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LEASE AGREEMENT
between
Xxxxxxx Immobilien & Services GmbH with registered Office situated at
Xxxxxxxxxxxxxxx 00, 00000 Xxxxxxxxx, Xxxxxxx Xxxxxxxx of Germany
hereinafter called "Xxxxxxx" or "Landlord" and
Instron Xxxxxxx Testing Systems GmbH with registered Office situated
Xxxxxxxxxxxxxxx 00, 00000 Xxxxxxxxx, Xxxxxxx Xxxxxxxx of Germany
hereinafter called "IST" or "Tenant"
Whereas, IST has acquired certain assets and related liabilities of
Xxxxxxx'x affiliated company Xxxxxxx Xxxx GmbH, Structural Testing Business
pursuant to a Joint Venture Agreement dated October 25, 1996;
Whereas, IST has conducted its Structural Testing Business at its
headquarter at Xxxxxxxxxxxxxxx, 00000 Xxxxxxxxx since such date;
Whereas, Landlord is the owner of these premises;
Whereas, IST has let from Landlord office and factory facilities at the
Landlord's premises located in Darmstadt pursuant to a Lease Agreement of
October 25, 1996;
Whereas, therefore IST will continue to lease from Landlord these
office and factory facilities in accordance with the terms and conditions
hereafter set forth.
Landlord and Tenant hereby agree with each other as follows:
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1. PREMISES AND PARKING LOTS
Landlord hereby leases and lets to Tenant, and Tenant hereby takes and
hires from Landlord, upon and subject to the terms, conditions,
covenants and provisions hereof, certain facilities situated at
Xxxxxxxxxxxxxxx, 00000 Darmstadt, more particularly described on
EXHIBIT "A" annexed hereto and made part hereof (all the foregoing
hereinafter sometimes referred to. as the "Leased Premises" and
sometimes referred to as the "Premises") and Tenant is entitled to use
a certain amount of parking lots, situated at the Premises or nearby.
The number and the situation of the parking lots is.
listed and particularly described in EXHIBIT "B".
2. TERM
The initial term of this lease shall be for a period of five (5) years
from April 1, 1998 and shall automatically be extended for subsequent
five year periods unless terminated by Landlord with a notice period of
three (3) years or by Tenant with a notice period of one (1) year.
3. RENT
(a) Tenant covenants and agrees to pay Landlord for the Leased
Premises without previous demand therefor, during the term of
this Lease the basic rent at the rate per annum equal to the
sums as set forth on EXHIBIT "C" annexed hereto and made a
part hereof.
For the first period of five years the Basic Rent is reduced
by a discount of DM 9.500,-- per month.
Should the Index for an average four person employee household
with average income ("Vier Personen Arbeitnehmer-Haushalt mit
durchschnittlichem
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Einkommen") with the base year 1991= 100 as established by the
German Statistic Authority ("Statistisches Bundesarnt")
increase or decrease by more than ten (10) points the parties
agree to enter into good faith negotiations for an adaption of
the rent in order to reflect such inflation. If the parties do
not reach an agreement within 90 day from the beginning of
negotiations the parties will forward the matter to an
independent arbitrator whose decision shall be final and
binding.
All basic, rent per annum shall be due and payable by Tenant
in advance equal monthly installments on the third day of each
and every calendar month during the term of this Lease and
shall be payable by bank transfer to Landlord's Bank Account.
BANK: LANDESBANK HESSEN-TH[UPSILON]FIRINGEN, DARMSTADT
BANK CODE: 508 500 49
ACCOUNT NO.: 5010559002
(b) As herein used the term "rent" shall be deemed to include the
above said rent and the Utility Expenses payable by Tenant to
Landlord hereunder Section 5.(a).
4. USE OF PREMISES
The Leased Premises may be used for office and manufacturing, assembly
and testing purposes.
5. TAXES AND UTILITY EXPENSES
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(a) Tenant shall, during the term of this Lease pay simultaneously
as an "Additional Rent" and when rent shall become due and
payable pursuant to Section 3.(a) on a monthly basis the
Utility Expenses, such as rates and charges for cold water,
hot water, steam, heat, gas, electricity power, insurance
fees, taxes and other services and services furnished to the
Leased Premises or occupants thereof during the term of this
Lease conclusively listed by category in EXHIBIT "D" annexed
hereto and made a part, hereof. Tenant or Landlord may
terminate certain or all of the following services:
Hausmeister, Gebauddereinigung und Werksreninigung furnished
to the leased Premises or occupants thereof with a notice
period of one (1) year.
(b) During the term of this Lease for the period covering each
calendar year, the landlord shall only once a year until
August 30 calculate all actual cost pursuant to Section 5(a),
If the sum of the above said payments made by the Tenant
exceeds the sum of the actual cost for the items stated in
Section 5 (a), then the Landlord shall promptly refund the
excess payment to the Tenant. If the sum of the actual cost
for the items stated in Section 5 (a) are in excess of the sum
of the payments made by the Tenant pursuant to Section 5 (a),
then the Tenant shall promptly pay the Landlord the excess.
