L E A S E
between
STAR
Telecommunications Deutschland GmbH
Xxxxxxxxxxxxxxxx 0 - 00, 00000 Xxxxxxxxx xx Xxxx
- hereinafter referred to as 'Lessee' -
and
DIFA
DEUTSCHE IMMOBILIEN FONDS AKTIENGESELLSCHAFT
Xxxxxxxxxxxxx 00, 00000 Xxxxxxx
- hereinafter referred to as 'Lessor' -
Lease No. 0344
(please indicate in every correspondence and payment)
Property: 80807 Munchen, Xxxxxxxxxxxxxx 000, 'Xxxxxx Haus'
TABLE OF CONTENTS
OF THE LEASE
between
STAR
Telecommunications Deutschland GmbH
and
DIFA
DEUTSCHE IMMOBILIEN FONDS AKTIENGESELLSCHAFT
Page
Section 1 Leased Property 3
Section 2 Handing Over of Leased Property and Purpose of Lease 4
Section 3 Beginning and Duration of Lease 5
Section 4 Cancellation of Lease 6
Section 5 Amount of Rent - Value Guarantee 7
Section 6 Payment of Rent - Security for Rent 9
Section 7 Incidental Expenses 10
Section 8 Heating Expenses 12
Section 9 Breakdown of the Heating Plant, of Technical Equipment,
and of Supply 13
Section 10 Maintenance and Use of Property and of Leased Property 13
Section 11 Subleasing 15
Section 12 Installations and Structural Alterations by Lessee and
Advertising and Special Works Equipment 16
Section 13 Repairs and Structural Alterations performed by Lessor 17
Section 14 Liability of Lessor - Nuisance by Third Parties 18
Section 15 Insurance 18
Section 16 Access to Leased Property 19
Section 17 Termination of Lease 19
Section 18 Sale of Property 20
Section 19 Final Clauses 20
Section 20 Supplementary Agreements 21
SECTION 1
LEASED PROPERTY
1. Lessor is owner of the premises at 80807 MUNCHEN, XXXXXXXXXXXXXX 000,
'XXXXXX HAUS'(1), hereinafter also referred to as 'Property'
2. Lessor grants Lessee a lease of the following areas ('Leased Area') and
parking spaces(2), hereinafter collectively referred to as 'Leased
Property', the location of which can be taken from the plan attached as
APPENDIX 1:
2.1 Office area on the 1st FLOOR approx. 1,152.81 m(2)
2.2 Proportionate general area approx. m(2)
2.3 Archives area on approx. m(2)
2.4 Storage area approx. m(2)
2.5 Service area approx. m(2)
2.6 Parking spaces in the underground car park/
in the multi-story car park 6 units
2.7 Parking spaces outside units
2.8
2.9
2.10
3. The size of the above mentioned Leased Area is agreed ACCORDING TO DIN
277 BGF.
4. A possible deviation of the size of the Leased Area indicated in
sub-paragraph 2. from the actual conditions by up to 1.5% (one and a half
per cent) of the total of the Leased Area mentioned in sub-paragraph 2.
does entitle neither Lessor nor Lessee to change the amount of rent.
In the case of a deviation of more than 1.5%, the amount of rent shall
be adjusted according to the full deviation. After expiry of one year
after handing over of the Leased Property, neither Lessor nor Lessee may
demand such adjustment of rent.
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(1) Exact address including postal zone number
(2) cf. Section 20, sub-paragraph 1.
SECTION 2
HANDING OVER OF LEASED PROPERTY AND PURPOSE OF LEASE
1. The Leased Property shall be handed over to Lessee at the beginning of
Lease. On this occasion, a joint handing over protocol shall be prepared
to include possible defects and remaining works, which have to be
immediately remedied or executed by Lessor.
By signing this handing over protocol, Lessor acknowledges the condition
of the Leased Property as contractually agreed, except for hidden
defects, unless any defects/remaining works are mentioned in the
handing over protocol.
2. On the occasion of taking over, Lessee shall receive a set of keys and a
code-card for each parking space in the underground car park. Any
additional keys or code-cards required by Lessee will be provided
immediately at Lessee's expense.
3. Any company signs in the central entrance area are designed and
installed on the same lines. To the extent permitted by the necessary
uniform design, Lessor will take into account any requests expressed by
Lessee. This shall apply correspondingly to a possible routing system.
Costs of such uniform company signs and of a possible routing system and
the corresponding installation shall be borne by Lessor. Costs of
modifications and special requests are to be borne by Lessee.
4. For the duration of Lease, Lessee shall and will run an OFFICE in the
Leased Property. Each change of business/occupation exercised in the
Leased Property is subject to Lessor's prior written consent. It is
within Lessee's sole responsibility to ensure that the Leased Property
is economically suited for the use hereunder agreed.
