[LETTERHEAD]
Beekman Sorensen Bedrijfsmakelaardij
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STANDARD LEASE FOR
OFFICE SPACE
[LETTERHEAD]
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GENERAL CONDITIONS FOR LEASING OFFICE SPACE
and other business premises NOT under section 7A:1624 CC
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According to the standard text decided upon by the RAAD VOOR ONROERENDE ZAKEN
(Council for Real Estate deposited on 29 February 1996, under registration
number 34/1996 with the Clerk of the Court in the Hague. The Council is not
liable for any adverse consequences of the use of the standard text. The
purpose of the headings above the articles in these General Conditions is
only to improve their readability. The content and import of the clause
covered by the heading is therefore not limited to such heading.
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THE LEASED PREMISES
1.1 The Leased Premises include the installations and facilities which are
present, in as much as these are not excluded in the certified description
accompanying the lease.
1.2 The Leased Premises will be made available for occupation and accepted in
the state outlined in the certified description accompanying the lease or,
in the absence of such a description, in the state at the commencement of the
lease, in a good state without faults.
USE
2.1 The Lessee will make actual and proper use of the Leased Premises himself
during the entire term of the lease, exclusively for the purpose stipulated
in the lease. He shall in doing so observe existing limited rights and
requirements which have been or may be made by government authorities or
public utility companies. He shall provide the Leased Premises with
sufficient furniture and fixtures and keep the same so provided.
2.2 The Lessee shall act in accordance with the law and local regulations and
in accordance with accepted practice as regards leasing, with regulations
issued by the authorities, public utility companies, the insurers and, if
applicable, with the regulations of the agency responsible for the sprinkler
system and the "STICHTING NEDERLANDS INSTITUUT VOOR LIFTECHNIEK" and other
competent authorities to issue the necessary certificates. The Lessee shall
also observe the instructions given in writing or by word of mouth by or on
behalf of the Lessor in the interests of the proper used of the Leased
Premises and of the inside and outside areas, the installations and fixtures
in the building or complex which the Leased Premises are part of. This shall
include instructions regarding the maintenance, appearance, noise level,
public order, fire protection, parking and the correct operation of the
installations and the building or the complex which the Leased Premises are
part of.
2.3 The Lessee may not create any nuisance or cause any inconvenience when
using the Leased Premises or the building or the complex of which the Leased
Premises form a part and will ensure that any third party present on his
behalf do likewise.
2.4 The Lessor has the right and the duty to use the common facilities and
services which are or will be available in the interest of the proper
functioning of the complex which the Leased Premises are part of.
LICENSES.
2.5.1 The Lessee shall obtain the licenses and/or exemptions required to
carry on the business for which the Leased Premises are intended. Refusal or
suspension of the same shall not give cause for cancelling or annulling the
lease or for undertaking any other action against the Lessor.
2.5.2 If alterations or improvements to the Leased Premises are necessary in
connection with 2.5.1, whether or not as a result of regulations issued by
authorities, it is the Lessee's responsibility (without prejudice to the
conditions in 2.6 and 2.10) to ensure that the activities to that purpose
are carried out in accordance with the requirements made or to be made by the
authorities and that any necessary licences are obtained, while the costs of
the alterations or improvements will be met by the Lessee.
ENVIRONMENT
2.6.1 If upon commencement or during the term of the lease an environmental
investigation is started with respect to the Leased Premises and afterwards
during the term of the lease or immediately upon termination of the lease -
in a similar investigation - the concentrations of one or more substances
found on, in, at or around the Leased Premises are higher than those of the
earlier investigation, the Lessee shall compensate the damage arising from
the contamination and he shall be liable to the Lessor for expenses relating
to the removal of such contamination or for the taking of actions. The Lessee
shall indemnify the Lessor against claims of third parties, including
government agencies.
[LETTERHEAD]
2.6.2 The provision of 2.6.1 is not applicable if the Lessee shows that the
contamination has neither been caused by any fault or negligence of himself,
his personnel or persons or objects under his supervision, nor by any
circumstances which can be imputed to the Lessee.
2.6.3 The Lessor shall not indemnify the Lessee against (government) orders
for further investigation or the taking of actions.
WASTE PRODUCTS/CHEMICAL WASTE
2.7 Where directives or regulations by the government or other competent
authorities are applicable to the (differentiated) presentation of waste
products, the Lessee shall continuously and carefully observe the same. In
case of non-observance or incomplete observance of this obligation the Lessee
shall be liable for any resulting financial, criminal and possibly other
consequences.
ADVERTISEMENTS
2.8 Where the Leased Premises are part of a building or complex, the Lessor
shall have the right to make use of the roofs, outer walls, gardens and
grounds of that building or complex for (illuminated) advertisements, signs
and the like, both for his own benefit and for the benefit of the Lessee or
any third party. In exercising this right, the Lessor will take account of
the Lessee's interests.
APARTMENT TITLES (APPARTEMENTSRECHT)
2.9.1 If the building, or the complex of which the Leased Premises are part,
is or is to be subdivided into apartment titles, the Lessee will be required to
observe the regulations arising from the property division agreement and
rules governing their use. The same applies if the building or complex of
buildings is or becomes the property of a cooperative.
2.9.2 Insofar as this is within his power, the Lessor shall not assist in
the formulation of regulations which are in conflict with the lease.
2.9.3 The Lessor will ensure that the Lessee is provided with the
regulations regarding use as referred to in 2.9.1.
PROHIBITIONS AND REGULATIONS REGARDING PUBLIC ORDER
2.10.1 The Lessee is not permitted:
a. to have environmentally hazardous materials, including malodorous,
inflammable or explosive substances, in, on, attached to or in the
immediate vicinity of the Leased Premises, unless such materials are part
of the normal carrying on of a profession or business;
b. to burden floors of the Leased Premises or the building or complex of
which the Leased premises form a part more than is technically
permissible or specified in the lease;
c. to make such use of the Leased Premises that as a result of this use the
soil or environment becomes polluted, the Leased Premises suffer damage,
or the appearance of the Leased Premises is adversely affected, which is
understood to include the use of vehicles as a result of which the floors
may be damaged.
d. to make any alterations or additions in, on or to the Leased Premises
which are in conflict with regulations of the authorities and of public
utility companies or with the conditions under which the owner of the
Leased Premises acquired ownership of the Leased Premises or with any
other limited rights, or to make alterations or additions which create a
nuisance for other Lessees or the neighbours or hinder them in their use.
