REVIEW OF THE ANNUAL RENT. 7.1 In this clause the President is the President for the time being of the Royal Institution of Chartered Surveyors or a person acting on his behalf, and the Surveyor is the independent valuer appointed pursuant to clause 7.7. 7.2 The amount of Annual Rent shall be reviewed on each Review Date to equal: (a) the Annual Rent payable immediately before the relevant Review Date (or which would then be payable but for any abatement or suspension of the Annual Rent or restriction on the right to collect it) or, if greater; (b) the open market rent agreed or determined pursuant to this clause. 7.3 The open market rent may be agreed between the Landlord and the Tenant at any time before it is determined by the Surveyor. 7.4 If the open market rent is determined by the Surveyor, it shall be the amount that the Surveyor determines is the best annual rent (exclusive of any VAT) at which the Property could reasonably be expected to be let: (a) in the open market; (b) at the relevant Review Date; (c) on the assumptions listed in clause 7.5; and (d) disregarding the matters listed in clause 7.6. 7.5 The assumptions are: (a) the Property is available to let in the open market: (i) by a willing lessor to a willing lessee; (ii) as a whole; (iii) with vacant possession; (iv) without a fine or a premium; (v) for a term equal to the unexpired residue of the Contractual Term at the relevant Review Date or a term of five years commencing on the relevant Review Date, if longer; and (vi) otherwise on the terms of this lease other than as to the amount of the Annual Rent but including the provisions for review of the Annual Rent; (b) the willing lessee has had the benefit of any rent-free or other concession or contribution which would be offered in the open market at the relevant Review Date in relation to fitting out works at the Property; (c) the Property may lawfully be used, and is in a physical state to enable it to be lawfully used, by the willing lessee (or any potential undertenant or assignee of the willing lessee) for any purpose permitted by this lease; (d) the Landlord and the Tenant have fully complied with their obligations in this lease; (e) if the Property, or any means of access to it or any Service Media serving the Property, has been destroyed or damaged, it has been fully restored; (f) no work has been carried out on the Property that has diminished its rental value; (g) any fixtures, fittings, machinery or equipment supplied to the Property by the Landlord that have been removed by or at the request of the Tenant, or any undertenant or their respective predecessors in title (otherwise than to comply with any law) remain at the Property; and (h) the willing lessee and its potential assignees and undertenants shall not be disadvantaged by any actual or potential exercise of an option to tax under Part 1 of Schedule 10 to the VATA 1994 in relation to the Property. 7.6 The matters to be disregarded are: (a) any effect on rent of the fact that the Tenant or any authorised undertenant has been in occupation of the Property; (b) any goodwill attached to the Property by reason of any business carried out there by the Tenant or by any authorised undertenant or by any of their predecessors in business; (c) any effect on rent attributable to any physical improvement to the Property carried out before or after the date of this lease, by or at the expense of the Tenant or any authorised undertenant with all necessary consents, approvals and authorisations and not pursuant to an obligation to the Landlord (other than an obligation to comply with any law); (d) any effect on rent of any obligation on the Tenant to fit out the Property or to reinstate the Property to the condition or design it was in before any alterations or improvements were carried out; and (e) any statutory restriction on rents or the right to recover them. 7.7 The Surveyor shall be an independent valuer who is a Member or Fellow of the Royal Institution of Chartered Surveyors. The Landlord and the Tenant may, by agreement, appoint the Surveyor at any time before either of them applies to the President for the Surveyor to be appointed. Any application to the President may not be made earlier than three months before the relevant Review Date. 7.8 The Surveyor shall act as an expert and not as an arbitrator. The Surveyor shall determine the open market rent and shall have power to determine any issue involving the interpretation of any provision of this lease, his jurisdiction to determine the matters and issues referred to him or his terms of reference. The Surveyor's decision shall be given in writing. The Surveyor's written decision on the matters referred to him shall be final and binding in the absence of manifest error or fraud. 7.9 The Surveyor shall give the Landlord and the Tenant an opportunity to make written representations to the Surveyor and to make written counter-representations commenting on the representations of the other party to the Surveyor. The parties will provide (or procure that others provide) the Surveyor with such assistance and documents as the Surveyor reasonably requires for the purpose of reaching a decision. 7.10 If the Surveyor dies, or becomes unwilling or incapable of acting, or unreasonably delays in making any determination, then either the Landlord or the Tenant may apply to the President to discharge the Surveyor and clause 7.7 shall then apply in relation to the appointment of a replacement. 7.11 The fees and expenses of the Surveyor and the cost of the Surveyor's appointment and any counsel's fees, or other fees, reasonably incurred by the Surveyor shall be payable by the Landlord and the Tenant in the proportions that the Surveyor directs (or if the Surveyor makes no direction, then equally). If either the Landlord or the Tenant does not pay its part of the Surveyor's fees and expenses within ten working days after demand by the Surveyor then: (a) the other party may pay instead; and (b) the amount so paid shall be a debt of the party that should have paid due and payable on demand to the party that actually made the payment. The Landlord and the Tenant shall otherwise each bear their own costs in connection with the rent review. 7.12 If the revised Annual Rent has not been agreed by the Landlord and the Tenant or determined by the Surveyor on or before the relevant Review Date, the Annual Rent payable from that Review Date shall continue at the rate payable immediately before that Review Date. No later than five working days after the revised Annual Rent is agreed or the Surveyor’s determination is notified to the Landlord and the Tenant, the Tenant shall pay: (a) the shortfall (if any) between the amount that it has paid for the period from the Review Date until the Rent Payment Date following the date of agreement or notification of the revised Annual Rent and the amount that would have been payable had the revised Annual Rent been agreed or determined on or before that Review Date; and (b) interest at the Interest Rate on that shortfall calculated on a daily basis by reference to the Rent Payment Dates on which parts of the shortfall would have been payable if the revised Annual Rent had been agreed or determined on or before that Review Date and the date payment is received by the Landlord. 7.13 Time shall not be of the essence for the purposes of this clause. 7.14 As soon as practicable after the amount of the revised Annual Rent has been agreed or determined, a memorandum recording the amount shall be signed by or on behalf of the Landlord and the Tenant and endorsed on or attached to this lease and its counterpart. The Landlord and the Tenant shall each bear their own costs in connection with the memorandum.
Appears in 2 contracts
Samples: Lease Agreement, Lease Agreement
REVIEW OF THE ANNUAL RENT. 7.1 In this clause the President is the President for the time being of the Royal Institution of Chartered Surveyors or a person acting on his behalf, and the Surveyor is the independent valuer appointed pursuant to clause 7.7.
7.2 7.8. The amount of Annual Rent shall be reviewed on each the fourth anniversary of the commencement of this lease and thereafter on every third anniversary
7.2 Until the First Review Date the Rent is to equal:
(a) be the Annual Initial Rent, and thereafter during each successive review period the Rent is to be a sum equal to the higher of the market rent or the rent payable immediately before such rent review or the relevant Review Date (or which would then be payable but for any abatement or suspension of the Annual revised Rent or restriction on the right to collect it) or, if greater;
(b) the open market rent agreed or determined pursuant to as ascertained in accordance with this clause.
7.3 The open market rent may be agreed between Six months before each review date, time not being of the essence of the contract, the Landlord and the Tenant should explore the possibility of (or as required) open negotiations with a view to reaching a written agreement as to the Rent for the following review period and the Rent for that period may be agreed at any time before it or, in the absence of agreement, is to be determined by an Surveyor not earlier than the Surveyor.relevant review date
7.4 If the open market rent is determined by the Surveyor, it shall be the amount that the Surveyor determines is the best annual rent (exclusive of any VAT) at which the Property could reasonably be expected to be let:
(a) in the open market;
(b) at the relevant Review Date;
(c) on the assumptions listed in clause 7.57.6; and
(d) disregarding the matters listed in clause 7.67.7.
7.5 The assumptions are:
(a) the Property is available to let in the open market:
(i) by a willing lessor to a willing lessee;
(ii) as a whole;
(iii) with vacant possession;
(iv) without a fine or a premium;
(v) for a term equal to the unexpired residue of the Contractual Term of this lease at the relevant Review Date or a term of five years commencing on the relevant Review Date, if longer; and
(vi) the whole of the area demised by this lease is A3(Zone A)use;
(vii) On the assumption irrespective of the current use that the tenant is using for the property that the whole of the demised area is to be used as a restaurant or public bar and has all the necessary liquor and planning licenses including A3 use
(viii) otherwise on the terms of this lease other than as to the amount of the Annual Rent but including the provisions for review of the Annual Rent, and other than the provision in this lease for a rent-free period;
(b) the willing lessee has had the benefit of any rent-free or other concession or contribution which would be offered in the open market at the relevant Review Date in relation to fitting out works at the Property;
(c) the Property may lawfully be used, and is in a physical state to enable it to be lawfully used, by the willing lessee (or any potential undertenant or assignee of the willing lessee) for any purpose permitted by this lease;
(d) the Landlord and the Tenant have fully complied with their obligations in this lease;
(e) if the Property, or any means of access to it or any Service Media serving the Property, has been destroyed or damaged, it has been fully restored;
(f) no work has been carried out on the Property or on the Estate that has diminished its the rental value;value of the Property other than work carried out in compliance with clause 32
(g) any fixtures, fittings, machinery or equipment supplied to the Property by the Landlord that have been removed by or at the request of the Tenant, or any undertenant or their respective predecessors in title (otherwise than to comply with any law) remain at the Property; and
(h) the willing lessee and its potential assignees and undertenants shall not be disadvantaged by any actual or potential exercise of an option election to tax under Part 1 of Schedule 10 to the VATA 1994 waive exemption from VAT in relation to the Property.
7.6 The matters to be disregarded are:
(a) any effect on rent of the fact that the Tenant or any authorised undertenant has been in occupation of the Property;
(b) any goodwill attached to the Property by reason of any business carried out there by the Tenant or by any authorised undertenant or by any of their predecessors in business;
(c) any effect on rent attributable to any physical improvement to the Property carried out before or after the date of this lease, by or at the expense of the Tenant or any authorised undertenant with all necessary consents, approvals and authorisations and not pursuant to an obligation to the Landlord (other than an obligation to comply with any law);
(d) any effect on rent of any obligation on the Tenant to fit out the Property or to reinstate the Property to the condition or design it was in before any alterations or improvements were carried out; andotherwise;and
(e) any statutory restriction on rents or the right to recover them.
7.7 The Surveyor shall be an independent valuer who is a Member or Fellow of the Royal Institution of Chartered Surveyors. The Landlord and the Tenant may, by agreement, appoint the Surveyor at any time before either of them applies to the President for the Surveyor to be appointed. Any application to the President may not be made earlier than three months before the relevant Review Date.
7.8 The Surveyor shall act as an expert and not as an arbitrator. The Surveyor shall determine the open market rent and shall have power to determine any issue involving the interpretation of any provision of this lease, his jurisdiction to determine the matters and issues referred to him or his terms of reference. The Surveyor's decision shall be given in writing, and the Surveyor shall provide reasons for any determination. The Surveyor's written decision on the matters referred to him shall be final and binding in the absence of manifest error or fraud.
