Exhibit 10.4
LEASE AGREEMENT
by and between
▇▇▇▇▇▇▇ GMBH & CO. VERMOGENSVERWALTUNGS KG,
a German limited partnership
registered with the commercial register
maintained at the local court of Dortmund under HRA 13391,
as LANDLORD
and
▇▇▇▇▇▇▇ DIE PROFI-BAUMARKTE GMBH UND CO. KG,
a German limited partnership
registered with the commercial register
maintained at the local court of Dortmund under HRA 13582,
as TENANT
Premises: 1. Aschersleben, Germany
2. Berlin-Biesdorf, Germany
3. Berlin-WeiBensee, Germany
4. ▇▇▇▇▇▇▇▇, Germany
5. Bochum-Hofstede, Germany
6. Bonn-Beuel, Germany
7. ▇▇▇▇-▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇
9. Dahlwitz-Hoppegarten, Germany
10. Dortmund-Kley, Germany
11. Ennepetal, Germany
12. Essen-Altenessen, Germany
13. Essen-Borbeck, Germany
14. ▇▇▇▇▇-▇▇▇▇▇▇▇, Germany
15. Falkensee, Germany
16. Gelsenkirchen, Germany
17. Geltow, Germany
18. Greiz, Germany
19. Gronau, ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇
21. Halberstadt, Germany
22. Halle, Germany
23. Hennigsdorf, Germany
24. Leipzig, Germany
25. Ludenscheid, Germany
26. Lutherstadt-Eisleben, Germany
27. Magdeburg Mittagstr., Germany
28. Magdeburg, Germany
29. Menden, Germany
30. Mettmann, Germany
31. Nordhausen, Germany
32. Paderborn, Germany
33. Potsdam, Germany
34. Quedlinburg, Germany
35. Steinfurt, Germany
36. Werl, Germany
37. Zwickau, Germany
Dated as of: February 28, 2007
TABLE OF CONTENTS
Page
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1. Demise of Premises............................................. 2
2. Certain Definitions............................................ 2
3. Title and Condition; Single Lease Transaction.................. 10
4. Use of Leased Premises; Quiet Enjoyment........................ 12
5. Term........................................................... 13
6. Basic Rent..................................................... 14
7. Additional Rent................................................ 14
8. Net Lease: Non-Terminability................................... 15
9. Payment of Impositions, VAT and Expenses....................... 15
10. Compliance with Laws and Easement Agreements; Environmental
Matters..................................................... 16
11. Intentionally Deleted.......................................... 17
12. Maintenance and Repair......................................... 17
13. Alterations, Improvements and Expansions....................... 18
14. Permitted Contests............................................. 19
15. Indemnification................................................ 19
16. Insurance...................................................... 19
17. Casualty and Condemnation...................................... 21
18. Termination Events............................................. 23
19. Restoration.................................................... 23
20. Intentionally Omitted.......................................... 25
21. Assignment and Subletting: Prohibition against Leasehold
Financing................................................... 25
22. Events of Default.............................................. 28
23. Remedies and Damages Upon Default.............................. 30
24. Notices........................................................ 32
25. Intentionally Omitted.......................................... 33
26. Surrender...................................................... 33
27. Operating Covenants............................................ 33
28. Books and Records.............................................. 34
29. Determination of Value......................................... 34
30. Non-Recourse as to Landlord.................................... 36
31. Financing...................................................... 36
32. Security Deposit............................................... 36
33. Substitution and Exchange of Premises.......................... 38
34. Provisions Related to the End of the Lease Term................ 38
35. Right of First Offer to Purchase............................... 39
36. Ground Leases.................................................. 41
37. Post-Closing Obligations....................................... 41
38. Miscellaneous.................................................. 41
EXHIBITS
Exhibit "A-1" - Premises List
Exhibit "A-2" - Legal Description of Real Property
Exhibit "B" - Machinery and Equipment
Exhibit "C" - Schedule of Permitted Encumbrances
Exhibit "D" - Rent Schedule
Exhibit "E" - Allocated Costs
Exhibit "F" - Premises Percentage Allocation of Basic
Rent/Initial Annual Basic Rent
Exhibit "G" - Covenants
Exhibit "H" - Covenant Compliance Certificate
Exhibit "I" - Required Expansions
Exhibit "J" - Brands and Trade Related Marks
Exhibit "K" - List of Guarantors
Exhibit "L" - Post-Closing Obligations
LEASE AGREEMENT, made as of this 28th day of February, 2007, between
▇▇▇▇▇▇▇ GMBH & CO. VERMOGENSVERWALTUNGS KG, a German limited
partnership registered with the commercial register maintained at the
local court of Dortmund under HRA 13391 ("Landlord"), and ▇▇▇▇▇▇▇ DIE
PROFI-BAUMARKTE GMBH UND CO. KG, a German limited partnership
registered with the commercial register maintained at the local court
of Dortmund under HRA 13582 ("Tenant"), both with an address at
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
1. Demise of Premises.
Landlord hereby demises and lets to Tenant, and Tenant hereby takes
and leases from Landlord, for the term and upon the provisions hereinafter
specified, the following described property (hereinafter referred to
collectively as the "Leased Premises" and individually as listed on Exhibit
"A-1" hereto, each of which premises shall include: (a) the real property
described in Exhibit "A-2" hereto (including the leasehold interest of Landlord
in the Related Premises known as Berlin-Weissensee, Roelckestr. 108 and listed
as Number 26 in Exhibit "A-2"), together with the Appurtenances (collectively,
the "Land"); (b) the buildings, structures and other improvements now or
hereafter constructed ("fest verbunden") on the Land (collectively, the
"Improvements"); and (c) the fixtures, machinery, equipment and other property
described in Exhibit "B" hereto (collectively, the "Fixtures").
2. Certain Definitions.
"Additional Rent" shall mean Additional Rent as defined in
Paragraph 7.
"Adjoining Property" shall mean all sidewalks, driveways, curbs,
gores and vault spaces adjoining any of the Leased Premises which Landlord in
its capacity as the owner of the Leased Premises is obligated by a Permitted
Encumbrance or by Law to maintain, repair and/or restore.
"Affected Premises" shall mean the Affected Premises as defined
in Paragraph 18.
"Affiliate" of any Person shall mean any Person which shall (i)
control, (ii) be under the control of, or (iii) be under common control with
such Person (the term "control" as used herein shall be deemed to mean ownership
of more than 50% of the outstanding voting stock of a corporation or other
majority equity and control interest if such Person is not a corporation) and
the power to direct or cause the direction of the management or policies of such
Person.
"Allocated Cost" of each of the Related Premises shall mean the
amount set forth opposite each such Related Premises on Exhibit "E" hereto.
"Alterations" shall mean all changes, additions, improvements or
repairs to, all alterations, reconstructions, restorations, renewals,
replacements or removals of and all substitutions or replacements for any of the
Improvements or Fixtures, both interior and exterior, structural and
non-structural, and ordinary and extraordinary.
"Appurtenances" shall mean all tenements, hereditaments,
easements, rights-of-way, rights, privileges in and to the Land, including (a)
easements over other lands granted by any Easement Agreement and (b) any
streets, ways, alleys, vaults, gores or strips of land adjoining the Land.
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"Assignment" shall mean any assignment of rents and leases from
Landlord to a Lender which (a) encumbers any of the Leased Premises and (b)
secures Landlord's obligation to repay a Loan, as the same may be amended,
supplemented or modified from time to time.
"Basic Rent" shall mean Basic Rent as defined in Paragraph 6.
"Basic Rent Payment Date" shall mean Basic Rent Payment Date as
defined in Paragraph 6.
"Breached Maintenance Covenant" shall mean Breached Maintenance
Covenant as defined in Paragraph 27(b).
"Business Day" shall mean Monday through Friday and any other day
that banks in Germany are open for business.
"Cash Security Deposit" shall mean Cash Security Deposit as
defined in Paragraph 32.
"Casualty" ("Beschadigung") shall mean any damage to or
destruction of or which affects the Leased Premises or Adjoining Property.
"Commencement Date" shall mean Commencement Date as defined in
Paragraph 5.
"Competitor" shall mean a Person directly or through an affiliate
or subsidiary whose primary business is the operation of "do it yourself" home
improvement stores.
"Condemnation" shall mean any taking or damaging of all or a
portion of any of the Leased Premises by any authorized governmental or other
public authority ("Enteignung").
"Condemnation Notice" shall mean notice or actual knowledge of
the institution of any proceeding for Condemnation.
"Control" shall mean (A) acquiring, directly or indirectly, more
than 50% of the voting stock, partnership interests, membership interests or
other equitable and/or beneficial interests of Tenant or (B) obtaining, directly
or indirectly, the power (whether or not exercised) to elect a majority of the
directors of such Person or voting control of any partnership or limited
liability company or other entity acting as its general partner or managing
member (including through a merger or consolidation of such Person with or into
any other Person).
"Control Transaction" shall mean Control Transaction as defined
in Paragraph 21(m).
"Costs" of a Person or associated with a specified transaction
shall mean all reasonable costs and expenses incurred by such Person or
associated with such transaction, including without limitation, attorneys' fees
and expenses, court costs, brokerage fees, escrow fees, title insurance
premiums, mortgage commitment fees, mortgage points, recording fees and transfer
taxes, as the circumstances require.
"Covenant Security Deposit" shall mean a Covenant Security
Deposit as defined in Paragraph 27.
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"Covenants" shall mean, collectively, the Maintenance Covenant
and the Operating Covenants.
"Default Rate" shall mean the Default Rate as defined in
Paragraph 7(a)(iv).
"DIY" shall mean do-it-yourself.
"DIY Business" shall mean do-it-yourself business.
"Easement Agreement" shall mean any conditions, covenants,
restrictions, easements, declarations, licenses and other agreements listed as
Permitted Encumbrances or as may hereafter affect any Related Premises.
"Environmental Law" shall mean (a) whenever enacted or
promulgated, any applicable federal, state, foreign and local law, statute,
ordinance, rule, regulation, license, permit, authorization, approval, consent,
court order, judgment, decree, injunction, code, requirement or agreement with
any governmental entity, (i) relating to pollution (or the cleanup thereof), or
the protection of air, water vapor, surface water, groundwater, drinking water
supply, land (including land surface or subsurface), plant, aquatic and animal
life from injury caused by a Hazardous Substance or (ii) concerning exposure to,
or the use, containment, storage, recycling, reclamation, reuse, treatment,
generation, discharge, transportation, processing, handling, labeling,
production, disposal or remediation of any Hazardous Substance, Hazardous
Condition or Hazardous Activity, in each case as amended and as now or hereafter
in effect, and (b) any common law or equitable doctrine (including, without
limitation, injunctive relief and tort doctrines such as negligence, nuisance,
trespass and strict liability) that may impose liability or obligations for
injuries or damages due to or threatened as a result of the presence of,
exposure to, or ingestion of, any Hazardous Substance. The term Environmental
Law includes inter alia, the Federal Emission Control Act
(Bundes-Immissionschutzgesetz "BImSchG"), the Federal Soil Protection Act
(Bundesbodenschutzgesetz), the Federal Water Protection Act
(Wasserhaushaltsgesetz), the Federal Recycling and Pollution Prevention Act
(Kreislaufwirtschafts- und Abfallgesetz), the German Civil Code, each as amended
and as now or hereafter in effect and any similar state or local Law.
"Environmental Violation" shall mean (a) any direct or indirect
discharge, disposal, spillage, emission, escape, pumping, pouring, injection,
leaching, release, seepage, filtration or transporting of any Hazardous
Substance at, upon, under, onto or within any Related Premises, or from any
Related Premises to the environment, in violation of any Environmental Law or in
excess of any reportable quantity established under any Environmental Law or
which is reasonably likely to result in any liability to Landlord, Tenant or
Lender, any Federal, state or local government or any other Person for the costs
of any removal or remedial action or natural resources damage or for bodily
injury or property damage, (b) any deposit, storage, dumping, placement or use
of any Hazardous Substance at, upon, under or within any Related Premises or
which extends to any Adjoining Property in violation of any Environmental Law or
in excess of any reportable quantity established under any Environmental Law or
which is reasonably likely to result in any liability to any Federal, state or
local government or to any other Person for the costs of any removal or remedial
action or natural resources damage or for bodily injury or property damage - for
the avoidance of doubt, the foregoing shall not include any deposit, storage,
dumping, placement or use of any Hazardous Substance in the ordinary course of
Tenant's business as long as the same are performed in accordance with
applicable Law, (c) the abandonment or discarding of any barrels, containers or
other receptacles containing any Hazardous Substances in violation of any
Environmental Laws, (d) any activity, occurrence or condition which is
reasonably likely to result in any liability, cost or expense to Landlord or
Lender or any other owner or occupier of any Related Premises, or which could
result in a
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creation of a lien on any Related Premises under any Environmental Law, (e) any
violation of or noncompliance with any Environmental Law.
"Event of Default" shall mean an Event of Default as defined in
Paragraph 22(a).
"Exchange" shall mean Exchange as defined in Paragraph 33.
"Exchange Premises" shall mean Exchange Premises as defined in
Paragraph 33.
"Expansion" shall mean Expansion as defined in Paragraph 13(a).
"Expansion Holdback" shall mean the amount (a) of Eighteen
Million Five Hundred Thousand Euros (E18,500,000.00) which shall be retained by
Landlord in an interest bearing account in Germany with interest to accrue for
the benefit of Tenant and which shall be administered in accordance with
Tenant's instructions (subject, however, to investment vehicles approved by
Landlord) and (b) which shall be disbursed to Tenant as provided in Paragraph
13(c).
