Exhibit 10.5
FIRST AMENDMENT
DATED APRIL 5, 2007
TO
LEASE AGREEMENT
by and between
XXXXXXX GMBH & CO. VERMOGENSVERWALTUNGS KG,
a German limited partnership
registered with the commercial register
maintained at the local court of Dortmund under HRA 13391,
as LANDLORD
and
XXXXXXX DIE PROFI-BAUMARKTE GMBH UND CO. KG,
a German limited partnership
registered with the commercial register
maintained at the local court of Dortmund under HRA 13582,
as TENANT
Premises: 1. Aschersleben, Germany
2. Berlin-Biesdorf, Germany
3. Berlin-WeiBensee, Germany
4. Xxxxxxxx, Germany
5. Bochum-Hofstede, Germany
6. Bonn-Beuel, Germany
7. Xxxx-Xxxxxxxx, Xxxxxxx
0. Xxxxxxxx XX, Xxxxxxx
9. Dahlwitz-Hoppegarten, Germany
10. Dortmund-Kley, Germany
11. Ennepetal, Germany
12. Essen-Altenessen, Germany
13. Essen-Borbeck, Germany
14. Xxxxx-Xxxxxxx, Germany
15. Falkensee, Germany
16. Gelsenkirchen, Germany
17. Geltow, Germany
18. Greiz, Germany
19. Gronau, Xxxxxxx
00. Xxxxx, Xxxxxxx
21. Halberstadt, Germany
22. Halle, Germany
23. Hennigsdorf, Germany
24. Leipzig, Germany
25. Ludenscheid, Germany
26. Lutherstadt-Eisleben, Germany
27. Magdeburg Mittagstr., Germany
28. Magdeburg, Germany
29. Menden, Germany
30. Mettmann, Germany
31. Nordhausen, Germany
32. Paderborn, Germany
33. Potsdam, Germany
34. Quedlinburg, Germany
35. Steinfurt, Germany
36. Werl, Germany
37. Zwickau, Germany
THIS FIRST AMENDMENT TO LEASE AGREEMENT ("First Amendment to Lease"), made as of
the 5th day of April, 2007, between XXXXXXX GMBH & CO. VERMOGENSVERWALTUNGS KG,
a German limited partnership registered with the commercial register maintained
at the local court of Dortmund under HRA 13391 ("Landlord"), and XXXXXXX DIE
PROFI-BAUMARKTE GMBH UND CO. KG, a German limited partnership registered with
the commercial register maintained at the local court of Dortmund under HRA
13582 ("Tenant"), both with an address at Xxxxxxxxxxxxxxx 000, 00000 Xxxxxxxx,
Xxxxxxx.
BACKGROUND
A. Landlord and Tenant have entered into that certain Lease Agreement
dated February 28, 2007.
B. Landlord and Tenant have agreed to amend said Lease Agreement as
herein set forth.
1. Demise of Premises. is hereby amended by deleting the phrase "known as
Berlin-Weissensee, Roelckestr. 108 and listed as Number 26" and using in
lieu thereof "known as Berlin-Weissensee, Roelckestr. 108 and listed as
Number 3."
2. Paragraph 2 Definitions is hereby amended by deleting the definitions of
"Assignment", "Interest Purchase Agreement", "Lease", "Lender", "Mortgage",
"Note", "Security Deposit", "Shareholder" and "VAT" in their entirety and
inserting the following in lieu thereof:
"Assignment" shall mean any assignment of rents and leases from
Landlord to a Lender which (a) encumbers any of the Leased Premises
and (b) secures the obligation of Landlord or a Shareholder in
Landlord to repay a Loan, as the same may be amended, supplemented or
modified from time to time.
"Interest and Share Purchase Agreement" shall mean that certain
Interest Purchase Agreement dated February 28, 2007, among HLWG TWO
(GER) LLC, Xx. Xxxxxxxx Xxxxx and Xxxxx Unternehmensverwaltung GmbH &
Co. KG.