7.9 The Surveyor shall give the Landlord and the Tenant an opportunity to make written representations to the Surveyor and to make written counter-representations commenting on the representations of the other party to the Surveyor. The parties will provide (or procure that others provide) the Surveyor with such assistance and documents as the Surveyor reasonably requires for the purpose of reaching a decision.
7.10 If the Surveyor dies, or becomes unwilling or incapable of acting, or unreasonably delays in making any determination, then either the Landlord or the Tenant may apply to the President to discharge the Surveyor and clause 7.7 7.8 shall then apply in relation to the appointment of a replacement.
7.11 The fees and expenses of the Surveyor and the cost of the Surveyor's appointment and any counsel's fees, or other fees, fees reasonably incurred by the Surveyor shall be payable by the Tenant and Landlord in equal proportions. If the Tenant is required to but does not pay the Surveyor's fees and expenses within ten working days after demand by the Surveyor, the Landlord may pay that part and the amount it pays shall be a debt of the Tenant in due and payable on demand to the proportions that the Surveyor directs (or if the Surveyor makes no direction, then equally)Landlord. If either the Landlord or the Tenant does not pay its part of the Surveyor's fees and expenses within ten working days after demand by the Surveyor then:
(a) the other party may pay instead; and
(b) the amount so paid shall be a debt of the party that should have paid due and payable on demand to the party that actually made the payment. The Landlord and the Tenant shall otherwise each bear their own costs in connection with the rent review.
7.12 If the revised Annual Rent has not been agreed by the Landlord and the Tenant or determined by the Surveyor on or before the relevant Review Date, the Annual Rent payable from that Review Date shall continue at the rate payable immediately before that Review Date. No later than five working days after the revised Annual Rent is agreed or the Surveyor’s determination is notified to the Landlord and the Tenant, the Tenant shall pay:
(a) the shortfall (if any) between the amount that it has paid for the period from the Review Date until the Rent Payment Date following the date of agreement or notification of the revised Annual Rent and the amount that would have been payable had the revised Annual Rent been agreed or determined on or before that Review Date; and
(b) interest at the Interest Rate on that shortfall calculated on a daily basis by reference to the Rent Payment Dates on which parts of the shortfall would have been payable if the revised Annual Rent had been agreed or determined on or before that Review Date and the date payment is received by the Landlord.
7.13 Time shall not be of the essence for the purposes of this clause.
7.14 If at any time there is a guarantor, the guarantor shall not have any right to participate in the review of the Annual Rent.
7.15 As soon as practicable after the amount of the revised Annual Rent has been agreed or determined, a memorandum recording the amount shall be signed by or on behalf of the Landlord and the Tenant and endorsed on or attached to this lease and its counterpart. The Landlord and the Tenant shall each bear their own costs in connection with the memorandum.
Appears in 1 contract
Samples: Lease Agreement
REVIEW OF THE ANNUAL RENT. 7.1 In this clause the President is the President for the time being of the Royal Institution of Chartered Surveyors or a person acting on his behalf, behalf and the Surveyor is the independent valuer appointed pursuant to clause 7.7.
7.2 The amount of Annual Rent shall be reviewed on each Review Date to equal:
(a) 7.2.1 the Annual Rent payable immediately before the relevant Review Date (or which would then be payable but for any abatement or suspension of the Annual Rent or restriction on the right to collect it) or, if greater;
(b) 7.2.2 the open market rent agreed or determined pursuant to this clause.
7.3 The open market rent may be agreed between the Landlord and the Tenant at any time before it is determined by the Surveyor.
7.4 If the open market rent is determined by the Surveyor, it shall be the amount that the Surveyor determines is the best annual rent (exclusive of any VAT) at which the Property could reasonably be expected to be let:
(a) 7.4.1 in the open market;
(b) 7.4.2 at the relevant Review Date;
(c) 7.4.3 on the assumptions listed in clause 7.5; and
(d) 7.4.4 disregarding the matters listed in clause 7.6.
7.5 The assumptions are:
(a) 7.5.1 the Property is available to let in the open market:
(ia) by a willing lessor to a willing lessee;
(iib) as a whole;
(iiic) with vacant possession;
(ivd) without a fine or a premium;
(ve) for a term equal to the unexpired residue of the Contractual Term at the relevant Review Date or a term of five years commencing on the relevant Review Date, if longerTerm; and
(vif) otherwise on the terms of this lease other than as to the amount of the Annual Rent but including the provisions for review of the Annual Rent, and other than the provision in this lease for a rent-free period;
(b) 7.5.2 the willing lessee has had the benefit of any rent-free or other concession or contribution which would be offered in the open market at the relevant Review Date in relation to fitting out works at the Property;
(c) 7.5.3 the Property may lawfully be used, and is in a physical state to enable it to be lawfully used, by the willing lessee (or any potential undertenant or assignee of the willing lessee) for any purpose permitted by this lease;
(d) 7.5.4 the Landlord and the Tenant have fully complied with their obligations in this lease;
(e) 7.5.5 if the Property, Property or any means other part of access to it the Building or any Service Conducting Media serving the Property, has been destroyed or damaged, it has been fully restored;
(f) 7.5.6 no work has been carried out on the Property or any other part of the Building that has diminished its the rental valuevalue of the Property;
(g) 7.5.7 any fixtures, fittings, machinery or equipment supplied to the Property by the Landlord that have been removed by or at the request of the Tenant, or any undertenant or their its respective predecessors in title (otherwise than to comply with any law) remain at the Property; and
(h) 7.5.8 the willing lessee and its potential assignees and undertenants shall not be disadvantaged by any actual or potential exercise of an option to tax under Part 1 of Schedule 10 to the VATA 1994 in relation to the Property.
7.6 The matters to be disregarded are:
(a) 7.6.1 any effect on rent of the fact that the Tenant or any authorised undertenant has been in occupation of the Property;
(b) 7.6.2 any goodwill attached to the Property by reason of any business carried out there by the Tenant or by any authorised undertenant or by any of their its predecessors in business;
(c) 7.6.3 any effect on rent attributable to any physical improvement to the Property and Conducting Media within or exclusively serving the Property carried out before or after the date of this lease, by or at the expense of the Tenant or any authorised undertenant with all necessary consents, approvals and authorisations and not pursuant to an obligation to the Landlord (other than an obligation to comply with any law);
(d) 7.6.4 any effect on rent of any obligation on the Tenant to fit out the Property or to reinstate the Property to the condition or design it was in before any alterations or improvements were carried out; and
(e) 7.6.5 any statutory restriction on rents or the right to recover them. and provided that and for the avoidance of any doubt the Parties agree that no account shall be taken of the Nitrogen Gas Compound and Gas Store when calculating the Annual Rent.
7.7 The Surveyor shall be an independent valuer who is a Member or Fellow of the Royal Institution of Chartered Surveyors. The Landlord and the Tenant may, by agreement, appoint the Surveyor at any time before either of them applies to the President for the Surveyor to be appointed. Any application to the President may not be made earlier than three months before the relevant Review Date.
7.8 The Surveyor shall act as an expert and not as an arbitrator. The Surveyor shall determine the open market rent and shall have power to determine any issue involving the interpretation of any provision of this lease, his jurisdiction to determine the matters and issues referred to him or his terms of referencerent. The Surveyor's decision shall be given in writing. The Surveyor's written decision on the matters referred to him shall be final and binding in the absence of manifest error or fraud.
7.9 The Surveyor shall give the Landlord and the Tenant an opportunity to make written representations to the Surveyor and to make written counter-representations commenting on the representations of the other party to the Surveyor. The parties will provide (or procure that others provide) the Surveyor with such assistance and documents as the Surveyor reasonably requires for the purpose of reaching a decision.
7.10 If the Surveyor dies, or becomes unwilling or incapable of acting, or unreasonably delays in making any determination, then either the Landlord or the Tenant may apply to the President to discharge the Surveyor and clause 7.7 shall then apply in relation to the appointment of a replacement.
7.11 The fees and expenses of the Surveyor and the cost of the Surveyor's appointment and any counsel's fees, or other fees, reasonably incurred by the Surveyor shall be payable by the Landlord and the Tenant in the proportions that the Surveyor directs (or if the Surveyor makes no direction, then equally). If either the Landlord or the Tenant does not pay its part of the Surveyor's fees and expenses within ten working days Working Days after demand by the Surveyor then:
(a) Surveyor, the other party Landlord may pay instead; and
(b) that part and the amount so paid it pays shall be a debt of the party that should have paid Tenant due and payable on demand to the party that actually made the paymentLandlord. The Landlord and the Tenant shall otherwise each bear their own costs in connection with the rent review.
7.12 If the revised Annual Rent has not been agreed by the Landlord and the Tenant or determined by the Surveyor on or before the relevant Review Date, the Annual Rent payable from beginning on that Review Date shall continue at the rate payable immediately before that Review Date. No later than five working days Working Days after the revised Annual Rent is agreed or the Surveyor’s determination is notified to the Landlord and the Tenant, the Tenant shall pay:
(a) 7.12.1 the shortfall (if any) between the amount that it has paid for the period from beginning on the Review Date until and ending on the Rent Payment Date following the date of agreement or notification of the revised Annual Rent and the amount that would have been payable had the revised Annual Rent been agreed or determined on or before that Review Date; and
(b) 7.12.2 interest at the Interest Rate on that shortfall calculated on a daily basis by reference to the Rent Payment Dates on which parts of the shortfall would have been payable if the revised Annual Rent had been agreed or determined on or before that Review Date and the date payment is received by the Landlord.
7.13 Time shall not be of the essence for the purposes of this clause.
7.14 If at any time there is a guarantor, the guarantor shall not have any right to participate in the review of the Annual Rent.
7.15 As soon as practicable after the amount of the revised Annual Rent has been agreed or determined, a memorandum recording the amount shall be signed by or on behalf of the Landlord and the Tenant and endorsed on or attached to this lease and its counterpart. The Landlord and the Tenant shall each bear their own costs in connection with the memorandum.
Appears in 1 contract
REVIEW OF THE ANNUAL RENT. 7.1 In this clause the President is the President for the time being of the Royal Institution of Chartered Surveyors or a person acting on his behalf, and the Surveyor is the independent valuer appointed pursuant to clause 7.7.
7.2 In this clause a Review Notice is a notice served by the Landlord on the Tenant triggering the review of Annual Rent for the relevant Review Date served up to six months before a relevant Review Date or any time after it.
7.3 The amount of Annual Rent shall be reviewed on each Review Date to equal:
(a) the Annual Rent payable immediately before the relevant Review Date (or which would then be payable but for any abatement or suspension of the Annual Rent or restriction on the right to collect it) or, if greater;
(b) equal the open market rent agreed or determined pursuant to this clauseclause provided that the Annual Rent on review will not be less than the Annual Rent payable immediately before the review provided always that the Landlord serves a Review Notice.
7.3 7.4 The open market rent may be agreed between the Landlord and the Tenant at any time before it is or determined by the Surveyor.
7.4 If the open market rent is determined by the Surveyor, it Surveyor shall be the amount that the Surveyor determines is the best annual rent (exclusive of any VAT) at which the Property could reasonably be expected to be let:
(ai) in the open market;
(bii) at the relevant Review Date;
(ciii) on the assumptions listed in clause 7.5; and
(div) disregarding the matters listed in clause 7.6.
