Exhibit 10.15
REAL PROPERTY LEASING AGREEMENT
NO. 326-61 0038
XXXXXX Grundstucks-Vermietungsgesellschaft mbH & Co. Object Dischingen KG,
Dusseldorf
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- Lessor -
VARTA Geratebatterie GmbH, Hanover
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- Lessee -
I. Object of the Lease
Building housing production, administration and recreation and sanitary
premises
Intended use of
the Buildings: Gross floor area:
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located at
Xxxxxxxxx 0 xxx
Xxxxxxxxxxxx Xxx. xx 00000 Dischingen
Production: ) 11,058 m POWER OF 2
Land Register: Warehouse: )
Land Register of the Heidenheim
Local Court
Administration: 1,997 m POWER OF 2
for Dischingen Recreation/Sanitary:
Sub-lease: 0 m POWER OF 2
Folio: 737 (others): 0 m POWER OF 2
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Sub-plot: 980 Total:
Folio: 1356
Sub-plots: 987/1.987/3, 987/4
987/5 13,055 m POWER OF 2
Total size: 44,943 m(2)
II. TOTAL TERM OF THE LEASE: 22.5 years
Initial term of the lease 10.5 years
Commencement of the total term of the lease of the existing buildings on:
21 December 2000 Probable commencement of the total term of the lease
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of the new buildings: 1 December 2001
End of the initial term of the lease: 30 June 2011
End of the total term of the lease: 30 June 2023
III. PAYMENTS TO BE MADE BY THE LESSEE:
The payments to be made by the Lessee shall be calculated on the basis of
the Total Investment Costs (TIC) according to the nos. 1, 3 and 5
Estimated total EUR 8,356,000.00 assumed depreciation for wear
and tear
Consisting of:
Real property EUR 1,584,000.00
Old buildings EUR 4,372,000.00 approx. 3.7958 % p.a.
New buildings EUR 2,300,000.00 3.0000 % p.a.
Others EUR 100,000.00 approx. 3.7958 % p.a.
The stated depreciation for wear and tear (ABSETZUNG FUR ABNUTZUNG, AfA)
rates serve as a basis for the calculation of the rent and the contractual
residual value.
Assumed contractual residual value
at the end of the initial term of the lease: EUR 5,907,678.87
at the end of the total term of the lease: EUR 3,042,700.71
1. General fee (KONZEPTIONSGEBUHR): 0.40 % of the TIC
2. Payments to be made prior to the commencement of the total term of the
lease:
a) Pre-rental payment (VORMIETE):
b) Commitment compensation )
(BEREITSTELLUNGSENSCHADIGUNG): ) See Addendum No. 1
c) Interest on input tax (pursuant to )
Sec 4 no. c): )
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3. Payments to be made subsequently to the commencement of the total term
of the lease:
a) Total amount of rent instalments plus advance payment on rent
(Total amount payable): See Addendum No. 1
b) The amount and the assessment of the advance payments of rent shall
be determined in accordance with Annex 1 to this Agreement.
c) Provisionally assessed amount of the advance payment of rent is
after the initial term of the lease: EUR 3,407,678.68
4. Adjustments of the rent due to conversion of interest
(conversion date): still to be determined
5. Contribution to administration costs: 0.35 % p.a.
6. Ancillary costs:
Subject to submission of appropriate evidence, the Lessee shall
reimburse the Lessor for any ancillary costs incurred in accordance
with Sec 5.
7. Turnover tax
If there is an obligation to pay turnover tax (perhaps due to an
option) turnover tax shall be payable at the applicable statutory
rate in addition to all payments to be made by the Lessee under this
Agreement.
IV. RENTAL ACCOUNT OF THE LESSOR:
Commerzbank AG, Dusseldorf, Account no. 0000000 (Sorting code 300 400 00)
V. ADDENDA:
Addendum No. 1
VI. PROVISION OF DOCUMENTS:
- none -
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TERMS AND CONDITIONS OF THE LEASING
SEC 1
OBJECT OF THE LEASE/COMMENCEMENT OF THE TOTAL TERM OF THE LEASE
1. The Object of the Lease is the real property referred to in I above. All
machines and installations which are not part of the Object of the Lease
in the sense of sec 68 of the Tax Valuation Act (BEWERTUNGSGESETZ, BewG)
shall not fall under this Agreement, even if they are fittings or
fixtures of the property. Sec 7-10 of this Agreement shall be continued
or may be appropriate in view of the Lessee's use of the Object of the
Lease.
2. The total term of the lease shall commence when the possession of the
Object of the Lease is transferred to the Lessee. Possession of the
Object of the Lease shall be transferred upon its completion or
acquisition by the Lessor, as the case may be, and any defects the
Object of the Lease may have at this point in time shall be recorded.
Possession shall be transferred even if the Object of the Lease has
minor defects (as defined in sec 12 no 3 of Part B of the Award Rules
for Building Work (VERDINGUNGSORDNUNG FUR BAULEISTUNGEN, VOB)). The
Lessor shall not assume any warranty regarding the anticipated date of
transfer of possession referred to in II below.