5. LESSOR HAS OPTED FOR THE VALUE ADDED TAX FOR THE PROPERTY ACCORDING TO
SECTION 9, SUB-PARAGRAPH 2 OF THE TURNOVER TAX LAW (UStG).(3) LESSEE
WILL USE THE LEASED PROPERTY EXCLUSIVELY FOR TURNOVERS WHICH ARE SUBJECT
TO INPUT TAX DEDUCTION. IF LESSEE USES THE PROPERTY FOR TURNOVERS
EXCLUDING INPUT TAX DEDUCTION IN BREACH OF THE ABOVE PROVISION, LESSEE
SHALL INFORM LESSOR IMMEDIATELY. IN THIS CASE, LESSEE IS BOUND TO
COMPENSATE LESSOR FOR ANY DISADVANTAGES CAUSED BY THE LOSS OF INPUT TAX
DEDUCTION. ADDITIONALLY, LESSEE WILL PROVIDE LESSOR WITH A WRITTEN
DECLARATION CONFIRMING THAT LESSEE WILL USE THE LEASED PROPERTY ONLY FOR
TURNOVERS WHICH WILL NOT EXCLUDE INPUT TAX DEDUCTION. IN THE CASE OF
THAT LESSOR MUST PROVIDE THE FINANCE AUTHORITIES WITH MORE EXTENSIVE
EVIDENCE IN THIS RESPECT, LESSEE SHALL BE OBLIGATED TO SUBMIT LESSOR THE
CORRESPONDING DOCUMENTATION OR TO SUBMIT SUCH DOCUMENTATION DIRECTLY
TO THE FINANCE AUTHORITIES, IF THIS IS SUFFICIENT TO COMPLY WITH LESSOR'S
OBLIGATIONS.
------------------------
(3) According to Section 9, sub-paragraph 2 Turnover Tax Law UStG, this
option is allowed for the lease and demise of premises only, if Lessee
uses or intends to use the premise for turnover only which do not
exclude input tax deduction.
6. Any orders or conditions imposed by the authorities, which are
exclusively based on the overall nature and/or the location of the
Property, have to be complied with by Lessor. If any conditions imposed
by the authorities or the procurement/maintenance of official permits
are EXCLUSIVELY based on personal or particular operational
circumstances with regard to Lessee or on particular circumstances of
Lessee's business enterprise, the measures and costs hereto connected
shall be borne exclusively by Lessee. In this respect, Lessee has also
to comply at its own expense with any future orders or conditions by the
authorities with regard to the use of the Leased Property, even if such
orders or conditions are directed against Lessor.
7. It is left to Lessor's sole discretion to lease other areas within the
Property to third parties pursuing the same purpose of lease as Lessee
as put forth in sub-paragraph 4. Lessee is not granted any protection
from competition.
SECTION 3
BEGINNING AND DURATION OF LEASE
1. The Lease shall begin on the day of handing over the Leased Property.
Handing over will prospectively take place on February 2nd, 1998. Lessor
shall communicate in writing the expected week of handing over two
months and the exact day of handing over two weeks prior to the handing
over date. Lessor shall take over the Leased Property on this
communicated date. The dates resulting from the above may be postponed
due to strike and/or force majeure. [If and to that extent Lessor is
provided with material required for the completion of the Leased
Property (e.g. parting walls, doors) by third parties, the dates
resulting from the above are subject to complete, correct and timely
supply, unless non-supply or delay is caused by Lessor's negligence.]
2. If the handing over date resulting from subparagraph 1. is delayed by
more than 2 months, Lessee may withdraw from contract. Any other claims
whatsoever on the part of Lessee are excluded, unless Lessor has acted
willfully or negligently.
3. THE LEASE IS CONTRACTED FOR THE DURATION OF TEN YEARS, FROM THE FIRST
DAY OF THE MONTH FOLLOWING THE HANDING OVER DATE.
One year prior to expiry of the fixed duration of lease at the latest,
not earlier, however, than after expiry of eight years of lease, Lessee
may demand in writing the opening of negotiations with respect to the
renewal of the Lease by up to ten years, renegotiating rent payments and
terms of contract. The rent to be renegotiated shall correspond to the
rent which can be realized at the location of the Property at the
beginning of the last year of the fixed period of lease, at least,
however, to the rent due for the last year of Lease according to Section
5.
If the contracting parties cannot come to an agreement on the new rent
payment and on the new terms of contract of lease by signing a new and
legally valid contract of lease within the first three months of the
last year of Lease, this Lease will terminate on expiry of the last year
of Lease without requiring a notice of termination.
4. If Lessee does not demand the opening of negotiations with respect to a
renewal of this Lease according to sub-paragraph 3 above, the Lease
shall continue for an unlimited period of time, unless terminated by one
of the contracting parties not later than nine months prior to
termination of the fixed period of lease. If the Lease continues for an
unlimited period, it is subject to termination with a notice period of 9
months for the end of a month.
5. When the Lessee remains in possession of the Leased Property after
expiry of the Lease, the Lease is not to be regarded as renewed. Section
568 German Civil Code BGB is contracted out.
6. In the case of the complete destruction or the destruction of a major
part of the Leased Property by an event beyond Lessor's control (e.g.
fire etc.), Lessor shall inform Lessee immediately about the plans and
the expected duration of the reconstruction, if Lessor decides on
reconstruction.
SECTION 4
CANCELLATION OF LEASE
1. Each cancellation of Lease must be made in writing. Receipt of the
written notice of cancellation and not its dispatch date is
authoritative for the timeliness of cancellation.