7.5 The assumptions are:
(a) the Property is available to let in the open market:
(i) by a willing lessor to a willing lessee;
(ii) as a whole;
(iii) with vacant possession;
(iv) without a fine or a premium;
(v) [for a term equal to the unexpired residue of the Contractual Term at the relevant Review Date or a term of five ten years commencing on the relevant Review Date, Date if longerlonger]18; and
(vi) otherwise on the terms of this lease other than as to the amount of the Annual Rent but including the provisions for review of the Annual Rent;
(b) the willing lessee has had the benefit of any rent-free or other concession or contribution which would be offered in the open market at the relevant Review Date in relation to fitting out works at the Property;
(c) the Property may lawfully be used, and is in a physical state to enable it to be lawfully used, by the willing lessee (or any potential undertenant or assignee of the willing lessee) for any purpose permitted by this lease;
(d) the Landlord and the Tenant have fully complied with their obligations in this lease;
(e) if the Property, or any means of access to it or any Service Media serving the Property, has been destroyed or damaged, it has been fully restored;
(f) no work has been carried out on the Property that has diminished its rental value;
(g) any fixtures, fittings, machinery or equipment supplied to the Property by the Landlord that have been removed by or at the request of the Tenant, or any undertenant or their respective predecessors in title (otherwise than to comply with any law) remain at the Property; and
(h) the willing lessee and its potential assignees and undertenants shall not be disadvantaged by any actual or potential exercise of an option to tax under Part 1 of Schedule 10 to the VATA 1994 in relation to the Property.
7.6 The matters to be disregarded are:
(a) any effect on rent of the fact that the Tenant or any authorised undertenant has been in occupation of the Property;
(b) any goodwill attached to the Property by reason of any business carried out there by the Tenant or by any authorised undertenant or by any of their predecessors in business;
(c) any effect on rent attributable to any physical improvement to the Property carried out before or after the date of this lease, by or at the expense of the Tenant or any authorised undertenant with all necessary consents, approvals and authorisations and not pursuant to an obligation to the Landlord (other than an obligation to comply with any law);
(d) any effect on rent of any obligation on the Tenant to fit out the Property or to reinstate the Property to the condition or design it was in before any alterations or improvements were carried out; and
(e) any statutory restriction on rents or the right to recover them.
7.7 The Surveyor shall be an independent valuer who is a Member or Fellow of the Royal Institution of Chartered Surveyors. The Landlord and the Tenant may, by agreement, appoint the Surveyor at any time before either of them applies to the President for the Surveyor to be appointed. Any application to the President may not be made earlier than three months before the relevant Review Date.
7.8 The Surveyor shall act as an expert and not as an arbitrator. The Surveyor shall determine the open market rent and shall have power to determine any issue involving the interpretation of any provision of this lease, his jurisdiction to determine the matters and issues referred to him or his terms of reference. The Surveyor's decision shall be given in writing. The Surveyor's written decision on the matters referred to him shall be final and binding in the absence of manifest error or fraud.
7.9 The Surveyor shall give the Landlord and the Tenant an opportunity to make written representations to the Surveyor and to make written counter-representations commenting on the representations of the other party to the Surveyor. The parties will provide (or procure that others provide) the Surveyor with such assistance and documents as the Surveyor reasonably requires for the purpose of reaching a decision.
7.10 If the Surveyor dies, or becomes unwilling or incapable of acting, or unreasonably delays in making any determination, then either the Landlord or the Tenant may apply to the President to discharge the Surveyor and clause 7.7 shall then apply in relation to the appointment of a replacement.
7.11 The fees and expenses of the Surveyor and the cost of the Surveyor's appointment and any counsel's fees, or other fees, reasonably incurred by the Surveyor shall be payable by the Landlord and the Tenant in the proportions that the Surveyor directs (or if the Surveyor makes no direction, then equally). If either the Landlord or the Tenant does not pay its part of the Surveyor's fees and expenses within ten working days after demand by the Surveyor then:
(a) the other party may pay instead; and
(b) the amount so paid shall be a debt of the party that should have paid due and payable on demand to the party that actually made the payment. The Landlord and the Tenant shall otherwise each bear their own costs in connection with the rent review.
7.12 If the revised Annual Rent has not been agreed by the Landlord and the Tenant or determined by the Surveyor on or before the relevant Review Date, the Annual Rent payable from that Review Date shall continue at the rate payable immediately before that Review Date. No later than five working days after the revised Annual Rent is agreed or the Surveyor’s determination is notified to the Landlord and the Tenant, the Tenant shall pay:
(a) the shortfall (if any) between the amount that it has paid for the period from the Review Date until the Rent Payment Date following the date of agreement or notification of the revised Annual Rent and the amount that would have been payable had the revised Annual Rent been agreed or determined on or before that Review Date; and
(b) interest at the Interest Rate on that shortfall calculated on a daily basis by reference to the Rent Payment Dates on which parts of the shortfall would have been payable if the revised Annual Rent had been agreed or determined on or before that Review Date and the date payment is received by the Landlord.
7.13 Time shall not be of the essence for the purposes of this clause.
7.14 As soon as practicable after the amount of the revised Annual Rent has been agreed or determined, a memorandum recording the amount shall be signed by or on behalf of the Landlord and the Tenant and endorsed on or attached to this lease and its counterpart. The Landlord and the Tenant shall each bear their own costs in connection with the memorandum.
Appears in 1 contract
Samples: Lease
REVIEW OF THE ANNUAL RENT. 7.1 In this clause the President "President" is the President for the time being of the Royal Institution of Chartered Surveyors or a person acting on his behalf, and the Surveyor "Surveyor" is the independent valuer appointed pursuant to clause 7.7.
7.2 The amount of Annual Rent shall be reviewed on each Review Date to equal:
(a) 7.2.1 the Annual Rent payable immediately before the relevant that Review Date (or which would then be payable but for any abatement or suspension of the Annual Rent or restriction on the right to collect it) or, if greater;
(b) the open market rent agreed or determined pursuant to this clause.
7.3 The open market rent may be agreed between the Landlord and the Tenant at any time before it is determined by the Surveyor.
7.4 If the open market rent is determined by the Surveyor, it shall be the amount that the Surveyor determines is the best annual rent (exclusive of any VAT) at which the Property could reasonably be expected to be let:
(a) 7.4.1 in the open market;
(b) 7.4.2 at the relevant Review Date;
(c) 7.4.3 on the assumptions listed in clause 7.5; and
(d) 7.4.4 disregarding the matters listed in clause 7.6.
7.5 The assumptions are:
(a) 7.5.1 the Property is available to let in the open market:
(ia) by a willing lessor to a willing lessee;
(iib) as a whole;
(iiic) with vacant possession;
(ivd) without a fine or a premium;
(ve) for a term equal to the unexpired residue of the Contractual Term at the relevant Review Date or a term of five twenty (20) years commencing on the relevant Review Date, if longer; and
(vif) otherwise on the terms of this lease Lease other than as to the amount of the Annual Rent but including the provisions for review of the Annual Rent;
(b) 7.5.2 the willing lessee has had the benefit of any rent-free or other concession or contribution which would be offered in the open market at the relevant Review Date in relation to fitting out works at the Property;
(c) 7.5.3 the Property may lawfully be used, and is in a physical state to enable it to be lawfully used, by the willing lessee (or any potential undertenant or assignee of the willing lessee) for any purpose permitted by this leaseLease;
(d) 7.5.4 the Landlord and the Tenant have fully complied with their obligations in this leaseLease;
(e) 7.5.5 if the Property, or any means of access to it or any Service Media serving the Property, has been destroyed or damaged, it has been fully restored;
(f) 7.5.6 no work has been carried out on the Property that has diminished its rental value[ other than work carried out in compliance with clause 27;
(g) 7.5.7 any fixtures, fittings, machinery or equipment supplied to the Property by the Landlord that have been removed by or at the request of the Tenant, or any undertenant or their respective predecessors in title (otherwise than to comply with any law) remain at the Property; and
(h) 7.5.8 the willing lessee and its potential assignees and undertenants shall not be disadvantaged by any actual or potential exercise of an option to tax under Part 1 of Schedule 10 to the VATA 1994 in relation to the Property.
7.6 The matters to be disregarded are:
(a) 7.6.1 any effect on rent of the fact that the Tenant or any authorised undertenant has been in occupation of the Property;
(b) 7.6.2 any goodwill attached to the Property by reason of any business carried out there by the Tenant or by any authorised undertenant or by any of their predecessors in business;
(c) 7.6.3 any effect on rent attributable to any physical improvement to the Property carried out before or after the date of this leaseLease, by or at the expense of the Tenant or any authorised undertenant with all necessary consents, approvals and authorisations and not pursuant to an obligation to the Landlord (other than an obligation to comply with any law);
(d) 7.6.4 any effect on rent of any obligation on the Tenant to fit out the Property or to reinstate the Property to the condition or design it was in before any alterations or improvements were carried out; and
(e) 7.6.5 any statutory restriction on rents or the right to recover them.
7.7 The Surveyor shall be an independent valuer who is a Member or Fellow of the Royal Institution of Chartered Surveyors. The Landlord and the Tenant may, by agreement, appoint the Surveyor at any time before either of them applies to the President for the Surveyor to be appointed. Any application to the President may not be made earlier than three months before the relevant Review Date.
7.8 The Surveyor shall act as an expert and not as an arbitrator. The Surveyor shall determine the open market rent and shall have power to determine any issue involving the interpretation of any provision of this lease, his jurisdiction to determine the matters and issues referred to him or his terms of referencerent. The Surveyor's decision shall be given in writing, and the Surveyor shall provide reasons for any determination. The Surveyor's written decision on the matters referred to him shall be final and binding in the absence of manifest error or fraud.
7.9 The Surveyor shall give the Landlord and the Tenant an opportunity to make written representations to the Surveyor and to make written counter-representations commenting on the representations of the other party to the Surveyor. The parties will provide (or procure that others provide) the Surveyor with such assistance and documents as the Surveyor reasonably requires for the purpose of reaching a decision.
7.10 If the Surveyor dies, or becomes unwilling or incapable of acting, or unreasonably delays in making any determination, then either Either the Landlord or the Tenant may apply to the President to discharge the Surveyor and clause if the Surveyor:
7.10.1 dies;
7.10.2 becomes unwilling or incapable of acting; or
7.10.3 unreasonably delays in making any determination. Clause 7.7 shall then apply in relation to the appointment of a replacement.
7.11 The fees and expenses of the Surveyor and the cost of the Surveyor's appointment and any counsel's fees, or other fees, reasonably incurred by the Surveyor shall be payable by the Landlord and the Tenant in the proportions that the Surveyor directs (or if the Surveyor makes no direction, then equally). If either the Landlord or the Tenant does not pay its part of the Surveyor's fees and expenses within ten (10) working days after demand by the Surveyor then:
(a) Surveyor, the other party Landlord may pay instead; and
(b) that part and the amount so paid it pays shall be a debt of the party that should have paid Tenant due and payable on demand to the party that actually made the paymentLandlord. The Landlord and the Tenant shall otherwise each bear their own costs in connection with the rent review.
