SPECIMEN INSURANCE PROVISIONS

SPECIMEN INSURANCE PROVISIONS Introductory Note (a) (b) (c) (d) (e) (f) These specimen insurance provisions have been prepared for incorporation in rack rent leases. They will need to be adapted to be consistent with the form of lease in which they are to be incorporated. It is assumed that "Premises" will have been defined elsewhere in the Lease to include the whole of the Premises or any part of them (unless the context otherwise requires). Where there is a letting of a whole building references should be made throughout to "Premises". Where there is a letting of part of a building definitions and obligations relating to the effecting of insurance cover should refer to the "Building" with the Tenant paying a proportion (either fixed or a fair proportion) of the Insurance Cost. In the case of a letting of part of the building, the Landlord is required to reinstate only the Premises (which is defined to include essential means of access in the ownership of the Landlord). In some cases, it may be appropriate for the Landlord to covenant to reinstate the whole of the Building but this is a matter for negotiation. 1. DEFINITIONS AND INTERPRETATION 1.1 In this schedule the following expressions have the following meanings:- "Insurance Cost" means the aggregate of the amount ([gross][net] of any commission payable to the Landlord) 1 which the Landlord expends: (i) (ii) (iii) in effecting and maintaining insurance against the occurrence of the Insured Risks in relation to the [Premises][Building] in such sum as is from time to time estimated to be their full reinstatement cost with such additional sum as the Landlord from time to time reasonably considers to be appropriate in respect of related liabilities and expenses and sums in respect of architects' engineers' and quantity surveyors' and other professional fees and incidental expenses incurred in relation to any works of debris removal site clearance and of replacement and VAT; and in effecting and maintaining any insurance relating to the property owners' liability and the employer's liability of the Landlord in relation to the [Premises][Building] and anything done in [them][it]; in effecting and maintaining insurance of plant and machinery against sudden and unforeseen breakdown [and the provision of statutory inspection]; and 1 It is thought desirable for the Lease to be explicit about commissions. 1 1

(iv) in professional fees relating to insurance including fees for insurance valuations of reinstatement cost carried out [at reasonable intervals of not more than one year] [not more frequently than once in every three years] 2 ; "Insurance Rent" means for any relevant period the aggregate of: (i) [ %] [a fair proportion] of the Insurance Cost; (ii) (iii) (iv) the amount which the Landlord expends in effecting and maintaining insurance against [ ] years 3 loss of the yearly rent [and additional rents 4 ] reserved in this lease having regard to potential increases of rent in accordance with the rent review provisions in this Lease (or estimated market rent after the end of the Term) and with any addition to the amount insured in respect of VAT; and (without prejudice to all other provisions of this Lease relating to the use of the Premises and vitiation by the Tenant) any amount which the Landlord expends in paying all additional premiums and loadings on any policy of insurance required to be paid as a result of any act or default by the Tenant; and any tax charged on the premium for the insurance; "Insured Damage" means damage to or destruction of the whole or any part of the [Building] [Premises] by any of the Insured Risks but excluding:- (i) (ii) any Uninsured Damage; and any damage in respect of which the Landlord s insurance is vitiated by the Tenant (unless the Tenant promptly pays to the Landlord the amount of insurance monies rendered irrecoverable); "Insured Risks" means fire, lightning, explosion, riot, civil commotion, strikes, labour and political disturbances, malicious damage, aircraft and aerial devices (other than hostile aircraft and devices) and articles accidentally dropped from them, storm, tempest, flood, bursting or overflowing of water tanks and pipes, impact, earthquake accidental damage to underground water oil and gas pipes or electricity wires and cables, subsidence, ground slip and heave, and such other property risks as the Landlord may reasonably from time to time insure, subject to any Policy Exclusions; 5 "Policy Exclusion" means any condition, exclusion or limitation which may be imposed by the Landlord s insurers but does not include any excess; "Uninsured Damage" means damage to or destruction of the whole or any part of the [Building] [Premises] by any risks expressly specified in the definition of the 2 3 4 5 The intention is that the Tenant should be liable only for a valuation for reinstatement purposes. A specific period is thought preferable to a formulation such as not less than three nor more than five. The intention is that service charge should where relevant be included within the scope of loss of rent insurance. The list of insured risks is intended to be comprehensive and it is not thought that any of the specified risks is likely to be contentious. The list should not refer to acts of terrorism (whether by way of inclusion or exclusion) as they are not a risk but the event which causes the risk. 2 2