"Expansion Premises" shall mean each of the Related Premises
listed in Exhibit "I".
"Fair Market Rental Value" shall mean the fair market rental
value of the Leased Premises for the relevant Renewal Term determined in
accordance with the procedure specified in Paragraph 29.
"Fair Market Value" shall mean the Fair Market Value of the
Leased Premises as of the Relevant Date.
"Fair Market Value Date" shall mean the date when Fair Market
Value or Fair Market Rental Value is determined in accordance with Paragraph 29.
"Federal Funds" shall mean Euros or other immediately available
funds which at the time of payment are legal tender for the payment of public
and private debts in Germany.
"Fiscal Year" shall mean March 1 to February 28 or February 29,
as the case may be.
"Fixtures" shall mean the Fixtures as defined in Paragraph 1.
"GAAP" shall mean German generally accepted accounting
principles, consistently applied.
"German Civil Code" shall mean the German statutory law for civil
matters titled "Buergerliches Gesetzbuch ("BGB")".
"GPI" shall mean GPI as defined in Exhibit "D" hereto.
"Ground Lease" shall mean each of (i) that certain ground lease,
dated 4.4.91, 27.5.92, by and between ▇▇▇. ▇▇▇▇ ▇▇▇▇▇▇, as lessor, and Landlord,
as lessee, with respect to the ▇▇▇▇▇▇▇▇ Premises, (ii) that certain ground
lease, dated 25.7.91, 4.1.96, 19.1.96, by and between ▇▇▇. ▇▇▇ ▇▇▇▇▇▇, as
lessor, and Landlord, as lessee, with respect to the Bonn-Beuel
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Premises, (iii) that certain ground lease, dated 27.1.92, by and between ▇▇.
▇▇▇▇ ▇▇▇▇▇▇▇▇, as lessor, and Landlord, as lessee, with respect to the Steinfurt
Premises, (iv) that certain ground lease, dated 31.8.89, 6.9.93, 15.10.93, by
and between ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇, as lessor, and Landlord, as lessee, with respect
to the Steinfurt Premises, (v) that certain sublease, dated 24.5.85, by and
between ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Immobilien GmbH & Co. KG, as sublessor, and Landlord, as
sublessee, with respect to the Dortmund-Kley Premises, (vi) that certain lease,
dated 17.7.93, 11.11.94, by and between ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Stiftung, as lessor, and
Landlord, as sublessee, with respect to the Dortmund-Kley Premises, and (vii)
that certain authorization, dated February 28, 2007, by and between ▇▇▇▇▇ ▇▇▇▇▇▇
Verwaltungs-GmbH, as lessor, and Landlord, as lessee, with respect to the
Berlin-WeiBensee Premises.
"Ground Lease Basic Rent" shall mean rent as provided and set
forth in the applicable Ground Lease.
"Ground Lease Obligations" shall mean all of the obligations and
liabilities of the lessee under the applicable Ground Lease.
"Ground Lessor" shall mean the applicable lessor under the
applicable Ground Lease.
"Guarantor" shall collectively mean each of those Persons listed
in Exhibit "K" hereto and any other Person who shall hereafter execute a
guaranty in favor of Landlord guaranteeing the obligations of Tenant under this
Lease.
"Guaranty" shall mean the Guaranty on First Demand (Garantie auf
erstes Anfordern) dated as of the date hereof from Guarantor to Landlord
guaranteeing the payment and performance by Tenant of all of Tenant's
obligations under the Lease and any other Guaranty on First Demand (Garantie auf
erstes Anfordern) entered into after the date hereof by a Guarantor.
"Hazardous Activity" means any activity, process, procedure or
undertaking which directly or indirectly (a) procures, generates or creates any
Hazardous Substance; (b) causes or results in (or threatens to cause or result
in) the release, seepage, spill, leak, flow, discharge or emission of any
Hazardous Substance into the environment (including the air, ground water,
watercourses or water systems), (c) involves the containment or storage of any
Hazardous Substance; or (d) would cause any of the Leased Premises or any
portion thereof to become a hazardous waste treatment, recycling, reclamation,
processing, storage or disposal facility within the meaning of any Environmental
Law.
"Hazardous Condition" means any condition which would support any
claim or liability under any Environmental Law, including the presence of
underground storage tanks.
"Hazardous Substance" means (i) any substance, material, product,
petroleum, petroleum product, derivative, compound or mixture, mineral
(including asbestos), chemical, gas, medical waste, or other pollutant, in each
case whether naturally occurring, man-made or the by-product of any process,
that is toxic, harmful or hazardous or acutely hazardous to the environment or
public health or safety or (ii) any substance supporting a claim under any
Environmental Law, whether or not defined as hazardous as such under any
Environmental Law. Hazardous Substances include, without limitation, any toxic
or hazardous waste, pollutant, contaminant, industrial waste, petroleum or
petroleum-derived substances or waste, radon, radioactive materials, asbestos,
asbestos containing materials, microbial matter (including but not limited to
mold, mildew and other fungi or bacterial matter which reproduces through the
release of spores or the splitting of cells), urea formaldehyde foam insulation,
lead and polychlorinated biphenyls.
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"Impositions" shall mean the Impositions as defined in Paragraph
9(a).
"Improvements" shall mean the Improvements as defined in
Paragraph 1.
"Indemnitee" shall mean an Indemnitee as defined in Paragraph 15.
"Initial Security Deposit" shall mean Initial Security Deposit as
defined in Paragraph 32.
"Insurance Requirements" shall mean the requirements of all
insurance policies maintained in accordance with this Lease.
"Interest Purchase Agreement" shall mean that certain Interest
Purchase Agreement dated 28 February, 2007 among HLWG TWO (GER) LLC, ▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ Unternehmensverwaltung GmbH & Co. KG.
"Land" shall mean the Land as defined in Paragraph 1.
"Law" shall mean any German Law.
"Lease" shall mean this Lease Agreement.
"Lease Year" shall mean, with respect to the first Lease Year,
the period commencing on the Commencement Date and ending at midnight on the
last day of the twelfth (12th) full consecutive calendar month following the
month in which the Commencement Date occurred, and each succeeding twelve (12)
month period during the Term.
"Leased Premises" shall mean the Leased Premises as defined in
Paragraph 1.
"Legal Requirements" shall mean the requirements of all present
and mandatory future Laws (including but not limited to Environmental Laws and
Laws relating to accessibility to, usability by, and discrimination against,
disabled individuals) and all covenants, restrictions and conditions now or
hereafter of record which may be applicable to Tenant or to any of the Leased
Premises or any Related Premises, or to the use, manner of use, occupancy,
possession, operation, maintenance, alteration, repair or restoration of any of
the Leased Premises or any Related Premises, even if compliance therewith
necessitates structural changes or improvements or results in interference with
the use or enjoyment of any of the Leased Premises or any Related Premises or
requires Tenant to carry insurance other than as required by this Lease.
"Lender" shall mean any Person (and its respective successors and
assigns) which may, on or after the date hereof, make a Loan to Landlord or be
the holder of a Note.
"Loan" shall mean any loan made by one or more Lenders to
Landlord, which loan is secured by a Mortgage and an Assignment and evidenced by
a Note.
"Maintenance Covenant" shall mean the covenant described in
Section B of Exhibit "G" hereto.
"Monetary Obligations" shall mean Rent and all other sums payable
by Tenant under this Lease to Landlord, to any third party on behalf of Landlord
or to any Indemnitee.
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"▇▇▇▇▇'▇" shall mean ▇▇▇▇▇'▇ Investor Services, Inc.
"Mortgage" shall mean any mortgage from Landlord to a Lender
which (a) encumbers any of the Leased Premises and (b) secures Landlord's
obligation to repay a Loan, as the same may be amended, supplemented or
modified.
"Net Award" shall mean (a) the entire award payable to Landlord
or Lender by reason of a Condemnation whether pursuant to a judgment or by
agreement or otherwise, or (b) the entire proceeds of any insurance required
under clauses (i), (ii) (to the extent payable to Landlord or Lender), (iv), (v)
or (vi) of Paragraph 16(a), as the case may be, less any expenses incurred by
Landlord in collecting such award or proceeds.
"Note" shall mean any promissory note evidencing Landlord's
obligation to repay a Loan, as the same may be amended, supplemented or
modified.
"Operating Covenants" shall mean the covenants and agreements
described in Section A of Exhibit "G" hereto.
"Parent" shall mean any Person which owns the shares of Tenant.
"Partial Condemnation" shall mean any Condemnation which does not
result in the total Condemnation of a Related Premises.
"Permitted Control Transaction" shall mean Permitted Control
Transaction as defined in Paragraph 21(m).
"Permitted Encumbrances" shall mean those covenants,
restrictions, reservations, liens, conditions and easements and other
encumbrances, other than any Mortgage or Assignment, listed on Exhibit "C"
hereto (but such listing shall not be deemed to revive any such encumbrances
that have expired or terminated or are otherwise invalid or unenforceable).
"Person" shall mean an individual, partnership, association,
corporation or other entity.
"Pledge Agreements" shall mean the Share Pledge Agreements from
HELLWEG Verwaltungsgesellschaft mbH in favor of Landlord and the Interest Pledge
Agreement from HELLWEG GmbH & Co. Grundbesitz KG ("KG") in favor of Landlord
which secure the obligations of KG under the Guaranty and any other Share Pledge
Agreement or Interest Pledge Agreement entered into after the date hereof which
secures the obligations of a Guarantor under the Guaranty.
"Premises Percentage Allocation" shall mean the percentage
allocated to each Related Premises in Exhibit "F" to this Lease as the same may
be adjusted in accordance with the formula specified in Exhibit "F".
"Prime Rate" shall mean the interest rate per annum as published,
from time to time, in The Wall Street Journal as the "Prime Rate" in its column
entitled "Money Rate". The Prime Rate may not be the lowest rate of interest
charged by any "large U.S. money center commercial banks" and Landlord makes no
representations or warranties to that effect. In the event The Wall Street
Journal ceases publication or ceases to publish the "Prime Rate" as described
above, the Prime Rate shall be the average per annum discount rate (the
"Discount Rate") on ninety-one (91) day bills ("Treasury Bills") issued from
time to time by the United States Treasury at its most recent auction, plus
three hundred (300) basis points. If no such 91-
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day Treasury Bills are then being issued, the Discount Rate shall be the
discount rate on Treasury Bills then being issued for the period of time closest
to ninety-one (91) days.
"Property Specific Default" shall mean a default by Tenant which
is not the failure to pay a Monetary Obligation and which relates solely to one
or more specific Related Premises (by way of example, an Environmental Violation
which affects one or more specific Related Premises or the failure to maintain
and repair one or more specific Related Premises).
"Related Premises" shall mean any one of the Premises listed on
Exhibit "A-1".
"Relevant Date" shall mean (a) the date on which Fair Market
Value is determined for purposes of Paragraph 23(i) or (b) the date on which
Fair Market Rental Value is determined for the Renewal Term.
"Remaining Premises" shall mean the Related Premises which are
not Affected Premises under Paragraph 18.
"Renewal Term" shall mean Renewal Term as defined in Paragraph 5.
"Rent" shall mean, collectively, Basic Rent, Ground Lease Basic
Rent and Additional Rent.
"Required Expansions" shall mean Required Expansions as defined
in Paragraph 13(c).
"S&P" shall mean Standard and Poor's Corporation.
"Security Deposit" shall mean the Initial Security Deposit, the
Covenant Security Deposit and/or the Cash Security Deposit, as the context may
require.
"Shareholder" shall mean any Person which shall directly or
indirectly own or control five percent (5%) or more of (i) the convertible debt
or (ii) the outstanding Voting Stock of a corporation or other controlling
interest if such Person is not a corporation.
"Sister Company" shall mean any Person in the DIY Business and in
which Tenant or Tenant Shareholder directly or indirectly holds an ownership
interest.
"Site Assessment" shall mean a Site Assessment as defined in
Paragraph 10(c).
"Subsidiary(ies)" of a Person means a corporation, partnership,
limited liability company, or other entity in which that Person directly or
indirectly owns or controls the shares of stock or other equity interests having
ordinary voting power to elect a majority of the board of directors (or appoint
other comparable managers) of such corporation, partnership, limited liability
company, or other entity and which, if a member of the Tenant Group or a Sister
Company, shall enter into a guaranty of this Lease substantially in the form of
the Guaranty.
"Surviving Obligations" shall mean any obligations of Tenant
under this Lease, actual or contingent, which arise on or prior to the
expiration or prior termination of this Lease or which survive such expiration
or termination by their own terms.
"Tenant Group" shall mean Tenant, each Guarantor and their
respective Subsidiaries if and for so long as each such Person shall be part of
the same group for the
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purpose of reporting financial positions and results on a consolidated basis
except that ▇▇▇▇▇▇▇ GmbH & Co. Grundbesitz KG and ▇▇▇▇▇▇▇
Verwaltungsgesellschaft mbH shall at all times and for all purposes be part of
the Tenant Group even if such entities do not report financial positions and
results on a consolidated basis with other members of the Tenant Group, but only
as long as they are required to be a Guarantor under this Lease. For avoidance
of doubt, Tenant Group shall not include Landlord under any circumstances for
any reason.
"Tenant Shareholder" shall mean ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, his heirs,
executors and assigns.
"Term" shall mean the Term as defined in Paragraph 5.
"Termination Date" shall mean the Termination Date as defined in
Paragraph 18.