2.10.2 Without the Lessor's prior written permission the Lessee shall not be
permitted:
a. to make alterations or additions in, on or to the Leased Premises, which
shall include making holes in the outer walls;
b. to affix or have in, on, or to the Leased Premises or in the immediate
vicinity, any objects, including name boards, advertisements, bill boards,
announcements, publications, buildings, wooden structures, scaffolding,
packing materials, goods, vending machines, lighting, awnings, aerials
with fittings, flag poles, etc., or to render windowpanes opaque;
c. to enter or allow others to enter the service and installation areas,
roof terraces, roofs and drains and the areas and places not reserved for
general use in the Leased Premises or the complex of which the Leased
Premises form a part, unless for work which the Lessee is required to
carry out under this agreement.
d. To park vehicles in places other than those appropriated for this purpose.
[LETTERHEAD]
2.10.3 The Lessor shall not be liable in any way whatsoever for any
alterations or additions referred to in 2.10.2(a) and (b).
2.10.4 The Lessee shall keep fire fighting equipment and fire exits in the
Leased Premises free and clear at all times.
2.10.5 If the Leased Premises include a lift, rolling carpet, escalator or
automatic door mechanism, or if the Leased Premises can be reached by one or
more of the said facilities, the use of such facilities shall be entirely at
a person's own risk. All regulations issued or to be issued by or on behalf
of the Lessor, the installer concerned or the authorities must be carefully
observed. If and for as long as this is necessary, the Lessor may put the said
facilities out of operation without the Lessee being entitled to any damages
or a reduction in rent.
2.10.6 Where objects installed by the Lessee (including advertisements or
other signs) must be removed temporarily in connection with maintenance or
repair work to the Leased Premises, or the building or complex of which the
Leased Premises form part, the expenses or removal, possible storage and
reinstallment shall be at the Lessee's expense and risk, regardless of
whether the Lessor has given permission for the installations of the objects
concerned.
APPLICATIONS/PERMISSION
2.11.1 If the Lessee requires any deviation from and/or addition to any
provision of this agreement, the Lessee shall file his application for such
deviation of and/or addition in writing.
2.11.2 If and to the extent that any provision of this agreement requires the
Lessor's permission, it shall only be deemed granted if given in writing.
2.11.3 Any permission granted by the Lessor shall be for one instance only
and shall not apply to other or subsequent cases. The Lessor shall be
entitled to make his permission conditional.
SUBLETTING
3.1 Subject to the Lessee's prior permission, the Lessee shall not be
permitted to relinquish all or part of the Leased Premises to any third party
letting, subletting or allowing the use of the same, or by transferring the
rights of lease in whole or in part to any third party or by bringing these
rights into a partnership, or a legal entity.
3.2 In the event that the Lessee acts in breach of the above provision he
will forfeit to the Lessor for every calendar day that the breach continues
an immediately payable fine, equal to two times the then current daily rent
payable by the Lessee, without prejudice to the Lessor's right to demand
compliance or cancellation, as well as damages.
RENT ADJUSTMENT
4.1 Any adjustment of the rent as agreed in 4.3 of the lease will occur on
the basis of the revisions of the monthly index figure according to the
consumer's price index (CP) series CPI Employees Low (1990 = 100), as
published by the Central Bureau of Statistics (CBS).
The adjusted rent will be calculated according to the following formula: the
adjusted rent is equal to the current rent on the adjustment date, multiplied
by the index figure of the calendar month which lies four calendar months
before the calendar month in which the rent is adjusted, divided by the index
figure of the calendar month which lies sixteen calendar months before the
calendar month in which the rent is adjusted.
4.2 The rent will not be adjusted if such adjustment would lead to a lower
rent than the most recent rent. In that case, the most recent rent shall
remain unchanged, until at a next indexing the index figure of the calendar
month, which lies four calendar months before the calendar month in which the
rent is adjusted, is higher than the index figure of the calendar month,
which lies four calendar months before the calendar month in which the last
rent adjustment occurred. At that time the index figures of the calendar
months referred to in the previous sentence shall be used in that adjustment.
4.3 The adjusted rent will come into force even if the Lessee is not
informed of this.
4.4 If the CBS discontinues publication of the said consumer index figure or
if the basis of the calculation is changed, an index figure adjusted to this
or as similar to this as possible will be used. In the event of any dispute
in this regard, the party who takes action first may request a statement from
the director of the CBS which will be binding on all parties. Each party will
pay half of any costs arising from this.
[LETTERHEAD]
END OF LEASE OR USE
5.1 Subject to any statutory right the Lessee shall at the end of the
lease, or on termination of the use, deliver the Leased Premises to the
Lessor in the original state, as set out in the certified description drawn
up at the commencement of the lease as referred to in 1.2 and, in the absence
of such description, in a good state, entirely vacated, free of use or
rights to use and properly cleaned and return all keys, keycards and the like
to the Lessor. The Lessee shall remove at his own expense all objects added
to the Leased Premises or acquired by him from the previous Lessee or user.
The Lessor shall not be required to pay any sum for objects that are not
removed.
5.2 If the Lessee has terminated the use of the Leased Premises, whether or
not in due time, without returning the keys to the Lessor, the Lessor shall
be entitled to consider the lease to have expired, to gain access to the
Leased Premises at the Lessee's expense and to take possession of it, without
the Lessee having any right to damages or any other rights.
5.3 Any objects which the Lessee may be deemed to have abandoned by leaving
them in the Leased Premises on actually vacating the Leased Premises may be
removed at the expense of the Lessee by the Lessor, at the latter's
discretion and without any liability on his account, unless the Lessor has
been informed that the subsequent lessee has taken over the objects.
5.4 The parties shall inspect the Leased Premises together in good time
before the end of the lease or the use of it. The parties shall make a report
of this inspection, in which they shall record their findings. This report
will also set out which work in respect or repairs which appeared to be
necessary at the time of the inspection and the established outstanding
maintenance for which the Lessee is required to meet the costs, must still be
carried out at the Lessee's expense and in what way this must be done.
5.5 If the Lessee does not cooperate in the inspection and/or in the
recording of the findings and agreements in the inspection report within a
reasonable period, after having been duly given the opportunity to that
effect, the Lessor shall have the right to carry out the inspection without
the Lessee being present and to determine the report to be binding on both
parties. The Lessor shall give the Lessee a copy of the report without delay.
