LEASE AGREEMENT
Concerning Commercial Space
between
Unternehmensgruppe Xxxxxx Xxxxx
Aufbaugesellschaft Taubenstrasse GdbR, consisting of
RE-Gesellschaft zur Planung der Beseitigung und Verwertung von Reststoffen mbH
& Co. KG,
VGO Verwaltungsgesellschaft mbH & Co. Beteiligungs KG,
Xxxxxxxxxxxxxxx 00/0
00000 Xxxxxxxxxx
represented by Mr. Xxxxxx Xxxxx
(hereinafter, the "Lessor")
and
ADVANCED TECHNOLOGY INDUSTRIES LTD
Xxxxxxxxxxxxx 00
00000 Xxxxxx
represented by Mr. Hans-Xxxxxxx Xxxxxxxxx
private address: Xxxxxxxxxxx Xxxxxxx 00x
00000 Xxxxxx
(hereinafter, the "Lessee")
Contents
Recitals ..................................................................... 3
ss. 1 Subject-Premises and Purpose of Lease ................................ 3
ss. 2 Rent ................................................................. 4
ss. 3 Escalator Clause ..................................................... 5
ss. 4 Ancillary Costs ...................................................... 6
ss. 5 Term, Delivery and Termination ....................................... 7
ss. 6 Early Termination of Term ............................................ 7
ss. 7 Subletting ........................................................... 8
ss. 8 Maintenance; Interior Decorative Repairs ............................. 9
ss. 9 Warranty and Liability of Lessor .....................................10
ss. 10 Liability of Lessee ..................................................10
ss. 11 Insurance ............................................................11
ss. 12 Structural Alterations Before and During Term of Lease ...............11
ss. 13 Advertising Installations ............................................13
ss. 14 Access to the Subject-Premises by the Lessor .........................13
ss. 15 Cessation of Term of Lease ...........................................13
ss. 16 Legal Succession .....................................................15
ss. 17 Protection from Competition ..........................................15
ss. 18 Security Deposit .....................................................15
ss. 19 Lessors Lien .........................................................16
ss. 20 Sale of Subject-Premises .............................................16
ss. 21 Final Provisions .....................................................16
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RECITALS
WHEREAS, the Lessor is owner of the property and the building thereupon located
at Xxxxxxxxxxxxx 00 in Berlin-Mitte; WHEREAS, the Lessee has inspected the
building; WHEREAS, the Lessee is therefore aware of the location, condition and
furnishings of the building;
NOW, THEREFORE, the Parties hereby agree as follows:
ss. 1 SUBJECT-PREMISES AND PURPOSE OF LEASE
1) The Lessor hereby leases to the Lessee from the above-mentioned
building those building components/spaces which are circled in red on
the attached plans (Annex 1).
2) The Lessee shall be entitled to use commonly with the other lessees
those spaces and building components which are provided jointly by the
Lessor to some or all lessees (such as the entranceway, lobby, elevator
anterooms, etc. ("functional spaces and trafficways")).
3) The exact location and the structural design and furnishing of the
subject-premises are evident from the plans attached as Annex 1
hereto.
The Lessor shall be entitled, however, even during the term of lease to
undertake alterations which are based on administrative conditions or
are technically required or advisable and which only immaterially
prejudice the fitness for use and the quality standards of the
subject-premises.
4) The subject-premises are hereby exclusively leased to be used as office
and administrative space and for the ancillary purposes associated
therewith, such as archiving, etc. (purpose of lease).
5) In light of the fact that the Lessor has opted for turnover tax, the
Lessee hereby warrants that the Lessee is an entrepreneur in the terms
of the provisions of tax law. The Lessee must therefore guarantee that
the subject-premises are only used for turnover which does not exclude
the deduction of input tax. The subject-premises may be used for
tax-free turnover at most to an extent which is non-prejudicial to the
exercise of the option in accordance with the applicable provisions of
tax law (currently a maximum of 5% pursuant to the writing of Federal
Ministry of Economics of 24 November 1997) ("insignificance
threshold"). The Lessee must furnish proof to the Lessor of the
observance of these conditions prior to 31 March of the following year
by presenting a corresponding written confirmation from its tax advisor
and independent auditor for the preceding year. The Lessee must
compensate the Lessor for any damage arising from the breach of this
duty, particularly in accordance with ss. 9(2) of the Turnover Tax Act.