"Termination Event" shall mean a Termination Event as defined in
Paragraph 18.
"Termination Notice" shall mean Termination Notice as defined in
Paragraph 18(a).
"Third Party Purchaser" shall mean the Third Party Purchaser as
defined in Paragraph 21 (h).
"VAT" shall mean value added taxes which are required to be paid
on the Rent.
"Voting Stock" shall mean shares of stock of a corporation having
ordinary voting power to elect the board of directors or other managers of such
corporation.
"Warrant and Participation Agreement" shall mean that certain
Warrant and Participation Agreement of even date from Tenant to affiliates of
Landlord.
"Warranties" shall mean Warranties as defined in Paragraph 3(d).
"Work" shall mean Work as defined in Paragraph 13(b).
3. Title and Condition; Single Lease Transaction.
(a) The Leased Premises are demised and let subject to (i) the
rights of any Persons in possession of the Leased Premises, (ii) the existing
state of title of any of the Leased Premises, including any Permitted
Encumbrances, (iii) any state of facts which an accurate survey or physical
inspection of the Leased Premises might show, (iv) all Legal Requirements,
including any existing violation of any thereof, (v) the terms and condition of
the Ground Lease, where applicable, and (vi) the condition of the Leased
Premises as of the commencement of the Term, without representation or warranty
by Landlord.
(b) LANDLORD LEASES AND WILL LEASE AND TENANT TAKES AND WILL TAKE
THE LEASED PREMISES AS IS. TENANT ACKNOWLEDGES THAT LANDLORD (WHETHER ACTING AS
LANDLORD HEREUNDER OR IN ANY OTHER CAPACITY) HAS NOT MADE AND WILL NOT MAKE, NOR
SHALL LANDLORD BE DEEMED TO HAVE MADE, ANY WARRANTY OR REPRESENTATION, EXPRESS
OR IMPLIED, WITH RESPECT TO ANY OF THE LEASED PREMISES, INCLUDING ANY WARRANTY
OR REPRESENTATION AS TO (i) ITS FITNESS,
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DESIGN OR CONDITION FOR ANY PARTICULAR USE OR PURPOSE, (ii) THE QUALITY OF THE
MATERIAL OR WORKMANSHIP THEREIN, (iii) THE EXISTENCE OF ANY DEFECT, LATENT OR
PATENT, (iv) LANDLORD'S TITLE THERETO, (v) VALUE, (vi) COMPLIANCE WITH
SPECIFICATIONS, (vii) LOCATION, (viii) USE, (ix) CONDITION, (x) MERCHANTABILITY,
(xi) QUALITY, (xii) DESCRIPTION, (xiii) DURABILITY (xiv) OPERATION, (xv) THE
EXISTENCE OF ANY HAZARDOUS SUBSTANCE, OR (xvi) COMPLIANCE OF THE LEASED PREMISES
WITH ANY LAW OR LEGAL REQUIREMENT; AND ALL RISKS INCIDENT THERETO ARE TO BE
BORNE BY TENANT. TENANT ACKNOWLEDGES THAT THE LEASED PREMISES ARE OF ITS
SELECTION AND TO ITS SPECIFICATIONS AND THAT THE LEASED PREMISES HAVE BEEN
INSPECTED BY TENANT AND ARE SATISFACTORY TO IT. IN THE EVENT OF ANY DEFECT OR
DEFICIENCY IN ANY OF THE LEASED PREMISES OF ANY NATURE, WHETHER LATENT OR
PATENT, LANDLORD SHALL NOT HAVE ANY RESPONSIBILITY OR LIABILITY WITH RESPECT
THERETO OR FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING STRICT
LIABILITY IN TORT). THE PROVISIONS OF THIS PARAGRAPH 3(b) HAVE BEEN NEGOTIATED,
AND ARE INTENDED TO BE A COMPLETE EXCLUSION AND NEGATION OF ANY WARRANTIES BY
LANDLORD, EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF THE LEASED PREMISES,
ARISING PURSUANT TO ANY LAW NOW OR HEREAFTER IN EFFECT OR ARISING OTHERWISE.
(c) Tenant acknowledges that (i) fee simple title (Eigentum) to
the Leased Premises will be in Landlord after Landlord will have been registered
as new owner in the land register and that Tenant will have only the leasehold
right of possession and use of the Leased Premises, as provided herein, (ii) the
Improvements conform to all material Legal Requirements and all Insurance
Requirements, (iii) all easements necessary or appropriate for the use or
operation of the Leased Premises have been obtained, (iv) all contractors and
subcontractors who have performed work on or supplied materials to the Leased
Premises have been fully paid, and all materials and supplies have been fully
paid for, (v) the Improvements have been fully completed in all material
respects in a workmanlike manner of first class quality, and (vi) all Fixtures
necessary or appropriate for the use or operation of the Leased Premises have
been installed and is presently fully operative in all material respects.
(d) Landlord hereby assigns to Tenant, without recourse or
warranty whatsoever, in conjunction with Landlord, the right to enforce all
assignable warranties, guaranties, indemnities, causes of action and similar
rights (collectively "Warranties") which Landlord may have against any
manufacturer, seller, engineer, contractor or builder in respect of any of the
Leased Premises. Such assignment shall remain in effect until the expiration or
earlier termination of this Lease (unless Tenant or its affiliate or designee
acquires any of the Leased Premises, in which instance such assignment shall
become permanent and irrevocable with respect to such Leased Premises),
whereupon such assignment shall cease and all of the Warranties shall
automatically revert to Landlord. Tenant shall use commercially reasonable
efforts to enforce the Warranties in accordance with their respective terms.
(e) LANDLORD AND TENANT AGREE THAT IT IS THEIR MUTUAL INTENT TO
CREATE, AND THAT THIS LEASE CONSTITUTES, A SINGLE LEASE WITH RESPECT TO EACH AND
EVERY PARCEL OF LAND, IMPROVEMENTS INCLUDED IN ANY AND ALL OF THE LEASED
PREMISES (WHEREVER LOCATED), THAT THIS LEASE IS NOT INTENDED AND SHALL NOT BE
CONSTRUED TO BE SEPARATE LEASES AND THAT ALL THE TERMS AND CONDITIONS HEREOF
SHALL GOVERN THE RIGHTS AND OBLIGATIONS OF LANDLORD AND TENANT WITH RESPECT
THERETO.
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(f) TENANT EXPRESSLY ACKNOWLEDGES AND AGREES THAT,
NOTWITHSTANDING THE PROVISIONS OF PARAGRAPH 18 OR 37(o) HEREOF OR ANY OTHER
PROVISION IN THIS LEASE TO THE CONTRARY, IT IS THE EXPRESS INTENT OF LANDLORD
AND TENANT TO CREATE, AND THAT THIS LEASE CONSTITUTES, A SINGLE LEASE WITH
RESPECT TO EACH AND EVERY PARCEL OF LAND, IMPROVEMENTS AND FIXTURES INCLUDED IN
EACH AND ALL OF THE RELATED PREMISES (WHEREVER LOCATED) AND SHALL NOT BE (OR BE
DEEMED TO BE) DIVISIBLE OR SEVERABLE INTO SEPARATE LEASES FOR ANY PURPOSE
WHATSOEVER, AND TENANT HEREBY WAIVES ANY RIGHT TO CLAIM OR ASSERT A CONTRARY
POSITION IN ANY ACTION OR PROCEEDING; IT BEING FURTHER UNDERSTOOD AND AGREED BY
TENANT THAT THE ALLOCATIONS OF ALLOCATED COST AND PERCENTAGE ALLOCATION OF BASIC
RENT AS SET FORTH ON EXHIBIT "E" AND EXHIBIT "F" HEREOF ARE INCLUDED TO PROVIDE
A FORMULA FOR RENT ADJUSTMENT AND LEASE TERMINATION UNDER CERTAIN CIRCUMSTANCES
AND AS AN ACCOMMODATION TO TENANT. ANY EVENT OF DEFAULT HEREUNDER IN CONNECTION
WITH ANY RELATED PREMISES SHALL BE DEEMED TO BE AN EVENT OF DEFAULT WITH RESPECT
TO THE ENTIRE LEASED PREMISES (WHEREVER LOCATED). THE FOREGOING AGREEMENTS AND
WAIVERS BY TENANT IN THIS PARAGRAPH 3(f) ARE MADE AS A MATERIAL INDUCEMENT TO
LANDLORD TO ENTER INTO THE TRANSACTION CONTEMPLATED BY THIS LEASE AND THAT, BUT
FOR THE FOREGOING AGREEMENTS AND WAIVERS BY TENANT, LANDLORD WOULD NOT
CONSUMMATE THIS LEASE TRANSACTION.
(g) Landlord and Tenant acknowledge that a lease agreement with
McFit exists at the Magdeburg Mittagstr Premises and a lease agreement with
Total for the operation of a petrol station exists at the Berlin-Biesdorf
Premises. Tenant will use its best efforts to transfer these existing lease
agreements into sub-lease agreements between Tenant and such third parties. In
case either one or both of the third parties object to such transfer, the
Landlord and Tenant undertake to deal with each other as if such transfer to
sub-lease agreements would have been completed successfully, i.e., Tenant shall
perform all obligations of landlord under these lease agreements and shall
indemnify Landlord from and against all claims resulting from such lease
agreements and Landlord shall assign its claims for payment of the rent to
Tenant and instruct the third parties to pay the rent directly to Tenant, as
long as no Event of Default exists.
4. Use of Leased Premises; Quiet Enjoyment.
(a) Tenant may occupy and use the Leased Premises for retailing
and uses related thereto (such as offices, petrol stations). For any other
purpose Tenant shall require the prior written consent of Landlord which is not
to be unreasonably withheld. Tenant shall not use or occupy or permit any of the
Leased Premises to be used or occupied, nor do or permit anything to be done in
or on any of the Leased Premises, in a manner which would or might (i) violate
any Law, Legal Requirement or Permitted Encumbrance, (ii) make void or cause any
insurer to cancel any insurance required by this Lease, or make it difficult or
impossible to obtain any such insurance at commercially reasonable rates, (iii)
make void, cancel or cause to be cancelled or release any of the Warranties,
(iv) cause structural injury to any of the Improvements, (v) constitute a public
or private nuisance or waste or (vi) if applicable, conflict with or violate the
terms and conditions of the Ground Lease.
(b) Subject to the provisions hereof, so long as no Event of
Default has occurred and is continuing, Tenant shall quietly hold, occupy and
enjoy the Leased Premises throughout the Term, without any hindrance, ejection
or molestation by Landlord with respect to matters that arise after the date
hereof, provided that Landlord and Ground Lessor or its
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respective agents may enter upon and examine any of the Leased Premises at such
reasonable times during normal business hours as Landlord may select and upon at
least 48 hours prior notice to Tenant (except in the case of any emergency, in
which event no notice shall be required) for the purpose of inspecting the
Leased Premises, verifying compliance or non-compliance by Tenant with its
obligations hereunder or under the Ground Lease, as applicable, and the
existence or non-existence of an Event of Default or event which with the
passage of time and/or notice would constitute an Event of Default, showing the
Leased Premises to prospective Lenders and purchasers, making any repairs and
taking such other action with respect to the Leased Premises as is permitted by
any provision hereof or the Ground Lease.
(c) In no event shall any portion of the Leased Premises be used
or occupied or permitted to be used or occupied for any of the following
purposes: (i) any nightclub, bar or discotheque; (ii) any adult bookstore or
video shop, nude or semi-nude or "adult" entertainment establishment or any
lewd, obscene or pornographic purpose; (iii) any store in which a material
portion of the inventory is not available for sale or rental to children under
18 years of age because such inventory explicitly deals with, relates to, or
depicts human sexuality, or in which any of the inventory constitutes drug
paraphernalia, (iv) any dumping, disposing, incineration or reduction of garbage
(exclusive of appropriately screened dumpsters and/or recycling bins located in
the rear of any building and garbage disposal in the ordinary course of
business); (v) any mortuary; (vi) any bankruptcy sale (unless pursuant to a
court order) or auction house operation; (vii) any central laundry or dry
cleaning plant or laundromat; (viii) any business whose primary activity is
automobile, truck, trailer or RV repairs; (ix) any "flea market", secondhand,
or, except in the ordinary course of business, surplus or other "off-price" or
deep discount sales inside of the Improvements; (x) any gambling or off-track
betting operation except for state licensed operations, or (xi) any massage
parlor.
(d) Landlord agrees that its business operations shall be limited
to the ownership, leasing, development, financing of the Leased Premises and any
matters related thereto.
5. Term.
(a) Subject to the provisions hereof, Tenant shall have and hold
the Leased Premises for an initial term (such term, as extended or renewed in
accordance with the provisions hereof, being called the "Term") commencing on
March 1, 2007 (the "Commencement Date") and ending on February 28, 2030 (the
"Expiration Date").
(b) Provided that if, on or prior to the Expiration Date this
Lease shall not have been terminated pursuant to any provision hereof, then on
the Expiration Date the Term shall be deemed to have been automatically extended
for an additional period of seven (7) years (the "Renewal Term"), unless Tenant
shall notify Landlord in writing at least twenty-four (24) months prior to the
Expiration Date that Tenant is terminating this Lease as of the Expiration Date.
Any extension of the Term shall be subject to all of the provisions of this
Lease, as the same may be amended, supplemented or modified (except that at the
end of the Renewal Term, Tenant shall not have the right to any additional
Renewal Terms).