2. Lessor and Lessee may terminate the Lease upon good cause without due
notice. Lessor may further terminate the Lease without due notice, if
and when
2.1. Lessee has been in delay with rent payment or a considerable part of the
rent payment for two subsequent payment dates (Section 554, sub-section
(1), sub-paragraph 1 German Civil Code BGB, or
2.2. Lessee is in delay with rent payments to the extent of an amount
corresponding to two month's rent payments for a period of time covering
more than two dates (Section 554, sub-section (1), sub-paragraph 2
German Civil Code BGB), or
2.3. Lessee has filed a petition in bankruptcy or for institution of
composition proceedings with regard to its assets, if it must make a
written verification pursuant to Section 807 Federal Rules of Civil
Procedure ZPO, if extrajudicial proceedings for the payment of debts
have been instituted or if Lessee has suspended payments, or
2.4 composition or bankruptcy proceedings with regard to Lessee's
assets have been instituted or if the commencement of such
proceedings is rejected for lack of assets or for other
reasons, Lessee is responsible for,
2.5 Lessee is in delay with the provision of the security and if this
security for rent is not provided within a grace period of two weeks.
SECTION 5
AMOUNT OF RENT -- VALUE GUARANTEE
1. The monthly amount of rent is composed as follows:
1.1. approx. 1,152.81 m squared office area on the 1ST FLOOR = DM 33,431.49
1.2. approx. m squared proportionate common area = DM
1.3. approx. m squared archives area = DM
1.4. approx. m squared storage area = DM
1.5. 6 items parking spaces in the underground
1.6. car/park multi-story car park = DM 660.00
1.7. items parking spaces outside = DM
1.8. = DM
1.9. = DM
1.10. = DM
1.11. subtotal I = DM 34,091.49
1.12. advance payment on incidental expenses (Section 7) = DM 5,187.65
1.13. advance payment on heating expenses (Section 8) = DM 1,152.81
1.14. flat charge (Section 10, sub-paragraph 2.) = DM 230.56
-----------------
1.15. subtotal II = DM 40,662.51
1.16. plus statutory value added tax (at present 15%) = DM 6,099.38
-----------------
1.17. TOTAL MONTHLY AMOUNT OF RENT = DM 46,761.89
-----------------
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2. Lessee's obligation to pay the amount of rent stipulated in sub-paragraph
1. shall begin as of beginning of Lease according to Section 3.
This applies as well, if Lessee stays away from handing over of Leased
Property despite timely information about the handing over date by Lessor
or if the handing over does not take place because of failure to provide
the security for rent.
3. The partial amounts agreed under Section 5, sub-paragraph 1.1 to
1.10 and the flat charge agreed according to Section 10,
sub-paragraph 2 of this Lease are subject to value guaranty as follows:
3.1. Effective beginning of the 13th month from beginning of Lease on
(beginning of the second year of Lease), the partial amounts as per
sub-paragraph 1.1 to 1.10 and the flat charge according to
sub-paragraph 1.14 shall be adjusted corresponding to the change
of the cost of living index of all private households in Germany
(all-German index; base year 1991 = 100) as compared with the index
level in the month of beginning of Lease (Base Month).
3.2. Then, the sums mentioned in sub-paragraph 3.1 shall be adjusted for
every following year of Lease corresponding to the change of index,
comparing the value taken as a basis for the last adjustment with the
index of the last month of the expired year of Lease. Each adjustment
shall be effective from the first month of the new year of Lease on.
3.3. The above mentioned adjustments are effected automatically, so that
the amount adjusted to the change of index is due without special
demand from beginning of the new year of Lease. Unless Lessee has
received a recalculation in writing from Lessor, effects of delay in
payment (Section 6, sub-paragraph 2) cannot originate.
4. The contracting parties agree that this index clause is subject to the
approval by the Land central bank in order to be valid. The approval
shall be obtained by Lessor. If the index clause is not approved by the
Land central bank, the contracting parties undertake to come to an
arrangement that can be approved and which is as similar as possible to
the terms agreed in this contract.
5. If an index clause as per sub-paragraph 3.1 and 3.2 cannot be
approved of (e.g. because of the duration), the partial amounts as per
sub-paragraph 1.1 to 1.10 and the flat charge as per sub-paragraph 1.14
shall be adjusted according to the following procedure: if the index
mentioned in sub-paragraph 3.1 changes as compared with the index of
the base month, both the contracting parties agree to negotiate on an
adjustment of the partial amounts as per sub-paragraph 1.1 to 1.10 and
of the flat charge as per sub-paragraph 1.14 after expiry of the first
year of lease. This adjustment shall become effective beginning of the
second year of lease. If the parties do not reach an agreement with
respect to the adjustment within two months, the decision shall be taken
by an arbitrator, who shall be appointed by the local competent Chamber
of Industry and Commerce on application filed by one party. Arbitrator
may only be a person who is an executive of a regionally or
internationally lending Realtor enterprise. The arbitrator shall adjust
the partial amounts as per sub-paragraph 1.1 to 1.10 and the flat charge
as per sub-paragraph 1.14 taking into account the above mentioned index
development, considering also the rents then agreed for commercial
buildings comparable to the Leased Property. The parties, however, agree
that a reduction of the partial amounts as per sub-
paragraph 1.1 to 1.10 and of the flat charge as per sub-paragraph 1.14
can be demanded only, if the changed index is lower than the value of
the base index, even if an arbitrator's expert opinion in on hand. The
above provision applies to the following years of Lease
correspondingly. The costs of the expert opinion are shared. In the
case of a lawsuit, however, the court order as to costs shall apply to
the costs of the expert opinion as well.