"Lease" shall mean the Lease Agreement dated February 28, 2007, as
amended by the First Amendment to Lease Agreement dated April 5, 2007.
"Lender" shall mean any Person (and its respective successors and
assigns) which may, after the date hereof, make a Loan.
"Loan" shall mean any loan made by one or more Lenders to Landlord or
to a Shareholder in Landlord or be the holder of a Note or beneficiary
of a Mortgage.
"Mortgage" shall mean any mortgage or land charges (i) in favor of a
Lender which (a) encumbers any of the Leased Premises and (b) secures
any obligation of a Shareholder in Landlord to repay a Loan, as the
same may be amended, supplemented or modified or (ii) from Landlord to
a Lender which (x) encumbers any of the
Leased Premise and (y) secures Landlord's obligations to repay a Loan,
as the same may be amended, supplemented or modified.
"Note" shall mean any promissory note evidencing Landlord's or a
Shareholder's obligation to repay a Loan, as the same may be amended,
supplemented or modified.
"Security Deposit" shall mean the Initial Security Deposit, the
Covenant Security Deposit, the Holdback Security Deposit and/or the
Cash Security Deposit, as the context may require.
"Shareholder" shall mean any Person which shall directly or indirectly
own or control five percent (5%) or more of (i) the convertible debt
or (ii) the outstanding Voting Stock of a corporation or other
controlling interest if such Person is not a corporation and which,
for the purposes of being the borrower under a Loan, shall include
HLWG TWO (GER) LLC."
3. Paragraph 2. Definitions is hereby amended by adding thereto the following
definition:
"Holdback Security Deposit" shall mean "Holdback Security Deposit" as
defined in Paragraph 32(ii).
4. Clause (f) of Paragraph 3. Title and Condition; Single Lease Transactions
is hereby amended by deleting the phase "PARAGRAPH 18 or 37(o)" and
inserting in lieu thereof "PARAGRAPH 18 or PARAGRAPH 38(o)."
5. Paragraph 6, Basic Rent is hereby amended by deleted the words "shall
include VAT on such payment and".
6. Subparagraph (a) of Paragraph 12. Maintenance and Repair is hereby amended
by deleting the words commencing "in as good repair" and ending "other real
properties owned or operated by it and in" and shall be replaced with the
following words:
"in good repair and condition. The appearance shall be fit to be used
for their intended use provided that the items used in any repair or
reinstatement should be of similar quality and nature than is
currently used and need not be of any higher quality. In.."
Furthermore, the following additional sentence shall be added at the bottom
of the paragraph 12(a):
"For avoidance of doubt, Tenant shall have the sole obligation to
maintain the Leased Premises, including the foundation and structure,
in at least as good and full repair and condition as on the date
hereof."
7. Paragraph 9(b) shall be amended by adding the words "and Tenant shall
promptly provide (and no later than within ten (10) days of paying such
VAT) such written evidence of such payments together with copies of such
VAT returns to the Landlord and the Lender" after the words "shall be
performed by Tenant".
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8. Clauses (i), (ii) and (iv) of subparagraph (a) and subparagraph (b) of
Paragraph 16. Insurance are hereby deleted in their entirety and the
following is hereby inserted in lieu thereof:
"(i) Insurance against (A) fire, lightning, explosion, falling
aircraft, storm/hail, power surge, damage to property following
burglary or attempt thereof, flood (due to heavy rain falls, snow or
from running or still water, such as rivers, lakes creeks), named
natural hazards such as subsidence, earthquake, snow load, avalanche
and volcanic eruptions, extended perils, such as strike, malicious
damage, riots, vehicle impact, smoke and sonic blast, debris removal,
demolition, clearance and fire fighting costs and professional fees on
a full replacement basis and indexed annually, (B) terrorism in an
amount of up to and including but not more than fifty percent of
replacement value of the Leased Premises, and (C) loss of rent
insurance for a period of not less than thirty-six (36) months from
time of loss. Such policies and endorsements shall contain deductibles
of not more than Twenty-Five Thousand Euros (E25,000.00) per
occurrence. Further, the insurance against flood, subsidence,
earthquake, snow load, avalanche and volcanic eruptions shall be in an
amount not less than Fifteen Million Euros (E15,000,000).