7.12 If the revised Annual Rent has not been agreed by the Landlord and the Tenant or determined by the Surveyor on or before the relevant Review Date, the Annual Rent payable from that Review Date shall continue at the rate payable immediately before that Review Date. No later than five (5) working days after the revised Annual Rent is agreed or the Surveyor’s determination is notified to the Landlord and the Tenant, the Tenant shall pay:
(a) 7.12.1 the shortfall (if any) between the amount that it has paid for the period from the Review Date until the Rent Payment Date following the date of agreement or notification of the revised Annual Rent and the amount that would have been payable had the revised Annual Rent been agreed or determined on or before that Review Date; and
(b) 7.12.2 interest at the Interest Rate on that shortfall calculated on a daily basis by reference to the Rent Payment Dates on which parts of the shortfall would have been payable if the revised Annual Rent had been agreed or determined on or before that Review Date and the date payment is received by the Landlord.
7.13 Time shall not be of the essence for the purposes of this clause.
7.14 If at any time there is a guarantor, the guarantor shall not have any right to participate in the review of the Annual Rent.
7.15 As soon as practicable after the amount of the revised Annual Rent has been agreed or determined, a memorandum recording the amount shall be signed by or on behalf of the Landlord and the Tenant and endorsed on or attached to this lease Lease and its counterpart. The Landlord and the Tenant shall each bear their own costs in connection with the memorandum.
Appears in 1 contract
Samples: Lease Agreement
REVIEW OF THE ANNUAL RENT. 7.1 In this clause the President is the President for the time being of the Royal Institution of Chartered Surveyors or a person acting on his behalf, and the Surveyor is the independent valuer appointed pursuant to clause 7.7.
7.2 The amount of Annual Rent shall be reviewed on each Review Date to equalthe greater of:
(a) the Annual Rent payable immediately before the relevant Review Date (or which would then be payable but for any abatement or suspension of the Annual Rent or restriction on the right to collect it) ); or, if greater;
(b) 1.1041 multiplied by the Annual Rent payable immediately before the relevant Review Date; or
(c) the open market rent agreed or determined pursuant to this clause.
7.3 The open market rent may be agreed between the Landlord and the Tenant at any time before it is determined by the Surveyor.
7.4 If the open market rent is determined by the Surveyor, it shall be the amount that the Surveyor determines is the best annual rent (exclusive of any VAT) at which the Property could reasonably be expected to be let:
(a) in the open market;
(b) at the relevant Review Date;
(c) on the assumptions listed in clause 7.5; and
(d) disregarding the matters listed in clause 7.6.
7.5 The assumptions are:
(a) the Property is available to let in the open market:
(i) by a willing lessor to a willing lessee;
(ii) as a whole;
(iii) with vacant possession;
(iv) without a fine or a premium;
(v) for a term equal to the unexpired residue of the Contractual Term at the relevant Review Date or a term of five years commencing on the relevant Review Date, if longer; and
(vi) otherwise on the terms of this lease other than as to the amount of the Annual Rent but including the provisions for review of the Annual Rent, and other than the provision in this lease for a rent- free period;
(b) the willing lessee has had the benefit of any rent-free or other concession or contribution which would be offered in the open market at the relevant Review Date in relation to fitting out works at the Property;
(c) the Property may lawfully be used, and is in a physical state to enable it to be lawfully used, by the willing lessee (or any potential undertenant or assignee of the willing lessee) for any purpose permitted by this lease;
(d) the Landlord and the Tenant have fully complied with their obligations in this lease;
(e) if the Property, or any means of access to it or any Service Media serving the Property, has been destroyed or damaged, it has been fully restored;
(f) no work has been carried out on the Property or on the Building that has diminished its the rental valuevalue of the Property;
(g) any fixtures, fittings, machinery or equipment supplied to the Property by the Landlord that have been removed by or at the request of the Tenant, or any undertenant or their respective predecessors in title (otherwise than to comply with any law) remain at the Property; and
(h) the willing lessee and its potential assignees and undertenants shall not be disadvantaged by any actual or potential exercise of an option to tax under Part 1 of Schedule 10 to the VATA 1994 in relation to the Property.
7.6 The matters to be disregarded are:
(a) any effect on rent of the fact that the Tenant or any authorised undertenant has been in occupation of the Property;
(b) any goodwill attached to the Property by reason of any business carried out there by the Tenant or by any authorised undertenant or by any of their predecessors in business;
(c) any effect on rent attributable to any physical improvement to the Property and Service Media within or exclusively serving the Property carried out before or after the date of this lease, by or at the expense of the Tenant or any authorised undertenant with all necessary consents, approvals and authorisations and not pursuant to an obligation to the Landlord (other than an obligation to comply with any law);
(d) any effect on rent of any obligation on the Tenant to fit out the Property or to reinstate the Property to the condition or design it was in before any alterations or improvements were carried out; and
(e) any statutory restriction on rents or the right to recover them.
7.7 The Surveyor shall be an independent valuer who is a Member or Fellow of the Royal Institution of Chartered Surveyors. The Landlord and the Tenant may, by agreement, appoint the Surveyor at any time before either of them applies to the President for the Surveyor to be appointed. Any application to the President may not be made earlier than three months before the relevant Review Date.
7.8 The Surveyor shall act as an expert and not as an arbitrator. The Surveyor shall determine the open market rent and shall have power to determine any issue involving the interpretation of any provision of this lease, his jurisdiction to determine the matters and issues referred to him or his terms of reference. The Surveyor's decision shall be given in writing, and the Surveyor shall provide reasons for any determination. The Surveyor's written decision on the matters referred to him shall be final and binding in the absence of manifest error or fraud.
7.9 The Surveyor shall give the Landlord and the Tenant an opportunity to make written representations to the Surveyor and to make written counter-representations commenting on the representations of the other party to the Surveyor. The parties will provide (or procure that others provide) the Surveyor with such assistance and documents as the Surveyor reasonably requires for the purpose of reaching a decision.
7.10 If the Surveyor dies, or becomes unwilling or incapable of acting, or unreasonably delays in making any determination, then either the Landlord or the Tenant may apply to the President to discharge the Surveyor and clause 7.7 shall then apply in relation to the appointment of a replacement.
7.11 The fees and expenses of the Surveyor and the cost of the Surveyor's appointment and any counsel's fees, or other fees, reasonably incurred by the Surveyor shall be payable by the Landlord and the Tenant in the proportions that the Surveyor directs (or if the Surveyor makes no direction, then equally). If either the Landlord or the Tenant does not pay its part of the Surveyor's fees and expenses within ten working days after demand by the Surveyor then:
(a) Surveyor, the other party Landlord may pay instead; and
(b) that part and the amount so paid it pays shall be a debt of the party that should have paid Tenant due and payable on demand to the party that actually made the paymentLandlord. The Landlord and the Tenant shall otherwise each bear their own costs in connection with the rent review.
7.12 If the revised Annual Rent has not been agreed by the Landlord and the Tenant or determined by the Surveyor on or before the relevant Review Date, the Annual Rent payable from (and including) that Review Date shall continue at the rate payable immediately before that Review Date. No later than five working days after the revised Annual Rent is agreed or the Surveyor’s determination is notified to the Landlord and the Tenant, the Tenant shall pay:
(a) the shortfall (if any) between the amount that it has paid for the period from the Review Date until the Rent Payment Date following the date of agreement or notification of the revised Annual Rent and the amount that would have been payable had the revised Annual Rent been agreed or determined on or before that Review Date; and
(b) interest at the Interest Rate on that shortfall calculated on a daily basis by reference to the Rent Payment Dates on which parts of the shortfall would have been payable if the revised Annual Rent had been agreed or determined on or before that Review Date and the date payment is received by the Landlord.
7.13 Time shall not be of the essence for the purposes of this clause.
7.14 If at any time there is a guarantor, the guarantor shall not have any right to participate in the review of the Annual Rent.
7.15 As soon as practicable after the amount of the revised Annual Rent has been agreed or determined, a memorandum recording the amount shall be signed by or on behalf of the Landlord and the Tenant and endorsed on or attached to this lease and its counterpart. The Landlord and the Tenant shall each bear their own costs in connection with the memorandum.
Appears in 1 contract
Samples: Lease
REVIEW OF THE ANNUAL RENT. 7.1 In this clause the President is the President for the time being of the Royal Institution of Chartered Surveyors or a person acting on his behalf, and the Surveyor is the independent valuer appointed pursuant to clause 7.7.
7.2 1.38. The amount of Annual Rent shall be reviewed on each Review Date to equal:
(a) : the Annual Rent payable immediately before the relevant Review Date (or which would then be payable but for any abatement or suspension of the Annual Rent or restriction on the right to collect it) or, if greater;
(b) ; the open market rent agreed or determined pursuant to this clause.
7.3 . The open market rent may be agreed between the Landlord and the Tenant at any time before it is determined by the Surveyor.
7.4 . If the open market rent is determined by the Surveyor, it shall be the amount that the Surveyor determines is the best annual rent (exclusive of any VAT) at which the Property could reasonably be expected to be let:
(a) : in the open market;
(b) ; at the relevant Review Date;
(c) ; on the assumptions listed in clause 7.51.36; and
(d) and disregarding the matters listed in clause 7.6.
7.5 1.37. The assumptions are:
(a) : the Property is available to let in the open market:
(i) : by a willing lessor to a willing lessee;
(ii) ; as a whole;
(iii) ; with vacant possession;
(iv) ; without a fine or a premium;
(v) ; for a term equal to the unexpired residue of the Contractual Term at the relevant Review Date or a term of five ten years commencing on the relevant Review Date, if longer; and
(vi) and otherwise on the terms of this lease other than as to the amount of the Annual Rent but including the provisions for review of the Annual Rent;
(b) ; the willing lessee has had the benefit of any rent-free or other concession or contribution which would be offered in the open market at the relevant Review Date in relation to fitting out works at the Property;
(c) ; the Property may lawfully be used, and is in a physical state to enable it to be lawfully used, by the willing lessee (or any potential undertenant or assignee of the willing lessee) for any purpose permitted by this lease;
(d) ; the Landlord and the Tenant have fully complied with their obligations in this lease;
(e) ; if the Property, or any means of access to it or any Service Media serving the Property, has been destroyed or damaged, it has been fully restored;
(f) ; no work has been carried out on the Property that has diminished its rental value;
(g) value any fixtures, fittings, machinery or equipment supplied to the Property by the Landlord that have been removed by or at the request of the Tenant, or any undertenant or their respective predecessors in title (otherwise than to comply with any law) remain at the Property; and
(h) and the willing lessee and its potential assignees and undertenants shall not be disadvantaged by any actual or potential exercise of an option election to tax under Part 1 of Schedule 10 to the VATA 1994 waive exemption from VAT in relation to the Property.
7.6 . The matters to be disregarded are:
(a) : any effect on rent of the fact that the Tenant or any authorised undertenant has been in occupation of the Property;
(b) ; any goodwill attached to the Property by reason of any business carried out there by the Tenant or by any authorised undertenant or by any of their predecessors in business;
(c) ; any effect on rent attributable to any physical improvement to the Property carried out before or after the date of this lease, by or at the expense of the Tenant or any authorised undertenant with all necessary consents, approvals and authorisations and not pursuant to an obligation to the Landlord (other than an obligation to comply with any law);
(d) ; any effect on rent of any obligation on the Tenant to fit out the Property or to reinstate the Property to the condition or design it was in before any alterations or improvements were carried out; and
(e) and any statutory restriction on rents or the right to recover them.