SEC 2
TOTAL INVESTMENT COSTS (TIC)
1. The TIC shall include all expenses incurred by the Lessor in connection
with the purchase of the property or the heritable building right and
the procurement or construction of the Object of the Lease as well as
any tax (e.g. turnover tax, real property transfer tax) incurred in this
connection, including taxes which are newly introduced or which become
payable due to any circumstances occurring after the conclusion of this
Agreement, i.e. inter alia:
The purchase price, including transaction costs (e.g. costs of the
recording by a notary) and/or the construction costs, including fees of
public authorities and insurance premiums payable during the period of
construction, development costs, valuation and other costs charged by
third parties in connection with the creation of mortgages on the
property, real property transfer tax, even if such additional tax
liability is triggered by a third person joining
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the Lessor as a partner, as well as any non-deductible turnover tax,
including any supplementary payments under tax law (e.g. interest).
All expenses shall be included in the TIC - irrespective of the time at
which they have arisen or been assessed by the relevant authorities -
including expenses that may be incurred or that may be assessed after
the transfer of possession of the Object of the Lease in accordance with
Sec 1 or after the assessment of the TIC in accordance with no. 2 of
this Sec.
Any deductible turnover tax paid by the Lessor on the TIC shall not be
included in the TIC.
2. The TIC shall be assessed by the parties jointly when all invoices are
available. The amount of the payments to be made by the Lessee in
accordance with III nos. 1, 3 and 5 as well as the contractual residual
value in accordance with III shall be assessed on the basis of the TIC
jointly determined by the parties. This shall apply accordingly with
respect to any TIC becoming due at a later point in time. If the
estimated TIC are exceeded, the provision in Sec 4 no. 8 shall apply up
to a partial amount of 10 % of the estimated TIC.
SEC 3
APPROVAL TO AGREEMENTS
The Lessor shall submit the agreements to be concluded by it in connection with
the procurement and the construction of the Object of the Lease to the Lessee
for approval. By giving its approval, the Lessee accepts that the Lessor meets
all payment obligations arising under these agreements and in connection with
their implementation and that all costs thus incurred shall be part of the TIC
in accordance with Sec 2 or the ancillary costs in accordance with Sec 5.
SEC 4
PAYMENTS OF THE LESSEE
1. General fee
The general fee shall be payable as a one-off payment at the conclusion
of the Agreement.
2. Payments to be made prior to the commencement of the total term of the
lease
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a) Pre-rental payment:
The pre-rental payment shall be payable for the total investment
costs (TIC) placed at disposal by the Lessor, but not yet paid out.
b) Financial commitment fee:
The financial commitment fee shall be charged on any TIC held
available but not yet paid out by the Lessor.
c) Interest on input tax:
Interest on input tax shall accrue at the current account borrowing
rate of Commerzbank AG, as applicable from time to time, or any
turnover tax paid by the Lessor on the TIC, provided, however, that
such interest shall also accrue to the extent that the Lessor has
filed an application for reimbursement of such input tax, and
further provided that such interest accrues only for as long as
such application may be pending with the tax office. The same shall
apply accordingly with respect to turnover tax that the Lessor pays
only subsequently to the commencement of the total term of the
lease.
These payments shall be charged to the Lessee monthly on the basis of
the amount of TIC paid (pre-rental payment) or not yet paid (financial
commitment compensation) by the end of the respective month, in addition
to which interest on input tax shall accrue.
3. Rent payable after the commencement of the total term of the lease
a) The total amount of rent plus advance payments on rent shall be
calculated on the basis of the final total investment costs (Sec 2)
in consideration of the term and the interest rate agreed with the
Lessee. The distinction between rent and advance payment on rent
arises from Annex 1 and depends on the depreciation for wear and
tear pursuant to III.
b) The advance payment of rent shall be used by the Lessor for
redeeming financing liabilities. After the end of the initial term
of the lease, the amount of the advance payment of rent shall be
equivalent to the balance between the financing liabilities
redeemed by that point in time and the amount of the depreciation
for wear and tear existing at that time in accordance with III. No
interest shall accrue on the advance payment of rent. This has been
taken into account when the rent was agreed. The advance payment of
rent shall be redeemed as of the end of the initial term of the
lease
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and shall be made on a yearly basis in the amount of the
depreciation for wear and tear as referred to in III. The
redemption shall be made by set-off against the rent payable by the
Lessee to the Lessor. Any balance of the advance payment of rent
outstanding by the end of the total term of the lease shall then be
redeemed in one amount. The Lessor shall be entitled to prematurely
redeem all or any part of the advance payment of rent at any time.
4. Adjustments of the rent
In due time before the conversion date (KONVERSIONSZEITPUNKT), the
Lessor shall be entitled and obliged to re-asses the rent and the
advance payment of rent for the next fixed-rent period
(FESTSCHREIBUNGSZEITRAUM) on the basis of the agreed terms and taking
into account any redemption payments made, the residual term of the
relevant terms of the lease and the interest rate to be agreed with the
Lessee.
If the Lessor and the Lesse fail to reach an agreement on the interest
rate, the Lessee shall be entitled to procure financing funds itself.