Insured Risks which renders the Premises unfit for occupation and use or inaccessible and which:- (i) (ii) is not insured because insurance is not available or is not available in the London insurance market at economic rates; or is not insured or fully insured by reason of a Policy Exclusion such that the full cost of reinstatement is not recoverable by the Landlord under the insurance policy but excluding any damage in respect of which the Landlord s insurance is vitiated by the Tenant (unless the Tenant promptly pays to the Landlord the amount of insurance monies rendered irrecoverable) 6 PROVIDED THAT if the Landlord does not notify the Tenant within 6 months of the date of any damage or destruction by any risks specified in the definition of Insured Risks that there is Uninsured Damage, the damage or destruction shall for the purposes of this Lease be taken to be Insured Damage. 1.2 In this schedule:- (A) (B) (C) (D) references to [Building and] Premises include alterations additions or improvements only where made by or at the expense of the Landlord or which the Landlord and the Tenant agree to treat as landlords fixtures [but does not include tenants' fixtures and fittings] 7 ; references to the act or default of the Tenant include the act or default of any person deriving title under or through the Tenant or their respective employees agents and visitors; references to vitiation by the Tenant include any event occurring by the act or default of the Tenant (to be interpreted as in (B) above) as a result of which the insurance monies otherwise payable under the policy of insurance of the Landlord become wholly or partially irrecoverable and vitiated has a corresponding interpretation; and references to Premises [(and where applicable the Building)] include the essential means of access to them [(or to it)] in the ownership of the Landlord. 2. LANDLORD'S COVENANTS The Landlord covenants with the Tenant: 6 7 Note that there will be a category of damage which will not bring Clause 6 into play, i.e. damage by a risk which is not insured which does not render the premises incapable of occupation and use. Such damage will either fall within the Tenant s repairing covenant or (in a multi-let building) the Landlord s with the ability to pass on the cost through the service charge. Tenants may wish to cap their liability in this regard. This is intended to make it clear that the Landlord is not responsible for insurance of tenants fixtures and fittings unless otherwise expressly agreed. The Tenant would be normally expected to insure tenants fixtures and fittings. 3 3

2.1 To keep the [Premises][Building] 8 insured against the Insured Risks in their full reinstatement cost (subject to all excess sums [or a fair proportion of them] which the insurers are not liable to pay out on any insurance claim in respect of the Premises). 2.2 To insure against [ ] 3 years' loss of the yearly rent [and additional rents] 4 having regard to potential increases of rent in accordance with the rent review provisions of the Lease or the estimated market rent at the end of the Term. 2.3 On request to supply the Tenant (but not more frequently than once in any period of twelve months) with details of such insurance and evidence of payment of the current year s premium. 2.4 To procure that the Tenant is informed on the Landlord or its agents becoming aware of the same of any material change in the ambit quantum or terms of cover in any policy of insurance applying to the Premises. 2.5 To procure that the interest of the Tenant is noted on the policy of insurance either specifically or by a general noting of interest of tenants under the conditions of the policy. 9 2.6 To use all reasonable endeavours to procure that the insurers waive their rights of subrogation against the Tenant and any lawful sub-tenants or occupiers of the Premises and that the policy of insurance contains a non-invalidation provision in favour of the Landlord in respect of any act or default of the Tenant. 10 2.7 If there is Insured Damage the Landlord will with all convenient speed:- 2.7.1 take all necessary steps to obtain requisite planning permissions and other consents for the reinstatement of the [Premises][Building], and only if they are obtained; 2.7.2 lay out the insurance money received (except sums in respect of property owners and third party liability and loss of rent) towards reinstating the [Premises][Building] as soon as reasonably practicable; and 2.7.3 (subject to clause 3.7) make up any deficiency out of its own resources but the Landlord is not required to reinstate the Premises in facsimile if they are replaced in a form not materially different in size, quality and layout. 8 9 10 Where the letting is of part of a building, the Landlord should be under an obligation to insure the whole, albeit that reinstatement will (unless otherwise negotiated) apply only to the Premises themselves (plus common parts). Noting of a tenant s interest is of doubtful value. Note that the usual policy wording may not cover sub-tenants. 4 4