(c) If Tenant terminates this Lease pursuant to Paragraph 5(b)
prior to the Expiration Date, or if an Event of Default occurs, then Landlord
shall have the right during the remainder of the Term then in effect and, in any
event, Landlord shall have the right during the last year of the Term, to (i)
advertise the availability of any of the Leased Premises for sale or reletting
and to erect upon any of the Leased Premises signs indicating such availability
(if customary in Germany in such circumstances) and (ii) show any of the Leased
Premises to prospective purchasers or tenants or their agents at such reasonable
times as Landlord may select with twenty-four (24) hours prior notice.
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(d) An extension of this Lease according to Section 545 German
Civil Code due to continued usage of the Leased Premises by Tenant is
specifically excluded.
6. Basic Rent. Tenant shall pay to Landlord, as annual rent for the
Leased Premises during the Term, the amounts determined in accordance with
Exhibit "D" hereto ("Basic Rent"). Basic Rent shall be payable in advance for
the next calendar month and shall be paid no later than the third (3rd) Business
Day of each calendar month thereafter during the Term and shall be payable as
set forth in said Exhibit "D". The first payment for the period from and
including March 31, 2007 is payable on the Commencement Date. The date that each
payment of Basic Rent is due is hereinafter referred to as a "Basic Rent Payment
Date". Each such payment of Basic Rent shall include VAT on such payment and
shall be made in Federal Funds on each Basic Rent Payment Date to Landlord which
may instruct Tenant to wire Rent to a country other than the country in which
the Leased Premises are located and/or to such one or more other Persons,
pursuant to wire transfer instructions delivered to Tenant from time to time
which may instruct Tenant to wire Rent to a country other than the country in
which the Leased Premises are located at such addresses and in such proportions
as Landlord may direct by thirty (30) days' prior written notice to Tenant (in
which event Tenant shall give Landlord notice of each such payment concurrent
with the making thereof).
7. Additional Rent.
(a) Tenant shall pay and discharge, as additional rent
(collectively, "Additional Rent"):
(i) all costs and expenses of Landlord and any other Persons
specifically referenced herein which are incurred in connection or associated
with (A) the use, non-use, occupancy, possession, operation, condition, design,
construction, maintenance, alteration, repair or restoration of any of the
Leased Premises, (B) the prosecution, defense or settlement of any litigation
involving or arising from any of the Leased Premises or this Lease, (C) Costs of
Landlord's counsel and reasonable internal Costs of Landlord incurred in
connection with any act undertaken by Landlord (or its counsel if counsel is
customarily required in Germany for such matter) at the written request of
Tenant, or any act of Landlord performed on behalf of Tenant following an Event
of Default, including compliance with applicable Law, (D) all costs and fees
associated with the wire transfers of Rent payments, (E) Costs of Landlord
incurred in connection with the collection, payment and refunds of VAT, if any,
(F) all Ground Lease Basic Rent, additional rent and other charges payable by or
on behalf of the lessee under the terms of the Ground Lease, and (G) any other
items specifically required to be paid by Tenant under this Lease;
(ii) after the date all or any portion of any installment of
Basic Rent is due and not paid by the applicable Basic Rent Payment Date and
after the date all or any portion of any installment of Ground Lease Basic Rent
is due and not paid, an amount (the "Late Charge") equal to three percent ( 3%)
of the amount of such unpaid installment or portion thereof to reimburse
Landlord for its cost and inconvenience incurred as a result of Tenant's
delinquency provided, however, that with respect to the first late payment of
all or any portion of any installment of Basic Rent in any Lease Year, the Late
Charge shall not be due and payable unless the Basic Rent has not been paid
within five (5) business days' following the due date thereof;
(iii) interest at the rate (the "Default Rate") of five
percent (5%) over the Prime Rate per annum on the following sums until paid in
full: (A) all overdue installments of Basic Rent or Ground Lease Basic Rent from
the respective due dates thereof, (B) all overdue amounts of Additional Rent
relating to obligations which Landlord shall have paid on behalf of Tenant, from
the date of payment thereof by Landlord, and (C) all other overdue amounts of
Additional Rent, from the date when any such amount becomes overdue.
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(b) Tenant shall pay and discharge (i) any Additional Rent
referred to in Paragraph 7(a)(i) when the same shall become due, provided that
amounts which are billed to Landlord or any third party, but not to Tenant,
shall be paid within ten (10) Business Days after Landlord's demand for payment
thereof, and (ii) any other Additional Rent, within ten (10) Business Days after
Landlord's demand for payment thereof.
(c) To the extent that any Additional Rent is subject to VAT
under any applicable VAT provision, Tenant shall pay such VAT imposed on the
Additional Rent amount at the applicable rate.
(d) In no event shall amounts payable under Paragraph 7(a)(ii)
and (iii) or elsewhere in this Lease exceed the maximum amount permitted by
applicable Law.
8. Net Lease: Non-Terminability.
(a) Except as otherwise specifically provided in this Lease, this
is a net lease and all Monetary Obligations shall be paid without notice or
demand and without set-off except for amounts that are not disputed by Landlord
or that have been confirmed in a non-appealable judgment, counterclaim,
recoupment, abatement, suspension, deferment, diminution, deduction, reduction
or defense (collectively, a "Set-Off").
(b) The obligations of Tenant hereunder shall be separate and
independent covenants and agreements, all Monetary Obligations shall continue to
be payable in all events (or, in lieu thereof, Tenant shall pay amounts equal
thereto), and the obligations of Tenant hereunder shall continue unaffected
unless the requirement to pay or perform the same shall have been terminated
pursuant to an express provision of this Lease.
(c) Except as otherwise expressly provided herein, Tenant shall
have no right and hereby waives all rights which it may have under any Law
except for the rights under Section 314, 543 subsection 1 of the German Civil
Code (i) to quit, terminate or surrender this Lease or any of the Leased
Premises, or (ii) to any Set-Off of any Monetary Obligations unless such amounts
claimed by the Tenant against the Landlord are not disputed by Landlord or have
been confirmed in a non-appealable judgment.
9. Payment of Impositions, VAT and Expenses.
(a) Tenant shall, before interest or penalties are due thereon,
pay and discharge all real estate taxes and assessments (including real and
personal property, franchise, sales and rent taxes and all taxes or assessments,
if any, for which the lessee is responsible under the Ground Lease)
("Impositions") and VAT, if any that is due as a result of this Lease or the
Interest and Share Purchase Agreement (the latter relating to adjustments on the
input VAT (Vorsteuerabzug) for the purchase price (or any claim by any taxing
authority with respect to any reclamation of any VAT previously refunded, as
well as any interest or penalties imposed through VAT adjustments made by taxing
authorities unless such reclamation, interest or penalties are as a result of
Landlord engaging any business other than the ownership, leasing and/or
development of the Leased Premises), all charges for any easement or agreement
maintained for the benefit of any of the Leased Premises, all assessments and
levies, all permit, inspection and license fees, all rents and charges for
water, sewer, utility and communication services relating to any of the Leased
Premises, including all costs and expenses listed in the Cost Ordinance
("Betriebskostenverordnung") as well as costs and expenses for running, cleaning
and maintenance of windows, window panes, fronts and exterior of the building,
garage doors, technical admission systems, e.g. code card systems or other
electronic systems, ventilation and air conditioning equipment, elevators and
escalators, any interior or exterior pipes especially gas or water pipes, leads,
wires, power circuits, ducts, taps, telephone and
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communication systems, heating systems, security systems, fire detectors,
emergency power units, generators, air and water cleaning filters, snow and ice
removal, street sweeping and street cleaning, roof maintenance and repair,
costs, for administration and administrative personal, security surveillance
measures, lighting of the building, labeling of the building by exterior signs
and all other public charges whether of a like or different nature, even if
unforeseen or extraordinary. If any Imposition may be paid in installments
without interest or penalty, Tenant shall have the option to pay such Imposition
in installments; in such event, Tenant shall be liable only for those
installments which accrue or become due and payable during the Term. Tenant
shall prepare and cause an agent of Tenant to file all tax reports required by
governmental authorities which relate to the Impositions. Tenant shall deliver
to Landlord (1) copies of all settlements and notices pertaining to the
Impositions which may be issued by any governmental authority within ten (10)
days after Tenant's receipt thereof, (2) receipts for payment of all taxes
required to be paid by Tenant hereunder within thirty (30) days after the due
date thereof and (3) receipts for payment of all other Impositions within ten
(10) days after Landlord's request therefor.
(b) Tenant shall make all VAT payments arising from Tenant's
obligations under the Lease as and when due. Tenant will make such VAT payments
directly to the applicable taxing authority if permitted by law as and when due
on behalf of Landlord (but, if making such payments directly to the applicable
taxing authority is not permitted by law, Tenant will make such VAT payments to
an account designated by Landlord) and in connection therewith, the preparation
and review or filing of any VAT returns shall be performed by Tenant. If at any
time Landlord is not reasonably satisfied with the Tenant's performance with
respect to the preparation and review and filing of any VAT returns, Landlord
shall have the right to arrange for another Person to perform such work at
Tenant's expense.
10. Compliance with Laws and Easement Agreements; Environmental
Matters.
(a) Tenant shall, at its expense, comply with and conform to, and
cause the Leased Premises and any other Person occupying any part of the Leased
Premises to comply with and conform to, all Insurance Requirements and Legal
Requirements (including all applicable Environmental Laws) and the Ground Lease.
Tenant shall not at any time (i) cause, permit or suffer to occur any
Environmental Violation or (ii) permit any sublessee, assignee or other Person
occupying the Leased Premises under or through Tenant to cause, permit or suffer
to occur any Environmental Violation and, at the request of Landlord, Tenant
shall promptly remediate or undertake any other appropriate response action to
correct any existing Environmental Violation.
(b) Tenant, at its sole cost and expense, will at all times
promptly and faithfully abide by, discharge and perform all of the covenants,
conditions and agreements contained in any Easement Agreement on the part of
Landlord or the occupier to be kept and performed thereunder.
(c) Upon prior written notice from Landlord, Tenant shall permit
such persons as Landlord may designate ("Site Reviewers") to visit the Leased
Premises during normal business hours and in a manner which does not
unreasonably interfere with Tenant's operations and perform, as agents of
Tenant, and to conduct environmental site investigations and assessments ("Site
Assessments") on the Leased Premises in any of the following circumstances: (i)
in connection with any sale, financing or refinancing of the Leased Premises,
(ii) within the six month period prior to the expiration of the Term, (iii) if
required by Lender or the terms of any credit facility to which Landlord is
bound, (iv) if an Event of Default exists, or (v) at any other time that, in the
opinion of Landlord or Lender, a reasonable basis exists to believe that an
Environmental Violation or any condition that could reasonably be expected to
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result in any Environmental Violation exists. Such Site Assessments may include
both above and below the ground testing for Environmental Violations and such
other tests as may be necessary, in the opinion of the Site Reviewers, to
conduct the Site Assessments. Tenant shall supply to the Site Reviewers such
historical and operational information regarding the Leased Premises as may be
reasonably requested by the Site Reviewers to facilitate the Site Assessments,
and, upon reasonable notice to Tenant, shall make available for meetings with
the Site Reviewers appropriate personnel of Tenant, if any, having knowledge of
such matters. The costs of performing and reporting Site Assessments under
clauses (iv) and (v) shall be paid by Tenant (unless, under clause (v), no
Environmental Violation is found to exist); otherwise such costs shall be paid
by Landlord.
(d) If Tenant fails to comply with any requirement of any
Environmental Law in connection with any Environmental Violation which occurs or
is found to exist, Landlord shall have the right (but no obligation) to take any
and all actions as Landlord shall deem necessary or advisable in order to cure
such Environmental Violation.
(e) Tenant shall notify Landlord immediately after becoming aware
of any Environmental Violation (or alleged Environmental Violation) or
noncompliance with any of the covenants contained in this Paragraph 10 and shall
forward to Landlord immediately upon receipt thereof copies of all orders,
reports, notices, permits, applications or other communications relating to any
such violation or noncompliance.
(f) All future leases, subleases or concession agreements
relating to the Leased Premises entered into by Tenant shall contain covenants
of the other party thereto which are identical to the covenants contained in
Paragraph 10(a).
11. Intentionally Deleted.
12. Maintenance and Repair.
(a) Tenant shall at all times during the Term of this Lease
maintain ("instandhalten") each Related Premises and the Adjoining Property in
as good repair and appearance and fit to be used for their intended use in
accordance with the better of the practices generally recognized as then
acceptable by other companies in its industry or observed by Tenant with respect
to the other real properties owned or operated by it, and, in the case of the
Fixtures, in as good mechanical condition as it was on the later of the date
hereof or the date of its installation, except for ordinary wear and tear.
Tenant shall take every other action necessary or appropriate for the
preservation and safety of each Related Premises. Tenant shall promptly make all
Alterations of every kind and nature, which may be required to comply with the
foregoing requirements of this Paragraph 12(a). Landlord shall not be required
to make any Alteration, whether foreseen or unforeseen, or to maintain any
Related Premises or Adjoining Property in any way, and Tenant hereby expressly
waives any right which may be provided for in any Law now or hereafter in effect
to make Alterations at the expense of Landlord or to require Landlord to make
Alterations. Any Alteration made by Tenant pursuant to this Paragraph 12 shall
be made in conformity with the provisions of Paragraph 13.
(b) If any Improvements, now or hereafter constructed by the
Tenant, violate any rights of a third party or any mandatory statutory
obligations, Tenant shall, promptly after receiving notice or otherwise
acquiring knowledge thereof, either (A) obtain from all necessary parties
waivers or settlements of all claims, liabilities and damages resulting from
each such encroachment, violation, hindrance, obstruction or impairment, whether
the same shall affect Landlord, Tenant or both, or (B) take such action as shall
be necessary to remove all such encroachments, hindrances or obstructions and to
end all such violations or impairments, including, if necessary, making
Alterations.