5.6 The Lessee shall carry out or cause the carrying out of the repairs he
is required to carry out on the basis of the inspection report within the
term specified in the report - or to be further agreed by the parties - to
the satisfaction of the Lessor.
If the Lessee, after having been given notice of default, fails completely or
partly to fulfil the obligations arising from the report, the Lessor shall
have the right to have the relevant work carried out himself and to recover
the consequential costs from the Lessee.
5.7 For the period required to carry out the repairs, calculated from the
date of termination of the lease, the Lessee will be in debt to the Lessor
for a sum calculated on the basis of the most recent rent and additional
supplies and services, without prejudice to the Lessor's claim for
compensation for further damages and costs.
DAMAGE
6.1 The Lessee shall take appropriate steps in due time to prevent and limit
damage to the Leased Premises, such as damage caused by short circuits, fire,
leakage, storms, frost and any other weather condition, the inward or outward
flow of liquids and gases. The Lessee shall inform the Lessor immediately if
such damage or an event such as referred to in 6.5 occurs or seems likely to
occur.
6.2 If the Lessee has the possibility to do so, the foregoing shall also
apply to the building or complex of which the Leased Premises form part.
6.3 The Lessee shall be responsible to the Lessor for any damage and loss to
the Leased Premises, unless the Lessee proves that he, the persons he had
admitted to the Leased Premises, his staff or the persons for whom he is
responsible are not to blame or that negligence cannot be held against him in
that respect.
6.4 The Lessee shall indemnify the Lessor against penalties which are
imposed on the Lessor for actions or negligence of the Lessee.
6.5 The Lessor shall not be liable for any damage done to the person or
goods of the Lessee or of third parties - and the Lessee shall indemnify the
Lessor against liability for claims from third parties in this respect - due
to the emergence and the consequences of visible and invisible faults in the
Leased Premises or the complex of which the Leased Premises form part, or
which arise due to the occurrence of weather conditions, impediments to the
accessibility of the Leased Premises.
[LETTERHEAD]
Impediments to the supply of gas, water, electricity, heating, ventilation or
air conditioning, due to faults in the installations and apparatuses, due to
the inward and outward flow of liquids and gases, due to fire, explosion and
other occurrences, due to disruption of the benefits of leasehold or due to
disruption or faults in supplies or services, all of which to the exception
of cases of damage resulting from gross faults or serious negligence on the
part of the Lessor in respect of the state of repair of the Leased Premises
or of the building or complex of which the Leased Premises form a part.
6.6 The Lessor shall not be responsible for the Lessee's loss in trade
resulting from the activities of other lessees or obstructions to the use of
the Leased Premises caused by third parties, except in the event of gross
fault or serious negligence of the Lessor in that respect.
INTERIM TERMINATION, DEFAULT
7.1 If the Lessee
- does not pay the sums due by him at the specified times;
- ceases to practise his profession or carry on his business wholly or for
a large part in the Leased Premises;
- does not comply with any other condition of the lease;
- does not heed any condition attached to permission given by the Lessor;
- loses power to dispose of his capital or a part of it;
- loses his status as a legal entity, is wound up or in actual fact is
liquidated, provided that the Lessee is not a natural person;
- is declared to be bankrupt;
- offers a settlement in lieu of bankruptcy, or if the goods of the Lessee
are attached;
- dies;
the Lessor shall have the right to terminate the lease prematurely. This
shall only be preceded by a notice if the law so requires.
7.2 If any specified period of payment should lapse or if any situation as
mentioned above should arise, the Lessee will be in default as a consequence.
7.3 The Lessee shall compensate the Lessor for all damage, costs and
interests as a result of a situation as mentioned in 7.1 and as a result of
premature termination of the lease, even in the event that he is granted a
moratorium of payments or is declared bankrupt.
This damage shall include in any case the rent, the expenses for additional
supplies and services, including heating costs, V.A.T. and the other amounts
due, the costs of reletting the Leased Premises as well as all costs incurred
by the Lessor in actions in and out of court, including those for legal
assistance with regard to a situation as referred to in 7.1.
7.4 The provisions of 7.1 to and including 7.3 shall not exclude the
Lessor's right to exercise his other rights, including his right to demand
payment or performance with damages.
BANK GUARANTEE
8.1 As security for the correct fulfillment of his obligations arising from
the lease, the Lessee shall present the Lessor with a bank guarantee at the
signing of the lease according to a specimen indicated by the Lessor, for an
amount to be specified in the lease and related to the Lessee's payment
obligations to the Lessor, increased by the applicable V.A.T. This bank
guarantee shall also apply to extensions of the lease including amendments to
it and shall remain valid until six months after the date on which the Leased
Premises are actually vacated and the lease is terminated. This bank
guarantee shall in addition apply to the Lessor's assigns.
8.2 The Lessee may not demand a settlement for any amount against the bank
guarantee.
8.3 In the event that a claim is made against the bank guarantee, the Lessee
shall at the Lessor's first request arrange for a new bank guarantee which
meets the requirement stated in 8.1 and 8.4, for the full sum.
8.4 After an upward adjustment of the rent, of the expenses for supplies and
services or of the advance payments for these, the Lessee shall take
immediate steps to ensure that a new bank guarantee is issued for a sum
adjusted to the new payment obligations.
8.5 If the Lessee does not fulfil his obligations as set out in this clause,
he shall forfeit to the Lessor for every breach an immediately payable fine
of NLG 500.00 per calendar day he remains in default after he has been
informed of his omission by registered letter.
[LETTERHEAD]
MAINTENANCE AND PRESERVATION
AT THE LESSOR'S EXPENSE
9.1 Unless it concerns work which may be considered to be of a limited nature
and day-to-day repairs as referred to in the law (section 7A:1619 Dutch Civil
Code) or work on objects which are not installed by or on behalf of the
Lessor, the following shall be at the expense of the Lessor:
a. maintenance, repair and renovation of structural parts of the Leased
Premises, such as foundations, pillars, beams, concrete floors, roofs,
terraces, structural walls, outer walls;
b. maintenance, repairs and renovation of staircases, stairs, sewers,
drains, gutters, outer casings of windows and doors, and the like. In
respect of sewers the condition set out in 9.2.4 shall remain in full
force;
c. replacement of parts and renovation of installations such as lifts,
central heating installations and fire hydrant boosters;
d. exterior paint work.