Such financing facilities procured by the Lessee shall be used if the
financing costs can thus be reduced by 0.1 % p.a. or more, provided that
the terms and conditions shall otherwise correspond to those proposed by
the Lessor. Any costs incurred in connection with a restructuring of the
financing arrangements shall be borne by the Lessee. Until an agreement
on the interest rate is reached between the Lessor and the Lessee, the
rent shall be calculated on the basis of the current account borrowing
rate applied by the financial institution which has previously provided
the financing.
5. Contribution to administration costs
The contribution payable to administration costs as of the conclusion of
this Agreement shall not be subject to change.
6. Ancillary costs
The Lesse shall reimburse the Lessor for all ancillary costs referred to
in Sec 5 against submission of appropriate evidence.
7. Depreciation
The rents are based on the rates of depreciation specified in III. If a
change in the assumed useful life of the Object of the Lease occurs and
has the effect that the depreciation rates permissible under tax law
also change, this shall have no effect on the aggregate total of the
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rent instalments and the advance payment of rent. The manner in which
such depreciation shall affect the rent and advance payment of rent and
the contractual residual value shall be adjusted as appropriate. The
same shall apply with respect to any modification of the basis of
depreciation that may become required.
8. Insufficiency of the estimated TIC
If the estimated TIC are exceeded, the Lessor and the Lessee shall, as a
first step, engage in joint efforts to obtain further financing funds.
If such a joint effort is unsuccessful and the Lessor and the Lessee
also do not agree on any other arrangements in this respect, the Lessor
may require the Lessee to pay the balance between the estimated and the
actual TIC in the form of a contribution to the procurement costs up to
an amount equivalent to 10 % of the estimated TIC.
SEC 5
ANCILLARY COSTS
All costs and taxes incurred in connection with purchasing, owning or leasing
out the Object of the Lease, or any change concerning the current or future
owners of the partnership acting as Lessor shall be ancillary costs. This shall
include, without limitation:
1. the costs of all insurances taken out (Sec 9);
2. payments to be made on a permanent basis under real property purchase or
heritable building rights agreements concluded by the Lessor;
3. all taxes payable in connection with the property (e.g. real property
tax), duties, contributions, fees as well as any other charges or
obligations of any kind arising from the possession of the property;
this shall apply even if such taxes, duties, contributions, fees or
other charges or obligations are newly introduced or assessed during the
term of the lease;
4. turnover tax levied as a result of a change in use;
5. any trade tax payable by the Lessor or any member or corporate entity of
or related to the Lessor (ORGANTRAGER) as well as any newly introduced
or newly assessed taxes or charges;
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6. any additional payment to be made in connection with the taxes referred
to in this Agreement, unless the Lessor is responsible for such extra
payment becoming due;
7. costs of outside services incurred by the Lessor as the corporate entity
owing the property (OBJEKTGESELLSCHAFT), e.g. assuming liability and/or
management services, establishment costs, costs of any necessary
amendments to statutes, costs of annual audits, contributions payable to
the Xxxxxxxx of Commerce and Industry, etc.
8. costs of drafting tax returns to be filed for the assessment of the
taxable value of the Object of the Lease;
9. costs of monitoring the condition of the building.
SEC 6
MODES OF PAYMENT
1. The payments owed by the Lessee shall be made without consideration of
the condition or the serviceability of the Object of the Lease. Even if
the Object of the Lease is defective or unfit for use, the Lessee shall
not be entitled to reduce, withhold or set-off payments in full or in
part, unless the relevant claims are undisputed or are based on a final
and absolute court ruling. The Lessee may, however, request a reduction
of the payments it is obliged to make in the event of any accidental
full or partial loss of the Object of the Lease or of the Object of the
Lease being fully or partly destroyed, without the Lessee being
responsible for such loss or destruction or in the event that the use of
the Object of the Lease is impossible for a long time due to reasons for
which the Lessee is not responsible.
2. a) 70.72 % of the net rent and the net advance payment of rent and 100 % of
the contribution to administration costs as well as statutory turnover
tax on the total rent, the advance payment of rent and the contribution
to administration costs shall be payable quarterly in advance no later
than on the third calendar day of the relevant quarter (date as of which
such payment is credited to the Lessor's rental account).
29.28 % of the net rent and the net advance payment on rent shall be
payable quarterly in arrears no later than on the third calendar day of
the subsequent quarter (date as of which such payment is credited to the
Lessor's rental account).
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If the Lessee fails to comply with these payment dates, it shall be
deemed to be in default of payment (VERZUG) as of that point in time.
b) Other payments to be made by the Lessee shall be payable 10 days
after the receipt of an invoice of the Lessor. The Lessor and the Lessee
have agreed that the Lessee shall be deemed in default of payment as of
the date of receipt of a reminder, but in any case as of the 30th day
after the due date.
3. If the Lessee fails to make payments when due, the Lessor shall be
entitled to charge default interest in the amount of the applicable
current account borrowing rate of Commerzbank AG on any unpaid balance,
unless the Lessee provides evidence that no damage or damage in a lower
amount has been caused; any payment of default interest shall be without
prejudice to any further claim for damages the Lessor may have.
4. The Lessee authorises the Lessor to collect due payments owed to the
Lessor's account referred to in V by using debit entries.
5. If payments of the Lessee are not sufficient to meet all its payment
obligations towards the Lessor, the Lessor may decide to which claims
any payment made shall be credited.