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13. Alterations, Improvements and Expansions.
(a) Tenant shall have the right, without having obtained the
prior written consent of Landlord or Lender and provided that no Event of
Default then exists, (i) to make non-structural ("nicht statische") Alterations
or a series of related non-structural Alterations, and (ii) to install its own
equipment and fixtures in the Improvements or accessions to its own equipment
and fixtures and (iii) to construct lateral expansions (any such expansion, an
"Expansion") to the Improvements provided that , so long as at the time of
construction or installation of any such equipment or Alterations or the
construction of any Expansion no Event of Default exists and the value and
utility of the Leased Premises is not diminished thereby and, with respect to
any Expansion, the structure of the applicable Improvements is not adversely
affected. If Tenant desires to make structural ("statische") Alterations to any
Related Premises or to construct any Expansion which would impair the structure
of the Improvements, the prior written approval of Landlord shall be required.
Tenant shall not construct upon the Land any additional buildings without having
first obtained the prior written consent of Landlord. Landlord shall have the
right to require Tenant to remove any Alterations except for those Alterations
required by Law or for which Landlord has agreed in writing that removal will
not be required or for which consent was not necessary or was provided by
Landlord.
(b) If Tenant makes any Alterations or constructs any Expansion
pursuant to this Paragraph 13 or makes any Alterations as required by Paragraph
12 or 17 (such Alterations and Expansions being hereinafter collectively
referred to as "Work"), then (i) the market value of the Leased Premises shall
not be lessened by any such Work or its usefulness impaired, (ii) all such Work
shall be performed by Tenant in a good and workmanlike manner, (iii) all such
Work shall be expeditiously completed in compliance with the Ground Lease and
all Legal Requirements, (iv) all such Work shall comply with the requirements of
all insurance policies required to be maintained by Tenant hereunder, (v) if any
such Work involves the replacement of Fixtures or parts thereto, all replacement
Fixtures or parts shall have a value and useful life equal or greater than the
value and useful life of the Fixtures being replaced immediately prior to the
occurrence of the event which required its replacement (assuming such replaced
Fixtures was then in the condition required by this Lease), (vi) Tenant shall
procure and pay for all permits and licenses required in connection with any
such Work, (vii) all such Work (except for Work involving Tenant's equipment and
fixtures) shall be the property of Landlord and shall be subject to this Lease,
and (viii) Tenant shall comply, to the extent requested by Landlord or required
by this Lease, with the provisions of Paragraph 12(a) and, if the Alterations
are structural or are an Expansion which is reasonably likely to affect the
integrity of any structure, Paragraph 19(a), whether or not such Work involves
restoration of any Related Premises.
(c) No later than the dates set forth in Exhibit "I" next to each
Expansion Premises, Tenant shall complete the expansions described in Exhibit
"I" hereto (the "Required Expansions") which Tenant shall construct in
accordance with the requirements of this Paragraph 13. Landlord hereby consents
to the construction of the Required Expansions. Upon completion of each
Expansion Premises that is the subject of the Required Expansions, which
completion shall be evidenced by (i) the issuance of a written confirmation of
the architect supervising the construction that the Required Expansions are
completed and the operations have commenced (Fertigstellung und Inbetriebnahme),
and (ii) either (A) certificates of occupancy issued by the applicable local
governmental authority, or (B)to the extent certificates of occupancy have not
been issued, negative confirmations confirming that certificates of occupancy
are not required with respect to the applicable Required Expansion, or (C) a
statement from the local municipal authority stating that a building permit
exists, there are no material defects with respect to the applicable Required
Expansion, and the applicable local municipality has no objection to the use of
the relevant Expansion Premises, Landlord shall, within ten (10)
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days following the delivery of such evidence, release to Tenant the applicable
portion of the Expansion Holdback for the applicable completed Required
Expansion.
(d) In case Tenant does not complete one or more of the Required
Expansions within thirty six (36) months of the applicable dates set forth in
Exhibit "I" due to any cause or causes which Tenant is not, despite its best
efforts, able to prevent or overcome (which causes exclude the unavailability of
money, unavailability of sources of financing, a shortage of labor or materials,
or changes in market conditions), the total amount of Basic Rent shall remain
unaffected except as expressly provided in (ii) in the succeeding sentence. In
such event, Landlord shall have the right, at its sole and exclusive option, to
either (i) pay the respective portion of the Expansion Holdback, including
interest accrued thereon, to Tenant or (ii) (A) retain on Landlord's behalf the
respective portion of the Expansion Holdback, excluding interest accrued
thereon, without any further obligations hereunder to remit such portion of the
Expansion Holdback to Tenant, (B) adjust the allocation of Allocated Cost set
forth on Exhibit "E" attached hereto by subtracting the respective portion of
the Expansion Holdback retained by Landlord from the Allocated Cost for the
applicable Related Premises, and (C) adjust the allocation of Percentage
Allocation of Basic Rent set forth on Exhibit "F" attached hereto by subtracting
the product of 7.84% multiplied by the respective portion of the Expansion
Holdback retained by Landlord from the Percentage Allocation of Basic Rent for
the applicable Related Premises. Any calculations in connection with the
foregoing shall be determined by Landlord and, absent manifest error, shall be
conclusive upon both Landlord and Tenant.
14. Permitted Contests. Notwithstanding any other provision of this
Lease, Tenant shall be permitted to contest any Imposition in accordance with
applicable German law.
15. Indemnification.
(a) Tenant shall indemnify, defend, save and hold harmless
Landlord and all other Persons described in Paragraph 30 (each an "Indemnitee")
from and against any and all liabilities and damages from claims, actions,
suits, demands or judgments (unless arising from the gross negligence or willful
misconduct of the Indemnitee seeking indemnification) brought in the Courts of
Germany or the European Union, which arise from (i) any matter pertaining to the
acquisition (or the negotiations leading thereto), ownership, use, non-use,
occupancy, design, or construction of any of the Leased Premises or Adjoining
Property, (ii) any casualty in any manner arising from any of the Leased
Premises or Adjoining Property, whether or not Indemnitee has or should have
knowledge or notice of any defect or condition causing or contributing to said
casualty, (iii) any violation by Tenant of any provision of this Lease or the
Ground Lease, any Legal Requirement or any Permitted Encumbrance or (iv) any
alleged, threatened or actual Environmental Violation.
(b) The obligations of Tenant under this Paragraph 15 shall
survive any termination or expiration of this Lease.
16. Insurance.
(a) Tenant shall obtain, pay for and maintain (or cause to be
obtained or paid for and maintained with respect to the insurance required under
clause (a)(iv) below the following insurance on or in connection with the Leased
Premises:
(i) Insurance against fire, lightning, explosion, falling
aircraft, storm/hail, power surge, damage to property following burglary or
attempt thereof, flood (due to heavy rain falls, snow or from running or still
water, such as rivers, lakes creeks), named natural hazards such as subsidence,
snow load, extended perils, such as strike, malicious damage, riots, vehicle
impact, smoke and sonic blast, debris removal, demolition, clearance and fire
fighting
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costs. Such policies and endorsements shall contain deductibles of not more than
Twenty Thousand Euros (E20.000,00) per occurrence.
(ii) Commercial General Liability Insurance
(Betriebshaftpflicht) against claims for personal and bodily injury, death or
property damage occurring on, in or as a result of the use of the Leased
Premises, in an amount not less than Two Million Five Hundred Thousand Euros
(E2.500.000,00) for injury or damage to persons, private risk and the
environment and Fifty Thousand Euros (E50.000,00) for personal property.
(iii) Business Income/Extra Expense Insurance
(Betriebsunterbrechungsversicherung) at limits sufficient to cover 100% of the
period of indemnity not less than twelve (12) months from time of loss,
including extended period of indemnity which provides that after the physical
loss to the Improvements and Fixtures has been repaired, the continued loss of
income will be insured until such income either returns to the same level it was
at prior to the loss, or the expiration of six (6) months from the date that the
applicable Related Premises are repaired or replaced and operations are resumed,
whichever first occurs.
(iv) During any period in which substantial Alterations at
the Leased Premises are being undertaken or an Expansion is being constructed,
builder's risk insurance (Bauwesenversicherung) covering the total completed
value, including all hard and soft costs (which shall include business
interruption coverage) with respect to the Improvements being constructed,
altered or repaired (on a completed value, non-reporting basis), replacement
cost of work performed and equipment, supplies and materials furnished in
connection with such construction, alteration or repair of Improvements or
Fixtures, together with such other endorsements as Landlord may reasonably
require, and general liability, worker's compensation and automobile liability
insurance with respect to the Improvements being constructed, altered or
repaired.
(v) Such other insurance (or other or different terms with
respect to any insurance required pursuant to this Paragraph 16, including
without limitation amounts of coverage, deductibles, form of mortgagee clause,
insurer rating) on or in connection with any of the Leased Premises as Landlord
or Lender may reasonably require and is normal and customary in Germany for like
properties and enterprises of comparable size.
(b) The insurance required by Paragraph 16(a) shall be written by
companies having an international reputation and of size and creditworthiness
reasonably acceptable to Landlord and which are authorized to write insurance
policies according to German law. The insurance policies shall be for such terms
customarily provided to similar properties by German insurance companies. If
said insurance or any part thereof shall expire, be withdrawn, become void,
voidable, unreliable or unsafe for any reason, including a breach of any
condition thereof by Tenant or the failure or impairment of the capital of any
insurer, or if for any other reason whatsoever said insurance shall become
reasonably unsatisfactory to Landlord, Tenant shall immediately obtain new or
additional insurance reasonably satisfactory to Landlord.
(c) Each insurance policy referred to in Paragraph 16(a) shall
stipulate Lender as beneficiary of the insurance ("Begunstigte/mitversicherte
Person") and as first loss payee for the insurance required under clause (i) and
(iii) of Paragraph 16(a) and shall name Landlord as an additional insured and as
second loss payee for the insurance required under clauses (i) and (iii) of
Paragraph 16(a). Each policy required by any provision of Paragraph 16(a) shall
provide that it may not be cancelled, substantially modified or allowed to lapse
on any renewal date except after at least thirty (30) days' prior written notice
to Landlord and Lender.
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(d) Tenant shall pay as they become due all premiums for the
insurance required by Paragraph 16(a), shall renew or replace each policy and
deliver to Landlord evidence of the payment of the full premium therefor or
installment then due at least ten (10) days prior to the expiration date of such
policy, and shall promptly deliver to Landlord all certified copies of
certificates of insurance evidencing such coverages or, if required by Lender,
certified copies of policies. All certificates of insurance (including liability
coverage) provided to Landlord and Lender shall be in a form acceptable to
Landlord and Lender.
(e) Anything in this Paragraph 16 to the contrary notwithstanding
any insurance which Tenant is required to obtain pursuant to Paragraph 16(a) may
be carried under a "blanket" policy or policies covering other properties of
Tenant or under an "umbrella" policy or policies covering other liabilities of
Tenant, as applicable; provided that such blanket or umbrella policy or policies
otherwise comply with the provisions of this Paragraph 16, and upon request,
Tenant shall provide to Landlord evidence necessary in order to enable Landlord
to confirm that the required insurance is in full force and effect.
(f) Tenant shall not carry separate insurance concurrent in form
or contributing in the event of a Casualty with that required in this Paragraph
16 unless (i) Landlord and Lender are included therein as required under clause
(c) above, with loss payable as provided herein, and (ii) such separate
insurance complies with the other provisions of this Paragraph 16. Tenant shall
immediately notify Landlord of such separate insurance and shall deliver to
Landlord certified copies of any such policy.
(g) Each policy shall contain an effective waiver by the carrier
against all claims for payment of insurance premiums against Landlord and shall
contain a full waiver of subrogation against the Landlord.
(h) In the event that Landlord is required by Law to obtain and
maintain all or portion of the insurance described in Paragraph 16(a), Tenant
shall pay the annual premiums for such policies within fifteen (15) days
following receipt of an invoice from Landlord.
(i) The proceeds of any insurance required under Paragraph 16(a)
shall be payable as follows:
(i) proceeds payable under clauses (ii) of Paragraph 16(a)
and proceeds attributable to the general liability coverage of Builder's Risk
insurance under clause (iv) of Paragraph 16(a) shall be payable to the Person
entitled to receive such proceeds with Landlord and Lender being named as
additional insureds on such policy; and
(ii) proceeds of insurance required under clause (i) of
Paragraph 16(a) and proceeds attributable to Builder's Risk insurance (other
than its general liability coverage provisions) under clause (iv) of Paragraph
16(a) shall be payable to Landlord or Lender (provided that Lender acknowledges
in writing that it will disburse the Net Award pursuant to the terms of this
Lease) and applied as set forth in Paragraph 17. Tenant shall apply the Net
Award to restoration of the Leased Premises in accordance with the applicable
provisions of this Lease.
17. Casualty and Condemnation.
(a) If any Casualty in excess of Two Hundred Thousand Euros
(E200.000,00) to any of the Related Premises occurs Tenant shall give Landlord
immediate notice thereof. So long as no Event of Default exists Tenant is hereby
authorized to adjust, collect and compromise all claims under any of the
insurance policies required by
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Paragraph 16(a) (except public liability insurance claims payable to a Person
other than Tenant, Landlord or Lender) and to execute and deliver on behalf of
Landlord all necessary proofs of loss, receipts, vouchers and releases required
by the insurers and Landlord shall have the right to join with Tenant therein.