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ss. 2 RENT
1) The monthly rent, advance payment for ancillary costs and turnover tax
shall amount to DM 10,088.15. This figure is computed as follows:
Office space approx. 191.97 m2 @ CM DM 7,486.83
39.00 per m2
Underground parking garage space 1 parking space @ DM 250.00 DM 250.00
Advance payment for ancillary costs 191.97 m2 @ DM 5.00 per m2 DM 959.85
-------------------------------------------------------------------------------------
Subtotal DM 8,696.68
Plus applicable turnover tax DM 1,391.47
(currently 16%)
Total DM 10,088.15
The leased space shall be the net floor space pursuant to DIN 277,
i.e., the principal and ancillary usable space, the trafficways less
the elevator shafts and ramps, and the functional spaces, insofar as
space of individual technical operating facilities of the user are
concerned. The structural surface area of non-fixed walls shall
likewise represent leased space.
2) The Lessee must pay the applicable turnover tax on the rent and
(advance payments for) ancillary costs.
3) The rent plus the ancillary costs and turnover tax shall be due prior
to the third business day of each month at the latest and shall be
payable in advance without any charges onto the following bank account
of the Lessor:
Bank: Bayer. Hypo Vereinsbank Augsburg
Account Holder: Aufbaugesellschaft Taubenstrasse GdbR
Account No.: 0000000
Bank Code: 00000000
The credit entry of the amount to the bank account of the Lessor shall
be decisive for the timeliness of the payment.
4) Incoming payments which are not sufficient to redeem all outstanding
claims of the Lessor shall initially offset interest, then ancillary
costs (first the older and then the more recent ones) and finally the
basic rent (first the older and then the more recent rent) in
accordance with ss. 366 of the Civil Code, even if the Lessee
determines another redemption upon payment.
5) In the event the Lessee is in default in payment, the Lessor shall be
entitled to invoice interest as of the due date until the date the
payment is received at a rate of 5% above the respectively applicable
discount rate of the German Bundesbank in addition to a flat rate for
payment reminder costs of DM 10.00. Each Party hereby reserves the
right to prove higher or lower damage.
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6) The Lessee may only set off the rent with uncontested counterclaims or
counterclaims recognized by non-appealable judgment or assert a
retention right in relation to such claims provided the Lessee gives
written notice of the exercise of such rights at least one month prior
to the due date of the affected rent. The limitation of the retention
right in accordance with Sentence 1 above shall only apply to
counterclaims directed towards payment. The above limitations on setoff
and retention rights shall apply even after the cessation of the term
of lease until the delivery of the subject-premises to the Lessor.
7) In the event of the introduction of the euro, the Lessee hereby agrees
to render the payments owed from this Agreement exclusively in euros,
if the Lessee is requested by the Lessor to do so upon observance of a
notice period of two months. Until such date, payments within the
transition period are to be rendered exclusively in Deutsche marks.
ss. 3 ESCALATOR CLAUSE
The rent shall be secured as follows:
1) In the event the cost-of-living index for all private households in
Germany (base year 1995 = 100) published by the Federal Statistics
Office increases or decreases by 10 points or more from the
commencement of the term of lease or the level after the effective date
of the most recent change, the rent shall increase or decrease
accordingly. The rent shall change automatically effective on the first
of the month after the occurrence of the element of change. The
consequences of default shall only take effect provided the Lessor in
the case of an increase or the Lessee in the case of a decrease has
notified the change in writing and presented a calculation.
2) The Lessor in the case of an increase and the Lessee in the case of a
decrease must notify the change and present a calculation. In the event
no notice is provided or is not provided in due time, such shall not
signify a waiver of the adjustment. The modified rent amount is then to
be paid retroactively; any reduced amount is to be reimbursed
retroactively. However, the Parties shall first be in default after the
respective settlement statement has been received and a payment
reminder issued.
3) The Parties are aware that this escalator clause requires the approval
of the state central bank. The approval is to be obtained by the
Lessor.
4) Should the state central bank not approve this clause, the Parties
hereby agree in the event of a change in the cost-of-living index of 10
points or more compared to the level at the commencement of this
Agreement or the most recent rent adjustment to reach an agreement on
the rent adjustment which corresponds to the result of the adjustment
in accordance with the cost-of living index.
