EXHIBIT 10.43
L E A S E
between
Airport-Center
KGHP Xxxxxxxxxx XxxX & Xxx
Xxxxxxxx 00
00000 Xxxxxxx
-Lessor-
and
Star Telecommunications
Deutschland GmbH
Xxxxxxxxxxxxxxxx 0 - 00
00000 Xxxxxxxxx xx Xxxx
-Xxxxxx-
PRELIMINARY STATEMENT
Lessor has erected a building (Airport Center) with offices, service areas,
halls and basement as well as with park, traffic and green areas on the
premises in Hamburg, Langenhorner Chaussee/Ecke Flughafenstrasse.
Subject to this preliminary statement, the two parties agree as follows:
TABLE OF CONTENTS
Preliminary Statement
Section 1 Leased Property
Section 2 Use of Leased Property, Non-competitive Clause
Section 3 Duration of Lease
Section 4 Amount of Rent and Incidental Expenses
Section 5 Value Guarantee
Section 6 Insurance
Section 7 Structural Design and Alterations
Section 8 Liabilities, Maintenance of Leased Property
Section 9 Entering of Leased Property by Lessor
Section 10 Termination of Lease
Section 11 Security for Rent
Section 12 Subleasing
Section 13 Right of Exceptional Termination
Section 14 Final Clauses
Section 15 Place of Jurisdiction
APPENDICES: 1 - Suretyship (binding model)
2 - Debit Order (model)
3 - Business Description
4 - Building Specification
5 - Planning Documents
6 - Composition of Rent
SECTION 1
LEASED PROPERTY
1. Lessor grants Lessee a lease of office and hall/ service areas (BGF)
including outside areas as well as 9 outside parking spaces (Leased
Property) located in the Airport Center, building part L (Langenhomer
Chaussee 42).
General areas, as for instance foyer and elevator anterooms, are
proportionately included in the lease.
Airport Center and the Leased Property are known to Lessee.
2. Location, size and design of the Leased Property can be taken from the
Planning Documents attached, signed by the two parties
[plan no. 1, 2 and 3 (Appendix 5)], and from the Building Specification
(Appendix 4), both of which form part of this lease. The leased building
areas are to be considered as agreed and are marked in red outline, the
leased parking spaces and outside areas are marked in green outline.
3. Lessor reserves the right to alter the overall planning of the Airport
Center.
SECTION 2
USE OF LEASED PROPERTY, NON-COMPETITIVE CLAUSE
1. a. Lessee shall make use of Leased Property only as offices, service
areas or for storing as well as for the operation of line-based
telecommunication systems according to the Business Description
(Appendix 3) forming part of this lease. The outside areas may not
be used for storing purposes.
Deliveries of storage material through the entrance area is
possible only for products, the size and type of which is
reasonable for an office operation.
A change of use is subject to Lessor's prior written consent.
Consent may not be withhold, unless the change of use has negative
consequences for Lessor, be it economic or other. Possible
declarations of consent are made - even if not explicitly stated -
subject to the required official permits.
Any expenses caused by particular requirements, activities or
products on the part of Lessee (e.g. easily flammable products,
materials hazardous to ground water, operation of service,
exhibitions, trainings, air-conditioning etc.) and by the
respective installations or the resulting obligations imposed by
authorities, trade associations or by insurance companies, are
to be borne by Lessee.
Lessee shall procure the permits required for its business and
shall comply with possible obligations and conditions.
b. On the part of Lessee, no hazardous materials (e.g. explosives,
toxicants) may be stored or processed and no activities may be
performed implying an aggravation of the insured risks or
contradicting official permits, as for instance provisions of the
zoning plan.
No objects whatsoever may be stored and no works may be performed
on part of Lessee outside the Leased Property, i.e. in and on the
commonly used rooms and areas - including those leased
proportionately - and in the leased delivery area. Vehicles of
Lessee, its visitors and its employees may only be parked within
designated spaces. Other vehicles may only stay temporarily on the
premises for the time required for loading and unloading. According
to official requirements, escape routes are to be kept clear.
On the occasion of any bigger events (e.g. training courses),
lessee is obligated to expressly point out to its visitors that
they may park their cars only in the leased parking lots or
outside the Airport Center. On Lessee's failure to comply with this
provision, Lessor may claim from lessee a reasonable compensation
without prejudice to its other rights.