7.7 . The Surveyor shall be an independent valuer who is a Member or Fellow of the Royal Institution of Chartered Surveyors. The Landlord and the Tenant may, by agreement, appoint the Surveyor at any time before either of them applies to the President for the Surveyor to be appointed. Any application to the President may not be made earlier than three months before the relevant Review Date.
7.8 . The Surveyor shall act as an expert and not as an arbitrator. The Surveyor shall determine the open market rent and shall have power to determine any issue involving the interpretation of any provision of this lease, his jurisdiction to determine the matters and issues referred to him or his terms of reference. The Surveyor's decision shall be given in writing,. The Surveyor's written decision on the matters referred to him shall be final and binding in the absence of manifest error or fraud.
7.9 . The Surveyor shall give the Landlord and the Tenant an opportunity to make written representations to the Surveyor and to make written counter-representations commenting on the representations of the other party to the Surveyor. The parties will provide (or procure that others provide) the Surveyor with such assistance and documents as the Surveyor reasonably requires for the purpose of reaching a decision.
7.10 . If the Surveyor dies, or becomes unwilling or incapable of acting, or unreasonably delays in making any determination, then either the Landlord or the Tenant may apply to the President to discharge the Surveyor and clause 7.7 1.38 shall then apply in relation to the appointment of a replacement.
7.11 . The fees and expenses of the Surveyor and the cost of the Surveyor's appointment and any counsel's fees, or other fees, reasonably incurred by the Surveyor shall be payable by the Landlord and the Tenant in the proportions that the Surveyor directs (or if the Surveyor makes no direction, then equally). If either the Landlord or the Tenant does not pay its part of the Surveyor's fees and expenses within ten working days after demand by the Surveyor then:
(a) Surveyor, the other party Landlord may pay instead; and
(b) that part and the amount so paid it pays shall be a debt of the party that should have paid Tenant due and payable on demand to the party that actually made the paymentLandlord. The Landlord and the Tenant shall otherwise each bear their own costs in connection with the rent review.
7.12 . The Landlord and the Tenant shall otherwise each bear their own costs in connection with the rent review. If the revised Annual Rent has not been agreed by the Landlord and the Tenant or determined by the Surveyor on or before the relevant Review Date, the Annual Rent payable from that Review Date shall continue at the rate payable immediately before that Review Date. No later than five working days after the revised Annual Rent is agreed or the Surveyor’s 's determination is notified to the Landlord and the Tenant, the Tenant shall pay:
(a) : the shortfall (if any) between the amount that it has paid for the period from the Review Date until the Rent Payment Date following the date of agreement or notification of the revised Annual Rent and the amount that would have been payable had the revised Annual Rent been agreed or determined on or before that Review Date; and
(b) and interest at the Interest Rate on that shortfall calculated on a daily basis by reference to the Rent Payment Dates on which parts of the shortfall would have been payable if the revised Annual Rent had been agreed or determined on or before that Review Date and the date payment is received by the Landlord.
7.13 . Time shall not be of the essence for the purposes of this clause.
7.14 . If at any time there is a guarantor, the guarantor shall not have any right to participate in the review of the Annual Rent. As soon as practicable after the amount of the revised Annual Rent has been agreed or determined, a memorandum recording the amount shall be signed by or on behalf of the Landlord and the Tenant and endorsed on or attached to this lease and its counterpart. The Landlord and the Tenant shall each bear their own costs in connection with the memorandum.
Appears in 1 contract
Samples: Lease
REVIEW OF THE ANNUAL RENT.
7.1 In this clause 7 the President is the President for the time being of the Royal Institution of Chartered Surveyors or a person acting on his behalfbehalf ("President"), and the Surveyor is the independent valuer appointed pursuant to clause 7.77.7 ("Surveyor").
7.2 The amount of Annual Rent shall be reviewed on each the Review Date to equal:
(a) 7.2.1 the Annual Rent payable immediately before the relevant Review Date (or which would then be payable but for any abatement or suspension of the Annual Rent or restriction on the right to collect it) or, if greater;
(b) 7.2.2 the open market rent agreed or determined pursuant to this clauseclause 7; PROVIDED that the Annual Rent on the First Review Date shall not be less than £350,000.00 and not more than £700,000.00.
7.3 The open market rent may be agreed between the Landlord and the Tenant at any time before it is determined by the Surveyor.
7.4 If the open market rent is determined by the Surveyor, it shall be the amount that the Surveyor determines is the best market annual rent (exclusive of any VAT) at which the Property could reasonably be expected to be let:
(a) 7.4.1 in the open market;
(b) 7.4.2 at the relevant Review Date;
(c) 7.4.3 on the assumptions listed in clause 7.5; and
(d) 7.4.4 disregarding the matters listed in clause 7.6.
7.5 The assumptions are:
(a) 7.5.1 the Property is available to let in the open market:
(ia) by a willing lessor to a willing lessee;
(iib) as a whole;
(iiic) with vacant possession;
(ivd) without a fine or a premium;
(ve) for a term equal to the unexpired theh residue of the Contractual Term at the relevant Review Date or a term of five years commencing on the relevant Review Date, if longer; and
(vif) otherwise on the terms of this lease other than as to the amount of the Annual Rent but including the provisions for review of the Annual Rent, and other than the provision in this lease for the rent-free period;
(b) 7.5.2 the willing lessee has had the benefit of any rent-free or other concession or contribution which would be offered in the open market at the relevant Review Date in relation to fitting out works at the Property;
(c) 7.5.3 the Property may lawfully be usedused for the Permitted Use, and has been fitted out at the expense of the Landlord and is in a physical state to enable it to be lawfully used, ready for immediate occupation and use by the willing lessee (or any potential undertenant or assignee of the willing lessee) for any purpose permitted by this leasehypothetic tenant;
(d) 7.5.4 the Landlord (save in the case of a wilful and persistent breach) and the Tenant have fully complied with their respective obligations in this lease;
(e) 7.5.5 if the Property, or any other part of the Building, or any means of access to it or any Service Media serving the Property, has been destroyed or damageddamaged by an Insured Risk, it has been fully restored;
(f) 7.5.6 no work has been carried out on the Property Property, or any other part of the Building , that has diminished its rental value;
(g) any fixtures, fittings, machinery or equipment supplied to the Property by the Landlord that have been removed by or at the request of the Tenant, or any undertenant or their respective predecessors in title (otherwise than to comply with any law) remain at the Property; and
(h) the willing lessee and its potential assignees and undertenants shall not be disadvantaged by any actual or potential exercise of an option to tax under Part 1 of Schedule 10 to the VATA 1994 in relation to the Property.
7.6 The matters to be disregarded are:
(a) any effect on rent of the fact that the Tenant or any authorised undertenant has been in occupation of the Property;
(b) any goodwill attached to the Property by reason of any business carried out there by the Tenant or by any authorised undertenant or by any of their predecessors in business;
(c) any effect on rent attributable to any physical improvement to the Property carried out before or after the date of this lease, by or at the expense of the Tenant or any authorised undertenant with all necessary consents, approvals and authorisations and not pursuant to an obligation to the Landlord (other than an obligation to comply with any law);
(d) any effect on rent of any obligation on the Tenant to fit out the Property or to reinstate the Property to the condition or design it was in before any alterations or improvements were carried out; and
(e) any statutory restriction on rents or the right to recover them.
7.7 The Surveyor shall be an independent valuer who is a Member or Fellow of the Royal Institution of Chartered Surveyors. The Landlord and the Tenant may, by agreement, appoint the Surveyor at any time before either of them applies to the President for the Surveyor to be appointed. Any application to the President may not be made earlier than three months before the relevant Review Date.
7.8 The Surveyor shall act as an expert and not as an arbitrator. The Surveyor shall determine the open market rent and shall have power to determine any issue involving the interpretation of any provision of this lease, his jurisdiction to determine the matters and issues referred to him or his terms of reference. The Surveyor's decision shall be given in writing. The Surveyor's written decision on the matters referred to him shall be final and binding in the absence of manifest error or fraud.
7.9 The Surveyor shall give the Landlord and the Tenant an opportunity to make written representations to the Surveyor and to make written counter-representations commenting on the representations of the other party to the Surveyor. The parties will provide (or procure that others provide) the Surveyor with such assistance and documents as the Surveyor reasonably requires for the purpose of reaching a decision.
7.10 If the Surveyor dies, or becomes unwilling or incapable of acting, or unreasonably delays in making any determination, then either the Landlord or the Tenant may apply to the President to discharge the Surveyor and clause 7.7 shall then apply in relation to the appointment of a replacement.
7.11 The fees and expenses of the Surveyor and the cost of the Surveyor's appointment and any counsel's fees, or other fees, reasonably incurred by the Surveyor shall be payable by the Landlord and the Tenant in the proportions that the Surveyor directs (or if the Surveyor makes no direction, then equally). If either the Landlord or the Tenant does not pay its part of the Surveyor's fees and expenses within ten working days after demand by the Surveyor then:
(a) the other party may pay instead; and
(b) the amount so paid shall be a debt of the party that should have paid due and payable on demand to the party that actually made the payment. The Landlord and the Tenant shall otherwise each bear their own costs in connection with the rent review.
7.12 If the revised Annual Rent has not been agreed by the Landlord and the Tenant or determined by the Surveyor on or before the relevant Review Date, the Annual Rent payable from that Review Date shall continue at the rate payable immediately before that Review Date. No later than five working days after the revised Annual Rent is agreed or the Surveyor’s determination is notified to the Landlord and the Tenant, the Tenant shall pay:
(a) the shortfall (if any) between the amount that it has paid for the period from the Review Date until the Rent Payment Date following the date of agreement or notification of the revised Annual Rent and the amount that would have been payable had the revised Annual Rent been agreed or determined on or before that Review Date; and
(b) interest at the Interest Rate on that shortfall calculated on a daily basis by reference to the Rent Payment Dates on which parts of the shortfall would have been payable if the revised Annual Rent had been agreed or determined on or before that Review Date and the date payment is received by the Landlord.
7.13 Time shall not be of the essence for the purposes of this clause.
7.14 As soon as practicable after the amount of the revised Annual Rent has been agreed or determined, a memorandum recording the amount shall be signed by or on behalf of the Landlord and the Tenant and endorsed on or attached to this lease and its counterpart. The Landlord and the Tenant shall each bear their own costs in connection with the memorandum.
Appears in 1 contract
Samples: Lease Agreement
REVIEW OF THE ANNUAL RENT. 7.1 In this clause the President is the President for the time being of the Royal Institution of Chartered Surveyors or a person acting on his behalf, and the Surveyor is the independent valuer appointed pursuant to clause 7.7.
7.2 The amount of Annual Rent shall be reviewed on each Review Date to equal:
(a) the Annual Rent payable immediately before the relevant Review Date (or which would then be payable but for any abatement or suspension of the Annual Rent or restriction on the right to collect it) or, if greater;
(b) the open market rent agreed or determined pursuant to this clause.