AT THE LESSEE'S EXPENSE
9.2.1 All other maintenance, repairs and renovations such as the following
shall be at the expense of the Lessee:
a. exterior maintenance if and insofar as it concerns work which must be
considered to be of a limited nature and day-to-day maintenance in terms
of the law (section 7A:1619 Dutch Civil Code), as well as interior
maintenance which does not include maintenance as referred to in 9.1
without prejudice to the further conditions hereof;
b. maintenance, repair and renovation of hinges and locks, plate glass,
window glass and other glass, both inside and out;
c. maintenance, repair and renovation of roller blinds, Venetian blinds,
awnings and other blinds;
d. maintenance, repair and renovation of switches, sockets, doorbell
systems, light bulbs, lighting (including fittings), carpeting,
upholstery, interior paint work, sinks, toilet facilities;
e. maintenance, repair and renovation of pipes and taps of gas, water,
electricity from the metre or main tap with all appurtenances, subject to
renovation for normal wear;
f. maintenance, repair and renovation of fences as well as maintenance of
gardens and maintenance of the grounds;
g. daily maintenance and repair (and renovation of small parts) of the
technical installations of the Leased Premises.
9.2.2 The Lessee shall pay for maintenance, repair and renovation of objects
which have been or will be installed by or on behalf of the Lessee under an
approximate estimate made available to him by the Lessor.
9.2.3 The Lessee shall furthermore pay for the care for cleaning the Leased
Premises and keeping the same clean, both inside and out, which shall include
the cleaning of windows, window frames and outer walls of the Leased Premises.
9.2.4 In addition the Lessee shall be responsible for the emptying of grease
traps, the cleaning and unblocking of cesspits, gutters and all drains/sewers
of the Leased Premises up to the municipal main sewers, the sweeping of
chimneys and the cleaning of ventilation ducts.
9.3 If the Lessee fails to carry out maintenance, repairs of renovations at
his own expense after being reminded - or if these are carried out badly or
injudiciously in the opinion of the Lessor - the Lessor shall be entitled to
carry out this work or have it carried out at the expense and risk of the
Lessee.
If the work to be carried out at the expense of the Lessee can brook no
delay, the Lessor shall be entitled to carry out this work or to have it
carried out at the Lessee's expense.
9.4 In the event of maintenance, repair and renovation work to be carried out
by the Lessor, the Lessor will consult with the Lessee in advance in which
case the latter interests may be taken into consideration where possible.
Extra costs for work to be carried out at the Lessee's request outside normal
working hours, shall be at the Lessee's expense.
9.5 The Lessee shall be responsible for the proper and competent use and
maintenance of the Leased Premises including the technical installations in
the Leased Premises. The Lessee shall at his own expense and risk conclude
service contracts. Service contracts for the installations shall be approved
in advance by the Lessor. As far as the maintenance is concerned the above
conditions shall apply except and to the extent that 12.2 is applicable.
9.6 The Lessee shall notify the Lessor immediately in writing of any faults
to the Leased Premises.
[LETTERHEAD]
9.7 If the Lessee an the Lessor have agreed that the objects which are at the
expense of the Lessee under this clause are not carried out on the instruction
of the Lessee but of the Lessor, the costs of the same shall be passed on by
the Lessor to the Lessee. The Lessor shall in a number of cases conclude
maintenance contracts for such purpose.
ADJUSTMENTS
10. If the Lessor considers it necessary to carry out maintenance, repairs,
renewals, including extra facilities and alterations, renovations or other
work in, on or to the Leased Premises or the building or complex of which the
Leased Premises form part or on the adjoining properties, or to have such
work carried out, or if such work is necessary due to (environmental)
requirements or measures by the authorities or public utility companies, the
Lessee shall permit and suffer this work and these measures and the
inconvenience, if any, without being able to claim damages, reduction of his
payment obligations or cancellation of the lease, even if all of this lasts
for longer than forty days, without prejudice to the provisions of section
7A:1589 Dutch Civil Code. In the execution of the work the Lessor shall take
account of the Lessee's interests where possible.
ACCESS OF THE LESSOR
11.1 If the Lessor wants (to have) an assessment of the Leased Premises, or
wants to carry out the work as referred to in 2.6, 5, 9.3 or 10, the Lessee
shall give the Lessor, or the person who will report to the Lessee for this
purpose, access to the Leased Premises and enable the latter to carry out the
necessary work.
11.2 For the purpose of 11.1 the Lessor and all persons designated by him
shall be entitled to enter the Leased Premises after consultation with the
Lessee on working days between 7:00 a.m. and 5:30 p.m.
The Lessor shall be entitled to enter the Leased Premises in cases of
emergency without consultation and where necessary outside the specified
times.
11.3 In the event of the intended sale or auction of the Leased Premises and
after termination of the lease, the Lessee shall, after prior notice by the
Lessor or his attorney, without compensation, provide an opportunity for
inspection of the Leased Premises during at least two working days every
week. He will permit the usual notices or posters "To Let" or "For Sale" on
or near the Leased Premises.
COSTS OF SUPPLIES AND SERVICES
12.1 In addition to the rent, the Lessee will meet the costs incurred for the
use of water and electricity for the Leased Premises, including the costs for
concluding an agreement for the supply and for the hiring of a meter, as well
as any other costs and penalties charged by public utility companies. The
Lessee shall himself conclude the agreements for supplies with the
institutions involved, unless the Leased Premises have no separate
connections and the Lessor sees to these matters as part of the agreed
supplies and services.
12.2 If the parties have agreed on additional supplies and services to be
rendered by the Lessor, the Lessor will determine the sum payable by the
Lessee on the basis of the costs arising from the supplies and services and
the accompanying administrative tasks. This also applies to technical
installations and other supplies and services. If the Leased Premises form
part of a building or a complex and the suppliers or services also relate to
other parts of the same, the Lessor shall determine a reasonable sum payable
by the Lessee for the Lessee's share of the cost of such supplies and
services. The Lessor need not take account of the fact that the Lessee may
not make use of one or more of these supplies or services. If one or more
sections of the building or the complex are not in use, the Lessor will
ensure when determining the Lessee's share that this share is not larger than
it would be if the entire building or complex were in use.
12.3 The Lessor shall render to the Lessee on an annual basis an itemised
statement of the cost of supplies and services, specifying the way in which
these have been calculated and the Lessee's share of the costs, where
applicable.
