Exhibit 10.12
TENANCY AGREEMENT
between Deutsche Immobilien Fonds plc
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
- Landlord -
and
Cybernet
Internet-Dienstleistungen AG
▇▇▇▇▇▇-▇▇▇▇▇▇-Ring 19
81929 Munchen
- Tenant -
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PRELIMINARY STATEMENT
The landlord has constructed buildings (Airport Centre) on the property at
Langenhorner Chaussee/Corner of Flughafenstrasse consisting of office, service,
hall and cellar space, as well as parking, traffic and green areas.
Having stated this in advance, the parties agree to the following:
INDEX OF CONTENTS
Preliminary Statement
(S) 1 Rented property
(S) 2 Utilisation of rented property, competing surety
(S) 3 Term of tenancy
(S) 4 Rent and ancillary costs
(S) 5 Safeguarding standard of value
(S) 6 Insurance
(S) 7 Structural arrangement and alterations
(S) 8 Liability, maintenance and repair of rented property
(S) 9 Access to rented premises by landlord
(S) 10 Termination of tenancy agreement
(S) 11 Security of rent
(S) 12 Sub-letting
(S) 13 Exceptional right of notice
(S) 14 Concluding provisions
(S) 15 Jurisdiction
Appendix: 1 - Composition of rent
2 - Surety (obligatory submission)
3 - Direct debit mandate (specimen)
4 - Description of business
5 - Description of building
6 - Planning documents
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(S) 1
Rented Property
1. The landlord lets to the tenant 1 section of the building in the Airport
Centre comprising office, service, hall and outside spaces of the part of
the building N/O, as well as 16 exterior parking places (rented property).
General spaces such as, for example, foyer and lift outer offices are
proportionally let.
The Airport Centre and the rented property are known to the tenant.
2. The site, dimension and layout of the rented property are evident from the
attached planning documents that have been signed by both parties [Plan Nr.
1,2,3 and 4 in Appendix 6], as well as the description of the building
(Appendix 5), which are component parts of this agreement. The rented
building spaces are as agreed and are coloured red in the planning
documents, and the rented parking places and outside spaces are bordered
green.
3. The landlord reserves the right to make any alterations to the entire
Airport Centre plan.
(S) 2
Utilisation of the Rented Premises, Competing Surety
1.a. The tenant may only utilise the rented premises for general office, service
and storage purposes in line with the description of the business (Appendix
4) which is a part of this agreement. The outside areas may not be used for
storage purposes.
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Delivery of storage material through the entrance area may only be used for
products whose size and nature remain within the context of an office
enterprise.
Any change in the use to which the rented premises are put must have prior
written agreement from the landlord. The latter may not raise any objection
to the declared change if it has no detrimental economic or other effect on
him. Any concession - if not expressly set forth - will only be granted on
the understanding that there is no official objection from the authorities.
The tenant will meet the costs of any special requirements, activities or
products (i.e. easily inflammable products, water-endangering material,
activities involving service, exhibition, training, or air-conditioning
etc.) as well as their associated installation or official, occupational or
insurance related conditions arising as a result.
The tenant will be responsible for the cost of providing the necessary
authorisation for his business undertaking, and for fulfilling any
associated obligations or conditions.
b. The tenant may not store or process any dangerous materials (i.e.
explosives or poisons), or undertake any dangerous activity
which would in any way increase the insurance risk on the property
or infringe any official regulations, such as the development plan.
No objects may be dumped or stored and no work undertaken by the
tenant outside the rented premises, such as on the ancillary rented
areas, areas and premises shared with other tenants, as well as on the
delivery areas. Vehicles belonging to the tenant, or those belonging
to any of the tenant's visitors or employees may only be parked on
the appointed spaces. Other vehicles may only stop on the premises
for the time required for loading and unloading. Exits have to be
kept free in accordance with the stipulations of the authorities.
The tenant is obliged to point out to his visitors on all large occasions
(training courses, among other occasions) that they must only park their
vehicles on the rented parking spaces or outside the Airport Centre. In
case of non-compliance with these conditions
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the landlord, without prejudicing his rights, is entitled to claim
appropriate compensation from the tenant.