SECTION 6
PAYMENT OF RENT - SECURITY FOR RENT
1. Payment of rent is to be effected monthly in advance, post and expenses
paid, on Lessor's account No. 00 1009 6060 with DG BANK Deutsche
Genossenschaftsbank, Hamburg (bank identification number BLZ 200 600
00) indicating lessee identification number, by the 3rd working day of
each month at the latest. Crediting of the money and not its dispatch is
decisive for punctuality.
2. In the case of delay in payment on the part of Lessee, Lessor is
entitled to charge penal interest to the extent of 5% (five per cent)
p.a. above the discount rate of the Deutsche Bundesbank, unless Lessor
can prove a loss of a higher degree or Lessee can prove a loss of a
lower degree in the individual case. Lessor's right of termination
according to Section 4 remains unaffected.
3. Not later than FOUR WEEKS PRIOR TO HANDING OVER, Lessee shall
provide a security for rent
3.1 by bank guaranty of a German bank or savings bank according to
APPENDIX 2
to the amount of treble monthly rent (Section 5, sub-paragraph 1.17),
that is of
DM 140,286.00
(IN WORDS: DEUTSCHEMARKS ONE HUNDRED AND FORTY THOUSAND TWO HUNDRED
AND EIGHTY-SIX)
waiving defense of defeasibility and of setoff and of failure to
pursue remedies.
3.2 deleted
4. In the case the Property being sold, Lessor is entitled and
obligated to transfer the security for rent to the buyer.
5. Landlord's lien is subject to legal provisions.
SECTION 7
INCIDENTAL EXPENSES
1. The advance payment for incidental expenses agreed in Section 5,
sub-paragraph 1.12 is effected to cover the incidental expenses of the
Property described hereinafter. As advance payment of the incidental
expenses shown below, Lessee pays monthly in advance
DM 5,187.65
(IN WORDS: DEUTSCHEMARKS FIVE THOUSAND ONE HUNDRED AND EIGHTY-SEVEN
65/100) plus statutory value added tax.
2. In terms of this Lease, incidental expenses are any taxes,
contributions, fees and expenses incurred or accrued by Lessor due to
ownership/lease in perpetuity of the Property and/or due to the agreed
use of property, building or economic unit (the latter includes
adjoining buildings, multi-story car parks/underground car parks, plants
and facilities), in particular costs of:
2.1 the total of the current public taxes, property tax,
domestic waste disposal, collection of recycling materials,
chimney-sweeping, canal dues, water-supply, sewage and drainage
(including rainwater/surface water) and the corresponding metering
devices and their rent and calibration;
2.2 street cleaning, snow and ice removal/gritting, cleaning and
maintenance of sidewalks, multi-story car parks/underground car parks
including maintenance of the equipment required and of the upkeep and
cleaning of all exterior grounds and playgrounds, green areas and
gardens including replacement or supply of plants and trees;
2.3 cleaning of the building including common areas, rooms and
facilities, entrance halls, elevators, stairwells and of the other
commonly used parts of the building, cleaning and maintenance of the
outer glass surfaces and facades (except display windows and entrance
facilities) and of pest control;
2.4 operation and lighting of the common areas and rooms as well as of
common facilities and grounds, entrance halls, elevators,
stairwells, parking lots, multi-story car parks/underground car
parks, as well as of other commonly used parts of the building
including replacement of defect bulbs and lamps and costs of
regular safety checks;
2.5 operation and maintenance of the common technical equipment
and facilities (in particular routing facilities of the building,
elevators and hoists including emergency call facilities in elevators
and their rent, escalators, fire alarm system, CO2 alarm system,
sprinkler systems, butterfly dampers and smoke funnels, air
conditioning equipment, aerators, outer grounds fit for traffic,
gasoline separators, lifting facilities, pressure intensifiers etc.)
including each and every measuring system and the respective rent and
calibration, use of common communication systems (e.g. large-band
cable);
2.6 insurance(4) against fire, storm and tempest, water damage,
(including EC-coverage) and against loss of rent suffered by Lessor,
liability insurance as well as costs of safety checks required by
insurance contract;
2.7 janitor or of other janitor services as well as guards and
doorman;
2.8 any other expenses subject to apportionment as operating costs as
per Appendix 3 of Section 27, sub-paragraph 1 of the II, order as
to charges(5) as amended at the time when the costs are incurred.
2.9 property management and care-taking (both management by third
parties and self-management) at a flat charge of 3.5% (THREE POINT
FIVE per cent) of the partial amount agreed under Section 5,
sub-paragraph 1.1 to 1.10.
3. If new incidental expenses according to sub-paragraph 2. incur or
if incidental expenses increase, Lessor may apportion these expenses to
the lessees of the Leased Property from the date of the
accrual/increase on and Lessor may fix reasonable advance payments.
Unless Lessor disposes of current assessment notices as to property
tax, these shall be replaced by calculations of the expected property
tax burden.