SEC 7
LIABILITY, MAINTENANCE,
REPAIR WORK AND ALLOCATION OF THE RISKS
1. The Lessor shall only be liable for damage caused with intent or through
gross negligence, unless otherwise stipulated in this Agreement.
2. The Lessee shall maintain the Object of the Lease in a good condition at
its own expense at any time so that it is fit for an can be used for its
contractual purpose at any time. The costs of the operation,
maintenance, servicing and of all repairs, including decorative repairs
shall be borne by the Lessee. After a fruitless reminder to the Lessee,
the Lessor shall be entitled to arrange for necessary repairs at the
expense of the Lessee.
If the Object of the Lease is destroyed, in full or in part, the Lessee
shall be obliged to repair or rebuild it at its expense, unless the
Lessee is not responsible for the full or partial destruction of the
Object of the Lease. The risk of the accidental loss of the Object of
the Lease, or any part thereof, shall be borne by the Lessee.
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In the event that third parties (insurance companies, parties liable for
damage etc.) make compensation payments for damages to the Lessor, the
Lessor shall reimburse the Lessee for any amounts already spent by the
Lessee with respect to the relevant damage, or shall be used to finance
repairs the Lessee is still required to make.
3. The Lessee shall comply with all statutory regulations and obligations
imposed by a competent authority. The Lessee shall also meet all
obligations which the Lessor has in its capacity as owner of the
property or principal to any building contract (BAUHERR) such as the
duty to ensure that the property is safe (VERKEHRSSICHERUNGSPFLICHT) or
in a condition which is in accordance with the contractual requirements.
The Lessee shall hold the Lessor harmless with respect to any claims of
third parties, including public authorities that arise during the period
in which the Lessee is in possession of the Object of the Lease or
during the term of this Agreement - as of the date of its conclusion -
in connection with the planning, the construction, possession or use of
the Object of the Lease. This release from liability shall apply in
particular to all claims in connection with the avoidance or removal of
substances harmful to the environment (in particular soil contamination,
existing pollution or warfare agents). The Lessee shall bear all costs
of any facilities or equipment that may be required under statutory
regulations or obligations imposed by a competent authority. Any amounts
paid by the Lessor in this respect shall be reimbursable by the Lessee
immediately upon submission of appropriate evidence.
The claim for release from liability of the Lessor against the Lessee
shall not exist in the event that the Lessee has not caused the damage
in question. The claims for release from liability of the Lessor in the
event of extraordinary termination of this Agreement prior to the
transfer of possession of the Object of the Lease are regulated in
Xxx 00 xx. 0.
XXX 0
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1. The Lessee shall not be entitled to assert claims against the Lessor
because of any defects or restricted usability of the Object of the
Lease, unless the Lessor is responsible for such defects or restricted
usability or unless otherwise stipulated in this Agreement.
2. The Lessor hereby assigns all warranty claims it has against third
parties as well as any claims due to faulty contractual performance
(POSITIVE VERTRAGSVERLETZUNG) to the Lessee.
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The Lessee accepts the assignment and shall be obliged to assert such
claims at its expense without delay; and to take legal action in due
time if required. The Lessee shall be responsible for any contractual
warranty periods being complied with and for any claim being asserted in
due time. The Lessee shall consult the Lessor before agreeing to any
changes to the agreed warranties.
In the event that the assigned warranty claims or the claims due to any
faulty contractual performance are not enforceable or not fully
enforceable against third parties, the Lessor shall meet these claims
instead of the third party concerned.
The Lessee hereby assigns any such claims back to the Lessor effective
as of the point in time the Agreement ends. To the extent that the
Lessor met the relevant contractual obligation, the Lessee shall be
obliged to assign such claims back to the Lessor as of an earlier point
in time.
3. The Lessee shall request any third party to make payments due with
respect to warranties or faulty contractual performance to the Lessor
and shall keep the Lessor up-to-date on the progress of efforts made to
enforce such claims.
The Lessor shall be obliged to use payments received by it under
warranty claims or due to faulty contractual performance at its
discretion either for the restitution of the Object of the Lease or the
amounts payable by the Lessee shall be re-assessed as may be
appropriate.
4. The right of the Lessee to reduce the rent arises from Sec 6 and has
priority over the provisions of Sec 8.
SEC 9
INSURANCES
1. The Lessor shall take out the following insurances:
a) Fire insurance with extended coverage, including insurance against
non-stated risks at replacement value with a premium escalator
clause (WERTZUSCHLAGSKLAUSEL) or at sliding replacement value
(GLEITENDER NEUWERT). Cover for costs of clean up or demolition
work shall be included in the insurance.
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b) liability insurance for house and property holders (HAUS- UND
GRUNDBESITZERHAFTPFLICHTVERSICHERUNG) as well as liability
insurance for damage caused to bodies of water or to the
environment (GEWASSERSCHADEN- BZW. UMWELTHAFTPFLICHTVERSICHERUNG).
The costs of such insurance shall be invoiced by the Lessor to the
Lessee as ancillary costs in accordance with Sec 5 no. 1.