12.4 At the end of the lease a statement shall be provides for the period not
yet covered. The last statement shall be provided after expiry of a maximum
of 14 months calculated from the period on which the previous statement was
provided. Neither the Lessee nor the Lessor shall claim early settlement.
12.5 If the statement on the period in question, taking account of advance
payments, shows any shortfall in payments by the Lessee or any excess
receipts by the Lessor, these will be paid or reimbursed within one month of
the statement being issued. Any disputes as to the correctness of the
statement shall provide no grounds for suspension of this obligation.
12.6 The Lessor has the right to alter or cancel the type and range of
supplies and services after consulting the Lessee.
[LETTERHEAD]
12.7 The Lessor has the right to adjust the advance payments payable by the
Lessee of the expenses for supplies and services prematurely to the costs he
expects to incur, inter alia in an event as referred to in 12.6
12.8 In the event that heating and/or hot water are included in
the supplies and services, the Lessor may adjust the method of
determining the consumption of these and the Lessee's share in the
cost of this consumption after consultation with the Lessee.
12.9 If the consumption of heating and/or hot water is measured using meters
and a dispute arises regarding the Lessee's share in the costs of
consumption as a result of the failure of malfunctioning of these meters,
this share shall be determined by a company specialised in measuring and
determining consumed heating and/or warm water consulted by the Lessor. This
shall also apply in case of damage, destruction of fraud in relation to
meters, without prejudice to any other claims the Lessor may have against the
Lessee in such a case, such as a claim for repairs to or replacement of the
meters and compensation for damage suffered.
12.10 Save in the event of serious negligence or gross fault, the Lessor
shall not be liable for any damage as a result of the malfunctioning or
improper supply of the supplies and services referred to herein. Nor shall
the Lessee be able to claim rent reduction in such cases.
COSTS
13. In all cases in which the Lessor has a warning notice, a notice of
default or a writ served on the Lessee, or in the case of actions against the
Lessee to coerce him to act in accordance with the lease or to evict him,
the Lessee shall be required to reimburse the Lessor for all costs incurred,
both in and out of court, except for legal costs payable by the Lessor by
virtue of a final decision by the court. The costs to be incurred will be set
in advance by the parties at an amount which shall not be less than the
usual rate charged by bailiffs.
PAYMENTS
14.1 The payment of rent and all amounts payable under this lease will be
made at the latest on the due date in legal Dutch tender - without any
suspension, discount, reduction, or settlement with a claim which the Lessee
has, or has in his opinion, against the Lessor - by payment or transfer to an
account specified by the Lessor. The Lessor shall be free to alter the place
or manner in which payment is to be made by giving the Lessee written notice
to this effect. The Lessor shall be entitled to determine the outstanding
amount under the lease from which payments received from the Lessee will be
deducted, unless the Lessee specifically states otherwise upon payment. In
the latter case section 6:50 of the Dutch Civil Code shall not be applicable.
14.2 Every time when an amount owed by the Lessee by virtue of the lease is
not paid promptly on the due date, the Lessee will forfeit to the Lessor by
operation of the law as of the due date an immediately payable fine of 2
per cent a month of the amount owing with a minimum of NLG 250.00 per
calendar month, with each month after commencement counting as a full month.
TAXES, EXPENSES, LEVIES, PREMIUMS ETC.
15.1 If it has been agreed that V.A.T. will be charged on the rent, the
Lessor shall file an application as referred to in 5.2 of the lease to the
inspection in question.
15.2 If application is not to be granted, the Lessee shall owe the Lessor
an amount over and above the rent corresponding with the amount of V.A.T.
that would have been payable had the application been granted. If an
application is granted with effect from a later date than requested, the
Lessee shall owe the Lessor an amount over and above the rent corresponding
with the amount of V.A.T. as of the agreed commencement date up to the date
of commencement of the taxed rent.
15.3 If the Lessee shows the application was not granted or not granted on
the agreed date by the Lessor's action, the amount corresponding with the
V.A.T. as referred to in 15.2, shall not be payable.
OTHER TAXES, EXPENSES, LEVIES, PREMIUMS ETC.
15.4 The Lessee shall pay, even if the Lessor is assessed for the same:
a. the real estate tax and the district water board charges or polder dues
regarding the actual use of the Leased Premises and the actual joint use of
service areas, general areas and areas in common use;
b. other current or future taxes, sufferance dues, charges, levies and
utilisation taxes with respect to the Leased Premises and property of the
Lessee, except for the real estate tax and the district water board charges
or polder dues in respect of the enjoyment under a right in rem and except
for the sewerage charges;
[LETTERHEAD]
c. environmental levies including surface water purification levies and
charges for waste water purification and any other amounts on account of
environmental protection.
15.5 If the Lessor or other lessees in the building or the complex are
charged a higher premium for fire insurance for the building or the inventory
of the Leased Premises or the complex of which the Leased Premises form part,
as a consequence of the nature of performance of the profession or business of
the Lessee, the Lessee shall reimburse the amount over and above the normal
premium to the Lessor or such other lessees. The Lessor and the other lessees
shall be free to choose their insurance company, to set the value insured and
to assess the reasonableness of the premium payable.
"Normal Premium" shall be understood to mean the premium the Lessor of the
Lessee may stipulate from any reputable insurer established in the
Netherlands for the insurance of the Leased Premises or his inventory and
goods, against fire risk at the time immediately preceding the conclusion of
the lease, without taking account of the nature of the business or profession
to be carried on by the Lessee in the Leased Premises, as well as - for the
duration of the lease - each adjustment of this premium, which does not
result from any change of the nature or extent of the risk insured.
SEVERABILITY
16.1 If several (natural or legal) persons have committed themselves as
Lessees, they shall always be severally liable and each for the whole to the
Lessor for all commitments arising from the lease. Suspension of payments or
discharge by the Lessor to or of one of the Lessees or an offer to that
effect, shall only concern such Lessee.
16.2 The commitments arising from the lease are severable, also with respect
to the heirs and assigns of the Lessee.
UNTIMELY AVAILABILITY
17.1 If the Leased Premises are not available on the agreed commencement
date of the lease, as a result of the fact that the Leased Premises are not
ready on time - not being due to the Lessee's request -, the previous user
has not vacated the Leased Premises on time or the Lessor has not yet obtained
from the authorities the licenses for which he, the Lessee, is responsible,
the Lessee shall be exempt from payment of rent or expenses for additional
supplies and services until the date on which the Leased Premises are
available to him and his other obligations and the agreed terms of the lease
will be postponed accordingly. The price index date shall remain unchanged.