2. Lessee shall inform Lessor immediately in writing of each and every
change with regard to Lessee which is of importance in connection with
this Lease (in particular change of legal structure, business license,
transfer of the company's domicile).
3. Lessee shall use the sanitary facilities on the first floor together
with the other lessees.
4. Lessee is entitled to share the use of the elevator. Lessee is obligated
to comply with the elevator regulations in all points. In case of an
operational breakdown, Lessee shall not have the right to claim
uninterrupted service. A control of the elevator is not provided.
5. Lessor does not grant Lessee any protection against competition with
respect to Lessee's area of business.
6. Lessee knows that no gas-driven vehicles may be parked on interior parking
lots lease be Lessee.
SECTION 3
DURATION OF LEASE
1. The Lease begins on January 1st, 1998 (Beginning of Lease). It is
contracted for a duration of 10 years. The period of lease will end on
December 31st, 2007.
After termination of the agreed duration of lease, the Lease is renewed
for another 2 years, unless terminated by one of the contracting parties
observing a notice period of one year.
Section 568 BGB (Civil Code) is not applicable.
2. Leased Property is handed over to Lessee ready for occupation. Ready for
occupation means to the two parties, that the leased property is completed
according to the planning documents and the building specification, so
that occupation and contractual use by the lessee according to Section 2,
sub-paragraph 1 of this contract is possible. Defects or remaining
structural work, including construction of the exterior grounds, which do
not essentially hinder occupation and use are not contradictory to the
completion of readiness for occupation as defined by this Lease.
On the day of completion of readiness for occupation, the Leased Property
is handed over to lessee for use. The parties draw up a take-over
protocol, determining possible defects of the leased property with binding
force and covering remaining structural work. Lessor shall remedy or
execute these without delay according to a defined schedule. Lessee shall
allow work designed to remedy defects during its business hours as
well.
Prospectively, Lessor shall have the leased object ready for occupation
by lessee, except for remaining work on exterior grounds due to bad
weather, by January 1st, 1998 (date of completion of readiness for
occupation).
Lessee shall submit its schedule for the finishing works not later than
November 15th, 1997. Any delays due to special finishing work on
Lessee's request or delayed information to Lessor are on Lessee's expense.
In the case of delays in completion of readiness for occupation caused by
requests for alteration made by Lessee after signing this contract of
lease, the Lease and liability to pay rent, will begin on the day, on
which the handing over could have taken place without the request for
alteration.
Delays in completion of readiness for occupation, in particular due to
strikes, lock-out, war, force majeure, fire and to days of bad weather
as approved by the Arbeitsamt (government employment office), are not
within Lessor's liability.
SECTION 4
AMOUNT OF RENT AND INCIDENTAL EXPENSES
1. The flat-rate amount of rent per month for the leased object is DM
20,288.24 (IN WORDS: TWENTY THOUSAND TWO HUNDRED AND EIGHTY-EIGHT 24/100TH
DEUTSCHE XXXX) plus advance on the incidental expenses and respective
statutory value added tax (at present 15%), in the following referred to
as gross rent.
The rent for the month of May 1997 is reduced by DM 1,441,20 (IN WORDS:
ONE THOUSAND FOUR HUNDRED AND FORTY-ONE 20/100TH DEUTSCHE XXXX).
Lessee represents and warrants to be entitled to complete input tax
deduction. In the case of a change of this circumstance, causing the
elimination of the preconditions for Lessor's turnover tax option under
Section 9 sub-paragraph 2 of the Turnover Tax Law UStG, Lessor is no
longer bound to list the turnover tax separately, with the consequence
that the previous gross rent is paid as monthly flat-rate amount of rent
in future. If the absence of the precondition for the option becomes
known later, Lessor shall be entitled to rectify the invoices made out
so far in such a way that the contractual gross rent paid so far
subsequently corresponds to the monthly flat-rate rent. In the case of
absence of the precondition for option, compensation is reserved. On
Lessor's demand, Lessee is obligated to submit a corresponding
confirmation given by Lessee's tax adviser.
Payment of gross rent is to be effected, post and expenses paid, on an
account to be indicated by Lessor, not later than the 3rd work day of
each month.
With respect to punctuality of payment, receipt of payment by Lessor is
decisive. On delay in payment, default interest of 4% above the respective
discount rate of the Deutsche Bundesbank as well as xxxxxxx costs to the
extent of DM 10.00 are agreed. The assertion of further damages caused by
delay is reserved.