The Lessee shall inform the Lessor of any missing or insufficient
insurance cover without delay. The Lesse shall be obliged to inform the
Lessor in particular of any additions of fittings or fixtures, changes
in the building structure or changes in the use of the Object of the
Lease. If the Lessee intends make such changes, it shall inform the
Lessor thereof prior to their implementation.
The Lessee agrees to comply with the terms of insurance and the security
regulations of the insurance companies.
2. The Lessee shall inform the Lessor without delay of any damage and shall
ensure that the place at which the damage occurred remains unchanged
until it is inspected by representatives of the insurance company.
However, this shall not apply to measures required to reduce damage or
to avoid consequential damage. The Lessee shall commission in its own
name at its own expense specialised enterprises to carry out any
necessary work required to limit damage and to then repair it in good
time. After having examined and paid the invoices issued by such
specialised enterprises for their services, the Lessee shall submit
these invoices to the Lessor for further transmission to the insurance
company.
3. The Lessor shall be obliged to use the full amount of the compensation
received from the insurer for the restitution of the Object of the Lease
or the Lessor shall make such compensation available to the Lessee for
this purpose. Any additional costs that may be incurred in connection
with the full restitution of the Object of the Lease, including the fees
of any experts, exceeding the amount of the insurance benefits shall be
borne by the Lessee, unless it is not responsible for the full or
partial destruction of the Object of the Lease.
Any such additional costs that may have to be borne by the Lessee shall
not give the Lessee any right to subsequently remove any fixtures that
may be installed by it or to claim compensation for such additional
expenses.
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SEC 10
FIXTURES, CHANGES IN THE BUILDING STRUCTURE, CHANGES IN USE
1. Any addition of fixtures or changes in the building structure - as well
as changes in the use of the Object of the Lease - shall be subject to
the prior written consent of the Lessor, irrespective of whether they
affect the value or the usability of the Object of the Lease. All
permits required under public law must be obtained prior to the carrying
out of such measures. The Lessor may refuse its consent for cause only.
2. The Object of the Lease shall be used for the purposes described in I.
The Lessee shall evidence such use in appropriate form to the Lessor;
this shall also apply in the event of sub-letting. The Lessee shall
notify the Lessor without delay of any changes in use or if the Object
of the Lease is vacated prematurely.
3. The Lessee shall be entitled to remove fixtures, provided that it shall
restore the Object of the Lease to its original condition at the end of
the lease. Upon termination of this Real Property
Leasing Agreement, the
Lessee shall be obliged to restore the Object of the Lease to its
original condition at its expense, provided that the costs of this shall
not be disproportionate to the market value of the fixtures to be
removed.
XXX 00
XXXXXXXXX XXXXXXXXXXX OF THE AGREEMENT
1. Any termination of this Agreement shall be ruled out in principle.
2. However, either party shall be entitled to terminate the Agreement
without notice for cause. Such cause shall be deemed to exist, in
particular, if
a) the Object of the Lease is not purchased or built for reasons for
which the party terminating this Agreement is not responsible;
b) in the event that insolvency proceedings are instituted against the
other party or the institution of such proceedings has been refused
for lack of assets;
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c) in the event that any other judicial or out-of-court proceedings
are instituted against the assets of the other party for the
purpose of settling debts or in the event that the other party
discontinues its payments;
d) in the event that the financial soundness of the other party
deteriorates materially compared to the situation existing at the
time of the conclusion of the Agreement and that this may
jeopardise claims of the Lessee against the Lessor;
e) one contracting party fails to meet material contractual
obligations (e.g. the obligation to maintain the Object of the
Lease referred to in Sec 7 in a state of good repair) within two
months as of the receipt of a written warning issued by the other
contracting party or in the event that material consequences of
breaches of contractual provisions are not repaired or cured
without delay.
3. In addition, the Lessor shall be entitled to terminate this Agreement
without notice in the event that
a) the Lessee is in delay of payments owed under this Agreement in the
amount of at least two rent instalments;
b) a third party which has assumed liability for the obligations of
the Lessee as guarantor, joint and several debtor or in any other
capacity comes to be in a situation described in 2 b) to e) above.
4. The Lessor shall be obliged to withdraw an extraordinary termination
pursuant to no. 2 d) or 3 a) and to continue the Agreement at the
existing terms and conditions in the event that the Lessee pays the
amounts in arrears within a period of six weeks as of the receipt of the
termination statement or in the event that the Lessee provides
sufficient collateral security. The same shall apply accordingly in the
event that the Lessee continues to meet its other material contractual
obligations without delay, repairs or cures any material consequences of
breaches of contract within a period of six weeks as of the receipt of a
termination statement. The Lessor shall draw the Lessee's attention to
this provision if any extraordinary termination occurs.
5. In the event that this Agreement is terminated prior to the transfer of
possession for reasons for which the Lessee is responsible, the Lessee
shall reimburse the Lessor for any TIC already incurred or still to be
incurred in connection with the implementation of this Agreement.
Moreover, the Lessee shall reimburse the Lessor for any necessary
one-off or permanent expenses incurred, e.g. in connection with the
possession of the real property. In
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addition, the Lessee shall reimburse the Lessor for any costs incurred,
because the Lessor does not actually use any financing facilities
obtained by it, provided only that evidence shall be provided for such
costs having been incurred by the Lessor. The Lessor may require the
Lessee to take its place as a party to any agreements concluded by the
Lessor in connection with the implementation of this Agreement and to
indemnify the Lessor from any obligations arising in connection with
this Agreement.
