall forthwith complete and execute all necessary documentation as required by Landlord to implement the lease or (as the case may be) the licence of the Offer Premises. Each party shall bear its own cost and expense in preparing and completing the documentation whilst all stamp duty and registration fees (if any) payable on the documentation shall be borne by Landlord and Tenant in equal shares. 37.3 Notwithstanding the foregoing, the restrictions set forth in Sections 37.1 and 37.2 shall not apply when :- (a) the Additional Premises are situated on Hong Kong Island; and (b) the area requirement of such Additional Premises shall be less than 10,000 square feet gross; and (c) Tenant shall have proved to the satisfaction of Landlord that the New Letting of such Additional Premises on Hong Kong Island is made solely pursuant to a genuine request from a bona fide customer of the data center business operated by the Tenant but not otherwise.” 8. Clause 6 of the Lease shall be deemed to be deleted and substituted by the following provisions:-