4. If the above mentioned incidental expenses are apportioned to the
lessees of the Leased Property, the criteria for apportionment and the
accounting period are fixed by Lessor in its fair judgment, taking into
account the principle of equal treatment of all the lessees and
considering imperative provisions of the law. In doubt, accounting of
incidental expenses is effected according to the share of the
respective leased area in relation to the total of the leased area in
the Property.
5. Notwithstanding the above provision, Lessor is entitled - to the
extent technically possible - to demand from Lessee a direct settlement
of individual incidental expenses (e.g. water consumption) with the
respective supplier or to allocate costs corresponding to the
individual use of services by the lessees of the Property. Lessee is
obligated to provide access to supply meters and other measuring
facilities at any time.
----------------
(4) cf. Section 15, sub-paragraph 1.
(5) Order regulating housing charges
6. The proper disposal of refuse not subject to domestic waste collection
(in particular hazardous waste and hazardous materials as well as bulky
refuse like packing material etc.) is incumbent on Lessee. The temporary
proper storage of such refuse until their collection is also incumbent
on Lessee. Lessor, however, shall endeavor to help with this according
to local possibilities. Garbage skips may only be put up in areas
especially earmarked by Lessor. Outside these areas, neither refuse nor
materials destined for recycling may be stored.
7. Lessor shall settle accounts of advance payments effected by Lessee once
a year, not requiring supporting documents on the cost of management
flat charge agreed in sub-paragraph 2.9. A possible difference between
advance payment and account in favor of Lessor/Lessee is to be settled
by Lessee/Lessor within one month after receipt of settlement of
accounts. In the case of Lessee's moving during an accounting period,
apportionment is effected with the following settlement of accounts in
relation of leasing period to accounting period, when in doubt. On
expiry of one year as from the day of receipt of the settlement of
accounts, objections to accuracy are excluded.
8. If Lessor furnishes proofs of the fact that the monthly advance payment
is insufficient for coverage of the incidental expenses, Lessor may adjust
the advance payment accordingly, also during a running accounting
period. If the settlement of accounts issued by Lessor shows a reduction
of the incidental expenses, the advance payments for the following
accounting period shall be reduced accordingly.
SECTION 8
HEATING EXPENSES
1. The advance payment of the heating expenses agreed in Section 5,
sub-paragraph 1.13 is effected for the heating expenses described
hereinafter. As advance payment of the heating expenses shown below,
Lessee pays monthly in advance.
DM 1,152.81
(IN WORDS: DEUTSCHEMARKS ONE THOUSAND ONE HUNDRED AND FIFTY-TWO 81/109)
plus statutory value added tax.
2. In terms of this contract of Lease, heating expenses are in particular
costs of fuel and its delivery, operating current, operation,
maintenance, control, and attending of heating plant, combustion
chamber, and of the flue gas system, costs or regular readiness and
reliability check with regard to service including control by an expert,
cleaning of plants and of operational premises, metering according to
the federal protective law on emissions (Bundesemissionsschutzgesetz),
lease or other kinds of transferal for use of equipment for measuring
consumption as well as the costs of use of an equipment for measuring
consumption and its calibration including the costs of calculation and
allocation. In the case of long-distance energy, the total of the costs
of heating supply and the costs of operation of the corresponding
in-house plants and the above mentioned costs are part of the heating
expenses.
3. To the extent that Lessor provides the Leased Property with hot water
for sanitary purposes, the costs of the hot water supply system shall
form part of the heating expenses. Xxx-xxxxxxxxx 0, xxxxxxxx 2 applies
to long-distance hot water correspondingly.
4. Every year, accounts are settled with respect to the advance payments in
compliance with the regulation on heating expenses (Heizkostenverordnung).
In the case of long-distance energy supply, the proportionate consumption
of the energy obtained is determined by means of sub-meters, calibrated
according to statutory provisions. In other respects, the provisions of
Section 7 shall apply accordingly.
SECTION 9
BREAKDOWN OF THE HEATING PLANT, OF TECHNICAL EQUIPMENT, AND OF SUPPLY
1. In the case of technical breakdowns, force majeure, official directives
or other complete or partial impossibility if performance, heating of
the Property and/or operation of technical equipment cannot be claimed.
Local fuel shortage is to be regarded as force majeure.
Lessor is obligated to arrange for the measures necessary and reasonable
in order to remedy the failure. Lessee's right to claim reduction of
rent in the case of a not only temporary breakdown of the heating of the
Leased Property and/or of the operation of technical equipment remains
unaffected.
2. Lessor is obligated to operate the central heating system, if the
weather so requires, at least, however in the time from October 1st to
April 30th.
SECTION 10
MAINTENANCE AND USE OF PROPERTY AND OF LEASED PROPERTY
1. Lessor shall assume the maintenance of the exterior of the Property and
shall bear the respective costs.
2. Additionally, Lessor shall assume
2.1 the maintenance and repair of the common areas, the common
technical facilities and plants outside the Leased Property and
replacement of broken outer windows;
2.2 the remedy of damages to the building and/or grounds caused by
third parties like for example visitors or customers of Lessee;
2.3 the purchase (including deduction for depreciation) of
equipment used for cleaning, snow and ice removal and for the
maintenance of grounds and building including multi-story car
park/underground car park as well as for maintenance and cleaning
of all the exterior grounds like green areas and gardens.