In addition, the Lessee shall pay the Lessor compensation for any own
costs incurred by the Lessor due to a premature termination of the
Agreement in an amount equivalent to 2 % of the estimated TIC referred
to in III. Any general fee already paid shall be set-off against this
amount. The Lessor may demand a higher compensation if it provides
evidence that the damage suffered was higher than the compensation
amount provided for above. The Lessee shall be entitled to provide
evidence that the own costs of the Lessor were lower than the
compensation amount provided for above.
In the event that the Lessor assumed any obligation in connection with
this Agreement at the explicit request of and in coordination with the
Lessee in accordance with Sec 3, the Lessee shall be obliged to fully
indemnify the Lessor in this respect even in the event that neither the
Lessee nor the Lessor are responsible for the termination.
6. In the event that the Agreement is terminated subsequently to the
transfer of possession of the Object of the Lease to the Lessee for
reasons for which the Lessee is responsible, the Lessee shall be obliged
to indemnify the Lessor for any damage incurred by the latter due to the
premature termination of the Agreement, including especially any damage
that may be incurred if the Lessor is not able to lease or dispose of
the Object of the Lease at all or only at less favourable conditions.
Any benefits realised by the Lessor by leasing or otherwise disposing of
the Object of the Lease shall be set-off against the Lessor's claims for
damages.
7. Any reimbursement of contributions to building costs made by the Lessee
shall be ruled out irrespective of whether this Agreement is terminated
prematurely or as of the end of its contractual term.
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SEC 12
MISCELLANEOUS
1. Sub-letting
Sub-letting shall be permissible subject to the Lessor's prior consent;
the Lessor may refuse its consent to sub-letting for cause only.
2. Assignments of the Lessee/Consent of the Lessor
In order to provide collateral security for any current or future claims
under this Agreement, the Lessee hereby and as of now assigns to the
Lessor all its current and future rights under sub-lease agreements
(including any dispositive rights (GESTALTUNGSRECHTE)), such as the
right to terminate sub-lease agreements, as well as rights of lien
(VERMIETERPFANDRECHT)). The Lessor accepts this assignment. The Lessor
shall be entitled to disclose this assignment to any interested third
party, provided that it has informed the Lessee of this intention in
writing no later than one week before the date of disclosure.
After the due implementation of this Agreement, the Lessor shall assign
its claims under para 1 of this Sec back to the Lessee.
The Lessee may assign its rights and claims under this Agreement to
third parties only with the prior consent of the Lessor.
3. Assignment of the Lessor
The Lessor shall be entitled to assign its rights and claims under this
Agreement to third parties for financing purposes. The Lessee hereby and
as of now consents to such assignment to third parties and agrees that
the Lessor allows such third parties to inspect any records or documents
the Lessee may have provided to the Lessor in connection with any claims
or rights to be assigned in accordance with this provision.
4. Collateral security
The Lessee and the Lessor agree as of now that the Lessor shall have a
right of lien on any current or future claims of the Lessee against the
Lessor. The lien shall serve a collateral security for all current or
future claims, including contingent claims which the Lessor has or will
have against the Lessee.
-18-
5. Right of inspection
After prior arrangement with the Lessee, the Lessor shall be entitled to
inspect the Object of the Lease or to have it inspected by agents during
normal business hours.
6. Electronic data processing/data protection
The Lessee agrees that the data included in this Agreement will be
provided to and electronically recorded by CommerzLeasing und Xxxxxxxxxx
XX, Xxxxxxxxxx.
0. Obligation to occupy the Object of the Lease
The Lessee shall be obliged to ensure that the Object of the Lease shall
be occupied throughout the term of the lease.
8. Return of the Object of the Lease
Upon the termination of this Agreement, the Object of the Lease shall be
returned to the Lessor in such a condition that it is ready for
occupancy, free of any substances harmful to the environment (in
particular soil contamination, existing pollution or warfare agents).
9. Provision of information
The Lessee shall be obliged to inform the Lessor on its financial
situation in a manner in which a borrower is obliged to do this towards
its lender in accordance with Sec 18 of the Banking Act
(KREDITWESENGESETZ, KWG). The Lessee shall provide the Lessor in
particular with its annual financial statements, annual reports and/or
reports of its auditor no later than six months after each balance sheet
date. The Lessee shall inform the Lessor unrequested and without delay
of any material changes in its financial or business situation or its
corporate structure.
10. Legal succession
The Lessor and the Lessee shall be obliged to transfer their obligations
under this Agreement to any legal successors.
11. Amendments and side agreements
-19-
Any amendments to this Agreement or side agreements shall require
written form. Any oral side agreements shall require written
confirmation.
12. Severability clause
Should any provision of this Agreement be or become invalid, the other
provisions shall nevertheless remain valid. In such an event, the
parties shall replace the invalid provisions with valid provisions whose
contents corresponds to the greatest possible extent to that of the
invalid provisions.