Lessee shall xxxxx Xxxxxx a direct debit authorization for the gross rent
corresponding to Appendix 2 to this contract of lease, not later than one
month before beginning of lease.
2. Rent and value added tax are to be paid from May 1st, 1998. Incidental
expenses and value added tax are to be paid from date of completion of
readiness for occupation according to Section 3, sub-paragraph 2 of this
contract.
3. The accruing incidental expenses are to be paid separately by Lessee. In
detail, the following shall apply in this respect:
a. Subject to official regulations, domestic waste collection is
effected by Lessor and apportioned with the incidental expenses to
the individual lessees. All other kinds of garbage disposal are
effected by Lessee subject to statutory provisions, each and every
accruing garbage collection fee being paid by Lessee directly to the
corresponding authority. In the case that Lessee effects the garbage
disposal itself, Lessee undertakes to use only closed containers for
garbage disposal. In case a change of official regulations, Lessor
reserves the right to handle domestic refuse collection like the
above mentioned types of garbage.
b. Lessee pays fees and costs of its consumption of gas, long-distance
energy and other energy consumption as well as counter fees and
installation costs directly to the energy supplier.
c. Lessee pays fees and costs of its consumption of gas,
long-distance energy, water and hot water as well as counter fees and
installation costs.
Operation costs of the central heating system are distributed
according to the regulation on heating expenses, with 70% of the
costs being apportioned based on consumption.
d. If applicable, Lessee shall bear the proportionate operating and
maintenance costs with respect to the overall property, in particular
for:
General power, exterior lighting, lighting of underground car park,
parking lot and multistory car park; garbage disposal; canal dues;
cleaning of street, footpath, multistory car park, underground car
park, parking lot and facade as well as cleaning and maintenance of
the other made up exterior areas, including snow and ice removal;
cleaning of sanitary facilities, foyer, stairwell and windows as well
as cleaning of the commonly used toilets and their repair;
elimination of pests; chimney-sweep; janitor; property tax;
maintenance and repair (including examinations by TUV) of sanitary
and heating facilities, of air-conditioning and electric facilities,
of windows, doors, and gates, of drainage lifting facilities
(including storm water reservoir), of the multistory car park,
underground car park, barrier and parking routing facilities, of smoke
alarms and emergency power generating units, of transformers,
lighting guard, of elevators, emergency call facilities, of the fire
alarm unit, of the sprinkler system, of the barrier and video system,
the code card system, safety lighting, of the roof, of smoke and
warmth outlet systems, of hydrants and fire extinguishers, of blinds,
of water heating systems and hot-water supply systems, building
insurance (covering fire, storm and tempest, damages caused by water
from the main, extended coverage, glass in general areas) and
building and houseowner's liability insurance; upkeep, maintenance,
and design of green areas, hydrocultures, and of the commonly used
areas of building, street and exterior; safeguarding of traffic,
security service; doorman's service; property administration (the
latter amounting to 4% of the rent, even if administration is
effected by Lessor). Proportionate repairs exceeding the amount of
10% of the annual gross rent (Section 4, sub-paragraph 1) per
calendar year are not to be borne by Lessee.
e. If the fees and expenses listed under c. and d. are directly
assignable to Lessee, they will be allocated this way. If not, Lessee
will be charged on a pro-rata basis. Lessee's share of the rented
areas of the whole building or of the respective part of the building
shall be taken as the key to distribution of proportionate expenses.
Key to distribution of costs with respect to multistory car park or
to underground car park shall be Lessee's share of leased parking
spaces in the multistory car park or underground car park. Lessee's
share of the general areas shall be taken as the key to distribution
of costs with regard to general areas leased on a pro-rata basis.
Lessor may change the key to distribution at its reasonably exercised
discretion, if this will lead to a more objective cost allocation.
Lessor is entitled to demand monthly prepayment of all prospective
incidental expenses, provided they are not to be paid by Lessee
directly. Settlement of accounts for the calendar year is effected
once a year. On termination of lease during an accounting period,
settlement of accounts is not effected in the meantime but within the
scope of the general settlement of accounts. On this occasion,
prepayments for incidental expenses are set off.