17.2 The Lessor shall not be liable for damage to the Lessee resulting from
the delay, unless serious negligence or gross fault can be imputed to him in
this respect.
17.3 The Lessee may not claim cancellation, unless the overdue delivery is a
result of premeditated action or negligence on the part of the Lessor, and as
a consequence leads to such a delay that the Lessee cannot reasonably be
expected to uphold the agreement without amendments.
DATA PROTECTION ACT (WET PERSOONSREGISTRATIE)
18. If the Lessee is a natural person, the Lessee's personal data may have
been recorded by the Lessor and the administrator (if any) in a personal data
file.
DOMICILE
19.1 From the commencement date of the lease all communications from the
Lessor to the Lessee relating to the fulfillment of this lease, shall be
addressed to the Leased Premises.
19.2 The Lessee shall immediately notify the Lessor if he no longer actually
carries on his business in the Leased Premises, stating his new domicile in
the Netherlands.
19.3 In the event that the Lessee should leave the Leased Premises without
giving the Lessor his new domicile in the Netherlands, the address of the
Leased Premises shall be the Lessee's domicile.
COMPLAINTS
20. The Lessee shall submit his complaints and requests in writing. In
urgent cases, he may do so by word of mouth. In such cases, the Lessee shall
confirm his complaint or request in writing as soon as possible.
ADMINISTRATOR
21. Where an administrator is or has been appointed by the Lessor, the Lessee
will consult the administrator in all matters relating to the lease.
[LETTERHEAD]
FINAL CLAUSE
22. Should any part of the lease or of these General Conditions be null or
voidable, this shall not affect the remaining parts of the lease and these
General Conditions. In stead of the annulled or null part, the agreements
which are nearest to what the parties would have agreed, had they known of the
nullity or voidance, shall be considered to be agreed.
I, Xxxxxx Xxx, sworn translator for the English Language, residing at Xxxxxx
00, Xxxxxxxxxx, Xxx Xxxxxxxxxxx, sworn in at the District Court of
Middelburg, do solemnly and sincerely declare that the following is a full,
true and faithful translation made by me of the documents hereunto annexed,
which were submitted to me for translation.
[SEAL]
Signed, 21st April 1998
[SEAL]
TENANCY AGREEMENT
relating to:
Bennebroekerweg
Rijsenhout
[SEAL]
SPECIFICATIONS OF TENANCY AGREEMENT
- Property rented : unit 3 of business complex located at
Bennebroekerweg, Rijsenhout (Netherlands)
- Lessor : Xxxxxx XX C.V.
- Lessee : Hawker Pacific Inc.
- Tenancy : 10 years
- Commencing date of tenancy : 1st June 1998
- First payment of rent : 1st June 1998
- Option period : yes, 5 years
- Term of notice : yes, 12 months
- Initial rent : NLG 180,000-annually
- VAT on rent : yes
- Service charge : none
- Time of payment : 3 months in advance
- Market-related rent adjustment : yes
- Indexation : yes, annually, for the first time on 1st
June 1999 on the basis of "CPI-Werknemers
Laag" (1995=100) [Consumer Price Index
published by the Dutch Central Bureau of
Statistics]
- Bank guarantee : yes, to an amount of 3 months' rent
inclusive of VAT
- Manager : lessor
- Extraordinary provisions : see Section 9
[SEAL]
--------------------------------------------------------------------------------
TENANCY AGREEMENT FOR OFFICE SPACE
AND OTHER BUSINESS ACCOMMODATION NOT UNDER SECTION 7A:1624 BW [Dutch Civil Code]
---
--------------------------------------------------------------------------------
Laid down in accordance with the model by the Raad voor Onroerende Zaken [Dutch
Real Estate Council] in February 1996. Referral to this model is exclusively
permitted if the completed, added or variant text is clearly recognisable as
such. Additions and variations are preferably to be included under the
heading "extraordinary provisions". Liability for adverse consequences of the
use of the text of the model is excluded by the Council.
--------------------------------------------------------------------------------
The undersigned
Xxxxxx XX C.V.
domiciled at Amsterdam,
hereinafter called 'lessor',
represented by Xx. X. xxx Xxxxxx
and
Hawker Pacific Inc.
Domiciled at Nieuw-Vennep,
hereinafter called 'lessee',
- filed in the Register of Commercial Enterprises at Haarlem
- file No. 34063957
- represented by Mr X.X. Lepelaar
agree to the following:
THE PROPERTY RENTED, PURPOSE, USE
1.1 This tenancy agreement relates to the business accommodation,
hereinafter called 'the property', locally known: Bennebroekerweg at
Rijsenhout and consisting of approx. 300 m2 office space and approx. 810 m2
business accommodation (unit 3), and further specified on the drawing of
the property which has been certified by the parties and is part of this
document to which it is attached.
1.2 The property may exclusively be used as office and business
accommodation.
[SEAL]
1.3 The lessee is not allowed to put the property to any other use than is
described in 1.2 without prior written approval from the lessor.
1.4 The highest acceptable load of the floor(s) of the property is 250
kgs.m2 for office space and 2,000 kgs/m2 for business accommodation.
CONDITIONS
2.1 This agreement includes the general provisions of the tenancy
agreement for office space and other business accommodation NOT under
Section 7A: 1624 BW [Dutch Civil
Code], filed with the registry of the
court at The Hague, Netherlands, on 29th February 1996 and filed there
under number 34/1996, hereinafter called "general provisions". The
contents of these general provisions are known to the parties. The
lessee has received a copy of the general provisions.
2.2 The provisions referred to in 2.1 are applicable except where this
agreement expressly departs from these provisions or if application of
these provisions is not possible in relation to the property.
DURATION, EXTENSION AND TERMINATION
3.1 This agreement has been entered for the duration of 10 years, starting
on 1st June 1998 to 31st May 2008 inclusive.
3.2 After expiration of the period stated in 3.1 this agreement shall be
continued for a consecutive period of 5 years, that is to 31st May 2013
inclusive.
Subsequently this agreement is continued for consecutive periods of 5
years each.
3.3 Termination of this agreement is effected by giving notice towards the
end of a tenancy period and is subject to a term of notice of at least
12 months.