Any final adjustment, settlement or compromise of any such claim shall be
subject to the prior written approval of Landlord, not to be unreasonably
withheld. If an Event of Default exists, Tenant shall not be entitled to adjust,
collect or compromise any such claim or to participate with Landlord in any
adjustment, collection and compromise of the Net Award payable in connection
with a Casualty. Tenant agrees to sign or provide, as required by the applicable
insurance company, upon the request of Landlord, all such proofs of loss,
receipts, vouchers and releases. Each insurer is hereby authorized and directed
to make payment under said policies, including return of unearned premiums,
directly to Landlord or, if required by the Mortgage, to Lender instead of to
Landlord and Tenant jointly. The rights of Landlord under this Paragraph 17(a)
shall be extended to Lender if and to the extent that any Mortgage so provides.
(b) Tenant, immediately upon receiving a Condemnation Notice,
shall notify Landlord thereof. So long as no Event of Default exists and the
Condemnation is a Partial Condemnation, Tenant is authorized to collect, settle
and compromise the amount of any Net Award and Landlord shall have the right to
join with Tenant therein. If an Event of Default exists, Landlord shall be
authorized to collect, settle and compromise the amount of any Net Award and
Tenant shall not be entitled to participate with Landlord in any Condemnation
proceeding or negotiations under threat thereof or to contest the Condemnation
or the amount of the Net Award therefor. No agreement with any condemnor in
settlement or under threat of any Condemnation shall be made by Tenant without
the written consent of Landlord. Subject to the provisions of this Paragraph
17(b), Tenant hereby irrevocably assigns to Landlord any award or payment to
which Tenant is or may be entitled by reason of any Condemnation, whether the
same shall be paid or payable for Tenant's leasehold interest hereunder or
otherwise; but nothing in this Lease shall impair Tenant's right to any award or
payment on account of Tenant's trade fixtures, equipment or other tangible
property which is not part of the Fixtures, moving expenses or loss of business,
if available, to the extent that and so long as (i) Tenant shall have the right
to make, and does make, a separate claim therefor against the condemnor and (ii)
such claim does not in any way reduce either the amount of the award otherwise
payable to Landlord for the Condemnation of Landlord's fee interest in the
Leased Premises or the amount of the award (if any) otherwise payable for the
Condemnation of Tenant's leasehold interest hereunder. The rights of Landlord
under this Paragraph 17(b) shall also be extended to Lender if and to the extent
that any Mortgage so provides.
(c) If any Casualty (whether or not insured against) or Partial
Condemnation shall occur to any Related Premises, this Lease shall continue,
notwithstanding such event, there shall be no abatement or reduction of any
Monetary Obligations and the Net Award shall be made available to Tenant for
restoration. Promptly after such Casualty or Partial Condemnation, Tenant, as
required in Paragraph 12(a), shall commence and diligently continue to restore
the applicable Related Premises as nearly as possible to their value, condition
and character immediately prior to such event (assuming such Related Premises to
have been in the condition required by this Lease). So long as no Event of
Default exists, any Net Award up to and including Two Hundred Thousand Euros
(E200.000,00) shall be paid by Landlord to Tenant and Tenant shall restore
the applicable Related Premises in accordance with the requirements of Paragraph
13(b) of this Lease. Any Net Award in excess of Two Hundred Thousand Euros
(E200.000,00) shall (unless such Condemnation resulting in the Net Award
is a Termination Event) be made available by Landlord (or Lender if the terms of
the Mortgage so require and Lender has provided the acknowledgement required
under Paragraph 16(i) (ii)) to Tenant for the restoration of any of the
applicable Related Premises pursuant to and in accordance with and subject to
the provisions of Paragraph 19 hereof. If any Condemnation which is not a
Partial Condemnation shall occur, Tenant shall comply with the terms and
conditions of Paragraph 18.
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18. Termination Events.
(a) If either (i) all of any Related Premises shall be taken by a
Condemnation or (ii) any substantial portion of any Related Premises shall be
taken by a Condemnation and, in such case, Tenant confirms in writing to
Landlord that it will abandon operations at the Related Premises (any one or all
of the Related Premises described in clauses (i) and (ii) above being
hereinafter referred to as the "Affected Premises" and each of the events
described in the above clauses (i) and (ii) shall hereinafter be referred to as
a "Termination Event"), then (x) in the case of (i) above, Tenant shall be
obligated, within sixty (60) days after Tenant receives a Condemnation Notice
and (y) in the case of (ii) above, Tenant shall have the option, within sixty
(60) days after Tenant receives a Condemnation Notice to give to Landlord
written notice (a "Termination Notice") in the form described in Paragraph 18(b)
of the Tenant's election to terminate this Lease as to the Affected Premises. If
Tenant elects under clause (y) above not to give Landlord a Termination Notice,
then Tenant shall rebuild or repair the Affected Premises in accordance with
Paragraphs 17 and 19.
(b) A Termination Notice shall contain notice of Tenant's
intention to terminate this Lease with respect to the Affected Premises on the
first Basic Rent Payment Date which occurs at least thirty (30) days after
delivery of the Termination Notice (the "Termination Date"), and (ii) if the
Termination Event is an event described in Paragraph 18(a)(ii), the confirmation
described therein.
(c) In any such event this Lease shall terminate with respect to
the Affected Premises on the Termination Date. Upon such termination (i) all
obligations of Tenant hereunder shall terminate with respect to the Affected
Premises except for any Surviving Obligations, (ii) Tenant shall vacate the
Affected Premises within sixty (60) days after the Termination Date and shall
have no further right, title or interest in or to any of the Affected Premises
and (iii) the Net Award for the Affected Premises shall be retained by Landlord.
Notwithstanding anything to the contrary hereinabove contained, if on the date
when this Lease would otherwise terminate with respect to the Affected Premises,
Landlord shall not have received the full amount of the Net Award payable by
reason of the applicable Termination Event, then the date on which this Lease is
to terminate shall be automatically extended to the first Basic Rent Payment
Date after the receipt by Landlord of the full amount of the Net Award provided
that, if Tenant has not satisfied all Monetary Obligations on such date, then
Landlord may, at its option, extend the date on which this Lease may terminate
with respect to the Affected Premises to a date which is no later than the first
Basic Rent Payment Date after such date on which Tenant has satisfied all such
Remaining Obligations.
(d) In the event of the termination of this Lease with respect to
the Affected Premises as hereinabove provided, this Lease shall remain in full
force and effect with respect to the Remaining Premises; provided, that the
Basic Rent for the Remaining Premises to be paid after such termination shall be
the Basic Rent otherwise payable hereunder with respect to the Leased Premises
multiplied by a percentage equal to the sum of the percentages set forth on
Exhibit "F" for the Remaining Premises.
19. Restoration.
(a) If any Net Award is in excess of Two Hundred Thousand Euros
(E200.000,00), Landlord (or Lender if required by any Mortgage) shall hold the
Net Award in a fund (the "Restoration Fund") and disburse amounts from the
Restoration Fund only in accordance with the following conditions:
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(i) prior to commencement of restoration, the architects,
contracts, contractors, plans and specifications and a budget for the
restoration shall have been approved by Landlord;
(ii) at the time of any disbursement, no Event of Default
shall exist;
(iii) disbursements shall be made from time to time in an
amount not exceeding the cost of the Work completed since the last disbursement,
upon receipt of (A) satisfactory evidence, including architects' statements, of
the stage of completion, the estimated total cost of completion and performance
of the Work to date in a good and workmanlike manner in accordance with the
contracts, plans and specifications, (B) contractors' and subcontractors'
written statements as to completed Work and the cost thereof for which payment
is requested and (C) other evidence of cost and payment so that Landlord can
verify that the amounts disbursed from time to time are represented by Work that
is completed, in place;
(iv) each request for disbursement shall be accompanied by a
certificate of Tenant, signed by an authorized officer of Tenant, describing the
Work for which payment is requested, stating the cost incurred in connection
therewith, stating that Tenant has not previously received payment for such Work
and, upon completion of the Work, also stating that the Work has been fully
completed and complies with the applicable requirements of this Lease;
(v) Landlord may retain ten percent (10%) of the Restoration
Fund until the Work is fully completed, and upon completion such retained amount
shall be released to Tenant for payment to the contractors;
(vi) If the Restoration Fund is held by Landlord, the
Restoration Fund shall not be commingled with Landlord's other funds and shall
bear interest at a rate agreed to by Landlord and Tenant; and
(vii) such other reasonable and customary construction
requirements in Germany as Landlord may impose.
(b) Prior to commencement of restoration and at any time during
restoration, if the estimated cost of completing the restoration Work free and
clear of all liens, as reasonably determined by Landlord, exceeds the amount of
the Net Award available for such restoration, the amount of such excess shall,
upon demand by Landlord, be paid by Tenant to Landlord to be added to the
Restoration Fund. Any sum so added by Tenant which remains in the Restoration
Fund upon completion of restoration shall be refunded to Tenant. For purposes of
determining the source of funds with respect to the disposition of funds
remaining after the completion of restoration, the Net Award shall be deemed to
be disbursed prior to any amount added by Tenant.
(c) Landlord shall not be required to disburse from the
Restoration Fund any amounts for VAT unless the Net Award expressly includes
VAT. In the event that Landlord is entitled to a refund of VAT paid for
materials being purchased in connection with the restoration Work, then,
Landlord, with the cooperation of Tenant, shall promptly apply for such a refund
and disburse such amounts to Tenant to the extent such VAT was paid by Tenant.
(d) If any sum remains in the Restoration Fund after completion
of the restoration and any refund to Tenant pursuant to Paragraph 19(b), such
sum (the "Remaining Sum") shall be retained by Landlord or, if required by a
Note or Mortgage, paid by Landlord to a Lender.
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20. Intentionally Omitted.
21. Assignment and Subletting: Prohibition against Leasehold
Financing.
(a) Tenant may not assign this Lease or sublet any of the Leased
Premises (or permit any sublease to exist), voluntarily or involuntarily,
whether by operation of law or otherwise (including through merger or
consolidation, except that merger or consolidation to a Person whose primary
business is the sale of retail goods shall be permitted without the consent of
Landlord) to any Person except as specifically provided in, and in accordance
with, the provisions of Paragraph 21(d) and Paragraph 21(m) of this Lease.
(b) Intentionally deleted.
(c) As used in this Paragraph 21 and for avoidance of doubt,
assignment shall mean having an additional tenant, assume all rights and
obligations under this Lease ("Vertragsbeitritt"). Any purported sublease or
assignment in violation of this Paragraph 21 shall be null and void. In
addition, notwithstanding anything to the contrary contained in this Paragraph
21, Tenant shall not have the right to assign this Lease (voluntarily or
involuntarily, whether by operation of law or otherwise), or sublet any of the
Leased Premises to any Person at any time that an Event of Default shall exist.
Tenant hereby explicitly waives any termination rights under Section 540 German
Civil Code.
(d) In addition to the leases described in Paragraph 3(g), Tenant
shall have the right, upon thirty (30) days prior written notice to Landlord and
Lender, to enter into (x) one or more subleases with any Credit Entity, any
Person whose primary business is the sale of retail goods or any member of the
Tenant Group, (y) minor subleases for ancillary uses within the Improvements,
such as a bakery and soft drink concessions, and (z) subleases with any third
parties which demise any sixteen (16), but not more than sixteen (16) Related
Premises, in each case in their entirety, with no consent or approval of
Landlord being required or necessary (each, a "Preapproved Sublet"). Other than
pursuant to Preapproved Sublets, at no time during the Term shall subleases
exist without the prior written consent of Landlord, which consent shall be
withheld only for cause (Wichtiger ▇▇▇▇▇). As used herein, a "Credit Entity"
shall mean any Person that immediately following such subletting and having
given effect thereto will have a publicly traded unsecured senior debt rating of
"Baa1" or better from ▇▇▇▇▇'▇ or a rating of "BBB+" or better from S&P (or, if
such Person does not then have rated debt, a determination that by either of
such rating agencies its unsecured senior debt would be so rated by such agency
and will not be on "Negative Credit Watch"), and in the event both such rating
agencies cease to furnish such ratings, then a comparable rating by any rating
agency acceptable to Landlord and Lender.
(e) Except as otherwise provided in Paragraph 3(g), each sublease
of any of the Leased Premises (A) shall be expressly subject and subordinate to
this Lease and any Mortgage encumbering the Leased Premises; (B) not extend
beyond the then current Term minus one day; (C) terminate upon any termination
of this Lease, unless Landlord elects in writing, to cause the sublessee to
attorn to and recognize Landlord as the lessor under such sublease, whereupon
such sublease shall continue as a direct lease between the sublessee and
Landlord upon all the terms and conditions of such sublease; and (D) bind the
sublessee to all covenants contained in Paragraph 4(a), 10 and 12 with respect
to subleased premises to the same extent as if the sublessee were the Tenant. No
sublease shall affect or reduce any of the obligations of Tenant hereunder or of
the Guarantor under the Guaranty, and all such obligations of Tenant and
Guarantor shall continue in full force and effect as obligations of a principal
and not as obligations of a guarantor, as if no sublease had been made. No
sublease shall impose any additional obligations on Landlord under this Lease.