Possible compensation payments are to be effected on
the date of rent payment following the settlement of
accounts. Vouchers concerning the respective
settlement of accounts of incidental expenses may be
inspected by Lessee in Lessor's offices during usual
working hours within six weeks after sending off the
statement of accounts of incidental expenses.
Lessor reserves the right to review the monthly
prepayment of incidental expenses on a regular basis
and, if necessary, to increase them due to a
substantiated increase in costs and to demand single
prepayments for higher amounts of incidental expenses,
payable at the following rent payment date. For the
time being, prepayment of incidental expenses to be
paid by Lessee from handing over date on, is fixed at
DM 3,327.80 (IN WORDS: THREE THOUSAND THREE HUNDRED
AND TWENTY-SEVEN 80/100TH DEUTSCHE XXXX) per month plus
statutory value added tax (at present 15%).
If public fees whatsoever or any other incidental
expenses in connection with Lessee's business or with
the leased property become due after signing this
contract of lease, Lessor shall be entitled to demand
corresponding payments from Lessee from handing over
date on.
4. With respect to claims for rent or incidental expenses, no
rights of setoff, rent reduction nor rights of retention
can be claimed unless Lessee's claim is undisputed or has
become res judicata.
5. Lessee shall not exercise a possible right of setoff, rent
reduction or retention because of an undisputed or res
judicata counterdemand, unless Lessee has announced such
intention to Lessor in writing not later than one month
before the next rent payment concerned is due.
6. If Lessee fails to pay the rent, the incidental expenses
and/or the value added tax on time, possible payments will
be set off against claims soon coming under the statute of
limitations, then against the rent and other debts as for
instance costs and interests.
SECTION 5
VALUE GUARANTEE
1. The rent according to Section 4, sub-paragraph 1, shall
increase or decrease corresponding to changes of the overall
cost-of-living index after expiry of 12 months after
beginning of lease. The monthly price index for the cost of
living of all private households in Germany as determined by
the Statistisches Bundesamt (Federal Statistical Office) in
Wiesbaden is authoritative. The parties agree on the
overall cost-of-living index in the month of signing the
contract as figure of reference on the basis of 1991 = 100.
2. If the above value guarantee gives rise to a change of rent,
the clause will become applicable again after expiry of 12
months according to the provision of the previous paragraph,
and the rent will be adjusted correspondingly.
3. The parties know that this value guarantee is to be approved
by the competent Land central bank. Approval is to be
obtained by Lessor.
If the Land central bank denies its approval, the parties
are bound to look for another solution as close as possible
to the purpose intended and permitted by statute.
4. If the cost-of-living index 1991 = 100 can no longer be
determined, a transition by conversion to the basis of the
next published cost-of-living index should be effected. In
other respects, the above procedure remains unchanged. This
applies to each and every later conversion of the
cost-of-living index to another base year.
SECTION 6
INSURANCE
1. The usual building insurance (covering fire, storm and
tempest, damages caused by water from the main, extended
coverage, glass in general areas) and building and
houseowner's liability insurance are effected by Lessor at
Lessee's expense.
2. Installations, finishing works or rebuilding of the Leased
Property by Lessee, exceeding those stated in the Planning
Documents and the Building Specification, are not covered by
the building insurance, unless notified to Lessor by Lessee
in writing before beginning of the respective installations,
finishing works or rebuilding, requesting an increase of
insurance coverage. The expenses of such installations,
finishing works or rebuildings have to be proved by Lessee
by presenting corresponding invoices. Lessor is entitled to
consult a surveyor at free choice in order to determine the
value of the corresponding installations, extensions or
rebuildings. All the costs involved are borne by the two
parties at equal shares. The additional insurance for the
respective installations, finishing works or rebuildings of
the Leased Property by the building and houseowner's
liability insurance is not given until Lessor has received
the respective written confirmation of cover by the
corresponding insurance company. The cost of additional
insurance shall be borne by Lessee.
Lessor has not effected a vehicle and luggage insurance for
the cars parked in the Airport Center.
3. For the period of lease, Lessee is bound to effect and
maintain at its own expense each and every insurance
necessary and common for its business, like for instance a
manufacturer's liability insurance, a burglary and
housebreaking insurance and, if the Leased Property is not
used for office purposes only, an environmental liability
insurance. It is, furthermore, within Lessee's
responsibility to ensure sufficient insurance coverage
against damages of fittings and other objects brought in.