5) In the event the agreed-upon cost-of-living index is discontinued,
particularly in relation to the introduction of the euro, that
cost-of-living index then applicable which is comparable to the index
agreed upon here shall then be considered as agreed upon. The Lessor
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shall be entitled to specify the corresponding index and to undertake
the conversion in a suitable fashion. Section 315 of the Civil Code
shall be applicable in this regard. The above Nos. 1 to 5 shall apply
accordingly.
ss. 4 ANCILLARY COSTS
1) The Lessee shall bear all operating costs incurred on the
subject-premises and prorated operating costs (Paragraph 6 below)
incurred on the other components of the property and overall building
pursuant to Annex 3 to ss. 72(1) of the Second Regulation on the
Calculation of Costs, which is attached as Annex 2 to this Agreement,
as amended upon the date the costs are incurred. The Lessee shall also
bear those ancillary costs which are incurred on the common facilities
outside the overall building. The heating costs shall also include the
costs of any ventilation and air-conditioning systems.
The Lessee shall moreover bear the following ancillary costs: costs of
continuous surveillance, the lockup services, and the reception
personnel (doorperson, etc.), including the costs of the spaces
necessary for such services and the costs of the systems installed in
this regard, e.g., telephone, loudspeaker, code/card, door/closet and
alarm systems; costs of the commercial and technical administration in
the amount of 3% of the applicable net rent without heating costs; the
costs of maintenance in accordance with ss. 8 hereof and the interior
decorative costs for common spaces in accordance with ss. 1(2) hereof
and common facilities outside the overall building.
2) In the event public charges are newly introduced or other costs
relating to the management of the subject-premises arise for the first
time or are increased directly or indirectly, such costs may likewise
be invoiced by the Lessor as appears fair from the date such are
incurred in accordance with the provisions agreed upon herein.
3) If possible, the Lessee must conclude in its own name and for its own
account any utility agreements relating to heating, electricity, water
and telephone for the spaces used alone by the Lessee.
4) Those ancillary costs which are not incurred under Paragraph 3 above
shall be settled by the Lessor on a quarterly basis. The Lessee shall
be allowed to inspect the settlement documents. The Lessee must assert
any objections against the settlement to the Lessor in writing within
one month after receipt of the settlement statement; otherwise, the
settlement statement shall be considered as approved, provided the
Lessor has referred to this legal consequence when sending the
settlement statement.
5) The Lessee must pay the advance payment on the ancillary costs agreed
upon in ss. 2(1) hereof, which shall correspond to the foreseeable
costs. The Lessor shall be entitled to adjust the amount of such
advance payment in accordance with the settlement of the actually
incurred costs and redetermine for the future as appears fair the type
of settlement for the ancillary costs or individual items of the
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ancillary costs, except for the heating and hot water costs. Any
subsequent payments or reimbursements related to the advance payments
rendered by the Lessee are to be made after the settlement pursuant to
Paragraph 4 above.
6) The Heating Costs Regulation shall apply with regard to the allocation
criterion related to hot water and heating costs. Otherwise, the
ancillary costs from the Lessee are to be borne on a prorated basis in
the ratio of the leased space to the total leased space of the overall
building. In the event ancillary costs relate to the Lessee alone or to
one or more lessees jointly, such costs are to be paid by the Lessee
alone or on a prorated basis in relation to the respective leased space
of the affected lessee.
ss. 5 TERM, DELIVERY AND TERMINATION
1) The term shall commence on 1 March 2000 and cease on 28 February 2005.
2) The delivery must be made in conformance with the plans attached as
Annex I hereto and otherwise in the current conditions. The Lessee
hereby acknowledges such conditions as conforming to this Agreement.
A delivery record is to be created upon the delivery; any variations
from the conditions owed pursuant to this Agreement and any defects are
to be recorded therein. Arrangements related to the remedy of defects
are moreover to be reached.
3) The Lessee shall be granted a renewal option of five years beyond the
fixed term at the conditions of this Lease Agreement. In the event the
Lessee desires to avail itself of the respective option, the Lessee
must notify the Lessor thereof in writing 12 months prior to the
expiration of the fixed term or option period. In the event the option
is not validly exercised, all option rights shall be extinguished.
4) In the event the lease relation is not terminated with notice of 12
months effective from the expiration of the fixed term or option period
by either Party in writing, the lease relation shall automatically be
extended for an indefinite period of time and may then be terminated in
writing upon notice of 12 months effective from the end of any quarter.