"(ii) Commercial General Liability Insurance (Betriebshaftpflicht)
against claims for personal and bodily injury, death or property
damage occurring on, in or as a result of the use of the Leased
Premises, in an amount not less than Ten Million Euros
(E10,000,000) for injury or damage to persons and private risk,
Two Million Five Hundred Thousand Euros (E2,500,000.00) for
injury or damage to the environment and Fifty Thousand Euros
(E50,000.00) for personal property."
"(iv) During any period in which substantial Alterations at the Leased
Premises are being undertaken or an Expansion is being constructed,
builder's risk insurance (Bauwesenversicherung) covering the total
completed value, including all hard and soft costs (which shall
include business interruption coverage) with respect to the
Improvements being constructed, altered or repaired (on a completed
value, non-reporting basis), replacement cost of work performed and
equipment, supplies and materials furnished in connection with such
construction, alteration or repair of Improvements or Fixtures,
together with such other endorsements as Landlord or Lender may
reasonably require, and general liability, worker's compensation and
automobile liability insurance with respect to the Improvements being
constructed, altered or repaired.
"(b) The insurance required by Paragraph 16(a) shall be written by
companies having an international reputation and of size and placed
with insurers that have a long term unsecured unsubordinated and
unguaranteed debt instrument rating of A or better by Fitch, A2 or
better by Moody's and A or better by Standard & Poor's or otherwise as
reasonably acceptable to Lender and Landlord and in any case which are
authorized to write
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insurance policies according to German law. The insurance policies
shall be for such terms customarily provided to similar properties by
German insurance companies. If said insurance or any part thereof
shall expire, be withdrawn, become void, voidable, unreliable or
unsafe for any reason, including a breach of any condition thereof by
Tenant or the failure or impairment of the capital of any insurer, or
if for any other reason whatsoever said insurance shall become
reasonably unsatisfactory to Landlord, Tenant shall immediately obtain
new or additional insurance reasonably satisfactory to Landlord."
9. Clause (iii) of subparagraph (a) of Paragraph 16. Insurance is hereby
deleted in its entirety.
10. Subparagraph (c) and subparagraph (d) of Paragraph 13 Alterations,
Improvements and Expansions are hereby deleted in its entirety and the
following is hereby inserted in lieu thereof:
"(c) Tenant shall complete the expansions described in Exhibit "I"
hereto (the "Required Expansions") which Tenant shall construct in
accordance with the requirements of this Paragraph 13. Landlord hereby
consents to the construction of the Required Expansions; provided,
however, that if additional land (any such land, "Additional
Property") is required for the construction of any Required Expansion,
Landlord's consent shall not be effective unless and until Landlord
and Lender shall have reviewed due diligence materials for the
Additional Property as either Person shall request and which shall be
satisfactory to Landlord and Lender in all respects, and title to the
Additional Property shall have been negotiated in the name of Landlord
in the applicable jurisdiction. Upon completion of each Expansion
Premises that is the subject of the Required Expansions, which
completion shall be evidenced by (i) the issuance of a written
confirmation of the architect supervising the construction that the
Required Expansions are completed and the operations have commenced
(Fertigstellung und Inbetriebnahme), and (ii) either (A) certificates
of occupancy issued by the applicable local governmental authority, or
(B)to the extent certificates of occupancy have not been issued,
negative confirmations confirming that certificates of occupancy are
not required with respect to the applicable Required Expansion, or (C)
a statement from the local municipal authority stating that a building
permit exists, there are no material defects with respect to the
applicable Required Expansion, and the applicable local municipality
has no objection to the use of the relevant Expansion Premises,
Landlord shall, within ten (10) days following the delivery of such
evidence and so long as no Event of Default exists, release to Tenant
the applicable portion of the Expansion Holdback for the applicable
completed Required Expansion.