2. Any important alteration to the tenancy agreement on the part of the tenant
(i.e. change of legal structure, business licence, relocation of firm's
principal office, etc.) has immediately to be put in writing to the
landlord.
3. The tenant will use the sanitary facilities available on the particular
floor used in common with other tenants, if there are no available rented
facilities on the premises for his sole use.
4. The landlord does not provide any competing surety for the tenant's sphere
of business.
5. The tenant is aware that gas-driven vehicles may not be parked on parking
spaces rented by him.
(S) 3
Rental term
1. The tenancy agreement starts from 01.02.1999 (commencement of tenancy). It
has a term of 10 years. The agreement terminates on 31.01.2009.
A single right of notice is granted to the tenant on the expiry of 5 years
on condition that prior notice by registered letter is received by the
landlord by 31.01.2003 the latest (12 months before the lapse of the 5th
year). The date of postage will be the deciding factor in determining
correct compliance.
On expiry of the agreed rental term the agreement is then extended by 5
years at a time in each case, unless one of the parties has given one
year's notice as agreed in the terms of the contract.
5
Section 568 of the German Civil Code does not apply.
2. The property will be handed over to the tenant in a condition ready for
use. "Ready for use" is understood by both parties to mean complete
identification with the planning documents and the building description, so
that the occupancy of the premises by the tenant is possible, as well as
his agreed utilisation of the premises according to Section 2 Nr. 1 of this
agreement. Any deficiencies in the condition of the premises or any
residual work that has still to be completed - this also applies to outside
areas - , and which does not significantly affect the tenant's immediate
occupancy or utilisation of the premises, shall not constitute interference
with the "ready for use" condition in the strict meaning of this agreement.
On the day the property is ready for use it will be handed over to the
tenant for his use. The parties to the agreement will make a binding
transfer record of any possible deficiencies in the property and will
determine any residual work that has still to be undertaken. This must be
immediately rectified or carried out by the landlord within an agreed time-
limit. The tenant must also allow any corrective work to be carried out
during office hours.
The landlord will make the property available to the tenant by 01.02.1999
(ready-for-use date) apart from any residual work outside which may be
dependent on the weather.
In the case of any delay in making the property ready for use caused by the
tenant's request for changes to the agreement after having already signed
it, the terms of the tenancy agreement stand and therewith the obligatory
rental payment from the time when payment would have been due without the
requested changes.
The landlord is not responsible for delays in occupancy caused in
particular by strikes, lockouts, war, acts of God, fire or by the office of
employment officially designated "bad weather days".
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(S) 4
Rent and Ancillary Costs
1. The monthly lump sum rent for the property (Appendix 1) is 34.194,50 DM (
in words: Thirty-four thousand one hundred and ninety- four 50/100 Deutsche
▇▇▇▇) as well as the advance payment for ancillary costs and VAT at the
relevant legal amount, which hereafter will be called the gross rental.
The tenant has given an assurance that he is entitled to full input tax
deduction. If this should change, and therewith the preconditions for the
landlord's turnover tax option be cancelled, according to Section 9
Paragraph 2 of the Turnover Tax Law, the landlord is then no longer bound
to discount the turnover tax, with the consequence that the erstwhile gross
rental has in future to be paid in lump sum. If the absence of the
prerequisite option should only become known later, the landlord is
entitled afterwards to correct the invoices, that have already been issued,
in such a way that the erstwhile paid agreed gross rental subsequently
corresponds to the lump monthly rental. The right to compensation is
reserved in the absence of the prerequisite option. The landlord can oblige
the tenant to produce an appropriate confirmation to this effect from his
accountant.
In each case the gross rental has to be paid in advance into an account
designated by the landlord by the 3rd working day of each month, free of
postage and extra charges.
Punctual payment is determined by the date of receipt by the landlord. Late
payments carry agreed charges of 4 % above the Deutsche Bundesbank's
current bank rate, as well as 10.- DM for costs incurred. The right is
reserved to enforce compensation for further damage caused by late payment.
The tenant will provide the landlord with a direct debit authorisation for
the gross rental at least one month prior to the start of the rental
agreement in accordance with the specimen Appendix 3 of this agreement.