5) Unless the Parties agree otherwise, the Lessor shall not be obligated
to restore the subject-premises in the event of the complete
destruction or the destruction of any material portion thereof.
ss. 6 EARLY TERMINATION OF TERM
1) Apart from the grounds for termination stipulated by law, the Lessor
shall be entitled to terminate the lease relation without notice for
good cause. "Good cause" shall exist particularly in the event:
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a) the Lessee subleases the subject-premises, even though the
conditions in ss. 7 hereof have not been met;
b) the Lessee does not use the subject-premises in accordance with
the purpose of lease and continues the use in breach hereof even
after a warning by the Lessor;
c) bankruptcy or composition proceedings regarding the Lessee's
assets are initiated, the petition for bankruptcy or composition
is not withdrawn within three weeks or the initiation of
bankruptcy or composition proceedings is refused due to a lack of
assets, whereby the Lessee is obligated to immediately inform the
Lessor regarding any petition for bankruptcy or composition;
d) the Lessee relinquishes the pursuit of activity subject to
turnover tax or earns more than merely an insignificant amount of
turnover exempted from turnover tax, unless the Lessee proves
that the Lessor will not derive any disadvantages from this,
e.g., in accordance with ss. 9(2) of the Turnover Tax Act.
2) In the event the lease relation ceases as a result of termination
without notice by the Lessor, the Lessee shall be liable for the damage
incurred by the Lessor therefrom, particularly for the fact that the
subject-premises cannot be leased after the Lessee has moved out or can
only be leased at a lower rent.
ss. 7 SUBLETTING
1) The Lessee may only sublet or transfer the use of the subject-premises
or components thereof within the framework of the purpose of lease in
accordance with ss. 1 hereof and only provided the Lessor is notified
thereof by the Lessee prior to the conclusion of the sublease agreement
by presenting the planned sublease agreement. The Lessor hereby
reserves the right to oppose the sublet in any specific case in the
event good cause exists to do so in the person of the sublessee or the
business operations thereof (protection from competition); "good cause"
shall exist particularly if the sublessee does not exercise any
activity subject to turnover tax or earns more than merely an
insignificant amount of turnover which is exempted from turnover tax,
unless the Lessee proves that the Lessor will not derive any
disadvantages therefrom, e.g., in accordance with ss. 9(2) of the
Turnover Tax Act.
2) In the event of any subletting of the subject-premises or components
thereof, the Lessee hereby agrees in advance to terminate the lease
relation by mutual agreement upon the Lessor's request. The Lessor
shall simultaneously be entitled to subrogate the Lessee in the
latter's lease relation with the sublessee. The Lessee hereby agrees to
contractually obligate the sublessee to continue the contractual
relation with the Lessor upon the latter's request.
Alternatively, the Lessor may waive this right prior to the conclusion
of the sublease agreement and request the Lessee to pay the Lessor as
additional rent 50% of the sublease rent exceeding the rent.
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3) In the event of any subletting or transfer of use to third parties, the
Lessee shall assign to the Lessor the claims to which the Lessee is
entitled vis-a-vis the sublessee or the third party as security for all
claims of the Lessor from this Agreement.
ss. 8 MAINTENANCE; INTERIOR DECORATIVE REPAIRS
1) The Lessor shall be responsible for the maintenance and servicing of
the subject-premises. The Lessee shall be entitled with the Lessor's
approval and obligated upon the request thereof to issue maintenance
and servicing orders relating to the interior spaces of the
subject-premises in the Lessees own name and for its own account.
2) Subject to Paragraph 3 below, however, the Lessee shall only bear the
costs of maintenance and servicing of the subject-premises and the
maintenance measures for the overall building on a prorated basis
pursuant to ss. 4(6) hereof, provided the conditions of the
subject-premises and the overall building were unobjectionable upon the
delivery date and the maintenance measures have been occasioned by the
agreed-upon use.
3) The Lessor shall bear the maintenance costs for the roofing, the
structural components (such as outside walls, bearing inside walls,
supports and foundations of the building) and the facade, except for
the glass in the windows and the mounts pertaining thereto or other
movable mechanical parts, and all outside doors (even rolling grates),
entry doors, revolving door installations, etc. The Lessor shall
further bear the costs of the complete exchange of technical systems,
in the event such can no longer be maintained from a financial point of
view through repairs or similar measures.
4) In the event the costs for remedying damage for which the Lessee is not
responsible and which is not attributable to the Lessee's scope of risk
exceed one monthly rent within one year of lease, the Lessor shall bear
the excess amount.
5) In the event warranty claims of the Lessor exist vis-a-vis parties
involved in the construction of the subject-premises, the Lessor shall
be obligated to assert such claims.
6) The Lessee must conduct at its own cost the necessary interior
decorative repairs at normal temporal intervals, depending on the
degree of wear and tear or damage. Interior decorative repairs shall
also include the renovation of textile floor coverings and, if
necessary, the renovation/sanding and sealing of wooden floors
(parquet).