Lessor is entitled to demand a corresponding written
confirmation by the insurance company as a proof that these
insurances are duly effected and maintained.
4. It is pointed out to Lessee that it may include the
insurance of indemnity obligations against Lessor into its
manufacturer's liability insurance.
SECTION 7
STRUCTURAL DESIGN AND ALTERATIONS
1. The Leased Property is built according to the Planning
Documents attached. Lessor reserves the right to perform
structural alterations of the Leased Property subject to
official or statutory conditions for the purpose of
improvement, for reasons of an economic time schedule or
construction, as well as to deviate from the Planning
Documents and Building Specification not causing a decrease
in value.
Lessor shall notify Lessee, if the Leased Property is essentially affected
by these measures.
2. Lessee's requests for alterations regarding finishing works and design of
the Leased Property put forward during construction are taken into
consideration by Lessor only, if these requests do not result in essential,
in particular structural modifications of the Leased Property and do not
cause the building costs to be higher than estimated.
As far as Lessee's requests for alterations result in higher building costs
or prolong the construction time, Lessor will essentially consent to these
requests for alterations, if the type of the Leased Property remains
basically unchanged by the alterations and if Lessee bears the additional
costs, including but not limited to any loss of rent caused by the delay in
construction with a time limit, previously to be agreed by the contracting
parties.
If Lessee's requests for alterations cause any additional costs in
connection with planning and engineering, these shall be borne by Lessee.
3. Lessee is entitled to decorate the interior of the Leased Property at its
own expense and according to its own needs. Essential structural
modifications, however, are subject to Lessor's prior written consent. The
required official permits are to be procured, if possible, directly by
Lessee; in any case, the costs of planning and permits are to be borne by
Lessee.
4. During the Period of Lease, Lessee is entitled to effect structural
modifications of the Leased Property, which it considers to be necessary,
at its own expense, unless these modifications require changes of statics,
affect wires or pipes of the building or essentially change the character
of the Leased Property. The implementation of such alterations is subject
to Lessor's prior written consent which is to be obtained by submitting
plans. Lessor will grant its consent, provided the alterations will not
have any adverse effects, economic or other, on the leased property.
Lessee shall bear all the costs accrued by the structural alterations
effected by Lessee and the respective maintenance and repair, including but
not limited to costs for permits and auditing plans, which have to be sent
to Lessor immediately on completion of such works. Lessee indemnifies
Lessor from all conceivable liabilities in connection with the structural
alterations.
This shall include, that Lessee indemnifies Lessor for the loss of possible
warranties against defects with regard to the building workers involved.
It is possible, that structural alterations are subject to an official
permit for change of use. Any costs in connection with the change of use,
regardless whether they are caused by the structural alterations or by
complying with official obligations, are to be borne by Lessee.
5. Changes to the outer appearance of the Leased Property - in particular to
the exterior facade, window design, made up exterior and green areas - are
subject to Lessor's prior written consent which is at Lessor's complete
discretion. This applies as well to installations in connection with the
installation of alarm and/or fire alarm systems.
6. Lessor will xxxx the parking spaces leased by Lessee on Lessee's expense,
using signs chose by Lessee.
7. In front of each entrance Lessor has put up a plate indicating the
companies. On the spaces destined, Lessee is entitled to attach its company
name/logo in accordance with Lessor. The cost of labeling is to borne by
Lessee.
Exterior advertising on the part of Lessee is not permitted.
8. In the hall, Lessor shall have a suspended ceiling installed [lowered area
approx. 500 m(2), type Odenwald-mineral fiber plate ceiling (narrow edge
3)].
9. Subject to sub-paragraphs above, Lessee shall be given the opportunity to
establish line-based connections to alternative suppliers of
telecommunications infrastructure.
SECTION 8
LIABILITIES, MAINTENANCE OF LEASED PROPERTY
1. It is within Lessee' responsibility to treat the Leased Property with care
and to maintain its working order. Damages to the Leased Property or
necessary works within the scope of property management have to be reported
to Lessor in writing or via telefax immediately after knowledge has been
obtained.
2. It is Lessee's obligation to make the Leased Property safe for persons or
vehicles and it is reliable for each and every culpable breach of this
duty. Lessee releases Lessor from all third party claims originated by a
breach of the obligation to make premises safe for persons or vehicles.