2. Rent and VAT are payable from 01.02.1999. Ancillary costs and VAT have to
be paid from the date when the property is ready for use as laid out in
Section 3 Nr. 2 of this contract.
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3. The accruing ancillary costs have to be paid separately by the tenant. The
following applies in detail:
a. In so far as the landlord does not provide/cause the disposal of all
the tenants' refuse, the tenant will be responsible for all his own
refuse disposal or will pay the dues for clearance of his refuse
directly to the authorities. The tenant undertakes to use only closed
containers for the disposal of refuse. The tenant will respect the
Dual System in the disposal of refuse. The disposal point for refuse
containers is to be agreed with the landlord in each case prior to the
positioning of a container.
The disposal of domestic waste is undertaken by the landlord at the
moment because of conditions stipulated by the public authorities, and
the costs will be passed on to the individual tenants. All other kinds
of rubbish must be disposed of by the tenant according to the legal
conditions set out by the local authorities, and the required refuse
collection payments to be paid by the tenant directly to the local
authorities. The tenant undertakes to provide only enclosed containers
should he dispose of the refuse himself. The landlord reserves the
right to dispose of the rubbish in a similar way to the above-named
kinds of refuse should the local authority's conditions change.
b. The tenant will pay the charges and costs for his electricity, heating
and other energy supplies, directly to the energy suppliers, as well
as meter charges and installation costs.
c. The cost of running central heating and warm water is shared by the
tenant in proportion to the square metre space he rents in the N/O
building. It is a precondition that all tenants in the N/O building
have agreed to such a method of calculation and have renounced any
form of meter installation for this purpose. The tenant is aware that
a shared distribution of heating charges is imposed, in line with
standard rates, if any tenant should so desire such a system.
The tenant agrees with the landlord to dispense with the installation
of energy supply meters, and consents to have the costs of central
heating and warm water supplies calculated by square metre office
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space. At the same time the tenant agrees to allow the heating costs
to be calculated according to standard rates if any fellow tenant
should so desire.
d. The tenant will bear his share of the cost of running and maintaining
the property, in so far as it arises, especially for:
general energy supply, lighting for exterior premises, basement
garages, parking allotment; refuse disposal; use of the canal;
cleaning of streets, footpaths, parking facilities and facades, as
well as the care and cleaning of other fixed outside spaces, including
clearing away snow and ice; cleaning of sanitary facilities, foyer,
stairwell and windows; eliminating any vermin; chimney sweep;
caretaker; local rates; maintenance, servicing and repair of sanitary
facilities and heating (including authorised technical control
inspections), ventilation and electrical installations, windows, doors
and gateways, drainage collection facilities (including rainwater
reservoirs), annexes to parking building, basement parking facilities,
barriers, parking guides, smoke-alarm and security fittings,
transformers, lightning protectors, lifts, emergency-call
installations, fire-alarm systems, sprinklers, and barrier and video
installations, the code-card system, the security lighting, the
roofing, the smoke- and heat-extractor systems, the hydrants and fire
extinguishers, the blinds, the warm water and supply apparatus, the
building security (fire, storm, mains water, extended coverage,
general purpose glass-surfacing) as well as building and property
liability; maintenance, care and layout of green areas, hydro-culture
and the shared building, streets and exterior areas; traffic safety;
locking-up and guards; porters/doormen; administration of property (
the latter in the sum of 4 % of rent, also when the administration is
carried out by the tenant himself). The tenant does not have to
contribute to his share of repairs, in so far as they exceed in
entirety the amount per annum of 10 % of the annual gross rent
((S) 4 Nr. 1).
e. If the charges and costs under c. and d. are directly apportioned to
the tenant, they will be charged accordingly in this way; otherwise
the tenant will be charged proportionally. The measure used in
deciding proportional costs is based on the tenant's share of the
entire rented property or section of the building. The measure used in
deciding the share of the parking building costs or the basement
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garage is based on the tenant's share of parking lots in the parking
building or basement garage. The measure used in the distribution of
costs for proportionally rented general areas is based on the tenant's
share of these areas. The landlord can alter the distributive system
after at his considered discretion, if this leads to a more scientific
apportionment of costs.