7) Prior to setting up technical systems which are capable of disturbing
third parties or jeopardizing the subject-premises, the overall
building or the property due to the effects emitted thereby, the Lessee
must obtain the Lessor's approval and present the relevant legal
provisions.
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8) If and insofar as the Lessee intends to handle materials in the
subject-premises which are suited to harm health or the environment,
the Lessee shall be obligated vis-a-vis the Lessor to observe all
relevant legal provisions for handling such hazardous substances and to
release the Lessor from all risks and administrative claims related
thereto. The above provisions shall apply accordingly in the event any
material which originally appears to be unobjectionable later proves to
be a hazardous substance. The Lessee shall be obligated to prove to the
Lessor the conclusion and maintenance of adequate liability coverage.
ss. 9 WARRANTY AND LIABILITY OF LESSOR
1) Any damage compensation claims of the Lessee against the Lessor due to
any defect of the subject-premises may only be asserted if such defects
are based on negligent breach of a material contractual duty or on any
intentional or grossly negligent breach of contract by the Lessor or
the vicarious agents thereof or on the absence of any warranted feature
of the subject-premises.
2) Moreover, the Lessor shall be liable to the degree to which the damage
is compensated by an insurance company or can be successfully asserted
against any other third party.
3) The Lessor shall not be liable: for the supply of energy, such as heat,
electricity and water, by the corresponding utility providers, unless
the Lessor is responsible for the shutdown of the above-mentioned
supplies; for the existence of the scope of use of the driveway, the
service road or other trafficways to the subject-premises, provided
such limitations are not attributable to any administrative measures
initiated by the Lessor and access to the subject-premises is generally
warranted; for the hindrance of the fitness for use of the
subject-premises due to measures on adjacent properties, such as
construction measures; the Lessor shall, however, support the Lessee as
reasonable and permitted by law in averting such hindrances at the
Lessee's costs; for defects in the subject-premises present at the
outset, unless such defects have been expressly noted upon the delivery
of the subject-premises.
4) The rent may only be reduced if the fitness for use of the
subject-premises has been substantially hindered and the Lessor has
been granted a reasonable period to remedy such and the reduction claim
is acknowledged or the ground therefore or amount thereof is recognized
by non-appealable judgment.
ss. 10 LIABILITY OF LESSEE
1) The Lessee shall be liable for all damage which is caused negligently
through any breach of the duties to exercise due care incumbent on the
Lessee.
2) The Lessee shall also be liable to compensate damage which any third
party commissioned by it to perform work negligently causes in the
execution thereof. The Lessee shall furthermore be liable for damage
which is negligently caused through its employees or sublessees.
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Furthermore, the Lessee shall be liable for damage which is caused
negligently by visitors, suppliers, manual laborers or other persons,
provided such persons come into relation with the subject-premises at
the Lessee's instigation.
3) The Lessee shall bear the burden of proving that the damage has not
been caused by it or that it is not responsible for such damage,
provided the damage has been caused from within the subject-premises.
ss. 11 INSURANCE
1) The Lessee must conclude the following insurance policies, maintain
such for the duration of the lease relation, and furnish proof of such
upon the Lessors request:
a) a reasonable amount of liability/business liability insurance;
b) insurance regarding building contents;
c) business interruption insurance;
d) other insurance policies common to the Lessee's operations.
2) In the event the Lessee does not conclude the insurance policies in
accordance with Literi b to d above, the Lessor shall not be liable for
damage which would have been covered by such insurance.
3) The Lessor shall conclude or has concluded the following insurance
policies which shall be allocated to the ancillary cost settlement:
a) building insurance against fire, water, storm damage, broken
grass;
b) building and property owner liability insurance.
ss. 12 STRUCTURAL ALTERATIONS BEFORE AND DURING TERM OF LEASE
1) In the event the Lessee desires, prior to the delivery of the
subject-premises, alterations in relation to the planning and
furnishing thereof which do not prejudice the building as a whole or
the space used jointly by the Lessee together with the other lessees,
the Lessee must notify the Lessor in due time of such desired
alterations. The Lessor shall then submit the Lessee a cost estimate.
In the event the Lessee issues a separate commission based on such cost
estimate, the Lessee hereby agrees to pay the costs incurred. Prior to
conducting the structural alterations, the Lessor may request
securities in the form of bank guaranties or advance payments. In the
event the delivery of the subject-premises is delayed based on the
execution of such construction measures, the Lessee must pay the
agreed-upon rent for the period of the delay.
2) The Lessee shall be entitled at its cost to remodel the interior of the
subject-premises or to conduct structural alterations, provided the
overall building or the spaces not used exclusively by the Lessee are
not prejudiced thereby. The Lessee must notify the Lessor of the
construction measures in writing two weeks prior to the commencement
thereof at the latest, presenting plans/descriptions of the measures.