As from beginning of Lease, Lessee is liable to Lessor for all damages
culpably caused by members of its business, its visitors and guests, by
people engaged by Lessee (workmen, deliverymen) as well as by sublessees
and their auxiliary staff. Lessee is liable, in particular, for such
damages, which are caused by negligent treatment of water pipes, gas lines,
electric lighting circuits or power cables, by leaving doors, gates and
windows open, by insufficient precautions against frost damages or by
failure to comply with duties incumbent on Lessee according to this
contract or to official and statutory provisions (lighting, obligation to
strew sand or salt in case of snow or icy conditions etc.). It is incumbent
on Lessee to prove that such culpable conduct was not the case.
Lessee shall inform Lessor immediately about any loss of keys of the lock
system and shall indemnify Lessor for any damages hereby caused.
Lessor is not liable for any damages other than those covered by an
existing building and houseowner's liability insurance, unless in case of
intention or gross negligence.
Lessor is not liable for any damages suffered by Lessee in connection with
the use of or due to defects of the Leased Property, unless caused
deliberately or with gross negligence on the part of Lessor. Lessee shall
release Lessor from all third party claims, asserted by third parties
against Lessor because of defects of the Leased Property, unless caused by
Lessor deliberately or with gross negligence.
3. Lessee is obligated to perform interior decorative repairs (for example
interior painting, wallpaper, floor and floor coverings, inner and other
doors) every 3 years thus maintaining the Leased Property in a reasonable
and well looked after condition. Furthermore, Lessee is obligated to
ensure, at its own expense, that doors, gates, windows, blinds, electric
and sanitary facilities, locks, fire extinguishers, water taps, wash basins
and sinks and similar facilities, including feeding lines and drainage, are
always maintained in working order. Additionally, Lessee is obligated to
ensure, at its own expense, that broken glass panes, mirrors or other
objects of glass and defect lighting fixtures of the Leased Property are
replaced without delay. Lessee is further obligated to always maintain its
exterior, traffic and park areas in working order.
Lessee is also liable for all damages of the leased parking spaces and
their surroundings, for example soiling of floor and walls by leaking oil,
soot, or exhaust gases culpably caused by itself, its visitors, guests or
by individuals engaged by Lessee. Lessee is obligated to have the
corresponding necessary maintenance work professionally executed.
For other minor repairs, Lessee shall bear the costs up to DM 500 plus
statutory value added tax (at present 15%) in each individual case, not
exceeding, however, an amount according to Section 4, sub-paragraph 3 d.
The parties agree that for January 1st of each calendar year, this sum will
be increased for the following year corresponding to the percentage
increase of the total cost-of-living index according to Section 5,
sub-paragraph 1, sentence 1 and 2.
4. It is incumbent on Lessee to keep the Leased Property clean.
Maintenance of the green areas and cleaning and repair of made up exterior
areas of the Airport Center are effected by Lessor or its agents. Lessee
shall ensure that these areas are easily accessible for the execution of
these works.
5. Lessee may not claim damages or reduction of rent because of a defect of
the Leased Property or because of a breakdown of the operation of the
building or its technical facilities, unless Lessor is provably responsible
for the defect as a consequence of intentional or gross negligent conduct.
This applies to each and every claim of Lessee subject to Section 538,
sub-paragraph 1 BGB (Civil Code). It is expressly referred to Lessee's
liability to effect an insurance of its fittings brought in according to
Section 6 of this contract.
6. Lessee is aware of the fact that the Airport center described in the
Preliminary Statement is used by other lessees as well. If necessary, house
regulations determining the limits of rights and obligations of individual
lessees will be agreed together with the other lessees and then become part
of this contract.
7. Lessor may perform structural works which become necessary for the
development, maintenance or improvement of the real estate or the Leased
Property or for averting imminent dangers or for elimination of defects,
even without Lessee's consent.
Repairs and structural alterations of the Leased Property, which are not
necessary but appropriate, may be performed with Lessee's consent, if these
works only marginally interfere with Lessee.
8. When installing heavy equipment (machines etc.), Lessee shall ask Lessor
about the carrying capacity of the floors. It has to satisfy itself
regularly and carefully that the floors' carrying capacity according to
Building Specification is not exceeded. On failure to comply with this
provision, Lessee is liable for all damages and consequential damages
hereby caused and is obligated to release Lessor from all possible third
party claims arising from this disregard.