2.4 Maintenance, repair and upkeep of xxxx system, intercom and buzzers.
For a lump sum payment for costs connected with these measures
incurred by Lessor, Lessee shall pay monthly DM 0.20/m-squared,
irrespective of the amounts actually incurred. This payment shall
be adjusted to the respective change of the cost-of-living index
according to Section 5, sub-paragraph 3 of this Lease plus
statutory value added tax.
Any damage claims on the part of Lessor against Lessee resulting from
statutory or contractual provisions regarding liability remain
unaffected by the above provision.
3. Maintenance, repair and upkeep within the Leased property are within
Lessee's responsibility and have to be effected at Lessee's expense.
Among these are in particular maintenance, repair and upkeep of
electric power plants, light installations, and electric xxxx systems,
sanitation, gas boilers and suchlike, kitchen utensils, mountings,
locks, windows (inside), sunshades (inside and outside), internal
partitionings, air conditioning equipment and ventilation systems
(provided situated within the Leased Property). Lighting fixtures and
bulbs and tubes within the Leased Property are to be replaced by Lessee
at its own expense. Regular check, maintenance and replacement of fire
extinguishers within the Leased Property, even of those provided by
Lessor, is incumbent on Lessee.
4. Display windows and entrance facilities are to be cleaned by Lessee
at regular intervals.
5. Interior decorative repairs within the Leased Property are to be
executed by Lessee at regular intervals.
6. Prior to the installation or modification of technical plants which
may molest third parties or endanger grounds or building due to their
operation (e.g. concussion, noise, odor, vibration, contaminants,
radiation, dust, gases, parasitic current), Lessee shall inquire about
the relevant provisions (including those of trade associations) and
standards and obtain Lessor's written consent presenting the
aforementioned information. Lessee is entitled to be granted such
consent, provided any adverse effects on third parties, grounds or
building are excluded. If such technical plants, however, cause any
nuisance to third parties or adverse effects on grounds or building,
Lessor may withdraw the previously granted consent and demand removal
of such plants. If such plants cause any damages to grounds and/or
building, Lessee shall pay damages. This also applies to the
installation of heavy apparatuses, machines, safes, and suchlike in the
Leased Property with respect to the inherent dangers.
7. If Lessee handles materials which may be detrimental to health or
environment (e.g. toxic, unhealthy, fiery, inflammable, explosive,
irritant, corrosive, carcinogenic substances or materials hazardous to
ground water), Lessee is obligated to comply with all the relevant
regulations as to handling of these dangerous materials and to release
Lessor from any risks and official obligations connected hereto.
Lessor is entitled to demand from Lessee to effect and maintain a
reasonable liability insurance covering any risk involved by the
handling of such substances. On demand, Lessee shall prove the
conclusion of such an insurance contract, the insured sum, and the
continuance of coverage to Lessor at any time. Lessee shall indemnify
for any loss caused by the use of hazardous materials (including
preservation/storage) attributable to Lessee.
8. Any damages to grounds or building are to be reported to Lessor or
its representative as soon as noticed by Lessee. In the case of
imminent danger, Lessee shall take appropriate action if possible.
9. Lessee is responsible to Lessor for any damages caused by its
failure to exercise proper care incumbent on Lessee, in particular in
the case of improper handling of plants, objects or substances put
forth in sub-paragraph 6. and 7.
10. Lessee shall immediately remedy any damages it is liable for in
accordance with Lessor. If Lessee fails to comply with this provision
within a reasonable period of time despite written caution by Lessor,
Lessor may have the necessary work executed at Lessee's expense. In the
case of imminent danger, a written caution and setting of a time limit
is not required.
SECTION 11
SUBLEASING
1. The complete or partial leaving of the Leased Property to a third
party for the purpose agreed in Section 2, sub-paragraph 4, is subject
to Lessor's prior written consent. To this end, Lessee shall first
submit the contract of subleasing to Lessor. Lessor shall refuse its
consent to subleasing for substantial reasons only. Lessor may withdraw
a consent previously granted, if the third party's person or conduct
justified a termination of Lease without notice if they were the case
with Lessee. Denial and withdrawal of Lessor's consent as agreed above
do not entitle Lessee to termination of contract.
2. By signing the Lease, Lessee assigns its claims against sublessee
including lessor's lien to Lessor, in order to provide security for
all claims due to Lessor subject to this Lease and Lessor accepts
such assignment. This applies to subleasing with Lessor's consent
and to subleasing without Lessor's consent and to each and every other
permission of use. If Lessee realizes by subleasing a higher amount
of rent per m(2) than agreed in Section 5, sub-paragraph 1.1 to 1.10,
50% (fifty per cent) of the excess amount is due to Lessor, payable
retroactively each month.
3. In the case of subleasing or other permission of use, Lessor shall be
liable for each and every act and omission by sublessee/user irrespective
of its own negligence, as if it had been its own conduct.