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(f) In the case of any assignment under the terms of this
▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and the Assignee shall enter in to a written
agreement (the "Assignment Agreement"), observing the requirement of written
form according to Section 550 German Civil Code, whereby the Assignee under such
Assignment Agreement shall expressly assume all the rights and all the
obligations of Tenant hereunder, actual or contingent, including obligations of
Tenant which may have arisen on or prior to the date of such assignment. No
Assignment shall affect or reduce any of the obligations of Tenant hereunder or
of the Guarantor under the Guaranty, and all such obligations of Tenant and
Guarantor shall continue in full force and effect as obligations of a principal
and not as obligations of a guarantor, as if no Assignment had been made. No
assignment shall impose any additional obligations on Landlord under this Lease.
(g) Notwithstanding any provision in this Paragraph 21 or
elsewhere in this Lease to the contrary, including any right or option Tenant
may have to assign this Lease or sublease all or any portion of the Leased
Premises without Landlord's consent, Tenant shall, upon the request of Landlord,
provide and cause such assignee or sublessee to provide, such information
(including, without limitation, any certification) as to any proposed assignee
or sublessee and its principals as may be required for Landlord and Tenant to
comply with regulations administered by the Office of Foreign Asset Control
("OFAC") of the Department of the Treasury, codified at 31 C.F.R. Part 500
(including those named on OFAC's Specially Designated and Blocked Persons list)
or under any statute, executive order (including the September 24, 2001,
Executive Order Blocking Property and Prohibiting Transactions with Persons Who
Commit, Threaten to Commit, or Support Terrorism), or other governmental action
regarding persons or entities with whom U.S. persons or entities are restricted
from doing business.
(h) Tenant shall, within ten (10) days after the execution and
delivery of any assignment or sublease, deliver a duplicate original copy
thereof to Landlord. With respect to any assignment to a wholly-owned subsidiary
of Tenant or Credit Entity or any Preapproved Sublet, at least thirty (30) days
prior to the effective date of such assignment or sublease, Tenant shall provide
to Landlord information reasonably required by Landlord to establish that the
Person involved in any such proposed assignment or sublet satisfies the criteria
set forth in this Lease for a Preapproved Assignment or Preapproved Sublet.
(i) As security for performance of its obligations under this
Lease, Tenant hereby grants, conveys and assigns to Landlord all right, title
and interest of Tenant in and to all subleases now in existence or hereafter
entered into for any or all of the Leased Premises, any and all extensions,
modifications and renewals thereof and all rents, issues and profits therefrom.
Landlord hereby grants to Tenant a license to collect and enjoy all rents and
other sums of money payable under any sublease of any of the Leased Premises;
provided, however, that Landlord shall have the right at any time following an
Event of Default and upon notice to Tenant and any subtenants to revoke said
license and to collect such rents and sums of money and to retain the same. Any
amounts collected shall be applied to Rent payments next due and owing. Tenant
shall not accept any rents more than thirty (30) days in advance of the accrual
thereof.
(j) Tenant shall not have the power to mortgage, pledge or
otherwise encumber its interest under this Lease or any sublease of the Leased
Premises, and any such mortgage, pledge or encumbrance made in violation of this
Paragraph 21 shall be void and of no force and effect.
(k) Landlord may sell or transfer the Leased Premises at any time
without Tenant's consent to any third party (each a "Third Party Purchaser"),
provided, however, that Landlord shall not have the right to sell or transfer
the Leased Premises to a Competitor unless three or more Monetary Defaults
beyond the applicable cure periods hereunder have occurred. In the event of any
such transfer, Tenant shall attorn to any Third Party Purchaser as
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Landlord so long as such Third Party Purchaser and Landlord notify Tenant in
writing of such transfer. At the request of Landlord, Tenant will execute such
documents confirming the agreement referred to above and such other agreements
as Landlord may reasonably request, provided that such agreements do not
increase the liabilities and obligations of Tenant hereunder.
(l) Tenant shall not, in a single transaction or series of
transactions (including any interim merger or consolidation), sell or convey,
transfer or lease all or substantially all of its assets (an "Asset Transfer")
to any Person, and any such Asset Transfer shall be deemed an assignment in
violation of this Lease; except that Tenant shall have the right to conduct an
Asset Transfer without Landlord's consent to any Person that is permitted to
enter into a Control Transaction under Paragraph 21(m) provided that this Lease
is assigned to and assumed by such Person as a part of such Asset Transfer and
the purchaser of such assets complies with the requirements of Paragraph 21(m).
Sale and leaseback type transactions with respect to trade fixtures and
equipment of Tenant (any such transaction, an "Equipment Sale Leaseback") shall
not be deemed to constitute an Asset Transfer provided that, and Tenant hereby
covenants that, the proceeds from any such transaction shall remain with Tenant
and are not distributed to any shareholder, member, partner or other person
holding an ownership interest in Tenant and Tenant shall continue to operate its
business in the same manner and in the same facilities as immediately prior to
such Equipment Sale Leaseback.
(m) (i) At no time during the Term shall any Person or group
pursuant to a single transaction or series of related transactions (other than a
transaction or transactions with other members of the Tenant Group) (any such
transaction a "Control Transaction") (A) acquire, directly or indirectly, any
stock, partnership interests, membership interests or other equitable and/or
beneficial interests of Tenant or (B) obtain, directly or indirectly, the power
(whether or not exercised) to elect any of the directors of Tenant or voting
control of any partnership or limited liability company or other entity acting
as its general partner or managing member (including through a merger or
consolidation of Tenant with or into any other Person) without the prior written
consent of Landlord provided, however, that no consent of the Landlord shall be
required for a Control Transaction (a "Permitted Control Transaction") under any
of the following circumstances:
(1) the acquiring Person is either (a) an experienced
operator of a chain of DIY stores which, by way of example, shall include
Hornbach, Obi, Praktiker, Rewe, Lowe's, Home Depot or Kingfisher/B&Q or (b) a
DIY operator with a publicly traded unsecured senior debt rating of "BB" or
better from S&P or Ba2 or better from ▇▇▇▇▇'▇ on the date of the Control
Transaction and after giving effect thereto, and, in the case of (a) or (b), if
in a single transaction or series of transactions forty nine percent (49%) of
the beneficial interests of Tenant shall be acquired, directly or indirectly, by
one or more of such Persons, any Person acquiring, directly or indirectly, any
portion of the remaining fifty one percent (51%) of the beneficial interests of
Tenant executes and delivers to Landlord an unconditional guaranty of Tenant's
obligations under this Lease in form and substance acceptable to Landlord
(provided, however, such guaranty shall not be a guaranty on first demand);
(2) subject to consent, which shall not be unreasonably
withheld, the acquiring Person is a reputable financial investment firm, except
that no consent shall be required if such Person ("Preapproved Firm") is Advent,
Apax, Apollo, Cerberus, EQT, Permira or Texas Pacific so long as the applicable
Preapproved Firm has not filed or permitted to be filed or acquiesced in any
bankruptcy proceeding for any portfolio company of such Preapproved Firm;
(3) the acquiring Person has publicly traded senior
unsecured credit rating of "BBB" or better from S&P or Baa2 or better from
▇▇▇▇▇'▇, and, if in a single transaction or series of transactions forty nine
percent (49%) of the beneficial interests of
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Tenant shall be acquired, directly or indirectly, by one or more of such
Persons, any Person acquiring, directly or indirectly, any portion of the
remaining fifty one percent (51%) of the beneficial interests of Tenant executes
and delivers to Landlord an unconditional guaranty of Tenant's obligations under
this Lease in form and substance acceptable to Landlord (provided, however, such
guaranty shall not be a guaranty on first demand);
(4) the acquiring Person is approved by Landlord
pursuant to the Review Criteria that executes and delivers to Landlord a
guaranty of Tenant's obligations under this Lease acceptable to Landlord; or
(5) the acquiring Person is the spouse, children or
grandchildren of Tenant Shareholder, or the senior management of the Tenant, so
long as, in either case, each member of the senior management of the Tenant
(which senior management shall include the heads of Purchasing, Sales, IT, Real
Estate and Commercial Business) confirms in writing that such Persons will
remain within their respective senior management positions with Tenant following
such Change of Control or, if such confirmation is not obtained, other general
managers which are qualified to manage a DIY Company.
(ii) Within thirty (30) days prior to any Permitted Control
Transaction, Tenant shall provide to Landlord, a written description of such
transaction and such other information as Landlord shall reasonably request in
order to confirm that the Control Transaction is a Permitted Control
Transaction.
(n) Tenant shall actively use its brand and trade related marks,
including, but not limited to, those listed in Exhibit "J", Tenant shall not
sell, convey or assign any use of its brand or trade related marks provided,
however, that Tenant may sell, convey or assign any such marks on a
non-exclusive basis to any entity owned or controlled by Tenant. For the
avoidance of doubt, nothing contained herein is intended to prevent the
franchising or granting of licenses in regular business dealings by Tenant of
the Tenant brand or trade related marks by Tenant.
22. Events of Default.
(a) The occurrence of any one or more of the following (after
expiration of any applicable cure period as provided in Paragraph 22(b)) shall,
at the sole option of Landlord, constitute an "Event of Default" under this
Lease:
(i) a failure by Tenant to make any payment of any Monetary
Obligation on or prior to its due date, regardless of the reason for such
failure;
(ii) a failure by Tenant duly to perform and observe, or a
violation or breach of, any other provision hereof not otherwise specifically
mentioned in this Paragraph 22(a);
(iii) any representation or warranty made by Tenant herein
or in any certificate, demand or request made pursuant hereto proves to be
incorrect, now or hereafter, in any material respect;
(iv) a default beyond any applicable cure period or at
maturity by Tenant or any Guarantor in any payment of principal or interest on
any obligations for borrowed money having an original principal balance of Ten
Million Euros (E10.000.000,00) or more in the aggregate, or in the performance
of any other provision contained in any instrument under which any such
obligation is created or secured (including the breach of any covenant
thereunder), (x) if, with respect to a payment default, such payment is a
payment at maturity or a
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final payment, or (y) if, with respect to any default, an effect of such default
is to cause, or permit any Person to cause, such obligation to become due prior
to its stated maturity;
(v) Tenant shall (A) be adjudicated bankrupt or insolvent,
(B) file a petition seeking relief under the insolvency laws that is not
withdrawn within sixty (60) days of the filing thereof, or (C) be unable to pay
its debts as they mature;
(vi) a court shall enter an order, judgment or decree
appointing, without the consent of Tenant or Guarantors, a receiver or trustee
for it or for any Guarantor , or approving a petition filed against Tenant or
any Guarantor for opening of bankruptcy proceedings under the laws of Germany or
other similar laws of Germany, any state or any jurisdiction, and such order,
judgment or decree shall remain undischarged or unstayed sixty (60) days after
it is entered;
(vii) any Related Premises shall have been (A) vacated for
more than one hundred eighty (180) days except that Tenant shall have the right
to have up to six (6) Related Premises vacant for more than one hundred eighty
(180) days so long as any such Related Premises is properly secured, insured and
maintained (and in such event, Landlord shall have the right, and Tenant shall
have the obligation, to actively market such Related Premises for sublease or
(B) any Related Premises shall have been abandoned;
(viii) Tenant shall be liquidated or dissolved or shall
begin proceedings towards its liquidation or dissolution;
(ix) a failure by Tenant to maintain in effect any license
or permit necessary for the use, occupancy or operation of any of the Related
Premises;
(x) any Guarantor shall fail to perform any obligation set
forth in any Guaranty or any Pledge Agreement or any provision of any Guaranty
or any Pledge Agreement shall be violated;
(xi) the breach of the Maintenance Covenant shall occur if
Tenant shall fail to post a Covenant Security Deposit in accordance with
Paragraph 27;
(xii) the breach of any Operating Covenant shall occur;
(xiii) Tenant shall fail to provide, maintain and, if
necessary, replenish any Security Deposit in accordance with the requirements of
Paragraph 32;
(xiv) a failure by Tenant to perform or observe, or a
violation or a breach of, any of the Ground Lease Obligations; or
(xv) a default beyond any applicable notice and/or cure
period available to Tenant shall exist under any lease agreement executed
between Tenant and any Person advised by a Person who advises both such landlord
and Landlord.
(b) No notice or cure period shall be required in any one or more
of the following events: (A) the occurrence of an Event of Default under clause
(i) (except as otherwise set forth below), (iv), (v), (vi), (vii), (viii), (xi),
(xii), (xiii), (xiv) or (xv) of Paragraph 22(a); or (B) the default consists of
a failure to provide any insurance required by Paragraph 16 or an assignment or
Control Transaction entered into in violation of Paragraph 21. If the default
consists of the failure to pay any installment of Basic Rent under clause (i) of
Paragraph 22(a), the applicable cure period shall be ten (10) days from the date
on which notice is given but Landlord shall not be obligated to give notice of,
or allow any cure period for, any
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such default more than two (2) times within any Lease Year. If the default
consists of the failure to pay any installment of basic rent or perform any
obligation under any Ground Lease the applicable cure period shall be the cure
period, if any, provided in the applicable Ground Lease. If the default consists
of the failure to pay any other Monetary Obligation under clause (i) of
Paragraph 22(a), the applicable cure period shall be ten (10) days from the date
on which notice is given. If the default consists of a default under clause
(ii), clause (iii) or clause (ix) of Paragraph 22(a), other than the events
specified in clause (B) of the first sentence of this Paragraph 22(b), the
applicable cure period shall be thirty (30) days from the date on which notice
is given or, if the default cannot be cured within such thirty (30) day period,
the cure period shall be extended for the period required to cure the default
(but such cure period, including any extension, shall not in the aggregate
exceed ninety (90) days from the date on which notice is given with respect to a
default that is not a Property Specific Default and one hundred and eighty (180)
days from the date on which notice is given with respect to a Property Specific
Default), provided that in any such event Tenant shall commence to cure the
default within the said thirty-day period and shall actively, diligently and in
good faith proceed with and continue the curing of the default until it shall be
fully cured. If the default consists of a default under clause (x) of Paragraph
22(a), the applicable cure period shall be ten (10) days from the date on which
notice is given.