3. TENANT S COVENANTS The Tenant covenants with the Landlord: 3.1 Well and substantially to repair the Premises and maintain and keep them in good and substantial repair but the Tenant is not obliged to repair Insured Damage or Uninsured Damage. 10 3.2 Not to do or omit to do anything by which any insurance policy relating to the Premises [or the Building] of which the Tenant has been provided with particulars is vitiated. 3.3 To comply with all requirements and reasonable recommendations of the insurers and to provide and maintain in good working order and keep unobstructed appropriate fire fighting equipment and fire notices on the Premises. 3.4 To notify the Landlord without delay of the incidence of any damage to the Premises and of any other event which ought reasonably to be brought to the attention of insurers. 3.5 Where the Tenant makes any alteration or addition to the Premises which the Landlord is required to insure to provide to the Landlord without any delay a written independent current insurance (VAT exclusive) valuation of the work for reinstatement purposes. 3.6 Not to insure the Premises for any of the Insured Risks in such a manner as would permit the insurer of the Landlord to average the proceeds of insurance or cancel insurance cover but if notwithstanding the foregoing the Tenant [or any person deriving title under or through it] 11 is at any time entitled to the benefit of any insurance of the Premises, to cause all money paid under such insurance to be applied in making good the loss or damage in respect of which it was paid. 3.7 To pay to the Landlord on demand a sum equivalent to all excess sums [or a fair proportion of them] which the insurers are not liable to pay out on any insurance claim in respect of the Premises and which the Landlord has expended in reinstating the damaged or destroyed parts of the Premises. 12 3.8 If the insurance is vitiated by the Tenant, forthwith to pay to the Landlord the amount of any insurance money rendered irrecoverable. 4. RENT CESSER 4.1 This paragraph 4 applies if:- 10 11 12 Note that the Tenant is not liable to repair Insured Damage or Uninsured Damage. It will, however, be liable to pay excesses and must accept the consequences of vitiation of the policy (see clauses 3.7 and 3.9). The Tenant may be defined to include any person deriving title under or through it in which case these words can be omitted. There may be an issue about whether excesses should be capped in some way. A common formulation is to refer to what is usual in the market but it may be appropriate to take advice from insurance professionals as to whether there is anything approaching a recognised market norm. It is understood that until recently excesses have been quite low, but that increasingly insurers will not cover a low level of excess and figures in the region of 10,000-25,000 are becoming common. 5 5

4.1.1 there is Insured Damage rendering the Premises incapable of occupation and use or inaccessible; and 4.1.2 the insurance has not been vitiated by the Tenant. 4.2 The rent [and additional rents] reserved by this Lease or a fair proportion of them (having regard to the nature and extent of the damage sustained and to any extent that the insurance has been vitiated by the Tenant) shall be suspended and cease to be payable from the date of destruction or damage until [whichever is the earlier of] the date on which the Premises are made fit for substantial occupation and use [and the date of expiry of the period for which the Landlord is obliged to insure loss of rent.] 13 4.3 Any dispute about the suspension of rent shall be referred to the award of a single arbitrator to be appointed in default of agreement on the application of the Landlord or the Tenant to the President for the time being of the Royal Institution of Chartered Surveyors in accordance with the Arbitration Act 1996. 4.4 [The Premises are not to be treated as incapable of occupation and use by reason only that tenant's fixtures and fittings have not been reinstated.] 14 5. OPTION TO DETERMINE FOLLOWING INSURED DAMAGE 15 [VERSION 1] 5.1 If following Insured Damage rendering the Premises incapable of occupation and use or inaccessible the Landlord has not commenced the reinstatement of the Premises in accordance with paragraph 2.7 by the [second] anniversary of the date on which Insured Damage occurs then (subject to paragraphs 5.3 and 5.4) the Landlord or the Tenant may on service of notice in writing given to the other at any time following such [second] anniversary (unless the Landlord has in the meantime commenced such reinstatement) forthwith determine this Lease (but without prejudice to any claim by either party in respect of any antecedent breach of covenant). 5.2 If following Insured Damage rendering the Premises incapable of occupation and use or inaccessible the Landlord has not completed the reinstatement of the Premises in accordance with paragraph 2.7 by the [fourth] anniversary of the date on which Insured Damage occurs then (subject to paragraph 5.4) the Tenant may on service of notice in writing given to the Landlord at any time following such [fourth] anniversary (unless the Landlord has in the meantime completed such reinstatement) forthwith determine this Lease (but without prejudice to any claim by either party in respect of any antecedent breach of covenant). 13 14 15 The drafting limits the period of rent cesser to the period of loss of rent insurance, but this is only tenable if a provision along the lines of paragraph 5 is agreed. Otherwise, the Tenant can legitimately argue that cesser should be unlimited. This clause should be included if the Tenant insures its fixtures and fittings (see note 7). A provision along the lines of the first version is thought to be generally acceptable to both Landlord and Tenant, although there may be arguments about the periods of time stated in 5.1 and 5.2 which accordingly are square-bracketed. The Landlord will wish to ensure the period in 5.2 is no longer than the period for which loss of rent is insured. However, the circumstances may require that the Lease can be determined within a much shorter time frame than Version 1 envisages and Version 2 contains alternative drafting. 6 6