7.3 The open market rent may be agreed between the Landlord and the Tenant at any time before it is determined by the Surveyor.
7.4 If the open market rent is determined by the Surveyor, it shall be the amount that the Surveyor determines is the best annual rent (exclusive of any VAT) at which the Property could reasonably be expected to be let:
(a) in the open market;
(b) at the relevant Review Date;
(c) on the assumptions listed in clause 7.5; and
(d) disregarding the matters listed in clause 7.6.
7.5 The assumptions are:
(a) the Property is available to let in the open market:
(i) by a willing lessor to a willing lessee;
(ii) as a whole;
(iii) with vacant possession;
(iv) without a fine or a premium;
(v) for a term equal to the unexpired residue of the Contractual Term at the relevant Review Date or a term of five 10 years commencing on the relevant Review Date, if longer; and
(vi) otherwise on the terms of this lease other than as to the amount of the Annual Rent but including the provisions for review of the Annual Rent;
(b) the willing lessee has had the benefit of any rent-free or other concession or contribution which would be offered in the open market at the relevant Review Date in relation to fitting out works at the Property;
(c) the Property may lawfully be used, and is in a physical state to enable it to be lawfully used, by the willing lessee (or any potential undertenant or assignee of the willing lessee) for any purpose permitted by this lease;
(d) the Landlord and the Tenant have fully complied with their obligations in this lease;
(e) if the Property, or any means of access to it or any Service Media serving the Property, has been destroyed or damaged, it has been fully restored;
(f) no work has been carried out on the Property that has diminished its rental value;
(g) any fixtures, fittings, machinery or equipment supplied to the Property by the Landlord that have been removed by or at the request of the Tenant, or any undertenant or their respective predecessors in title (otherwise than to comply with any law) remain at the Property; and
(h) the willing lessee and its potential assignees and undertenants shall not be disadvantaged by any actual or potential exercise of an option election to tax under Part 1 of Schedule 10 to the VATA 1994 waive exemption from VAT in relation to the Property.
7.6 The matters to be disregarded are:
(a) any effect on rent of the fact that the Tenant or any authorised undertenant has been in occupation of the Property;
(b) any goodwill attached to the Property by reason of any business carried out there by the Tenant or by any authorised undertenant or by any of their predecessors in business;
(c) any effect on rent attributable to any physical improvement to the Property carried out before or after the date of this lease, by or at the expense of the Tenant or any authorised undertenant with all necessary consents, approvals and authorisations and not pursuant to an obligation to the Landlord (other than an obligation to comply with any law);
(d) any effect on rent of any obligation on the Tenant to fit out the Property or to reinstate the Property to the condition or design it was in before any alterations or improvements were carried out; and
(e) any statutory restriction on rents or the right to recover them.
7.7 The Surveyor shall be an independent valuer who is a Member or Fellow of the Royal Institution of Chartered Surveyors. The Landlord and the Tenant may, by agreement, appoint the Surveyor at any time before either of them applies to the President for the Surveyor to be appointed. Any application to the President may not be made earlier than three months before the relevant Review Date.
7.8 The Surveyor shall act as an expert and not as an arbitrator. The Surveyor shall determine the open market rent and shall have power to determine any issue involving the interpretation of any provision of this lease, his jurisdiction to determine the matters and issues referred to him or his terms of referencerent. The Surveyor's decision shall be given in writing, and the Surveyor shall provide reasons for any determination. The Surveyor's written decision on the matters referred to him shall be final and binding in the absence of manifest error or fraud.
7.9 The Surveyor shall give the Landlord and the Tenant an opportunity to make written representations to the Surveyor and to make written counter-representations commenting on the representations of the other party to the Surveyor. The parties will provide (or procure that others provide) the Surveyor with such assistance and documents as the Surveyor reasonably requires for the purpose of reaching a decision.
7.10 If the Surveyor dies, or becomes unwilling or incapable of acting, or unreasonably delays in making any determination, then either the Landlord or the Tenant may apply to the President to discharge the Surveyor and clause 7.7 shall then apply in relation to the appointment of a replacement.
7.11 The fees and expenses of the Surveyor and the cost of the Surveyor's appointment and any counsel's fees, or other fees, reasonably incurred by the Surveyor shall be payable by the Landlord and the Tenant in the proportions that the Surveyor directs (or if the Surveyor makes no direction, then equally). If either the Landlord or the Tenant does not pay its part of the Surveyor's fees and expenses within ten working days after demand by the Surveyor then:
(a) the other party may pay instead; and
(b) the amount so paid shall be a debt of the party that should have paid due and payable on demand to the party that actually made the payment. The Landlord and the Tenant shall otherwise each bear their own costs in connection with the rent review.
7.12 If the revised Annual Rent has not been agreed by the Landlord and the Tenant or determined by the Surveyor on or before the relevant Review Date, the Annual Rent payable from that Review Date shall continue at the rate payable immediately before that Review Date. No later than five working days after On the date the revised Annual Rent is agreed or the Surveyor’s determination is notified to the Landlord and the Tenant, the Tenant shall pay:
(a) the shortfall (if any) between the amount that it has paid for the period from the Review Date until the Rent Payment Date following the date of agreement or notification of the revised Annual Rent and the amount that would have been payable had the revised Annual Rent been agreed or determined on or before that Review Date; and
(b) interest at the Interest Rate on that shortfall calculated on a daily basis by reference to the Rent Payment Dates on which parts of the shortfall would have been payable if the revised Annual Rent had been agreed or determined on or before that Review Date and the date payment is received by the Landlord.
7.13 Time shall not be of the essence for the purposes of this clause.
7.14 If at any time there is a guarantor, the guarantor shall not have any right to participate in the review of the Annual Rent.
7.15 As soon as practicable after the amount of the revised Annual Rent has been agreed or determined, a memorandum recording the amount shall be signed by or on behalf of the Landlord and the Tenant and endorsed on or attached to this lease and its counterpart. The Landlord and the Tenant shall each bear their own costs in connection with the memorandum.
Appears in 1 contract
Samples: Lease Agreement
REVIEW OF THE ANNUAL RENT. 7.1 In this clause the President is the President for the time being of the Royal Institution of Chartered Surveyors or a person acting on his behalf, and the Surveyor is the independent valuer appointed pursuant to clause 7.77.8.
7.2 The amount of Annual Rent shall will be reviewed on each Review Date to equalthe greater of:
(a) the Annual Rent payable immediately before the relevant Review Date (or which would then be payable but for any abatement or suspension of the Annual Rent or restriction on the right to collect it) or), if greater;and
(b) the open market rent agreed or determined pursuant to this clause.
7.3 The open market rent may be agreed between the Landlord and the Tenant at any time before it is determined by the Surveyor.
7.4 If the open market rent is determined by the Surveyor, it shall will be the amount that the Surveyor determines is the best annual rent (exclusive of any VATV AT) at which the Property could reasonably be expected to be let:
(a) in the open market;,
(b) at the relevant Review Date;,
(c) on the assumptions listed in clause 7.5; , and
(d) disregarding the matters listed in clause 7.6.
7.5 The assumptions are:
(a) the Property is available to let in the open market:
(i) by a willing lessor to a willing lessee;lessee (which may be the Tenant),
(ii) as a whole;,
(iii) with vacant possession;,
(iv) without a fine or a premium;,
(v) for a term equal to the unexpired residue of the Contractual Term at the relevant Review Date or a term of five 9 years commencing on the relevant Review Date, if longer; , and
(vi) otherwise on the terms of this lease other than as to the amount of the Annual Rent but including the provisions for review of the Annual Rent;
(b) the willing lessee has had the benefit of any rent-free or other concession or contribution which would be offered in the open market at the relevant Review Date in relation to fitting reflect the need to fit out works at the Property;
(c) the Property may lawfully be used, and is in a physical state to enable it to be lawfully used, by the willing lessee (or any potential undertenant or assignee of the willing lessee) for any purpose permitted by this lease;
(d) the Landlord and the Tenant have fully complied with their obligations in this lease;
(e) if the Property, or any means of access to it or any Service Media serving the Property, has been destroyed or damaged, it has been fully restored;
(f) no work has been carried out on the Property that by the Tenant or its sub-tenants (other than pursuant to a statutory obligation or an obligation under this Lease or on the Estate which has diminished its the rental valuevalue of the Property;
(g) any fixtures, fittings, machinery or equipment equipment; supplied to the Property by the Landlord that have been removed by or at the request of the Tenant, or any undertenant or their respective predecessors in title (otherwise than to comply with any law) remain at the Property; and;
(h) the Tenant has fully complied with its obligations in this Lease save where there is wilful or persistent breach by the Landlord
(i) the willing lessee and its potential assignees and undertenants shall will not be disadvantaged by any actual or potential exercise of an option election to tax under Part 1 of Schedule 10 to the VATA 1994 waive exemption from V A T in relation to the Property.
7.6 The matters to be disregarded are:
(a) any effect on rent of the fact that the Tenant or any authorised undertenant has been in occupation of the Property;
(b) any goodwill attached to the Property by reason of any business carried out there by the Tenant or by any authorised undertenant or by any of their predecessors in business;
(c) any effect on rent attributable to any physical improvement to the Property carried out before or after the date of this lease, by or at the expense of the Tenant or any authorised undertenant with all necessary consents, approvals and authorisations and not pursuant to an obligation to the Landlord (other than an obligation to comply with any law);law and for the purposes of this sub-clause any obligation in any licence for the carrying out of permitted works will not be an obligation to the Landlord
(d) any effect on rent of any obligation on the Tenant to fit out the Property or to reinstate the Property to the condition or design it was in before any alterations or improvements were carried out; and
(e) any statutory restriction on rents or the right to recover them.
7.7 The Surveyor shall If the revised Annual Rent is agreed between the Landlord and the Tenant, it may be an independent valuer who is a Member or Fellow of the Royal Institution of Chartered Surveyors. stepped rent.
7.8 The Landlord and the Tenant may, by agreement, may appoint the Surveyor an independent valuer at any time before either of them applies to the President for the Surveyor an independent valuer to be appointed. Any application The Landlord or the Tenant may apply to the President may not for an independent valuer to be made earlier than appointed at any time after the date which is three months before the relevant Review Date. The independent valuer must be an associate or fellow of the Royal Institution of Chartered Surveyors.
7.8 7.9 The Surveyor shall act as an expert and not as an arbitrator. The Surveyor shall determine the open market rent and shall have power to determine any issue involving the interpretation of any provision of this lease, his jurisdiction to determine the matters and issues referred to him or his terms of reference. The Surveyor's decision shall be given in writing. The Surveyor's written decision on the matters referred to him shall be final and binding in the absence of manifest error or fraud.
7.9 7.10 The Surveyor shall give the Landlord and the Tenant an opportunity to make written representations to the Surveyor and to make written counter-representations commenting on the representations of the other party to the Surveyor. The parties will provide (or procure that others provide) the Surveyor with such assistance and documents as the Surveyor reasonably requires for the purpose of reaching a decision.
7.10 7.11 If the Surveyor dies, delays or becomes unwilling or incapable of acting, or unreasonably delays in making any determination, then either the Landlord or the Tenant may apply to the President to discharge the Surveyor and clause 7.7 shall 7.8 will then apply in relation to the appointment of a replacement.