(c) For each year the Additional Rent payments stated in Section 5
(a) shall be based on the prior years actual cost.
6. IMPROVEMENTS, REPAIRS, ADDITIONS, REPLACEMENTS
(a) Tenant shall, at all times during the term of this Lease and
at its own cost and expense keep the Leased Premises clean,
safe and free of waste. Tenant shall keep and maintain or
cause to be kept and maintained in repair and good condition
the interior of the Leased Premises including the interior
decorations normal wear and tear excepted.
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(b) Landlord shall, at all times during the term of this Lease,
and at its own cost and expense, keep and maintain or cause to
be kept and maintained in repair and good condition (ordinary
wear and tear excepted) the Leased Premises with the exception
of installations and equipment as listed in EXHIBIT "E".
Landlord shall not be liable for damages which result from or
arise out of or in connection with Tenant's fault negligence,
acts or omissions, which shall be remedied or caused to be
remedied by Tenant at its own costs and expense.
(c) Tenant is only entitled to make alterations, changes,
replacements, improvements and additions in and to the
Landlord's Premises, the buildings and improvements thereon as
far as Landlord provides its written consent.
(d) On the last day or sooner termination of the term of this
Lease, Tenant shall quit and surrender the Leased Premises
broom clean and in good condition (ordinary wear and tear
excepted).
7. REQUIREMENTS OR PUBLIC AUTHORITY
During the term of this Lease, each Party with respect to its sphere of
responsibility shall, at its own cost and expense, promptly observe and
comply with all present and future laws, ordinances, requirements,
orders, directives, rules and regulations and of all other governmental
authorities affecting the Leased Premises thereto or any part thereof
whether the same are in force at the commencement of the term of this
Lease or may in the future be passed, enacted or directed, and Tenant
shall pay the costs, expenses, liabilities, losses, damages, fines,
penalties, claims and demands including reasonable counsel fees, that
may in any manner arise out of or be imposed because of the failure of
Tenant to comply with the covenants of this Section 7.
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8. LANDLORD'S ACCESS TO PREMISES
Landlord or Landlord's agents and designees shall have the right, but
not the obligation, to enter upon the Leased Premises at all reasonable
times subject to reasonable notice to examine same and to exhibit the
Leased Premises to prospective purchasers and prospective Tenants, but
in the case of prospective Tenants only during the last year of the
term of this Lease. Tenant allows Landlord, Landlord's employees,
officers, servants or visitors the unrestricted access to areas which
are jointly used according to the Leased Premises, such as floors,
cellars, toilets, restrooms etc.
9. ASSIGNMENT AND SUBLETTING, EXTENSIONS
(a) Tenant may not assign, sublease (in whole or in part or
parts), mortgage or otherwise encumber this Lease (in whole or
in part or parts) without Landlord's written consent therefor.
The Tenant, however, shall have the right to sublease the
Leased Premises within the Instron group of companies.
(b) Should the parties agree that Landlord leases and lets
additional premises to Tenant, and that Tenant takes and hires
additional premises from Landlord, the terms, conditions,
covenants and provisions of such extension of the lease shall.
follow the terms, conditions, covenants and provisions of this
Agreement.
10. SIGNS
Tenants shall have the right to install, maintain and replace in, on or
over or in front of the Leased Premises or in any part thereof such
signs and advertising matter as Tenant may desire, provided that
Landlord shall give its written consent, which consent shall not be
unreasonably withheld by Landlord. If required Landlord shall apply
public permissions affecting the installation of signs and Tenant shall
pay such cost and expenses.
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11. SECURITY, SAFETY, TENANT'S ACCESS TO LANDLORD'S FACILITIES
Tenant, its officers, agents, servants, employees, contractors,
sublessees or visitors are obliged to obey the regulation related to
safety, environmental matters and security at the Premises and Parking
Lots. The regulations are laid down in writing and will be furnished by
Landlord to Tenant on demand. Landlord shall furnish Tenant and
Tenant's employees with separate ID-cards and all necessary keys to
enter Premises, Parking Lots and Landlord's facilities in Darmstadt if
required.
12. INDEMNITY
Tenant shall indemnify and save harmless Landlord from and against any
and all liability, damage, penalties or judgments arising from injury
to person or property sustained by anyone in and about the premises
resulting from any act or omission of Tenant or its officers, agents,
servants, employees, contractors (other than any company affiliated
with the Landlord), visitors or sublessees.