13. Disposal of TIC
The Lessor may only dispose of funds earmarked as TIC when it is ensured
that the transfer of the title of ownership of the land required for the
Object of the Lease, as well as the heritable building right, will be
entered in the respective land registers in the Lessor's favour, in each
case without being subject to any encumbrances, provided only that
appropriate evidence shall be provided showing that such real property
and heritable building right shall be encumbered with mortgages in
favour of the party providing the required financing facilities and
further provided that the Lessor shall be in possession of all documents
referred to in VI and VII. The Lessee shall advance any sums that may
become payable before the Lessee may dispose of any TIC financing
facilities granted to it.
14. Order of priority
To the extent that obligations under the heritable building right
agreement (ERBBAURECHTSVERTRAG) between the Lessee and the Lessor are
being assumed by the Lessee under this Agreement, the relevant
provisions of this Agreement shall be definitive in this respect.
Provisions contained in any addenda to this Agreement shall always have
priority over the original provisions of this Agreement.
15. Offer of the Lessee
The Lessee hereby offers to the Lessor to conclude this Real Property
Leasing Agreement. This offer shall be binding on the Lessee for a
period of six weeks as of the date of receipt of this offer by the
Lessor.
-20-
Xxxxxxxxxx, 00 June 2001
Hanover, 22 June 2001
XXXXXX Grundstucks-Vermietungs- VARTA Geratebatterie GmbH
gesellschaft mbH & Co.
Objekt Dischingen KG
/signed/
/signed/ /signed/
Lessor Lessee
-21-
ADDENDUM NO. 1
TO THE REAL PROPERTY
LEASING AGREEMENT NO. 326-61 0038
OF 20 DECEMBER 2000
between XXXXXX Grundstucks-Vermietungsgesellschaft mbH & Co.
Objekt Dischingen KG, Dusseldorf
- hereinafter referred to as the "Lessor"
and VARTA Geratebatterie GmbH,
Hanover
- hereinafter referred to as the "Lessee"
--------------------------------------------------------------------------------
The version of the Real Property
Leasing Agreement attached to this Addendum
shall replace the Real Property
Leasing Agreement No. 326-61 0038 of 20 December
2000, which applied up to now.
It was stipulated in the
Leasing Agreement of 20 December 2000 that the Lessee
would indemnify the Lessor with respect to all obligations assumed by it in the
event that, within a deadine ending 31 March 2002, the Lessor would not receive
a long-term financing commitment by a credit institution willing to provide
refinancing facilities at the terms and conditions requested by the Lessor. This
proviso was made in Annex 4 to the Agreement of 20 December 2000. Since then,
however, the deadline for the issue of such a refinancing commitment was
extended until 31 May 2001 on the basis of an addendum dated 28 March 2001.
Such a financing commitment has now been issued by a refinancing banking
institution. However, this financing commitment is subject to the condition that
the
Leasing Agreement shall provide for an advance payment of rent and, in
addition, for a second fixed term of the lease. The agreed total term of the
lease is to be 22.5 years. For this reason, the existing Real Property
Leasing
Agreement is to be supplemented accordingly, i.e. certain minor changes are to
be made to that Agreement. The attached new version of the
Leasing Agreement was
drawn up for considerations of clearness and transparency only.
Xxxxxxxxxx, 00 June 2001
Hanover, 22 June 2001
XXXXXX Grundstucks-Vermietungs- VARTA Geratebatterie GmbH
gesellschaft mbH & Co.
Objekt Dischingen KG
/SIGNATURES/ /SIGNATURES/
Lessor Lessee
......
-22-
RECORD OF TRANSFER OF POSSESSION
IN ACCORDANCE WITH SECTION 1 OF THE REAL PROPERTY LEASING AGREEMENT
Lessee: Varta Geratebatterie GmbH
Xx Xxxxxxxxx 00, 00000 Xxxxxxx
Xxxxxx: XXXXXX Grundstucks-Vermietungsgesellschaft
mbH & Co. Objekt Dischngen XX
Xxxxxx-Xxxxxx-Xxxxx 0, 00000 Xxxxxxxxxx
Real Property Leasing Agreement No. 326-61 0038 of 20 December 2000
Addendum No. 1 of 29/22 June 2001
Object of the Lease: Building with production, office and
recreation/sanitary premises;
here: the "new building"
Location: Xxxxxxxxxxxx Xxxxxxx xxx Xxxxxxxxxx 0
00000 Xxxxxxxxxx
Land register details: Land register for Dischingen
which is kept by the Heidenheim Local Court
folios: 737 and 1356
sub-plots: 980, 987/1, 987/3, 987/4, 987/5
Possession of the Object of the Lease, as described above, was transferred to
the Lessee on 30 September 2002 (beginning of the total term of the lease). The
Lessee confirms that the Object of the Lease is in accordance with the
provisions of the Real Property Leasing Agreement. The Lessee further confirms
that the Object of the Lease is being used as described in no. I of the Real
Property Leasing Agreement.
Xxxxxxxxxx, 00 September 2002
Hanover, 30 September 2002
/TWO SIGNATURES/
XXXXXX Grundstucks-Vermietungs- Varta Geratebatterie GmbH
gesellschaft mbH & Co.