7.11 7.12 The fees and expenses of the Surveyor and the cost of the Surveyor's ’s appointment and any counsel's fees, or other fees, reasonably ’s fees incurred by the Surveyor shall will be payable by the Landlord and the Tenant in the proportions that the Surveyor directs (or if the Surveyor makes no direction, then equally). If either the Landlord or the Tenant does not pay its part of the Surveyor's ’s fees and expenses within ten working twenty one days after demand by the Surveyor then:
(a) Surveyor, the other party Landlord may pay instead; and
(b) that part and the amount so paid shall it pays will be a debt of the party that should have paid Tenant due and payable on demand to the party that actually made the paymentLandlord. The Landlord and the Tenant shall otherwise each bear their own costs in connection with the rent review.
7.12 7.13 If the revised Annual Rent has not been agreed by the Landlord and the Tenant or determined by the Surveyor on or before the relevant Review Date, the Annual Rent payable from that Review Date shall will continue at the rate payable immediately before that Review Date. No later than five working fourteen days after the revised Annual Rent is agreed or the Surveyor’s determination is notified to the Landlord and the Tenant, the Tenant shall will pay:
(a) the shortfall (if any) between the amount that it has paid for the period from the Review Date until the Rent Payment Date following the date of agreement or notification of the revised Annual Rent and the amount that would have been payable had the revised Annual Rent been agreed or determined on or before that Review Date; and
(b) interest at the Interest Rate on that shortfall calculated on a daily basis by reference to the Rent Payment Dates on which parts of the shortfall would have been payable if the revised Annual Rent had been agreed or determined on or before that Review Date and the date payment is received by the Landlord.
7.13 7.14 Time shall will not be of the essence for the purposes of this clause.
7.14 7.15 As soon as practicable after the amount of the revised Annual Rent has been agreed or determined, a memorandum recording the amount shall be signed by or on behalf of the Landlord and the Tenant and endorsed on or attached to this lease and its counterpart. The Landlord and the Tenant shall will each bear their own costs in connection with the memorandum.
Appears in 1 contract
Samples: Lease Agreement (TNS Inc)
REVIEW OF THE ANNUAL RENT.
7.1 In this clause the President is the President for the time being of the Royal Institution of Chartered Surveyors or a person acting on his behalf, and the Surveyor is the independent valuer appointed pursuant to clause 7.7.7.7.
7.2 The amount of Annual Rent shall be reviewed on each Review Date to equal:equal:
(a) the Annual Rent payable immediately before the relevant Review Date (or which would then be payable but for any abatement or suspension of the Annual Rent or restriction on the right to collect it) or, if greater;greater;
(b) the open market rent agreed or determined pursuant to this clause.clause.
7.3 The open market rent may be agreed between the Landlord and the Tenant at any time before it is determined by the Surveyor.Surveyor.
7.4 If the open market rent is determined by the Surveyor, it shall be the amount that the Surveyor determines is the best annual rent (exclusive of any VAT) at which the Property could reasonably be expected to be let:let:
(a) in the open market;market;
(b) at the relevant Review Date;Date;
(c) on the assumptions listed in clause 7.5; andand
(d) disregarding the matters listed in clause 7.6.7.6.
7.5 The assumptions are:are:
(a) the Property is available to let in the open market:market:
(i) by a willing lessor to a willing lessee;
(ii) as a whole;
(iii) with vacant possession;
(iv) without a fine or a premium;
(v) for a term equal to the unexpired residue of the Contractual Term at the relevant Review Date or a term of five years commencing on the relevant Review Date, if longer; and
(vi) otherwise on the terms of this lease other than as to the amount of the Annual Rent but including the provisions for review of the Annual Rent;
(b) the willing lessee has had the benefit of any rent-free or other concession or contribution which would be offered in the open market at the relevant Review Date in relation to fitting out works at the Property;Property;
(c) the Property may lawfully be used, and is in a physical state to enable it to be lawfully used, by the willing lessee (or any potential undertenant or assignee of the willing lessee) for any purpose permitted by this lease;lease;
(d) the Landlord and the Tenant have fully complied with their obligations in this lease;lease;
(e) if the Property, or any means of access to it or any Service Media serving the Property, has been destroyed or damaged, it has been fully restored;restored;
(f) no work has been carried out on the Property that has diminished its rental value;value;
(g) any fixtures, fittings, machinery or equipment supplied to the Property by the Landlord that have been removed by or at the request of the Tenant, or any undertenant or their respective predecessors in title (otherwise than to comply with any law) remain at the Property; andand
(h) the willing lessee and its potential assignees and undertenants shall not be disadvantaged by any actual or potential exercise of an option to tax under Part 1 of Schedule 10 to the VATA 1994 in relation to the Property.Property.
7.6 The matters to be disregarded are:are:
(a) any effect on rent of the fact that the Tenant or any authorised undertenant has been in occupation of the Property;Property;
(b) any goodwill attached to the Property by reason of any business carried out there by the Tenant or by any authorised undertenant or by any of their predecessors in business;business;
(c) any effect on rent attributable to any physical improvement to the Property carried out before or after the date of this lease, by or at the expense of the the Tenant or any authorised undertenant with all necessary consents, approvals and authorisations and not pursuant to an obligation to the Landlord (other than an obligation to comply with any law);
(d) any effect on rent of any obligation on the Tenant to fit out the Property or to reinstate the Property to the condition or design it was in before any alterations or improvements were carried out; andand
(e) any statutory restriction on rents or the right to recover them.them.
7.7 The Surveyor shall be an independent valuer who is a Member or Fellow of the Royal Institution of Chartered Surveyors. The Landlord and the Tenant may, by agreement, appoint the Surveyor at any time before either of them applies to the President for the Surveyor to be appointed. Any application to the President may not be made earlier than three months before the relevant Review Date.Date.
7.8 The Surveyor shall act as an expert and not as an arbitrator. The Surveyor shall determine the open market rent and shall have power to determine any issue involving the interpretation of any provision of this lease, his jurisdiction to determine the matters and issues referred to him or his terms of reference. The Surveyor's decision shall be given in writing. The Surveyor's written decision on the matters referred to him shall be final and binding in the absence of manifest error or fraud.fraud.
7.9 The Surveyor shall give the Landlord and the Tenant an opportunity to make written representations to the Surveyor and to make written counter-representations commenting on the representations of the other party to the Surveyor. The parties will provide (or procure that others provide) the Surveyor with such assistance and documents as the Surveyor reasonably requires for the purpose of reaching a decision.decision.
7.10 If the Surveyor dies, or becomes unwilling or incapable of acting, or unreasonably delays in making any determination, then either the Landlord or the Tenant may apply to the President to discharge the Surveyor and clause 7.7 shall then apply in relation to the appointment of a replacement.replacement.
7.11 The fees and expenses of the Surveyor and the cost of the Surveyor's appointment and any counsel's fees, or other fees, reasonably incurred by the Surveyor shall be payable by the Landlord and the Tenant in the proportions that the Surveyor directs (or if the Surveyor makes no direction, then equally). If either the Landlord or the Tenant does not pay its part of the Surveyor's fees and expenses within ten working days after demand by the Surveyor then:then:
(a) the other party may pay instead; andand
(b) the amount so paid shall be a debt of the party that should have paid due and payable on demand to the party that actually made the payment. payment. The Landlord and the Tenant shall otherwise each bear their own costs in connection with the rent review.review.
7.12 If the revised Annual Rent has not been agreed by the Landlord and the Tenant or determined by the Surveyor on or before the relevant Review Date, the Annual Rent payable from that Review Date shall continue at the rate payable immediately before that Review Date. No later than five working days after the revised Annual Rent is is agreed or the Surveyor’s determination is notified to the Landlord and the Tenant, the Tenant shall pay:pay:
(a) the shortfall (if any) between the amount that it has paid for the period from the Review Date until the Rent Payment Date following the date of agreement or notification of the revised Annual Rent and the amount that would have been payable had the revised Annual Rent been agreed or determined on or before that Review Date; andand
(b) interest at the Interest Rate on that shortfall calculated on a daily basis by reference to the Rent Payment Dates on which parts of the shortfall would have been payable if the revised Annual Rent had been agreed or determined on or before that Review Date and the date payment is received by the Landlord.Landlord.
7.13 Time shall not be of the essence for the purposes of this clause.clause.
7.14 As soon as practicable after the amount of the revised Annual Rent has been agreed or determined, a memorandum recording the amount shall be signed by or on behalf of the Landlord and the Tenant and endorsed on or attached to this lease and its counterpart. The Landlord and the Tenant shall each bear their own costs in connection with the memorandum.memorandum.
Appears in 1 contract
Samples: Lease Agreement
REVIEW OF THE ANNUAL RENT. 7.1 In this clause the President is the President for the time being of the Royal Institution of Chartered Surveyors or a person acting on his behalf, and the Surveyor is the independent valuer appointed pursuant to clause 7.7.
7.2 The amount of Annual Rent shall be reviewed on each Review Date to equal:
(a) the Annual Rent payable immediately before the relevant Review Date (or which would then be payable but for any abatement or suspension of the Annual Rent or restriction on the right to collect it) or, if greater;
(b) the open market rent agreed or determined pursuant to this clause.
7.3 The open market rent may be agreed between the Landlord and the Tenant at any time before it is determined by the Surveyor.
7.4 If the open market rent is determined by the Surveyor, it shall be the amount that the Surveyor determines is the best annual rent (exclusive of any VAT) at which the Property could reasonably be expected to be let:
(a) in the open market;
(b) at the relevant Review Date;
(c) on the assumptions listed in clause 7.5; and
(d) disregarding the matters listed in clause 7.6.
7.5 The assumptions are:
(a) the Property is available to let in the open market:
(i) by a willing lessor to a willing lessee;
(ii) as a whole;
(iii) with vacant possession;
(iv) without a fine or a premium;
(v) for a term equal to the unexpired residue of the Contractual Term at the relevant Review Date or a term of five years commencing on the relevant Review Date, if longer; and
(vi) otherwise on the terms of this lease other than as to the amount of the Annual Rent but including the provisions for review of the Annual Rent;
(b) the willing lessee has had the benefit of any rent-free or other concession or contribution which would be offered in the open market at the relevant Review Date in relation to fitting out works at the Property;
(c) the Property may lawfully be used, and is in a physical state to enable it to be lawfully used, by the willing lessee (or any potential undertenant or assignee of the willing lessee) for any purpose permitted by this lease;
(d) the Landlord and the Tenant have fully complied with their obligations in this lease;
(e) if the Property, Property or any means of access to it or any Service Media serving the Property, has been destroyed or damaged, it has been fully restored;
(f) no work has been carried out on the Property that has diminished its rental valuevalue other than work carried out in compliance with clause 31;
(g) any fixtures, fittings, machinery or equipment supplied to the Property by the Landlord that have been removed by or at the request of the Tenant, or any undertenant or their respective predecessors in title (otherwise than to comply with any law) remain at the Property; and
(h) the willing lessee and its potential assignees and undertenants shall not be disadvantaged by any actual or potential exercise of an option to tax under Part 1 of Schedule 10 to the VATA 1994 in relation to the Property.