The landlord is entitled to demand from the tenant a monthly advance
payment for all likely ancillary costs, in so far as they are not
directly payable by the tenant. The calculations are made annually for
the calendar year. If the rental agreement should terminate during a
settlement period, the settlement will not be interim, but only in the
context of the general settlement. In this way the settlement for the
advance against ancillary costs will be made. Any compensation
payments must be made when the following rent is due. The vouchers for
the respective ancillary cost settlements can be inspected by the
tenant in the offices of the landlord during normal office hours
within 5 weeks following dispatch of the ancillary cost settlement.
The landlord reserves the right to regularly review the monthly
ancillary cost advance payments, and, if required, on the basis of a
proven rise in costs, to change the amounts due, as well as to demand
individual advance payments for larger ancillary costs, which have
also to be paid on the next due date of rental payment. The advance
payment of ancillary costs is due from the tenant on the first date of
occupancy and at the moment amounts to 6.817,90 DM ( in words: six
thousand eight hundred and seventeen 90/100 Deutsche ▇▇▇▇) per month
plus VAT at the standard rate.
If, after concluding this tenancy agreement, there are any subsequent
public or other ancillary costs due that relate to the tenant's
business or to the rented property, the landlord is entitled to demand
these sums from the tenant from the date of occupancy.
4. As far as the rent and ancillary demands are concerned, neither settlement
rights, rent reduction rights, or retention rights can be justified by the
tenant, unless such claims are uncontested or legally recognised.
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5. The tenant can only exercise a possible right to withhold settlement, or
claim a reduction in rent pending a legally recognised counter claim, if
the landlord has been advised of this in writing at least one month before
payment in question is due.
6. If the tenant is in arrears in the payment of rent, ancillary costs and/or
VAT, any settlement payments are at first calculated on the basis of the
amounts overdue, and then on costs, interests and other incidental dues
that have arisen.
(S) 5
Safeguarding Standard of Value
1. The rent, in line with (S) 4 Nr. 1, rises or falls according to the general
cost of living index after 12 months, and is calculated from the start of
the rental. The measure is the monthly standard of living price index for
all households in Germany as calculated by the Federal Office for
Statistics in Wiesbaden. The parties agree to use the general standard of
living price index as a yardstick from the month of the start of the
tenancy on the basis of 1991 = 100.
2. If the rent should have changed on the basis of the foregoing index clause,
the clause will, after each lapse of 12 months, be reapplied, according to
the provisions of the foregoing paragraph, and the rent readjusted.
3. The parties to this agreement recognise that this index clause has to be
approved by the appropriate state central bank. The approval has to be
obtained by the landlord.
If the state central bank should not approve the index, the parties to the
agreement are obliged to seek an alternative solution that comes closest to
the desired aim.
4. If the standard of living price index 1991 = 100 cannot be determined any
more, then a transition should be made on the basis of the next published
price index and each subsequent one, and otherwise proceed
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as above.
(S) 6
Insurance
1. The usual building insurance terms (fire, storm, mains water, extended
coverage, etc.) and building and landowner liability will be concluded by
the landlord, and at the tenant's expense.
2. Subsequent continuous installations, improvements or re-constructions of
the property carried out by the tenant are not covered by the building's
insurance as indicated in the planning documents and building description,
unless a written statement to this effect has been received by the landlord
from the tenant before the above alterations have taken place, with the
request that the insurance be correspondingly adjusted. The tenant is
obliged to provide evidence of the cost of the installations, improvements
and re-constructions. The landlord is entitled to choose an expert, at the
tenant's cost, to evaluate these said alterations. The additional insurance
for the respective installations, improvements or re-constructions of the
property by the building liability insurance is only applicable after the
landlord has been provided with the appropriate written cover note for the
said insurance. The tenant will pay the costs of the resulting additional
insurance.
3. The tenant is obliged to take out normal compulsory insurance for all risks
relating to his business, such as business liability insurance, loss of
profits insurance, insurance against burglary and theft, as well as for
possible non-exclusive office utilisation of the property, and
environmental liability insurance, and to maintain these insurance policies
for the duration of the rental agreement. It is also the duty of the tenant
to insure himself sufficiently against all damage from newly introduced
fixtures, fittings and other matters.