(d) In case Tenant does not complete one or more of the Required
Expansions within thirty six (36) months of the date of this Lease,
due to any cause or causes which Tenant is not, despite its best
efforts, able to prevent or overcome (which causes exclude the
unavailability of money, unavailability of sources of financing,
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a shortage of labor or materials, or changes in market conditions),
the total amount of Basic Rent shall remain unaffected except as
expressly provided in (ii) in the succeeding sentence. In such event,
Landlord shall have the right, at its sole and exclusive option, to
either (i) pay the respective portion of the Expansion Holdback,
including interest accrued thereon, to Tenant or (ii) (A) retain on
Landlord's behalf the respective portion of the Expansion Holdback,
excluding interest accrued thereon, without any further obligations
hereunder to remit such portion of the Expansion Holdback to Tenant,
(B) adjust the allocation of Allocated Cost set forth on Exhibit "E"
attached hereto by subtracting the respective portion of the Expansion
Holdback retained by Landlord from the Allocated Cost for the
applicable Related Premises, and (C) adjust the allocation of
Percentage Allocation of Basic Rent set forth on Exhibit "F" attached
hereto by subtracting the product of 7.84% multiplied by the
respective portion of the Expansion Holdback retained by Landlord from
the Percentage Allocation of Basic Rent for the applicable Related
Premises. Any calculations in connection with the foregoing shall be
determined by Landlord and, absent manifest error, shall be conclusive
upon both Landlord and Tenant.
11. Subparagraph (b) of Paragraph 22 Remedies and Damages Upon Default is
hereby amended by adding the following clause (C) at the end of the first
sentence: "or (C) Tenant shall (i) fail to complete the environmental
testing specified in Exhibit "L" for the Cheminitz II Premises and
Ennepetal Premises within the timeframe specified in Exhibit "L", (ii) fail
to complete, within the timeframe recommended by ERM GmbH, any remediation
recommended by ERM GmbH based on such testing or (iii) fail to remediate on
behalf of Landlord the soils contamination at Berlin-Ostbahnof within the
timeframe specified in Exhibit "L".
12. Paragraph 32 Security Deposit is hereby deleted in its entity and the
following is inserted in lieu thereof:
"32. Security Deposit (i) Simultaneously with the payment of the
purchase price for the Leased Premises by Landlord in accordance with
the Interest and Share Purchase Agreement, Tenant shall deliver to
Landlord a security deposit (the "Initial Security Deposit") in the
amount of Twenty-four Million Nine Hundred Sixty-Four Thousand Seven
Hundred Seventy-Nine and 00/100 EURO (E24,964,779), which Initial
Security Deposit shall be increased on the sixth (6th), twelfth
(12th), eighteenth (18th), twenty-fourth (24th), and if the initial
Term is extended, the twenty-ninth (29th) anniversaries of the first
Basic Rent Payment Date by ninety percent (90%) of the cumulative
increases in the GPI since the Commencement Date.
(ii) In addition, five percent (5%) of any Deposit Holdback
Amount (as such term is defined in the Interest and Share Purchase
Agreement) shall, upon the release of such Deposit Holdback Amount, be
delivered by Tenant to Landlord as an additional security deposit
(singly and collectively, the "Holdback Security Deposit") which shall
be held, maintained and released as provided in this Paragraph 32(a).
(b) Each Security Deposit shall be either cash (a "Cash Security
Deposit") maintained at a bank acceptable to Landlord and having a
short-term
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credit rating of not less than "A-1+" from Standard & Poor's
Corporation "F1" from Fitch Ratings or "P-1" from Xxxxx'x Investors
Service ("Approved Bank") or an irrevocable bank guaranty (a "Bank
Guaranty") which shall be issued by an Approved Bank and shall be in
form and substance satisfactory to Landlord. So long as Commerzbank
AG's short-term credit rating is not less then "A-1" from Standard and
Poor's Corporation, "F1" from Fitch Ratings and "P-1" from Xxxxx'x
Investor Service, then Commerzbank will be deemed an acceptable Bank
Guarantor.