9. Reduction of rent and damage claims on the part of Lessee based on
immissions or obstructions of the accesses to the building beyond Lessor's
control or on works according to sub-paragraph 7 above or on construction
work performed by third parties outside the building, are excluded.
SECTION 9
ENTERING OF LEASED PROPERTY BY LESSOR
1. After prior arrangement, Lessor or its agent may enter the Leased Property
during business hours in order to determine the necessity of possible
mending or to execute repair and maintenance work. On the occasion of such
inspections or works, Lessee is entitled to send an accompanying person
along. Lessee already now declares its consent to possibly necessary works
on feeding lines on part of the other lessees of the whole property. This
consent also applies to the case that other lessees have to effect works on
the feeding lines.
In cases of imminent danger, Lessor may enter or force an entry into the
Leased Property at all hours of the day and night.
Access to skylight, service facilities and inner courtyards are to be
provided at any time.
2. If Lessor intends to sell the real estate, Lessor may enter the Leased
property at usual times after arrangement with Lessee. On Sundays and
public holidays, however, this shall require Lessee's express
authorization.
3. On termination of Lease, or if the existing Lease is not renewed 12 months
before expiration of Lease at the latest, the previous paragraph shall
apply to the entering of the Leased Property by Lessor with a new
prospective lessee.
SECTION 10
TERMINATION OF LEASE
1. On termination of Lease, the Leased Property is to be returned in an
expertly renovated and repaired condition and together with all the keys.
This obligation shall be in force irrespective of the fact whether or not a
periodical renovation would have been due.
If Lessee fails to effect the incumbent renovation works until the end of
Lease, Lessor may commission the execution of the work on Lessee's expense
after having once granted a grace period. In this case, Lessee shall be
liable for any damages suffered by Lessor because of the delayed execution
of the work (in particular loss of rent).
2. Facilities (e.g. controlling equipment, communication facilities, alarm
systems etc.), including advertising facilities installed by Lessee, may or
- on Lessor's request - must be removed.
If Lessee takes the fittings with it, it shall restore the former state at
its own expense, if so required by Lessor.
Lessee will have the suspended ceiling in the hall, which had been
installed on its request, expertly removed at its own expense.
3. In the case that Lessee has performed structural alterations, Lessor may,
at its option, demand either the restoration of the original state free of
charge or reimbursement of the costs accrued by such restoration. Lessee's
compensation for expenses caused by structural alterations is excluded at
any rate, regardless whether or not Lessor demands restoration of the
original condition. If structural alterations are not removed, these shall
pass into Lessor's ownership without requiring an indemnification nor a
compensation to be paid to Lessee.
4. On termination of Lease, the objects installed by Lessor remain within the
Leased Property.
5. A return of the Leased Property prior to termination of Lease is subject to
Lessor's express prior written consent.
SECTION 11
SECURITY FOR RENT
1. Not later than 2 weeks prior to the handing over of the Leased Property,
Lessee is obligated to procure the absolute bank suretyship of a big
German, American or Japanese bank resident in Germany corresponding to
Appendix 1 to this Lease, amounting to three month's rents plus advance
payments of incidental expenses and the respective statutory value added
tax (at present 15 %) plus an amount of DM 375,000 plus statutory value
added tax (at present 15 %), covering each and every financial obligation
on part of Lessee subject to this contract. If finishing works on
Lessee's demand are to be effected by Lessor, the suretyship is to be
submitted prior to placing the order for the finishing works. Lessor
shall inform Lessee about the date of placing the order.
The guarantor is obligated to pay upon Lessor's first demand. Guarantor
waives its right to defense of the surety, due to Lessee and guarantor
under the law, in particular defenses of defeasibility, of offset, and of
failure to pursue remedies (Sections 768, 770, 771 BGB, Civil Code), and
the possibility of depositing. Lessor is entitled, but not obligated, to
satisfy its claims with the suretyship.
2. In the case that the suretyship is not provided within the period
stipulated, the Leased Property will not be handed over. Lessee is
responsible for any delays due to such circumstance; Lessee is not
released from the obligation to pay rent according to Section 4,
sub-paragraph 1.
On delay in procuring the suretyship on part of Lessee, Lessor may demand
that instead of the suretyship, Lessee has to procure a security of the
same amount in cash which Lessor is not to pay interest on.
3. If Lessor makes use of the suretyship, Lessee shall be obligated to
replenish the suretyship upon Lessor's first demand.