13. INSURANCE
(a) Tenant shall provide at its expense, and keep in force during
the term of this Lease, a general liability insurance in an
insurance company licensed to do business in the Federal
Republic of Germany in the amount of at least one million DM
with respect to injury or death to any one, person and two
million DM with respect to injury or death to more than one
person in any one accident or other occurrence and one million
Dollars with respect to damages to property. Tenant agrees to
deliver certificates of such insurance to Xxxxxxx at the
beginning of the term of this lease and thereafter not less
than ten (10) days prior to the expiration of my such policy.
The general liability insurances shall include an insurance
against all damages occurring to the Premises resulting
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from any fault or negligence of Tenant as far as insurance
coverage is available under usual German insurance terms and
conditions.
(b) During the term of this lease, Landlord shall keep the
buildings insured against loss and damage by fire on a
replacement cost basis.
14. ENVIRONMENTAL
Each Party shall indemnify and bold harmless the other Party from any
Environmental Liabilities resulting from any acts, omissions or
circumstances caused by using the Premises after the date from which
the tenant has initially let the Premises from the Landlord
("Commencement Date") or existing on the Premises prior to the
Commencement Date.
(a) The Parties shall indemnify and hold harmless each other from
any Environmental Liabilities resulting from any acts,
omissions or circumstances caused within the sphere, of
responsibility of the relevant Party, each on or after the
Commencement Date, and not already caused or existing prior to
the Commencement Date. The Landlord shall indemnify and hold
harmless the Tenant from any Environmental Liabilities
existing on the Premises at any time and not caused within the
sphere of responsibility of the Tenant.
(b) With respect to Environmental Liabilities resulting both from
(i) acts, omissions and circumstances caused prior to the
Commencement Date or existing on the Premises and (ii) acts,
omissions and circumstances caused on or after the
Commencement Date and not caused or existing prior to the
Commencement Date, the relevant Party shall bear the
respective liability prorated in relation to the degree or
level which was caused or existing prior to or which was
caused on or after the Commencement Date.
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(c) If it cannot be proven that the respective liability results
from an act, omissions or circumstance for which one party is
responsible, or if it cannot be proven for which level or
degree each party is responsible then the respective
Environmental Liability shall be prorated between Landlord and
Tenant as follows:
Year of Discovery after the
Commencement Date Share of the Landlord Share of the Tenant
2 80% 20%
3 60% 40%
4 40% 60%
5 20% 80%
0% 100%
15. FORCE MAJEURE
In the event that Landlord or Tenant shall be delayed, hindered or
prevented from the performance of any act required hereunder by reason
of strikes, lock-outs, labour troubles, inability to procure materials,
failure of power, restrictive governmental laws or regulations, riots,
insurrection, the act, failure to act or default of the other party,
war or other reason beyond their control, then performance of such act
shall be excused for the period of the delay and the period of the
performance of any such act shall be extended for a period equivalent
to the period of such delay.
16. GOVERNING LAW, ARBITRATION AND CONFIDENTIALITY
With respect to Governing Law, Arbitration and Confidentiality the
rules and regulations of Section 34 and 37 of the Joint Venture
Agreement between Xxxxxxx Xxxx GmbH and Instron Corporation of October
25, 1996 shall be applicable.
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17. ENTIRE AGREEMENT
This Agreement together with its Exhibits hereto represents the
complete Agreement and understanding between the parties with respect
to the, subject matter herein and supersedes all prior written and oral
Agreement and understandings between the parties with respect thereto.
This Agreement may not be changed orally but only by an Agreement in
writing signed by the parties hereto. Tenant agrees that it is not
relying on any representations or Agreements other than those contained
in this Lease.
/s/ Xxxx X. X. Xxxxxxxxxxxx /s/ Xxxxxxx Xxxx
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(Tenant) (Landlord)
Instron Xxxxxxx Testing Xxxxxxx Immobilien
Systems GmbH & Service GmbH
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EXHIBIT C
Rent IST
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Building No. Gross Space Rent X.X. square Base Rent X.X.
square meter meter
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12 589.06 1.35 7,274.89
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12 Cellar 70.38 7.26 510.96
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13 135.12 2,261.00
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13 3 63,52 16.73 1,062.68
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71 1,683.05 18.16 30,564.19
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71 Cellar 396.76 7.26 2,880.48
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30 1,824.86 9.30 16,971.20
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30 2 184.74 9.30 1,718.08
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30 Cellar 549.11 3.87 2,125.06
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55 21.46 3.87 83.05
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96 Cellar 15.62 7.26 113.40
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Group summation 5,535.68 65,564.89 -65,564.89
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Discount for the first 5 years -9,500.00
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Total 56,064.99
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Exhibit D
XXXXXXXXXXXXXXX 0
Xxxxxx
Xxxxxxx
Xxxx
Xxxxxx
Xxxxx
Werkschutz
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Exhibit D
MIETNEBENKOSTEN 2
Versicherung
Betriebskosten
Hausmeister
Gebaudereinigung
Werksreinigung
Gebuhren, Abgaben
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