(c) Except as otherwise provided in this Paragraph 32 and in
Paragraph 27 with respect to the Covenant Security Deposit, each
Security Deposit shall remain in full force and effect during the Term
as security for the payment by Tenant of the Rent and all other
charges or payments to be paid hereunder and the performance of the
covenants and obligations contained herein. The Covenant Security
Deposit shall be returned to Tenant within ten (10) days following the
date on which Landlord receives evidence reasonably satisfactory to
Landlord that Tenant is in compliance with the Breached Maintenance
Covenant. Any Bank Guaranty shall be renewed at least thirty (30) days
prior to any expiration thereof. If Tenant fails to renew any Bank
Guaranty by such date, time being of the essence, Landlord shall have
the right at any time after the thirtieth (30th) day before such
expiration date to draw on such Bank Guaranty and to deposit the
proceeds of the Bank Guaranty as a Cash Security Deposit in any
account for the benefit of Landlord. Any Cash Security Deposit shall
not be commingled with other funds of Landlord or other Persons and
interest accrued thereon shall be due and payable to Tenant.
(d) If at any time an Event of Default shall have occurred and be
continuing, Landlord shall be entitled, at its sole discretion, to
draw on any Bank Guaranty or to withdraw any Cash Security Deposit
from the above-described account and to apply the proceeds in payment
of (i) any Rent or other charges for the payment of which Tenant shall
be in default, (ii) prepaid Basic Rent, (iii) any expense incurred by
Landlord in curing any default of Tenant, and/or (iv) any other sums
due to Landlord in connection with any default or the curing thereof,
including, without limitation, any damages incurred by Landlord by
reason of such default, including any rights of Landlord under
Paragraph 23 or to do any combination of the foregoing, all in such
order or priority as Landlord shall so determine in its sole
discretion and Tenant acknowledges and agrees that such proceeds shall
not constitute assets or funds of Tenant or its estate, or be deemed
to be held in trust for Tenant, but shall be, for all purposes, the
property of Landlord (or Lender, to the extent assigned). Tenant
further acknowledges and agrees that (1) Landlord's application of the
proceeds of any Bank Guaranty or any Cash Security Deposit towards the
payment of Basic Rent, Additional Rent or the reduction of any damages
due Landlord in accordance with Paragraph 23 of this Lease,
constitutes a fair and reasonable use of such proceeds, and (2) the
application of such proceeds by Landlord towards the payment of Basic
Rent, Additional Rent or any other sums due under this Lease shall not
constitute a cure by Tenant of the applicable default provided that an
Event of Default shall not exist if Tenant restores the Security
Deposit to its full amount within five (5) days of the date that
Landlord has given written notice to Tenant that Landlord or Lender,
as applicable, has applied any portion of a Security Deposit and in
accordance with the requirements of this Paragraph 31, so that the
original amount of the Security Deposit shall be again on deposit with
Landlord.
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(e) Except in accordance with Paragraph 32(f) below, at the
expiration of the Term any Security Deposit then held by Landlord,
shall be returned to Tenant after deducting therefrom any Monetary
Obligations due and owing to Landlord.