3.4 Termination must be effected by means of a writ or by registered mail.
3.5 Premature termination of this agreement is possible under a circumstance
as referred to in 7 of the general provisions.
PAYMENT OBLIGATION, TIME OF PAYMENT
4.1 The payment obligation of the lessee consists of:
- the rent;
Initials of lessor: [initials] Initials of lessee: [initials]
[SEAL]
- the fee for the attendant deliveries and services including the sales
tax due;
- the sales tax due on the rent or else a corresponding amount, in
accordance with and in compliance with 15.2 and 15.3 of the general
provisions, provided that the parties agree on a rent taxed with sales
tax.
4.2 The rent amounts to NLG 180,000.- annually.
In words: one hundred and eighty thousand Dutch guilders.
4.3 The rent is adjusted for the first time on 1st June 1999, and
subsequently annually on 1st June in accordance with 4.1 and 4.2 of the
general provisions.
4.4 The fee for attendant deliveries and services is determined in
accordance with 12 of the general provisions. As specified there, a
system of advance payments with clearance later is applied to this fee.
4.5 The payments to be made by the lessee to the lessor are payable in one
amount in advance in consecutive instalments as specified in 4.6 and
must be settled in full before or on the first day of the period to
which the payments relate.
4.6 Per instalment of 3 (three) calendar months the payment obligation amounts
to: NLG 45,000.-.
In words: forty-five thousand Dutch guilders; this amount is exclusive of
sales tax.
4.7 In view of the commencing date of the rent the first instalment relates
to 1st June 1998 to 30th June 1998 inclusive and the amount due for this
first period is NLG 15,000.- exclusive of sales tax. The lessee shall
settle this amount inclusive of such sales tax as is due before or on
1st June 1998.
SALES TAX
5.1 All amounts mentioned in this agreement are exclusive of sales tax. The
lessee must pay sales tax on the fee for attendant deliveries and
services. In case of taxed letting this also applies to the rent. The
sales tax is charged by the lessor and must be settled together with the
rent and the fee for attendant deliveries and services or the advance
payment on these.
Initials of lessor: [initials] Initials of lessee: [initials]
[SEAL]
5.2 The parties agree that the lessor charges the lessee sales tax on the
rent.
5.3 If it has been agreed that sales tax on the rent is charged, the
lessee hereby grants the lessor and the lessor's legal successor(s)
irrevocable powers also on the lessee's behalf to lodge a request as
referred to in Xxxxxxx 00, Xxxxxxxxxx 1 under b, 5-DEG.- of the Wet
op de omzetbelasting 1968 [Sales Tax Xxx 0000] (option request for taxed
letting). If so desired the lessee shall co-sign the request and place
the lessor in possession of it again within 14 days after having received
the request from the lessor.
DELIVERIES AND SERVICES
6. In relation to attendant deliveries and services to be arranged by or
on account of the lessor the parties agree on the following:
Not applicable.
BANK GUARANTEE
7. The amount of the bank guarantee referred to in 8.1 of the general
provisions is NLG 52,875.-
In words: fifty-two thousand eight hundred and seventy-five Dutch
guilders.
MANAGER
8. Until the moment when the lessor announces otherwise the lessor acts
as manager, telephone No. 0000-00 00 00.
9. EXTRAORDINARY PROVISIONS
VAT
9.1.1 Section 4.1, third dash, is replaced by: "the sales tax due on the
rent or else a corresponding amount, in accordance with and in compliance
with 9.1.2 to 9.1.8 inclusive of the general provisions. The provisions
in 15.2 and 15.3 of the general provisions which are part of this
agreement are hereby expressly declared not applicable".
9.1.2 The lessee and lessor expressly state that the point of departure for
determining the rent has been the fact that the lessee shall use the
property permanently for the percentage set down by the law or the
minimum percentage yet to be determined for performances entitling to
deduction of VAT, in such a way that taxed renting or taxed letting can
be opted for.
Initials of lessor: [initials] Initials of lessee: [initials]
[SEAL]
9.1.3 If the lessee does not (any longer) use the property for performances
entitling to deduction of VAT as referred to in 9.1.2, the lessee no
longer owes VAT on the rent to the lessor, but then, starting from the
date on which the letting is exempt from VAT, the lessee owes the lessor
such an amount as a separate fee in addition to the rent exclusive of VAT
that the lessor is fully compensated for:
1. The VAT on the operating costs for the property and/or investments
therein which is not (any longer) deductible as a result of the
lapsing of the taxed letting.
2. The VAT which the lessor, as a result of the lapsing of the taxed
letting on account of recalculation as referred to in Section 15,
Subsection 4 of the Wet op de omzetbelasting 1968 [Sales Tax Xxx 0000]
or revision as referred to in Sections 11 to 13 inclusive of the
Uitvoeringsbeschikking omzetbelasting 1968 [Sales Tax Implementing
Order 1968], must repay to the Revenue and/or which the lessor can
no longer get back from the Revenue.
3. All other damage incurred by the lessor as a result of the lapsing
of the taxed letting.
9.1.4 When a situation as referred to in 9.1.3 occurs the lessor shall
inform the lessee what amounts must be paid by the lessor to the Revenue
and give insight in the other damage as referred to in 9.1.3.
The lessor shall co-operate if the lessee wishes to have the statement
of the lessor checked by an independent auditor. The costs of this are
for the lessee's account. The financial loss to be incurred by the
lessor, as a result of the lapsing of the taxed letting, must be settled
by the lessee at the first request of the lessor.
9.1.5 The provisions in 9.1.3 and 9.1.4 also apply if the option request for
taxed letting under Section 11 Subsection 1 under b, 5-DEG.- of the
Wet op de omzetbelasting 1968 [Sales Tax Xxx 0000] is not granted by the
Revenue for whatever reason. The provisions in 9.1.3 and 9.1.4 also apply
if the option request is granted starting from a later date than was
requested, for the period from the agreed commencing date of the taxed
letting to the commencing date of the rent taxed with sales tax.
However, if the lessee proves that the option request has not been
granted at all or has not been granted on the agreed date through a fault
of the lessor, the lessee does not owe the compensation mentioned
in 9.1.3.