SECTION 12
INSTALLATION AND STRUCTURAL ALTERATIONS BY LESSEE AND
ADVERTISING AND SPECIAL WORKS EQUIPMENT
1. Any installations and structural alterations of the Leased Property by
Lessee including but not limited to installation/modification of built-in
facilities are subject to Lessor's written consent. Lessee shall submit
appropriate plans in advance. The above shall apply accordingly to
installation/modification of customary advertising equipment, signs and
other special works equipment outside the Leased Property. Lessor shall
refuse or withdraw its consent for substantial reasons only. Lessor may
make its consent to such installations outside the Leased Property
dependent on payment of a compensation for use. Supplementary it is
referred to Section 10, sub-paragraph 10.
2. Obtaining and maintenance of official permits required for the above
mentioned measures is incumbent on Lessee. Lessee shall furthermore
bear all the costs involved in such measures. If technical plants are
subject to official approval and/or regular examinations (e.g. by the
Technical Control Association TUV), approval and examination are to be
arranged by Lessee at Lessee's expense. Lessee shall prove to Lessor the
execution of such approval and examination and submit the corresponding
results. On termination of Lease, Lessee shall restore the original
condition or leave the installations and structural alterations or any other
facilities to Lessor without claiming indemnification.
SECTION 13
REPAIRS AND STRUCTURAL ALTERATIONS PERFORMED BY LESSOR
1. Subject to timely agreement of a date, Lessor is entitled to make
repairs or structural alterations which are necessary for the
maintenance of grounds, building or the economic unit, for averting
dangers or for elimination of damages, even without Lessee's consent.
This shall also apply to works and structural measures which are not
necessary but appropriate, in particular such works which serve to
improve exploitation or to build up the Property (including heightening
of the building) including but not limited to structural alterations
performed in connection with a new lease of single rooms or with the
redevelopment of the Property.
2. Lessor shall pay necessary regard to Lessee's interests when performing
the works. It shall inform Lessee timely prior to beginning of the works
and present the plans for the structural alteration/building up. Lessee
shall keep the rooms and areas of the Leased Property affected by these
measures accessible to a reasonable extent.
3. Deleted.
4. Lessee is entitled to rent reduction or to make use of the right of
retention, if such works exclude fully or in part the use of the Leased
Property for the agreed purpose or interfere substantially with the use.
Section 541 b sub-paragraph (2) German Civil Code BGB is contracted out.
Any claims for damages on the part of Lessee are limited in accordance
with Section 14.
5. Lessee shall tolerate to a reasonable extent any measures for
modernization and improvement within the Leased Property, subject to timely
agreement of date. Sub-paragraph 1 to 4 shall apply accordingly.
6. If the necessity arises to provide Lessee temporarily with other areas
for lease because of the measures described in sub-paragraph 1., the
contracting parties will enter into a separate agreement on this subject,
with Lessor undertaking to bear the moving expenses.
7. Lessor is entitled to lease outer facades and roofs of the Property to
third parties for advertising installations and suchlike, safeguarding
Lessee's legitimate interests.
SECTION 14
LIABILITY OF LESSOR - NUISANCE BY THIRD PARTIES
1. Any claims for damages on the part of Lessee, including any claims,
arising from obligations prior to contract and from tort, can only
be put forward if they are due to:
1.1 intention or gross negligence on the part of Lessor or its vicarious
agents or
1.2 negligent failure to comply with an essential contractual obligation
on the part of Lessor or its vicarious agents or
1.3 the lack of a guaranteed feature of the Leased Property.
2. Lessor is not liable for any disturbance of the use of the Leased Property
caused by third parties including other lessees of Property. It will,
however, endeavor to use its influence to eliminate any disturbances
reported to him, safeguarding the interests of the lessees.
3. Any disturbances of the use of the Leased Property caused by external
factors (such as traffic diversions, digging up, roadblocks, annoyance
caused by noise, bad smell and dust and concussions) shall substantiate
warranty claims by Lessee only if these factors essentially impair the
contractual use of the Leased Property and if Lessor is not in a position
to limit these disturbances to a reasonable extent. Short-term
disturbances as described above shall not substantiate any warranty claims
on the part of Lessee.
4. Each and every exclusion of and limitation on liability under this
contract is also applicable in favor of Lessor's vicarious agents.
SECTION 15
INSURANCE
1. At the expense of the incidental expenses as per Section 7, sub-paragraph
2.6, Lessor is entitled to insure the building against the risk of fire,
storm and tempest, and water damage, (including EC-coverage) and against
loss of rent(6) suffered by Lessor, and to effect a liability insurance
to an extent reasonable with regard to the risks involved.
---------------
(6) Covers exclusively indemnification for loss of rent in the case of
destruction of/damage to Leased Property, e.g. by fire, lightening.
2. Lessee is obligated to inform Lessor immediately in writing of any
installations and alterations in and of the Leased property causing a value
increase and, in particular, of any alteration as of the class of risks
with regard to the terms of fire and liability insurance. Possible costs
of respective extra charges are to be borne by Lessee.
3. Insurance of objects, technical equipment and installations brought in by
Lessee against damages of all types is incumbent on Lessee.
SECTION 16
ACCESS TO LEASED PROPERTY
During usual business hours, Lessor and its vicarious agents may enter the
Leased Property together with interested parties, experts or witnesses for
the purpose of exercising landlord's statutory lien, examination of the
structural condition of the Leased Property and of the operativeness and
safety of technical installations in the Leased Property, for the purpose
of subletting or sale of the Leased Property, or in similar cases. Except
for cases of imminent danger, timely announcement is required.