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In the event structural measures of the Lessee are suited to prejudice
other lessees, the Lessee must desist from the measures or release the
Lessor from all claims of other lessees (including rent reductions) and
render security for such, if necessary.
3) Any structural modifications which require official permits shall
require the Lessor's approval. The approval may only be denied for good
cause; among other things, "good cause" shall include any limitation on
subsequent use or leasing of the subject-premises by the Lessor.
4) The Lessee shall be responsible for requesting official permits for
structural alterations and for the costs thereof. The Lessee shall bear
all dangers and risks associated with the initiation of structural
measures.
5) In the event construction measures become necessary after delivery of
the subject-premises based on new official provisions or conditions
relating to the operation of the subject-premises for the agreed-upon
purpose, such measures are to be conducted by the Lessee at its own
cost. This shall also apply to any construction measures which are
necessary based on any modification or extension of the use by the
Lessee.
6) The Lessee shall be obligated to immediately notify the Lessor in
writing of installations and alterations in or to the subject-premises
which increase the value thereof, provided such affect a modification
of the risk estimate in the terms of the fire and liability insurance
conditions. The Lessee shall bear any surcharges to insurance premiums
incurred in this regard.
7) The Lessor may undertake improvements, repairs and structural
alterations which are necessary to preserve the subject-premises and
the overall building and to avert imminent danger or to remedy damage
(preservation measures), even without the Lessee's approval; however,
the Lessor must thereby take the legitimate interests of the Lessee
into account, particularly in relation to the date of execution, and
notify the Lessee of such measures in advance.
8) The Lessor may only undertake measures to improve the subject-premises
and the overall building (modernization measures) or energy saving
measures (ss. 541 b of the Civil Code), provided the Lessor announces
such to the Lessee at least one month in advance, insofar as such
measures are to be conducted in the Lessee's leased area. With regard
to measures outside the leased area, a notice period of one week shall
be sufficient, even if the subject-premises could be affected. A right
to terminate this Agreement in accordance with ss. 541 b of the Civil
Code shall only exist in the event the Lessee's interests are
unreasonably hindered by the toleration duty. After the execution of
modernization or energy savings measures, the Lessor shall be entitled
to charge a rent surcharge in the amount of 11% per year based on the
respective investment costs.
9) The Lessee must tolerate expansion/remodeling measures which are
conducted in order to further lease other leasable units and which
cause hindrances. Damage compensation claims shall be excluded in this
regard, unless the Lessor acts intentionally or with gross negligence
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in relation to damage to the Lessee. One week before the measures at
the latest, the Lessor shall inform the Lessee of the type, scope and
foreseeable duration of the planned measures in a general fashion. The
toleration duty shall exist irrespective of any absence of information.
10) The Lessee may only reduce the rent or exercise a retention right due
to the above-mentioned measures if such measures rule out or
substantially prejudice the use of the subject-premises for the
agreed-upon purpose in whole or in part.
ss. 13 ADVERTISING INSTALLATIONS
1) The Lessee shall be provided free of charge outside space on the
building--which is still to be determined--exclusively for its own
advertising purposes (illuminated advertising, signs and other devices
for advertising material). The advertising installations must be
adapted to the image of the subject-premises and the overall building.
In the event the Lessor specifies installations in order to preserve a
uniform image for the building, the Lessee must use exclusively the
installations specified. The Lessee shall be responsible for requesting
official permits to mount advertising installations; the Lessee must
bear the cost thereof.
2) The Lessor shall likewise be entitled to install advertising on the
subject-premises, even for third parties (product advertising, etc.).
3) Upon the cessation of the term of lease, the Lessee must remove the
advertising installations mounted by it at its own cost upon the
Lessor's request and restore the subject-premises again to their
original conditions.
ss. 14 ACCESS TO THE SUBJECT-PREMISES BY THE LESSOR
1) The Lessor and the persons commissioned thereby may access the
subject-premises with interested parties, experts or witnesses during
normal business hours but only after prior notice in order to exercise
the legal lien under the conditions of ss. 561 of the Civil Code, to
review the structural condition of the subject-premises and the
operability and safety of technical systems in the subject-premises, to
further lease or sell the subject-premises, and in other similar cases.
2) In events of imminent danger, the Lessor may access the
subject-premises even without notice and in the absence of the Lessee.
ss. 15 CESSATION OF TERM OF LEASE
1) The provisions of ss. 568 of the Civil Code (tacit extension of the
lease relation) shall not apply in the event of any cessation of the
lease relation.