7.6 The matters to be disregarded are:
(a) any effect on rent of the fact that the Tenant or any authorised undertenant has been in occupation of the Property;
(b) any goodwill attached to the Property by reason of any business carried out there by the Tenant or by any authorised undertenant or by any of their predecessors in business;
(c) any effect on rent attributable to any physical improvement to the Property carried out before or after the date of this lease, by or at the expense of the Tenant or any authorised undertenant with all necessary consents, approvals and authorisations and not pursuant to an obligation to the Landlord (other than an obligation to comply with any law);
(d) any effect on rent of any obligation on the Tenant to fit out the Property or to reinstate the Property to the condition or design it was in before any alterations or improvements were carried out; and
(e) any statutory restriction on rents or the right to recover them.
7.7 The Surveyor shall be an independent valuer who is a Member or Fellow of the Royal Institution of Chartered Surveyors. The Landlord and the Tenant may, by agreement, appoint the Surveyor at any time before either of them applies to the President for the Surveyor to be appointed. Any application to the President may not be made earlier than three months before the relevant Review Date.
7.8 The Surveyor shall act as an expert and not as an arbitrator. The Surveyor shall determine the open market rent and shall have power to determine any issue involving the interpretation of any provision of this lease, his jurisdiction to determine the matters and issues referred to him or his terms of reference. The Surveyor's ’s decision shall be given in writing, and the Surveyor shall provide reasons for any determination. The Surveyor's ’s written decision on the matters referred to him shall be final and binding in the absence of manifest error or fraud.
7.9 The Surveyor shall give the Landlord and the Tenant an opportunity to make written representations to the Surveyor and to make written counter-representations commenting on the representations of the other party to the Surveyor. The parties will provide (or procure that others provide) the Surveyor with such assistance and documents as the Surveyor reasonably requires for the purpose of reaching a decision.
7.10 If the Surveyor dies, or becomes unwilling or incapable of acting, or unreasonably delays in making any determination, then either the Landlord or the Tenant may apply to the President to discharge the Surveyor and clause 7.7 shall then apply in relation to the appointment of a replacement.
7.11 The fees and expenses of the Surveyor and the cost of the Surveyor's ’s appointment and any counsel's ’s fees, or other fees, reasonably incurred by the Surveyor shall be payable by the Landlord and the Tenant in the proportions that the Surveyor directs (or if the Surveyor makes no direction, then equally). If either the Landlord or the Tenant does not pay its part of the Surveyor's ’s fees and expenses within ten working days after demand by the Surveyor then:
(a) Surveyor, the other party Landlord may pay instead; and
(b) that part and the amount so paid it pays shall be a debt of the party that should have paid Tenant due and payable on demand to the party that actually made the paymentLandlord. The Landlord and the Tenant shall otherwise each bear their own costs in connection with the rent review.
7.12 If the revised Annual Rent has not been agreed by the Landlord and the Tenant or determined by the Surveyor on or before the relevant Review Date, the Annual Rent payable from that (and including) the Review Date shall continue at the rate payable immediately before that the Review Date. No later than five working days after the revised Annual Rent is agreed or the Surveyor’s determination is notified to the Landlord and the Tenant, the Tenant shall pay:
(a) the shortfall (if any) between the amount that it has paid for the period from and including the Review Date until the Rent Payment Date following the date of agreement or notification of the revised Annual Rent and the amount that would have been payable had the revised Annual Rent been agreed or determined on or before that the Review Date; and
(b) interest at the Interest Rate on that shortfall calculated on a daily basis by reference to the Rent Payment Dates on which parts of the shortfall would have been payable if the revised Annual Rent had been agreed or determined on or before that the Review Date and the date payment is received by the Landlord.
7.13 Time shall not be of the essence for the purposes of this clause.
7.14 If at any time there is a guarantor, the guarantor shall not have any right to participate in the review of the Annual Rent.
7.15 As soon as practicable after the amount of the revised Annual Rent has been agreed or determined, a memorandum recording the amount shall be signed by or on behalf of the Landlord and the Tenant and endorsed on or attached to this lease and its counterpart. The Landlord and the Tenant shall each bear their own costs in connection with the memorandum.
Appears in 1 contract
REVIEW OF THE ANNUAL RENT. 7.1 In this clause the President PRESIDENT is the President for the time being of the Royal Institution of Chartered Surveyors or a person acting on his behalf, and the Surveyor SURVEYOR is the independent valuer appointed pursuant to clause 7.77.8.
7.2 The amount of Annual Rent shall be reviewed on each Review Date to equalthe greater of:
(a) the Annual Rent payable immediately before the relevant Review Date (or which would then be payable but for any abatement or suspension of the Annual Rent or restriction on the right to collect it) or, if greater;); and
(b) the open market rent agreed or determined pursuant to this clause.
7.3 The open market rent may be agreed between the Landlord and the Tenant at any time before it is determined by the Surveyor.
7.4 If the open market rent is determined by the Surveyor, it shall be the amount that the Surveyor determines is the best annual rent (exclusive of any VAT) at which the Property could reasonably be expected to be let:
(a) in the open market;
(b) at the relevant Review Date;
(c) on the assumptions listed in clause 7.5; and
(d) disregarding the matters listed in clause 7.6.
7.5 The assumptions are:
(a) the Property is available to let in the open market:
(i) by a willing lessor to a willing lesseelessee (which may be the Tenant);
(ii) as a whole;
(iii) with vacant possession;
(iv) without a fine or a premium;
(v) for a term equal to the unexpired residue of the Contractual Term at the relevant Review Date or a term of five ten years commencing on the relevant Review Date, if longer; and
(vi) otherwise on the terms of this lease other than as to the amount of the Annual Rent but including the provisions for review of the Annual Rent;
(b) the willing lessee has had the benefit of any rent-free or other concession or contribution which would be offered in the open market at the relevant Review Date in relation to fitting out works at the Property;
(c) the Property may lawfully be used, and is in a physical state to enable it to be lawfully used, by the willing lessee (or any potential undertenant or assignee of the willing lessee) for any purpose permitted by this lease;
(dc) the Landlord and the Tenant have fully complied with their obligations in this lease;
(ed) if the Property, Property or any means other part of access to it the Building or any Service Media serving the Property, has been destroyed or damaged, it has been fully restored;
(fe) no work has been carried out on the Property that has diminished its the rental valuevalue of the Property;
(gf) any fixtures, fittings, machinery or equipment supplied to the Property by the Landlord that have been removed by or at the request of the Tenant, or any undertenant or their respective predecessors in title (otherwise than to comply with any law) remain at the Property; and;
(hg) the willing lessee and its potential assignees and undertenants shall not be disadvantaged by any actual or potential exercise of an option election to tax under Part 1 of Schedule 10 to the VATA 1994 waive exemption from VAT in relation to the Property.
7.6 The matters to be disregarded are:
(a) any effect on rent of the fact that the Tenant or any authorised undertenant has been in occupation of the Property;
(b) any goodwill attached to the Property by reason of any business carried out there by the Tenant or by any authorised undertenant or by any of their predecessors in business;
(c) any effect on rent attributable to any physical improvement to the Property carried out before or after the date of this lease, by or at the expense of the Tenant or any authorised undertenant with all necessary consents, approvals and authorisations and not pursuant to an obligation to the Landlord (other than an obligation to comply with any law);
(d) any effect on rent of any obligation on the Tenant to fit out the Property or to reinstate the Property to the condition or design it was in before any alterations or improvements were carried out; and
(ed) any statutory restriction on rents or the right to recover them.
7.7 The Surveyor shall If the revised Annual Rent is agreed between the Landlord and the Tenant, it may be an independent valuer who is a Member or Fellow of the Royal Institution of Chartered Surveyors. stepped rent.
7.8 The Landlord and the Tenant may, by agreement, may appoint the Surveyor an independent valuer at any time before either of them applies to the President for the Surveyor an independent valuer to be appointed. Any application The Landlord or the Tenant may apply to the President may not for an independent valuer to be made earlier than appointed at any time after the date which is three months before the relevant Review Date. The independent valuer shall be an associate or fellow of the Royal Institution of Chartered Surveyors.
7.8 7.9 The Surveyor shall act as an expert and not as an arbitrator. The Surveyor shall determine the open market rent and shall have power to determine any issue involving the interpretation of any provision of this lease, his jurisdiction to determine the matters and issues referred to him or his terms of reference. The Surveyor's decision shall be given in writing. The Surveyor's written decision on the matters referred to him shall be final and binding in the absence of manifest error or fraud.
7.9 7.10 The Surveyor shall give the Landlord and the Tenant an opportunity to make written representations to the Surveyor and to make written counter-counter- representations commenting on the representations of the other party to the Surveyor. The parties will provide (or procure that others provide) the Surveyor with such assistance and documents as the Surveyor reasonably requires for the purpose of reaching a decision.
7.10 7.11 If the Surveyor dies, delays or becomes unwilling or incapable of acting, or unreasonably delays in making any determination, then either the Landlord or the Tenant may apply to the President to discharge the Surveyor and clause 7.7 7.8 shall then apply in relation to the appointment of a replacement.
7.11 7.12 The fees and expenses of the Surveyor and the cost of the Surveyor's appointment and any counsel's fees, or other fees, reasonably fees incurred by the Surveyor shall be payable by the Landlord and the Tenant in the proportions that the Surveyor directs (or if the Surveyor makes no direction, then equally). If either the Landlord or the Tenant does not pay its part of the Surveyor's fees and expenses within ten working days after demand by the Surveyor then:
(a) Surveyor, the other party Landlord may pay instead; and
(b) that part and the amount so paid it pays shall be a debt of the party that should have paid Tenant due and payable on demand to the party that actually made the paymentLandlord. The Landlord and the Tenant shall otherwise each bear their own costs in connection with the rent review.
7.12 7.13 If the revised Annual Rent has not been agreed by the Landlord and the Tenant or determined by the Surveyor on or before the relevant Review Date, the Annual Rent payable from that Review Date shall continue at the rate payable immediately before that Review Date. No later than five working days after the revised Annual Rent is agreed or the Surveyor’s 's determination is notified to the Landlord and the Tenant, the Tenant shall pay:
(a) the shortfall (if any) between the amount that it has paid for the period from the Review Date until the Rent Payment Date following the date of agreement or notification of the revised Annual Rent and the amount that would have been payable had the revised Annual Rent been agreed or determined on or before that Review Date; and
(b) interest at the Interest Rate on that shortfall calculated on a daily basis by reference to the Rent Payment Dates on which parts of the shortfall would have been payable if the revised Annual Rent had been agreed or determined on or before that Review Date and the date payment is received by the Landlord.
7.13 7.14 Time shall not be of the essence for the purposes of this clause.
7.14 7.15 As soon as practicable after the amount of the revised Annual Rent has been agreed or determined, a memorandum recording the amount shall be signed by or on behalf of the Landlord and the Tenant and endorsed on or attached to this lease and its counterpart. The Landlord and the Tenant shall each bear their own costs in connection with the memorandum.
Appears in 1 contract
Samples: Contract for the Sale of Freehold Land and Building (Mitel Networks Corp)