SECTION 17
TERMINATION OF LEASE
1. By termination of Lease, Lessee shall remove any damages caused by the use
and any hazardous substances possibly brought in while using the Leased
Property and shall effect due interior decorative repairs. In due time
prior to termination of Lease, a common protocol shall be prepared, stating
any damages caused by the use, due interior decorative repairs (including
of floor coverings) and installations and structural alterations and/or
other facilities to be removed by Lessee.
2. If the Leased Property was handed over to Lessee in a renovated condition
or if Lessor paid Lessee the costs of renovation, Lessee is obligated to
completely renovate the Leased Property (excluding common areas) - IN
DEROGATION OF THE PROVISION AGREED IN SUB-PARAGRAPH 1 -. This obligation
to renovate shall include in any case the replacement of wallpaper or
repainting of walls and ceilings and the replacement of carpets and other
floor coverings subject to wear and tear, using the same quality as
provided when handing over the Leased Property. Colors and patterns of
carpets and wallpaper and of the paints used for walls and ceilings are to
be agreed with Lessor. Instead of a renovation effected by Lessee, Lessor
is entitled to demand from Lessee a redemption of 100% of the costs charged
for the renovation by an expert firm. If the contracting parties doe not
reach an agreement as to the amount of such renovation costs, an expert
appointed by the local chamber of crafts shall act as an arbitrator in this
matter. Costs of the arbitrator are shared between the contracting parties
at equal moieties.
3. On termination of Lease, Lessee shall return the Leased Property, according
to the terms of this Lease, duly vacated, with all the keys, including any
additional keys possibly manufactured by Lessee, and with all the code
cards, by the date agreed with Lessor. On Lessee's failure to do so
despite caution and granting of a grace period, Lessor is entitled to
exchange the corresponding locks at Lessee's expense and to have new keys
and code cards made. On return of the Leased Property, Lessor shall
prepare a detailed protocol of the condition of the Leased Property.
Lessee shall assist personally in drawing up this protocol or shall be
represented by a person authorized in writing.
4. If the works on the Leased Property to be effected by Lessee are not
completed on termination of Lease, the rent plus incidental expenses shall
be paid until the end of the month of completion of such works. Any
additional claims on the part of Lessor remain unaffected.
5. In the case of Lessee's premature moving, Lessor is entitled to have other
repairs and structural alterations done in the Leased Property without
giving rise to additional claims for crediting rent or suchlike on the part
of Lessee.
SECTION 18
SALE OF PROPERTY
1. Lessor reserves the right to sell the Property. In this case, it shall
induce the buyer to succeed to Lessor's rights and obligations under this
Lease on the day of taking over the Property. Subject to this and by
signing this Lease, Lessee waives its rights according to Section 571,
sub-paragraph (2) German Civil Code BGB (Liability of Lessor who sells the
Leased Property with respect to further performance of Lease by the buyer).
2. In the case of the Property being sold, Lessor is entitled to ask from
Lessee a declaration of completeness, enclosing documentation of Lease.
Lessee is then bound to inform Lessor within a period of four weeks,
whether the list submitted by Lessor is complete and correct as regards the
subject matter.
SECTION 19
FINAL CLAUSES
1. Deleted.
2. If one or more of the provisions of this contract are or become
inoperative for any reason whatsoever, the validity of the Lease shall
remain unaffected. In such a case, the parties shall agree on an
operative provision, which is as close as possible to the economic
purpose of the inoperative provision.
3. No verbal collateral agreements have been entered into. Any
modifications or amendments to this Lease and all other declarations of
intention made to the other contracting party must be made in writing in
order to be valid. The mandatory written form applies, in particular, to
agreements entered into by the parties with regard to the completion of
the interior of the Leased Property.
4. The contracting parties undertake to perform any actions and to
make any declarations, which are necessary for complying with the
statutory request for the written form, mandatory in particular for the
signing of additional, amending and supplementary contracts, and until
then not to terminate the Lease prematurely invoking failure to comply
with the mandatory written form.
SECTION 20
SUPPLEMENTARY AGREEMENTS
Supplementing the above terms of contract, the following is agreed additionally:
1. Lessor reserves the right to include the parking lots of the
Property into an parking lot management system. In such a case, only a
locally not determined parking space can be provided. As a compensation,
the rent for the parking spaces concerned shall be considerably reduced.
By signing this contract, Lessee declares its general consent to such a
modification of contract and its willingness to enter into corresponding
agreements with Lessor at the appropriate time.
2. The security for rent to be provided by Lessee according to Section
6, sub-paragraph 3 is provided by bank guaranty.
3. Lessor grants Lessee a contribution to construction costs required
in respect of alteration/completion of the leased area of up to DM
300,000.00 against presentation of proof and invoicing.
4. APPENDICES 1 AND 2 attached are part of this Lease.
(
Santa Xxxxxxx, Nov. 19, 1997
Hamburg, _________________________ -----------------------------
DIFA
DEUTSCHE IMMOBILIEN FONDS AG
-------------------------------- -----------------------------
(Lessor) (Lessee)
)