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2) Any payments of the Lessee after termination or cessation of the lease
relation for other reasons shall be accepted as indemnity for use, even
if such are designated with the payment or correspondence as a rent
payment.
3) Upon the cessation of the term of lease, the Lessee must return the
subject-premises to the Lessor in conditions which conform to this
Agreement with due regard to wear and tear which conforms to this
Agreement. The conditions shall "conform to this Agreement"
particularly when all space has been cleaned and vacated, all interior
decorative repairs executed, damage to the subject-premises beyond wear
and tear through normal usage remedied, all keys and code cards have
been returned to the Lessor, any restoration obligations have been
performed and the Lessee has returned any accessories and other
facilities provided for use in operable and clean conditions.
When the Lessee moves out, a joint record of the return is to be
completed which lists any existing or non-remedied defects, interior
decorative repairs, etc. The Lessee shall cooperate personally as the
record is created or be represented thereby by an agent authorized in
writing. Without such collaboration of the Lessee, the Lessor shall not
be obligated to take the subject-premises back.
4) In the event the work in the subject-premises to be conducted by the
Lessee in accordance with Paragraph 3 above is not conducted prior to
the cessation of the lease relation, an indemnity for use corresponding
to the rent plus ancillary costs is to be further paid until the end of
the month in which such work is completed. Any further claims of the
Lessor shall not be prejudiced hereby. The Lessor shall be entitled in
particular to demand damage compensation for interior decorative
repairs not executed by the Lessee after establishing a period for this
and threatening refusal. The Lessee shall retain the right to prove
that lesser damage has been incurred.
5) In the event objects are left in the subject-premises by the Lessee
after the cessation of the lease relation, the Lessor shall be entitled
to remove such objects after a written warning establishing a period
for this; the Lessor shall not have any duty to store such objects. Any
claims of the Lessor due to the delayed return of the subject-premises
shall not be prejudiced hereby.
6) Any structural alterations to the subject-premises pursuant to ss. 12
hereof which are conducted by the Lessee are to be restored upon the
cessation of the lease relation, unless the Lessor has waived the
reconstruction obligation. In the event any structural alterations are
left, the Lessee shall not be entitled to any damage compensation
claim. Instead of the restoration of the structural alterations by the
Lessee, the Lessor shall be entitled to demand compensation of the
costs for executing the required work. In the event no agreement is
reached regarding the amount of the costs, the amount to be compensated
is to be determined in a binding fashion by an expert to be appointed
by the local chamber of industry and commerce. The Parties shall bear
the costs of the expert in the ratio in which the amount last specified
by them varies from the amount determined by the expert.
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7) The Lessor, however, shall have the right to request the Lessee to
leave the structural alterations. In such event, the Lessee shall
receive an indemnity in the amount of the market value of the remaining
structural installation after the disassembly less the costs calculated
for the disassembly.
8) The Lessor shall be entitled three months prior to the cessation of the
term of lease at the latest to put up "for lease" signs on the outside
windows of the subject-premises.
ss. 16 LEGAL SUCCESSION
1) The Lessee must immediately notify the Lessor in the event of any
modification of the legal form or of any other basic modification in
the commercial register or in the event the Lessee sells its business
operations in whole or in any essential part to third parties or in the
event of any change of shareholders. In the event such change alters
the bases of liability and credit to the Lessor's disadvantage, the
Lessor may request security from the Lessee, such as the provision of
bank guaranties.
2) In the event obligations from this Agreement are not transferred to the
respective legal successor by operation of law, each Party hereby
agrees to also impose the obligations on its respective legal
successors.
3) The Lessor shall be entitled to transfer all rights and duties from
this Agreement to any third party. If relevant, the Lessee may only
deny any required approval declarations with good cause.
ss. 17 PROTECTION FROM COMPETITION
The Lessee shall not be granted any protection from competition.
ss. 18 SECURITY DEPOSIT
1) To secure all claims of the Lessor against the Lessee from this
Agreement, the Lessee hereby agrees to pay the Lessor within 14 days
prior to the commencement of the lease at the latest a security deposit
in the amount of three gross monthly rent installments including the
monthly advance payment for ancillary costs estimated by the Lessor. In
the event of any increase of the rent pursuant to ss. 3 hereof, the
Lessee shall be obligated to pay the difference resulting therefrom.
2) The Lessor may satisfy itself from the security deposit due to the
claims owed to it. The Lessee shall be obligated in such event to
immediately increase the security deposit again to the original amount.