4. In the case of changes with respect to rent, monthly prepayment for
incidental expenses or to the statutory value added tax, suretyship is to
be adjusted to the change on Lessor's demand within one month after the
corresponding effective date.
5. The obligation of suretyship terminates on Lessor's return of the surety
bond to guarantor. This return is to be effected as soon as each and
every financial obligation of Lessee with respect to the Lease are
fulfilled after termination of Lease.
6. With respect to the security in cash (Section 11, sub-paragraph 2,
sentence 3), the previous provisions as to the suretyship shall apply
accordingly.
SECTION 12
SUBLEASING
1. Lessee may sublease the Leased Property, in full or in part, subject to
Lessor's prior written consent and provided that sublessee uses the
Leased Property within the scope of this contract of lease - in
particular with regard to Section 2, sub-paragraph 1 - and that sublessee
assumes all obligations resulting from this contract. On subleasing,
Lessee remains responsible to the full extent, including but not limited
to the payment of rent.
Lessor points out that it will deny its consent to subleasing or
permission of use of lease by third parties, unless the third party
commits itself to use the Leased Property, which is subject-matter of its
contract with Lessee, exclusively for sales allowing input tax deduction.
In other respects, Lessor will refuse its consent to subleasing for
substantial reasons only.
If Lessee realizes a higher amount of rent than agreed with Lessor, the
excess amount is due to Lessor. Partial areas within the hall (technical
areas) are expressly exempt from this provision.
On denied consent, Lessee has no right of termination according to Section
549, sub-paragraph 1 BGB (Civil Code).
2. Lessee already now assigns its claims against sublessee with regard to
rent payments to Lessor, granting Lessor the right to demand direct
payment of subrent to Lessor.
SECTION 13
RIGHT OF EXCEPTIONAL TERMINATION
Lessor shall have the right to terminate the lease with immediate effect
without observing a period of notice, if
a. Lessee has been in delay with rent payment or a considerable part of the
rent payment for two subsequent payment dates,
or if Lessee is in delay with rent payments to the extent of an amount
corresponding to two month's rent payments for a period of time covering
more than two dates;
b. Lessee or sublessee use the Leased Property in breach of contract or
permit the use of Leased Property to third parties without authorization
despite written caution by Lessor;
c. an administrator is appointed to realize and distribute Lessee's assets
or composition proceedings are instituted or on dismissal of a petition
in bankruptcy for lack of assets;
d. Lessee considerably molests the other lessees despite written caution;
e. Lessee is not granted the official permits necessary for its business or
if these official permits are withdrawn. Notice of termination may not be
given until Lessee has received three cautions and continues its conduct
in breach of contract.
If Lessee is responsible for the reason for the termination, Lessee shall be
liable against Lessor for the total damage caused by the termination,
including in particular, but not limited to, loss of rent, of incidental
expenses and of value added tax.
Xxxxxxx 00, xxxxxxxx 0 XX (Xxxxxxxx Xxx) remains unaffected. For the duration
of this liability, Lessee has to release Lessor from all third party claims
originating from termination according to Section 13. In this case, Lessor is
obligated to take up leasing activities without delay and to examine
appropriate subsequent lessees.
SECTION 14
FINAL CLAUSES
1. In the case of the Leased Property being sold, Lessor's liability
according to Section 571, sub-paragraph 2 BGB (Civil Code) is excluded.
2. The contract on hand and the Appendices 1 to 6 contain all provisions
agreed. Modifications and amendments to this contract must be made in
writing. This also applies to the annulment of the written form itself.
No verbal supplements have been agreed.
If a present or future provision of this contract is or becomes
ineffective, inoperative or unpracticable, the validity of the other
provisions of this contract remain unaffected. The same applies, if a gap
to be filled becomes evident after signing this contract.
The parties shall replace the inefficient or void provision or gap to be
filled by an efficient provision, corresponding to the legal and economic
content of the inefficient or void provision and to the overall purpose
of this contract.
XXXXXXX 00
XXXXX XX XXXXXXXXXXXX
Xxxxx of jurisdiction and place of performance is Hamburg.
Hamburg,........
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Star Telecommunications Airport-Center
Deutschland GmbH KGHP Gewerbebau GmbH & Cie
-Lessee- -Lessor-
REPRESENTED BY:
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