5.3 The right for the Landlord to determine this Lease under paragraph 5.1 is conditional upon the Landlord having used all reasonable endeavours to obtain all necessary consents to carry out the works of reinstatement of the Premises with all due diligence. 5.4 The right for the Tenant to determine this Lease under paragraph 5.1 or 5.2 is conditional upon the insurance not having been vitiated by the Tenant unless the Tenant has paid the amount due in accordance with paragraph 3.8. [VERSION 2] If following Insured Damage the Premises are unlikely to be capable of reinstatement within six months of the date on which Insured Damage occurs then either the Landlord or the Tenant may on service of notice in writing given to the other at any time following the expiry of such period of six months (unless such reinstatement has then been completed) forthwith determine this lease (but without prejudice to any claim by either party in respect of any antecedent breach of covenant). 16 6. OPTION TO DETERMINE FOLLOWING UNINSURED DAMAGE 17 6.1 If there is Uninsured Damage:- 6.1.1 paragraph 4 shall apply as if there had been Insured Damage; and 6.1.2 the Landlord may by service of notice in writing (an Election Notice ) on the Tenant following the date on which Uninsured Damage occurs elect to rebuild or reinstate the Premises. 6.2 If the Landlord serves an Election Notice:- 6.2.1 the Landlord shall reinstate (but not necessarily in facsimile reinstatement) the Premises with all reasonable expedition; and 6.2.2 paragraphs 5.1 and 5.2 shall apply as if there had been Insured Damage but substituting for the second or fourth anniversary (as the case may be) of the date on which Insured Damage occurs the corresponding anniversary of the date of the Election Notice. 6.3 If the Landlord has not served an Election Notice within [ ] 4 months following the date on which Uninsured Damage occurs (time being of the essence) in accordance with paragraph 6.1.2 either the Landlord or the Tenant may at anytime thereafter (unless in the meantime the Landlord gives an Election Notice) forthwith determine this Lease (but without prejudice to any claim by either party in respect of any antecedent breach of covenant). 18 16 17 18 A provision along these lines ought to be notified to insurers as a material fact. The point is that the Tenant s break may make the loss of rent claim materially longer than it might otherwise have been. Clause 6 assumes the Tenant will not pay any rent whilst the Landlord makes up its mind what to do. See note 6 above. The drafting does not address the position where the Tenant may itself elect to reinstate Uninsured Damage but if the Tenant wishes to have the benefit of such rights then the ability of Landlord to terminate the Lease will need to be amended. 7 7

7. RETENTION OF INSURANCE PROCEEDS 19 On the termination of this Lease pursuant to paragraphs 5 or 6 the Landlord may retain for its exclusive benefit the proceeds of the insurance. 19 It is considered reasonable that if the Lease is terminated under paragraphs 5 or 6, insurance proceeds should go to the Landlord on the basis that they represent the Landlord s capital asset. 8 8