9.1.6 The lessee is bound to notify the lessor within four weeks after the
conclusion of the financial year in which the lessee started to rent the
property (also if it has fully or partly been given into use to a third
party) by means of a signed declaration whether the lessee has used the
property for purposes for which a full or virtually full (at least 90%)
entitlement to deduction of VAT exists on the basis of Section 15 of the
Wet op de omzetbelasting 1968 [Sales Tax Xxx 0000].
Initials of lessor: [initials] Initials of lessee: [initials]
[SEAL]
Furthermore, if the property (also if it has been given fully or partly
into use to a third party) has not been used for purposes for which a
full or virtually full (at least 90%) entitlement to deduction of VAT
exists on the basis of Section 15 of the Wet op de omzetbelasting 1968
[Sales Tax Xxx 0000], the lessee is bound to notify the lessor within
four weeks after the conclusion of the financial year concerned by means
of a signed declaration.
In both cases the lessee is bound to send a copy of the declaration to
the tax inspector within the same period.
9.1.7 If the lessee does not comply with the obligation to provide
information as referred to above or if it appears afterwards that the
lessee has departed from the wrong point of departure and the lessor
has consequently, as appears afterwards, wrongly charged VAT on the
rent, the lessee is in default and the lessor is entitled to recover
the financial loss resulting from this from the lessee. This loss
concerns the full relevant VAT payable to the Revenue by the lessor
increased by interest and possible rises, as well as the VAT not to
be deducted by the lessor.
This Subsection provides for a damage claim settlement in case the
taxed letting should end in retroaction, this in addition to the
arrangement described in 9.1.3 and 9.1.4. The extra damage which is
incurred by the lessor as a result of this retroactive effect, is
claimable from the lessee outright, fully and as a lump sum. The
lessor shall co-operate if the lessee wishes to have the statement of
this extra damage of the lessor checked by an independent auditor. The
cost of this is for the lessee's account.
9.1.8 The provisions in 9.1.3, 9.1.5 and 9.1.7 are also applicable if the
lessor, after termination of the tenancy agreement, premature or
otherwise, is confronted with damage as a result of the lapsing of the
taxed letting agreed on by the parties, which damage is claimable from
the lessee by the lessor outright, fully and as a lump sum.
LEAVING BEHIND BUILT-IN COMPONENTS
9.2 The lessee is allowed to leave behind the built-in components
installed in the property at the end of the tenancy agreement. The
attached drawings of the lay-out of the ground floor and the first
floor are the point of departure for the state of the property at
vacating and delivering the property at the end of the tenancy.
Initials of lessor: [initials] Initials of lessee: [initials]
[SEAL]
PENALTY ARRANGEMENT
9.3 Contrary to Section 3.1 the lessee is entitled to terminate this
agreement prematurely after 5 years, in which case the lessee must
observe a 12 months' notice. Termination can only take place towards
the end of a month. If a lessee makes use of this possibility to give
notice, the following penalty arrangement applies:
On departure as of 1st June 2003 50% of the ruling annual rent;
on departure as of 1st June 2004 40% of the ruling annual rent;
on departure as of 1st June 2005 30% of the ruling annual rent;
on departure as of 1st June 2006 20% of the ruling annual rent;
on departure as of 1st June 2007 10% of the ruling annual rent;
on departure as of 1st June 2008 0% of the ruling annual rent;
Or the pro rata part if termination does not take place as of 1st June;
COMPLETION
9.4 On the basis of the offer of 6th November 1997 by v.o.f. Bouwbedrijf
Xxx Xxxxxx, on the understanding that the full "completion" of the
property shall take place and the execution of the work is the
criterion and NOT the estimate of the work, and on the basis of the
fax of 6th February 1998 from Beekman Sorensen Bedrijfsmakelaardij.
Both documents have been attached to the agreement.
OPTION RIGHT
9.5 The option right mentioned in Section 3.2 is a unilateral option right
of the lessee, therefore the tenancy cannot be terminated by the
lessor on the basis of this Section.
REVIEW OF THE MARKET-RELATED RENTABLE VALUE ADJUSTMENT
9.6 Without prejudice to a rent adjustment on the basis of 4.3 of the
tenancy agreement each of the parties is authorised to desire
adjustment of the rent to the market-related rentable value. This
adjustment can take place for the first time as of 1st June 2008 and
subsequently after every period of at least 5 (five) years after the
latest adjustment of the rent to the market-related rentable value. If
a party wishes to make use of this power, this party shall notify the
other party by means of a registered letter with an advice of delivery
at the latest 12 (twelve) months before the date on which the rent
adjustment must take effect.
If the parties have not come to an agreement about the adjustment of
the rent to the market-related rentable value within 2 (two) months
after receipt of this notification, the rent shall be determined by
three experts.
Initials of lessor: [initials] Initials of lessee: [initials]
[SEAL]
When determining the rent the experts are to receive the
assignment to take into account everything that has been agreed
between the parties in relation to the property as well as the
circumstances of the case, such as the location, size, lay-out and
quality of the property and the facilities in and around the
property, as well as the rent of comparable business
accommodation which rent has been agreed mutually or has been
determined by the court.
Of these three experts one is appointed by each of the parties
within 14 (fourteen) days after a party has received the request
in this matter from the other party. An expert must make known
within 8 (eight) days after the date of the assignment whether he
accepts this assignment.
The third expert is appointed by these two experts within 8
(eight) days after they have both accepted their appointment. The
judgement of the third expert is decisive in default of agreement
between the experts about the rent to be determined. If one of the
parties should fail to appoint an expert or if the experts
appointed by the parties do not succeed in appointing the third
expert, the complainant may request the president of the Chamber
of Commerce and Factories of the district in which the property
is located, to appoint the expert(s).
A party bears the costs of the expert appointed by this party. The
costs of the third expert are borne half each by both parties. The
experts are assigned to report within 6 (six) weeks after their
appointment has been definitely settled.
After the rent has been adjusted to the market-related rentable
value, the first rent indexation takes place on the date agreed in
4.3 of the tenancy agreement on the understanding that the rent
indexation is effected in proportion over the period which has
lapsed since the date of the adjustment of the rent to the
market-related rentable value.
Executed in duplicate at Rijsenhout/Nieuw-Vennep.
Lessor: Lessee:
MATEOR II C.V. Hawker Pacific Inc.
X. xxx Xxxxxx E.R. Lepelaar
Date: 13th March 1998 Date: 13th March 1998
[signature] [signature]
Initials of lessor: [initials] Initials of lessee: [initials]