Objekt Dischingen KG
......
......
-23-
ADDENDUM NO. 1
TO THE SUPPLEMENTARY AGREEMENT NO. 1 "OPEN TERMS"
TO THE REAL PROPERTY LEASING AGREEMENT NO. 326-61 0038 OF 20 DECEMBER 2000
--------------------------------------------------------------------------------
1. Open terms
The amount of the pre-rental payment, the commitment compensation, the
rent and the advance payment of rent as provided for in sec. 4 nos. 2
and 3 of the Real Property Leasing Agreement shall be left open for the
time being, but shall be definitively determined effective as of the
beginning of the fixed term of the rent at the very latest (transfer of
possession of the Object of the Lease to the Lessee in accordance with
sec. 1 of the Real Estate Leasing Agreement). Up to that point in time,
the Lessee may demand at any time that the Lessor shall fix the amount
of the rent and the advance payments of rent on the basis of the
long-term financing terms specified by the Lessor.
2. Long-term financing and assessment of the rent and advance payments of
rent
When the total term of of the lease begins, or at any other point in
time prior to that, the Lessor shall assess the rent and the advance
payment of rent on the basis of the capital market situation existing at
the time of such assessment. Annex 1 to the Real Property Leasing
Agreement shall be amended as appropriate.
Beginning on 1 July 2002 and up to the end of the first fixed-rent
period, the length of which shall be determined by the Lessee, the (net)
aggregate total p.a. of the rent and the advance payment of rent shall
be
Interest p.a. in %; loan principal Rent and advance payment of rent (net)
to be paid out in full p.a. in % of the Total Investment Costs (TIC)
Year 1 to 10.5 Year 1 to 10.5
TIC of TIC of
EURO 6,056,000 EURO 2,300,000
-----------------------------------------------------------------------------------------
6.00 % 11.17% 11.47%
6.50 % 11.53% 11.83%
(administration costs contribution in acc.
with sec. 4 para 5 not included)
-24-
The rent and the advance payment of rent for the next fixed-rent period
shall be determined by the Lessor on the basis of the same assessment
method, taking into account the redemption payments, the residual
duration of the relevant term of the lease and the interest rate agreed
with the Lessee.
3. Pre-rental payments
The Lessor shall determine the amount the pre-rental payments to be made
in accordance with sec. 4 para 2 of the Real Property Leasing Agreement
on the basis of the interest rate applicable to the relevant financing
facilities. If any short-term financing facilities with a fixed-interest
period of less than 6 months are used, the Lessor shall make an extra
allowance of 0.25% of the amount of any such short-term financing
facility.
If the Lessee demands that the amount of the rent and the advance
payment of rent be determined before possession of the Object of the
Lease is transferred, the amount of the payments to be made under sec. 4
nos. 2 a) and b) of the Real Property Leasing Agreement as of the point
in time the long-term financing funds are disbursed shall be determined
on the basis of the same financing terms as those used to calculate the
amount of the rent and of the advance payment of rent.
Xxxxxxxxxx, 00 June 2001
Hanover, 22 June 2001
XXXXXX Grundstucks-Vermietungs- Varta Geratebatterie GmbH
gesellschaft mbH & Co.
Objekt Dischingen KG
/SIGNATURES/ /SIGNATURES/
Lessor Lessee
......
-25-
APPENDIX 1 TO ADDENDUM NO. 1 OF 29/22 JUNE 2001
TO THE REAL PROPERTY LEASING AGREEMENT NO. 326-61 0038 OF 20 DECEMBER 2000
between XXXXXX Grundstucks-Vermietungsgesellschaft mbH & Co.
Objekt Dischingen KG, Dusseldorf
- hereinafter referred to as the "Lessor"
and Varta Geratebatterie GmbH,
Hanover
- hereinafter referred to as the "Lessee"
ADVANCE PAYMENTS OF RENT
The advance payments of rent provided for in III.3 shall amount to
from 1 Jan. 2001 to 31 Dec. 2001 EUR 324,540.83
from 1 Jan. 2002 to 31 Dec. 2002 EUR 324,540.83
from 1 Jan. 2003 to 31 Dec. 2003 EUR 324,540.83
from 1 Jan. 2004 to 31 Dec. 2004 EUR 324,540.83
from 1 Jan. 2005 to 31 Dec. 2005 EUR 324,540.83
from 1 Jan. 2006 to 31 Dec. 2006 EUR 324,540.83
from 1 Jan. 2007 to 31 Dec. 2007 EUR 324,540.83
from 1 Jan. 2008 to 31 Dec. 2008 EUR 324,540.83
from 1 Jan. 2009 to 31 Dec. 2009 EUR 324,540.83
from 1 Jan. 2010 to 31 Dec. 2010 EUR 324,540.83
from 1 Jan. 2011 to 31 June 2011 EUR 162,270.41
SUM OF ADVANCE PAYMENTS OF RENT EUR 3.407.678.68
The above figures shall be adjusted as may be appropriate at the time of the
initial assessment of the applicable interest rate and the figures thus
calculated shall then be definitive until the end of the relevant fixed-interest
period, after which sec. 4.4 of the Real Property Leasing Agreement (adjustments
of the rent) shall apply.
......