The landlord is entitled to see relevant written evidence by the insurer of
the continued validity of these insurance policies.
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4. The tenant should note that, in the context of his business liability
insurance, he can also take out an exemption liability vis-a-vis his
landlord.
(S) 7
Building Structure and Alterations
1. The rented property is constructed according to the attached planning
documents. The landlord reserves the right to undertake structural
alterations to the rented property, if officially or legally obliged to do
so, for the purposes of improvement, or due to commercial time lapse or to
carry out non-depreciating structural alterations and that do not diverge
from the planning documents and building description.
2. Any alteration requests on the part of the tenant with regard to the
development and alteration of the rented property during the construction
period will only be considered by the landlord if these requests do not
significantly or, in particular, structurally alter the rented property,
and do not exceed the estimated expenditure.
In so far as the alteration requests by the tenant lead to an increase in
expenditure or a lengthier construction time, the landlord will accede to
further alteration requests, so long as the character of the rented
property remains essentially unaffected by the alterations, and the tenant
takes on the additional costs, including the further loss of rent
occasioned by the extension to the time limit that was agreed between the
parties.
The tenant is responsible for any additional planning and engineering costs
that arise as a result of alteration requests.
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3. The tenant is entitled to install and equip the interior of the rented
property to his liking and at his expense. Significant structural
alterations, however, require the prior written consent of the landlord.
The necessary local authority approval has to be obtained directly by the
tenant where possible. The tenant must, in every case, pay for the planning
and approval costs.
4. The tenant is entitled to undertake any structural alterations within the
rented property during the term of his tenancy which he considers necessary
for the running of his business and for which he must pay, so long as these
alterations do not affect the structure of the building, or impinge on the
cabling or piping of the rented property, or essentially alter the
character of the building. Before such alterations are undertaken relevant
plans must be shown, and the written consent of the landlord obtained. The
landlord will agree to such alterations if the rented property thereby
suffers no detrimental economic or other consequences.
The tenant will bear all costs which arise from his initiated building
alterations, as well as the further maintenance and repair costs, including
the prior approval costs and the revision plan costs, which the landlord
must receive immediately after completion of the relevant alterations. The
tenant will absolve the landlord of any possible liability relating to the
structural alterations undertaken. This includes compensation by the tenant
to the landlord for the loss of any warranty claims against the builders.
Structural alterations may require an officially submitted change in the
utilisation to which building is put. The tenant must bear the costs
connected with the utilisation change, no matter whether they have arisen
from the structural alterations or from compliance with local authority
rules.
5. Any changes to the outer appearance of the rented property - especially to
the outer facades, window structure, fixed outside spaces and green areas -
require the prior written consent of the landlord, who will use his
discretion. This also applies to installations of fitted alarm and/or fire
equipment.
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6. The landlord will ▇▇▇▇ out, with his own designated registration signs, the
parking lots rented by the tenant, and for which the tenant has to pay.
7. The landlord has set up an individual company signpost in front of every
property entrance. The tenant is entitled to affix his sign or company logo
on the provided space in consultation with the landlord. The cost of the
inscription will be charged to the tenant.
The tenant is not allowed any outside advertising.
(S) 8
Liability, Maintenance of Rented Property
1. The tenant is obliged to treat the rented property with consideration and
care and keep it in workable order. Damage to the rented property, or any
necessary work that has to be undertaken in keeping with the management of
property, has to be reported to the landlord immediately either in writing
or by fax.
2. The tenant has a duty to safeguard traffic on the site of the rented
property and is responsible for all culpable injuries. He absolves the
landlord from any third party claims arising from a breach of these traffic
obligations.
The tenant is liable to the landlord for all damage caused at the start and
during the rental occupancy occasioned by visitors and guests, persons
contracted by the tenant (i.e. craftsmen, delivery men etc.) as well as by
any sub-tenants and their ancillary staff. In particular the tenant is
liable for any damage arising from careless procedure with water and gas-
piping, as well as electrical light and energy-cabling, doors, windows or
gateways that are left open, insufficient precaution against damage by
frost, or caused by inattention to duty of one of the tenants in the face
of his contractual, official or legal obligations
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(lighting, obligation to strew sand or salt, etc.). The tenant will have to
prove that he is not guilty of any culpable neglect.