(f) (i) Notwithstanding anything to the contrary set forth
herein, so long as (1) no non-monetary Event of Default has occurred
and is then continuing and (2) there has been no monetary Event of
Default for at least six (6) consecutive months, (i) a portion of the
Initial Security Deposit equal to three months of the Basic Rent then
in effect shall be released to Tenant if and when Tenant shall have
achieved EBITDA for any Fiscal Year in excess of 50% of the annual
Basic Rent (the "50% Test"), (ii) a further portion of the Initial
Security Deposit equal to three months of the Basic Rent then in
effect shall be released to Tenant if and when Tenant shall have
achieved EBITDA for any Fiscal Year in excess of 75% of the annual
Basic Rent (the "75% Test"), and (iii) a further portion of the
Initial Security Deposit equal to three months of the Basic Rent then
in effect shall be released to Tenant if and when Tenant shall have
achieved EBITDA for any Fiscal Year in excess of 100% of the annual
Basic Rent (the "100% Test"). If in any Fiscal Year following the
Fiscal Year during which Tenant achieves a 50% Test, 75% Test or 100%
Test, Tenant's EBITDA falls below one or more of the applicable tests,
the Initial Security Deposit shall be increased by three, six or nine
months of the Basic Rent then in effect, as applicable, in order to
cause Landlord to hold the Security Deposit it would have held if the
applicable tests had not been previously met. Notwithstanding the
foregoing, at no time shall the Initial Security Deposit hereunder
ever be less than three months of Basic Rent then in effect. As used
herein, "EBITDA" shall mean, with respect to any fiscal period, the
consolidated net earnings (or loss) of the Tenant Group's, minus
extraordinary gains, plus interest expense, income taxes, depreciation
and amortization, and non-cash charges related to restructuring or
acquisition for such period, as determined in accordance with GAAP
provided that if any member of the Tenant Group acquires all or any
part of the shares or interests in a Person in the DIY Business the
losses of such Person shall not be included in calculating EBITDA as
long as such Person (i) is a separately operated business concern, and
(ii) prepares its own separate financial statements. In no event shall
any portion of the Initial Security Deposit be released to Tenant
prior to June 1, 2008.
(ii) Notwithstanding anything to the contrary set forth herein,
so long as no Event of Default has occurred and is continuing, the
Holdback Security Deposit shall be released to the Tenant twelve (12)
months after the date on which the balance in the General Holdback
Account (as such terms is defined in the Interest and Share Purchase
Agreement) has been reduced to E30,387,000.
13. Paragraph 37 Post-Closing Obligations is hereby deleted in its entirety and
the following is hereby inserted in lien thereof:
"37 Post-Closing Obligations.
(a) Pursuant to certain environmental due diligence assessments and
certain technical due diligence assessments conducted by ERM GmbH with
respect to the Leased Premises and other premises for which Landlord
has responsibility, Tenant shall complete, remediate and/or obtain
certain obligations more
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particularly specified in Exhibit "L" within the time periods
specified in Exhibit "L".
(b) On the date of this First Amendment to Lease, Tenant has deposited
with Landlord the amount of E1,987,500 (the "Post-Closing
Escrow") which shall be allocated to certain of the obligations
described in Exhibit "L" in the amounts shown on Exhibit "L", shall
secure the obligation of Tenant to obligations, and shall be held and
disbursed as set forth in this Paragraph 37. The Post-Closing Escrow
shall be released to Tenant within ten (10) days following the date on
which Landlord receives written and photographic evidence satisfactory
to Landlord and Lender that all applicable obligations have been
completed (which shall include written and photographic evidence and
evidence of payment in full).
(c) If, at any time prior to the release of the Post-Closing Escrow,
an Event of Default shall have occurred and be continuing, Landlord
shall have the right to use the proceeds of the Post-Closing Escrow to
the extent required to satisfy the applicable obligations, and/or be
entitled, at its sole discretion, to apply any remaining balance in
payment of any Rent or other charges which have not been made pursuant
to this Lease and any other sums due to Landlord in connection with
any default of the curing thereof, including, without limitation, any
damages incurred by Landlord by reason of such default. Tenant
acknowledges and agrees that such proceeds shall not constitute assets
or funds of Tenant or its estate, or be deemed to be held in trust for
Tenant, but shall be, for all purposes, the property of Landlord (or
Lender, to the extent assigned). Tenant further acknowledges and
agrees that Landlord's application of the proceeds of the Post-Closing
Escrow towards the payment of Basic Rent, Additional Rent or the
reduction of any damages due to Landlord in accordance in accordance
with Paragraph 23 of this Lease, constitute a fair and reasonable use
of such proceeds, and the application of such proceeds by Landlord
towards the payment of Basic Rent, Additional Rent or any other sums
due under this Lease shall not constitute a cure by Tenant of the
applicable default.