The Lessee may not set off the repayment claim related to the security
deposit against any due claims of the Lessor prior to the due date of
the repayment claim pursuant to Paragraph 4 below.
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3) After return of the subject-premises, the Lessor must settle the
security deposit and pay out the residual security amount to the
Lessee. The Lessee's repayment claim shall be due upon the Lessor's
receipt of the settlement statement or six months after the return of
the subject-premises at the latest. With regard to the ancillary costs
to be settled in accordance with ss. 4 of this Agreement, a portion of
the security deposit in the amount of one month's rent may be retained
until the presentation of a settlement statement or, at maximum, until
the due date of the ancillary cost settlement or the subsequent payment
amount arising therefrom.
5) [sic] In place of the security deposit, the Lessee shall be entitled to
transfer the Lessor a guaranty of a major German bank or public-law
credit institution pursuant to Annex 4 hereto which is due upon first
demand and secures all claims of the Lessor from this Agreement and any
damage compensation claims of the Lessor against the Lessee from all
further liability-establishing elements.
ss. 19 LESSOR'S LIEN
1) The Lessee hereby agrees to inform the Lessor of any attachment of
things brought onto the subject-premises.
2) In the event of the exercise of the Lessor's lien, the Lessor shall be
entitled under the conditions of ss. 1221 of the Civil Code to conduct
the realization by way of private sale after threatening to do so and
establishing a period pursuant to ss. 1220 of the Civil Code.
ss. 20 SALE OF SUBJECT-PREMISES
1) In the event of any sale of the subject-premises, the Lessor shall
cause the buyer to fulfill the obligations from this Agreement. The
Lessor shall not be liable to the Lessee as a surety for the
fulfillment of this Lease Agreement by the buyer; ss. 571(2) of the
Civil Code shall not be applicable hereto.
2) In the event of any sale of the subject-premises, the Lessor shall be
entitled to request the Lessee for a declaration of general
representativeness, enclosing a list of the documents related to this
Lease Agreement. The Lessee shall be obligated to communicate in
writing within 14 days whether the Lessor's list is complete. In the
event the Lessee issues such a declaration of general
representativeness and the Lessee does not notify any incompleteness or
inaccuracies within 14 days, the Lessee may not subsequently invoke any
agreements which were not specified in the Lessor's list, provided
reference is made to this legal consequence in the request.
ss. 21 FINAL PROVISIONS
1) No verbal collateral agreements hereto have been reached.
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2) In the event any provisions of this Agreement are or become invalid or
impracticable, the remaining provisions shall not be affected thereby.
This shall also apply to any material or fundamental provisions of this
Agreement. In place of the invalid provision, the Parties shall be
obligated to reach a provision which most closely approximates the
legally desired result and the financial sought outcome.
3) In the event several persons are party to this Agreement for the part
of the Lessee, such persons hereby irrevocably empower each other to
receive or issue all declarations effecting the lease relation,
particularly to issue or receive notice of termination.
4) The Parties are aware of the special legal requirement for the written
form in ss. 566, Sentence 1 and ss. 126 of the Civil Code. The Parties
hereby mutually agree upon the request of either Party at any time to
undertake all acts and to issue any statements which are necessary in
order to satisfy the legal requirement for the written form and not to
terminate this Agreement early invoking the non-observance of the
written form required by law. This shall not only apply to the
conclusion of the original/main agreement but also to any riders or
modification or supplementary agreements.
5) The Lessee is aware that data will be stored within the framework of
the administration of the subject-premises. The Lessor hereby
represents that only such data will be stored which is necessary for
the due processing of the lease relation and that the data will be
stored in conformance with the provisions of data protection law.
6) The Lessee shall be obligated to notify the Lessor at the commencement
of the lease relation of an address for correspondence to which all
statements related to the lease relation are to be sent. Any
modifications of this address are to be immediately notified to the
Lessor. This obligation shall continue to exist for a period of 6
months after the return of the subject-premises to the Lessor.
7) The provisions of the building rules attached as Annex 3 hereto shall
apply in a supplementary fashion to this Agreement.
8) The following annexes are attached to this Agreement:
- Annex 1: Plans
- Annex 2: Annex 3 to ss. 72(1) of the Second Regulation on the
Calculation of Costs
- Annex 3: Building Rules
- Annex 4: Sample Guaranty
Xxxxxxxxxx, 00 Xxxxxxxx 0000 Xxxxxx, 29 February 2000
[SIGNATURE] [SIGNATURE]
Lessor Lessee
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