The tenant will inform the landlord immediately of the loss of any keys to
the property locking mechanism, and for which he, the tenant, must bear the
cost for any damage arising therefrom.
In the case of damage not covered by the building insurance or the
liability of the property owner, the landlord will only be liable for
damage caused by intent or gross negligence.
The landlord is not liable for damage arising from the tenant's utilisation
of the rented property, or arising from defects in the rented property,
unless it was caused by the landlord by intent or gross neglect. The tenant
will absolve the landlord from all third party responsibility which a third
party claims against the landlord for deficiencies in the rented property,
unless these were caused by the landlord with intent or by gross neglect.
3. The tenant is obliged to carry out cosmetic repairs ( e.g. interior
painting, carpeting, floor and floor-covering, inner and outer doors) on a
3-year rotational basis, so as to preserve the rented property in an
appropriately groomed condition. Furthermore, the tenant is obliged to bear
the care and cost of seeing that doors, windows, blinds, electric and
sanitary appliances, locks, fire extinguishers, water taps, wash basins,
drainage sinks, and similar installations, including the supply and
disposal systems are kept in constant good working order, and also to bear
the care and cost of immediately replacing broken glass panes, mirrors or
other glass objects and lighting installations in the rented property. The
tenant is further obliged to keep the outside traffic and parking areas in
constant workable condition. The tenant is likewise liable for all damage
to rented parking lots and their surroundings, e.g. soiling of the ground
and wall through leaking oil, soot and exhaust pollution. The tenant is
obliged to undertake necessary maintenance measures with the help of
skilled personnel.
For other small repairs the tenant has to bear the individual cost up to
500 DM plus statutory VAT at the most, however, up to an amount in
accordance with (S) 4 Nr.3 d. The parties agree that this amount, in each
case, applies to the 1 January of a calendar year, and is increased the
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following year in line with the percentage rise in the total cost of living
index as set out in the above (S) 5 Nr.1 and 2.
4. The tenant is responsible for the cleanliness of the rented property. The
care of the green areas as well as the cleaning and maintenance of the
fixed outer areas of the Airport Centre are carried out by the landlord or
his appointee. The tenant must see that these areas are freely accessible
while this work is being carried out.
5. In the event of a deficiency in the rented property or a disturbance in the
running of the building or a fault in the technical equipment, the tenant
can only claim compensation or reduction of rent if the landlord can be
shown to have caused the deficiency by intent or through gross negligence.
This applies to all claims made by the tenant arising from Section 538
Paragraph 1 of the German Civil Code. It has to be emphasised again that
the tenant has an obligation, in accordance with (S) 6 of this contract, to
take out insurance against damage to his own property that he has
introduced into the rented property.
6. The tenant is aware that the Airport Centre, as described in the
preliminary statement, is also used by other tenants. If necessary, and
after consultation with the tenants, house regulations will be drawn up,
which will also comprise part of this contract, and which will define the
rights and duties of individual tenants.
7. The landlord may, without the agreement of the tenant, undertake structural
measures which develop, preserve or improve the property or the rented
area, or which are necessary to prevent imminent danger to the property, or
the necessary elimination of damage.
Improvements and structural alterations to the rented property, which may
not be necessary but only useful, can be undertaken with the consent of the
tenant, provided these undertakings do not significantly affect him.
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8. The installation of heavy equipment (machinery etc.) obliges the tenant to
inquire from the landlord whether the floor can sustain such a weight. The
tenant must regularly and carefully ensure that the permissible weight-load
for each floor, as indicated in the description of the building, is not
exceeded. If these warnings are ignored the tenant is liable for all
consequent damage, and is obliged to absolve the landlord from any possible
claims by third parties arising therefrom.
9. Reduction of rent and compensation claims against the landlord by the
tenant for damages, harmful effects or disturbances to the building's
accesses, which are beyond his control, or for works undertaken in
accordance with the above ▇▇▇▇▇▇▇▇▇ ▇▇.▇, or for building construction by
third parties outside the precincts, are out of the question.
(S) 9
Access to Rented Premises by the Landlord
1. The landlord or his appointee can, after prior agreement with the tenant,
enter the rented property during office hours to ascertain the necessity of
possible improvements, as well as to undertake repair and maintenance work.