(d) Landlord shall have the right to designate Lender as the holder of
the Post-Closing Escrow during the term of the applicable Loan who
shall have all of the rights of Landlord under this Paragraph 37.
Tenant covenants and agrees to execute such documents as Lender may
require to effect such transfer of the Post-Closing Escrow to or for
the benefit of Lender."
14. Exhibit "F" Premises Percentage Allocation of Basic Rent/Initial Annual
Basic Rent is hereby deleted in its entirety and is hereby replaced by
Exhibit "F" Premises Percentage Allocation of Basic Rent/Initial Basic Rent
attached thereto.
15. Section II. INDIVIDUAL PROPERTIES of Exhibit "L" is hereby amended by
adding thereto the following:
"X. Xxxxxxxx XX Premises
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1. Undertake and complete by July 1, 2007 additional testing as
recommended by ERM GmbH for the purpose of additional
characterization of the soil and ground water to further
delineate and possibly locate a suspected on-site source of the
documented CHC contamination and thereafter implement and
complete, within the timetable recommended by ERM GmbH,
remediation of any discovered contamination. Escrow amount
E1,500,000.
J. Ennepetal Premises
1. Undertake and complete by July 1, 2007 additional testing as
recommended by ERM GmbH to determine the source and extent of
soils and groundwater contamination and thereafter implement and
complete, within the timetable recommended by ERM GmbH,
remediation of impacted soils or groundwater contamination.
Escrow Amount E450,000.
K. Berlin
1. Remediate soils contamination on behalf of Landlord. Escrow
amount E37,500."
16. Paragraph 38 Miscellaneous is hereby amended by adding thereto the
following subparagraph (s), (t) and (u).
"(s) Landlord and Tenant are business entities having substantial
experience with the subject matters of this Lease and have each fully
participated in the negotiation and drafting of this Lease.
Accordingly, it is the intent of the parties that (1) this Lease
comply in all respects with the General Terms and Conditions described
in the German Civil Code and (2) this Lease shall be construed without
regard to the rule that ambiguities in and the document are to be
construed against the drafter."
"(t) In the event this Lease does not for any reason comply with the
written form requirements under Section 550 in the German Civil Code
either party will, on the request of the other party, do or perform
all such further acts and/or execute and deliver all such further
deeds or documents in a manner and form which is reasonably
satisfactory to the requesting party to ensure that this Lease does at
all times comply with the requirements under Section 550 of the German
Civil Code."
17. Miscellaneous. Except as specifically amended by this Amendment the terms
and conditions in the Lease Agreement dated February 28, 2007 shall remain
in full force and effect and shall be binding on the parties hereto and
their successors and assigns.
18. Governing Law. This First Amendment to Lease is governed by and construed
in accordance with the Laws of Germany.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
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IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be duly
executed under seal as of the day and year first above written.
LANDLORD:
XXXXXXX GMBH & CO.
VERMOGENSVERWALTUNGS KG, a German
limited partnership
By:
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Title:
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TENANT:
XXXXXXX DIE PROFI-BAUMARKTE GMBH UND CO.
KG, a German limited partnership
By:
------------------------------------
Title:
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SIGNATURE PAGE TO HELLWEG II FIRST AMENDMENT TO LEASE
CONSENT OF GUARANTORS
Each of the undersigned guarantor of the Lease pursuant to that certain Guaranty
of First Demand (the "Guaranty") dated February 28, 2007, hereby consents to the
within First Amendment to Lease and agrees to be bound by the terms thereof,
subject to the terms of the Guaranty.