The tenant is entitled to supply an escort for such inspections or repair
work. The tenant, herewith, already declares his agreement to the
undertaking of any such necessary work to the supply mains on behalf of
other fellow tenants of the rented property. This agreement is already,
herewith, given by the tenant for the eventuality that fellow tenants may
also have to undertake necessary work on their supply mains.
In case of danger caused by delay, the landlord may enter the rented
premises at any time of the day or night, or obtain entry to them. Access
to the roof exit, supply installations and inside yards etc. has to be
guaranteed at all times.
2. If the landlord wishes to sell the property he can, after consulting with
the tenant beforehand, have access to the rented property at the customary
times. The tenant has to give his express permission for entry on Sundays
or on holidays.
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3. If the rental agreement has been terminated, or if it has not been extended
at the latest by 12 months prior to the expiry date, the previous
paragraph, regarding entry to the premises by the landlord with a new
interested customer, correspondingly applies.
(S) 10
Termination of Rental Contract
1. On expiry of the rental contract the rented property has to be repossessed
in a properly renovated and maintained condition, and all keys surrendered.
The obligation is not dependent on whether a rotational renovation was due
at the time or not.
If the tenant has not carried out the obligatory renovation work by the end
of the rental agreement, the landlord can have the work done at the
tenant's expense without the necessity of a period of grace. In this case
the tenant is liable for any damage incurred by the landlord arising from
delayed work (especially loss of rent).
As a deviation from the above ruling, the landlord can demand compensation
in cash for the duly claimed renovation, should the renovation work have to
be nullified through fresh reconstruction soon after termination of the
rental agreement.
2. Equipment (e.g. shelving, communications, alarm systems etc.), including
advertising effects which the tenant has installed in the rented property,
can or must be removed at the request of the landlord.
If the tenant takes the equipment with him, he must bear the cost of
restoring the premises to their earlier condition, should the landlord
requires him to do so.
3. In case the tenant has undertaken structural alterations, the landlord can
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at his discretion, on the termination of the rental agreement, demand free
restoration of the property's earlier condition, or the reimbursement of
the costs incurred in undertaking this work. Compensation for the
expenditure incurred in any structural alteration undertaken by the tenant
is absolutely ruled out, no matter whether the landlord requests
restoration or not. If structural alterations are not removed, they become
the property of the landlord without any indemnity or adjusted settlement
being paid to the tenant.
4. The objects installed by the landlord will remain in the rented property on
termination of the rental agreement.
5. The return of the rented property before termination of the rental
agreement requires the express written consent of the landlord.
(S) 11
Security of Rent
1. The tenant is obliged, at the latest 2 weeks before occupying the rented
property, to procure the absolute guarantee of a savings bank or a big bank
resident in Germany, corresponding to Appendix 2 of this rental agreement, in
sum of 3 month's rent, plus the advance against ancillary charges and VAT at
the standard rate, which will cover the entire payment obligations of the
tenant in this tenancy agreement. If improvements for the tenant have to be
undertaken by the landlord, the guarantee has to be handed in before the
improvements are undertaken. The landlord will inform the tenant of the date
when the work will start.
The guarantor is obliged to transmit payment on the landlord's first request.
The guarantor relinquishes the enforcement of the landlord as well as the
guarantor, in accordance with the law for waiving the defence of failure to
pursue remedies, especially in the pleas of voidability, of being subject to
offsetting and of failure to pursue remedies ((S) (S) 768, 770,771 of the
German Civil Code) as well as the option of a deposit. The landlord is
entitled but not obliged, to satisfy his claim through the guarantee.
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2. If the guarantee is not procured within the given time limit, the rented
property cannot be occupied. The tenant will have to cover for the for the
resulting delays; he will not be absolved from his obligation to pay rent
as set out in (S) 4 Nr.1.
If the tenant delays procuring the guarantee, the landlord can require the
tenant to replace the guarantee with an interest-free cash deposit for the
same amount.
3. If the landlord should make use of the guarantee, the tenant is obliged, at
the landlord's first request, to complete the guarantee again.