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[Place / Date]
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XXXXXXX DIE PROFI-BAUMARKTE GMBH & CO. KG
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HELLWEG GMBH & CO. GRUNDBESITZ KG
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MARKISCHE INDUSTRIE- UND BAUBEDARFSGESELLSCHAFT MBH & CO. KG
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MKD VERMOGENSVERWALTUNGS BETEILIGUNGS GMBH BERLIN
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BAUFREUND HANDELSGESELLSCAFTER M.B.H.
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"XXXXXXX" DIE PROFI-BAUMARKTE GMBH & CO. KG CHEMNITZ
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"XXXXXXX" DIE PROFI-BAUMARKTE VERWALTUNGSGESELLSCHAFT MBH CHEMNITZ
SIGNATURE PAGE OF CONSENT OF GUARANTORS TO HELLWEG II FIRST AMENDMENT TO LEASE
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XX XXXXXXXX XXXXXXXXX BETEILIGUNGS GMBH
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XX. XXXXXXXX XXXXXXXXX GMBH & CO. KG
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XXXXXXX DIE PROFI-BAUMARKTE BETEILIGUNGS GMBH
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HELLWEG GMBH & CO. IMMOBILIEN KG
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HELLWEG HANDELS GMBH
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PLANTIFLOR ZIERPFLANZEN GMBH
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UNIVERSAL HAUS & GARTEN PLANTIFLOR HANDELS & VERWALTUNGS-GMBH
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UNIVERSAL HAUS & GARTEN PLANTIFLOR HANDELS GMBH & CO. KG
SIGNATURE PAGE OF CONSENT OF GUARANTORS TO HELLWEG II FIRST AMENDMENT TO LEASE
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EXHIBIT F
Aschersleben Premises 1.95% E 487,099.80
Berlin-Biesdorf Premises 5.00% E 1,247,370.24
Berlin-WeiBensee Premises 4.24% E 1,059,283.26
Xxxxxxxx Premises 3.01% E 750,916.52
Bochum-Hofstede Premises 3.16% E 788,958.14
Bonn-Beuel Premises 1.16% E 290,563.34
Bonn-Duisdorf Premises 2.57% E 640,377.00
Chemnitz II Premises 1.96% E 490,200.48
Dahlwitz-Hoppegarten Premises 5.53% E 1,381,239.12
Dortmund-Kley Premises 1.61% E 400,930.52
Ennepetal Premises 2.11% E 527,627.88
Essen-Altenessen Premises 3.34% E 834,866.88
Essen-Borbeck Premises 4.96% E 1,238,897.33
Xxxxx-Xxxxxxx Premises 0.98% E 245,457.00
Falkensee Premises 6.72% E 1,678,521.95
Gelsenkirchen Premises 3.63% E 905,264.64
Geltow Premises 2.08% E 518,247.58
Greiz Premises 2.07% E 517,180.56
Gronau Premises 1.08% E 269,107.08
Guben Premises 1.79% E 447,504.42
Xxxxxxxxxxx Premises 1.83% E 456,821.64
Halle Premises 2.59% E 646,174.98
Hennigsdorf Premises 2.56% E 639,490.18
Leipzig Premises 2.22% E 553,125.60
Ludenscheid Premises 3.69% E 922,126.13
Lutherstadt-Eisleben Premises 1.70% E 424,861.80
Magdeburg Mittagstr. Premises 4.70% E 1,174,257.31
Magdeburg Premises 0.99% E 246,040.00
Xxxxxx Premises 2.78% E 693,114.24
Mettmann Premises 2.79% E 697,140.90
Nordhausen Premises 1.79% E 446,443.80
Paderborn Premises 1.42% E 353,341.44
Potsdam Premises 4.47% E 1,115,615.62
Quedlinburg Premises 1.66% E 414,697.80
Steinfurt Premises 1.42% E 354,243.40
Werl Premises 1.83% E 456,330.42
Zwickau Premises 2.61% E 651,339.48
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100.00% E24,964,778.47
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