4. In case there should be an alteration in the amount of the rent, or in the
advance monthly ancillary payment, or in the standard rate of VAT, the
alteration has to be securely met within one month of its coming into
force.
5. The obligatory guarantee ends with the return of the surety bond by the
landlord to the guarantor. This return will take place when, on termination
of the rental agreement, all the tenant's payment obligations, as specified
in the tenancy agreement, have been met.
6. The above surety conditions have to be correspondingly met when a cash
deposit is made ((S) 11 Nr.2 Sentence 3).
(S) 12
Sub-Letting
1. The tenant can sub-let part or whole of the rented property, provided the
landlord gives prior written consent, and the sub-tenant uses the rented
property particularly in keeping with (S) 2 Nr.1 of this tenancy agreement,
and passes on all the obligations contained in this tenancy agreement to
the sub-tenant. When sub-letting, the tenant is fully liable, including the
payment of rent.
The landlord has to point out that he will not agree to a sub-tenant, or a
third party usage, if the third party does not hold themselves
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responsible for using the rented property, subject to a rental agreement
with the tenant, solely for turnover which does not excluding input tax
deduction. The landlord will, however, only withhold his consent to sub-
letting for important considerations.
If permission has been refused, the tenant is not entitled to any right of
termination in accordance with Section 549 Paragraph 1 of the German Civil
Code.
2. The tenant herewith assigns to the landlord the right to have rental
payments made by the sub-tenant directly to the landlord.
(S) 13
Exceptional Right of Notice
The landlord can terminate the rental agreement immediately without
recourse to notice if
a. the tenant is in arrears with the rent, or a substantial part of it,
for two successive months,
or is in arrears with the rent for the amount of one sum over a period
exceeding two deadlines and amounting to two month's rent.
b. the tenant or sub-tenant, in spite of written warning, utilises the
rented property for purposes contrary to those set out in the tenancy
agreement,
or relinquishes it to unauthorised third parties;
c. if the tenant's assets have been subject to bankruptcy or composition
proceedings have been opened, or if an adjudication order has been
dismissed for lack of assets;
d. the tenant in spite of written warnings annoys other tenants
significantly;
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e. the necessary official approval for the tenant's business is not
obtained or is withdrawn. Notice can only be given if the tenant has
been warned of this in writing and yet continues to operate contrary
to the contractual agreement.
If the tenant is responsible for the termination of the agreement he is
liable to the landlord for all losses caused by the termination, especially
those of rent, ancillary costs and VAT.
(S) 19 Sentence 3 KO remains unaffected. For the duration of this liability
the tenant absolves the landlord from all third party claims arising from
the notice of termination according to (S) 13. In this case the landlord is
obliged to resume his letting activities and interview suitable new
tenants.
(S) 14
Concluding Provisions
1. In the event of a sale of the rented property, the liability of the
landlord, as set out in Section 571 Paragraph 2 of the German Civil Code,
is out of the question.
2. The present contract comprises, together with the Appendices 1-6, all
agreements. Any alterations or additions to this contract have to be agreed
in writing. This also applies to the setting aside of the written form
itself. Verbal collateral agreements are not affected.
If a present or future item in this contract is, or shall prove to be,
partly or wholly unworkable, null or inoperable, the validity of the rest
of the contract is unaffected thereby. The same applies if after conclusion
of the contract a loophole in it has to be further amended.
The parties to the contract will replace the unworkable or null condition
or loophole, with a legally and commercially effective alternative
condition, which reflects the general purpose of the contract.
3. The contractual parties mutually undertake at all times to make every
endeavour and declaration necessary to satisfy the legal written
requirements, especially relating to the conclusion of supplementary
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and amended contracts, and until then not to prematurely terminate the
tenancy agreement under the pretence of invoking the non-compliance of the
legal written form. The contractual parties are agreed that any non-
compliance with the written form that deviates from Section 125 Clause 2 of
the German Civil Code does not affect the validity of the contract.
(S) 15
Jurisdiction
Jurisdiction and place of performance is Hamburg.
Hamburg............................
/s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ /s/ [illegible]
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Cybernet Deutsche Immobilien Fonds
Internet-Dienstleistungen AG Aktiengesellschaft
-Tenant - - Landlord -
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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