23. Remedies and Damages Upon Default.
(a) If an Event of Default shall have occurred and is continuing,
Landlord shall notify Tenant that an Event of Default exists and shall have the
right, at its sole option, then or at any time thereafter, to exercise its
remedies and to collect damages from Tenant in accordance with this Paragraph
23, subject in all events to applicable Law, without demand upon or notice to
Tenant except as otherwise provided in Paragraph 22(b) and this Paragraph 23.
(i) Landlord may give Tenant notice of Landlord's intention
to terminate this Lease on a date specified in such notice. Upon such date, this
Lease, the estate hereby granted and all rights of Tenant hereunder shall expire
and terminate unless Landlord rescinds its election to terminate this Lease or
unless the applicable Event of Default is a failure to pay Basic Rent and before
the date specified in the notice of termination Tenant pays to Landlord all
unpaid Rent then due together with One Million (E1.000.000,00) Euros (which the
parties agree is a fair and reasonable payment for Landlord's withdrawal of its
termination notice) within fourteen (14) days after Tenant receives notice of
Landlord's intention to terminate this Lease. Upon such termination, Tenant
shall immediately surrender and deliver possession of the Leased Premises to
Landlord in accordance with Paragraph 26. If Tenant does not so surrender and
deliver possession of all of the Leased Premises, Landlord may re-enter and
repossess any of the Leased Premises not surrendered, by any available legal
process. Upon or at any time after taking possession of any of the Leased
Premises, Landlord may, by legal process, remove any Persons or property
therefrom. Landlord shall be under no liability to Tenant for or by reason of
any such entry, repossession or removal. Notwithstanding such termination of the
Lease, Landlord may collect the damages set forth in Paragraph 23(b)(i) or
23(b)(ii).
(ii) After repossession of any of the Leased Premises
pursuant to clause (i) above, Landlord shall have the right to relet any of the
Leased Premises to such tenant or tenants, for such term or terms, for such
rent, on such conditions and for such uses as Landlord in its sole discretion
may determine, and collect and receive any rents payable by reason of such
reletting. Landlord may make such Alterations in connection with such reletting
as it may deem advisable in its sole discretion. Notwithstanding any such
reletting, Landlord may collect the damages set forth in Paragraph 23(b)(ii).
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(b) The following constitute damages to which Landlord shall be
entitled if Landlord exercises its remedies under Paragraph 23(a)(i) or
23(a)(ii):
(i) If Landlord exercises its remedy under Paragraph
23(a)(i) but not its remedy under Paragraph 23(a)(ii) (or attempts to exercise
such remedy and is unsuccessful in reletting the Leased Premises) then, upon
written demand from Landlord, Tenant shall pay to Landlord, as liquidated and
agreed final damages for Tenant's default and in lieu of all current damages
beyond the date of such demand (it being agreed that it would be impracticable
or extremely difficult to fix the actual damages), an amount equal to the
Present Value of the excess, if any, of (A) all Basic Rent from the date of such
demand to the date on which the Term is scheduled to expire hereunder in the
absence of any earlier termination, re-entry or repossession over (B) the then
fair market rental value of the Leased Premises for the same period. Tenant
shall also pay to Landlord all accrued Rent then due and unpaid, all other
Monetary Obligations which are then due and unpaid, all Monetary Obligations
which arise or become due by reason of such Event of Default, including any
Costs of Landlord in connection with the repossession of the Leased Premises and
any attempted reletting thereof, including all brokerage commissions, legal
expenses, reasonable attorneys' fees, costs of Alterations and expenses and
preparation for reletting.
(ii) If Landlord exercises its remedies under Paragraph
23(a)(i) and 23(a)(ii), then Tenant shall, until the end of what would have been
the Term in the absence of the termination of the Lease, and whether or not any
of the Leased Premises shall have been relet, be liable to Landlord for, and
shall pay to Landlord, as liquidated and agreed current damages all Monetary
Obligations which would be payable under this Lease by Tenant in the absence of
such termination less the net proceeds, if any, of any reletting pursuant to
Paragraph 23(a)(ii), after deducting from such proceeds all accrued Rent then
due and unpaid, all other Monetary Obligations which are then due and unpaid,
all Monetary Obligations which arise or become due by reason of such Event of
Default, including any Costs of Landlord incurred in connection with such
repossessing and reletting, including all brokerage commissions, legal expenses,
reasonable attorneys' fees, costs of Alterations and expenses and preparation
for reletting; provided, that if Landlord has not relet the Leased Premises,
such Costs of Landlord shall be considered to be Monetary Obligations payable by
Tenant.
(iii) Tenant shall be and remain liable for all sums
aforesaid, and Landlord may recover such damages from Tenant and institute and
maintain successive actions or legal proceedings against Tenant for the recovery
of such damages. Nothing herein contained shall be deemed to require Landlord to
wait to begin such action or other legal proceedings until the date when the
Term would have expired by its own terms had there been no such Event of
Default.
(c) Notwithstanding anything to the contrary herein contained, in
lieu of or in addition to any of the foregoing remedies and damages, either
party may exercise any remedies and collect any damages available to it under
any applicable Law. If Landlord is unable to obtain full satisfaction pursuant
to the exercise of any remedy, it may pursue any other remedy which it has
hereunder or under any applicable Law. In particular, Landlord shall have the
right to ▇▇▇ for unpaid Monetary Obligations whether or not Landlord exercises
its remedy of termination of this Lease.
(d) Landlord shall be required to mitigate its damages in
accordance with applicable Law. If any Law shall validly limit the amount of any
damages provided for herein to an amount which is less than the amount agreed to
herein, either party shall be entitled to the maximum amount available under
such Law.
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(e) No termination of this Lease, repossession or reletting of
any of the Leased Premises, exercise of any remedy or collection of any damages
pursuant to this Paragraph 23 shall relieve Tenant of any Surviving Obligations.
(f) Upon the occurrence of any Event of Default, Landlord shall
have the right (but no obligation) to perform any act required of Tenant
hereunder and, if performance of such act requires that Landlord enter the
Leased Premises, Landlord may enter the Leased Premises for such purpose
(g) No failure of either party (i) to insist at any time upon the
strict performance of any provision of this Lease or (ii) to exercise any
option, right, power or remedy contained in this Lease shall be construed as a
waiver, modification or relinquishment thereof. A receipt by Landlord of any sum
in satisfaction of any Monetary Obligation with knowledge of the breach of any
provision hereof shall not be deemed a waiver of such breach, and no waiver by
Landlord of any provision hereof shall be deemed to have been made unless
expressed in a writing signed by Landlord.
(h) Except as otherwise provided herein, all remedies are
cumulative and concurrent and no remedy is exclusive of any other remedy. Each
remedy may be exercised at any time an Event of Default has occurred and is
continuing and may be exercised from time to time. No remedy shall be exhausted
by any exercise thereof.
(i) Notwithstanding anything to the contrary herein, after the
tenth (10th) Lease Year, Landlord shall not have the right to terminate this
Lease pursuant to Paragraph 23(a)(i) as a result of an Event of Default arising
for any reason other than the failure to pay Rent (a "Non-Monetary Default"),
if, within thirty (30) days of such Non-Monetary Default, (i) Tenant notifies
(the "Purchase Notice") Landlord that it is electing to purchase the Leased
Premises for a purchase price equal to the greater of the Allocated Cost of the
entire Leased Premises and the Fair Market Value of the Leased Premises plus all
costs and expenses (the "Sale Costs") incurred in connection with the sale of
the Leased Premises to Tenant, including, but not limited to, all reasonable
legal fees, transfer taxes, recording or notarial charges, VAT and any amounts
Landlord is required to pay to Lender, (ii) Tenant pays to Landlord an amount
equal to the Allocated Cost for the entire Leased Premises, and (iii) within
thirty (30) days of the date Fair Market Value is determined, Tenant pays to
Landlord the sum of (1) the Sale Costs, and (2) the amount by which the Fair
Market Value of the Leased Premises exceeds the Allocated Cost, if any. Within
fifteen (15) days of the date Tenant delivers to Landlord the Purchase Notice
Landlord and Tenant shall commence to determine the Fair Market Value of the
Leased Premises pursuant to Paragraph 29 hereof. Upon the payment by Tenant of
all of the amounts payable to Landlord pursuant to this Paragraph 23(i),
Landlord shall convey the Leased Premises to Tenant in as-is, where-is and
without any representation or warranty and in accordance with a standard Real
Estate Purchase and Sale Agreement under German law.
24. Notices. All notices, demands, requests, consents, approvals,
offers, statements and other instruments or communications required or permitted
to be given pursuant to the provisions of this Lease shall be in writing and
shall be deemed to have been given and received for all purposes when delivered
by express service or by registered or certified mail, return receipt requested,
postage prepaid, addressed to the other party at its address stated on page one
of this Lease or when delivery is refused. Notices shall be sent to Landlord at
W.P. ▇▇▇▇▇ & Co. LLC, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, attention
Director, Asset Management, except that any notice of termination of this Lease
by Tenant shall also be sent to Landlord at the address on page one of this
Lease and notices sent to Tenant shall be to the attention of
Geschaeftsfuehrung. Landlord shall notify Tenant of its new address in the event
that its address in Germany listed on page one of this Lease is changed. A copy
of any notice given by Tenant to Landlord shall simultaneously be given by
Tenant to ▇▇▇▇ ▇▇▇▇▇ LLP, ▇▇▇
-▇▇-
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Chairman, Real Estate
Department. Date of delivery shall be the date of receipt or refusal. For the
purposes of this Paragraph, any party may substitute another address stated
above (or substituted by a previous notice) for its address by giving fifteen
(15) days' notice of the new address to the other party, in the manner provided.
25. Intentionally Omitted.
26. Surrender. Upon the expiration or earlier termination of this
Lease, Tenant shall peaceably leave and surrender the Leased Premises or
Affected Premises, as applicable, to Landlord in the same condition in which the
Leased Premises or Affected Premises, as applicable, were at the commencement of
this Lease, except as repaired, rebuilt, restored, altered, replaced or added to
as permitted or required by any provision of this Lease, ordinary wear and tear
excepted. Upon such surrender, Tenant shall (a) remove from the Leased Premises
or Affected Premises, as applicable, all property which is owned by Tenant or
third parties other than Landlord and Alterations required to be removed
pursuant to Paragraph 13 hereof and (b) repair any damage caused by such
removal. Property not so removed shall become the property of Landlord, and
Landlord may thereafter cause such property to be removed from the Leased
Premises or Affected Premises, as applicable. The cost of removing and disposing
of such property and repairing any damage to any of the Leased Premises or
Affected Premises, if applicable, caused by such removal shall be paid by Tenant
to Landlord upon demand. Landlord shall not in any manner or to any extent be
obligated to reimburse Tenant for any such property which becomes the property
of Landlord pursuant to this Paragraph 26.
27. Operating Covenants.
(a) Tenant hereby covenants and agrees to comply with the
Covenants described in Exhibit "G" hereto.
(b) In the event that Tenant breaches the Maintenance Covenant
("Breached Maintenance Covenant'), no Event of Default shall exist so long as
Tenant, upon each Breached Maintenance Covenant, deposits with Landlord an
additional security deposit (the "Covenant Security Deposit") equal to three (3)
months of the Basic Rent then in effect at the time that it provides a Covenant
Certification describing the Breached Maintenance Covenant. For the avoidance of
doubt, Tenant shall be required to deposit with Landlord additional Covenant
Security Deposits with the delivery of each additional Covenant Certification
that indicates that a Breached Maintenance Covenant shall have continued or
shall have occurred with respect to any successive fiscal quarter but in no
event shall Tenant be obligated to have outstanding at any time Covenant
Security Deposits which, when aggregated with the outstanding amount of the
Initial Security Deposit, would result in the amount of the Security Deposits
then held by or on behalf of Landlord to exceed sixteen and one half (16.50)
months of Basic Rent then in effect.
(c) Tenant shall no longer be required to comply with the
Covenants described in Exhibit "G" hereto from and after the date of a Permitted
Control Transaction under clauses 1 or 3 of Paragraph 21(m) (i) as long as
following such Permitted Control Transaction and after giving effect thereto
neither Tenant Shareholder nor any Person controlled by Tenant Shareholder is in
Control of Tenant whether by interest or share ownership or contract, and (ii)
concurrently with the closing of such transaction the business operations of
Tenant are fully integrated into the business operations of such acquiring
Person and such Person acquiring Tenant provides to Landlord a guaranty of
Tenant's obligations under this Lease from such Person in form acceptable to
Landlord, except that, if such Permitted Control Transaction is effected through
a merger, no guaranty shall be required but the surviving entity shall affirm
its obligations as Tenant under this Lease.
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28. Books and Records.
(a) Tenant shall keep adequate records and books of account,
together with English translations, with respect to the finances and business of
Tenant generally and with respect to the Leased Premises, in accordance with
GAAP consistently applied, and shall permit Landlord and Lender by their
respective agents, accountants and attorneys, upon reasonable notice to Tenant,
to visit and inspect the Leased Premises and to discuss the finances and
business with the officers of Tenant, at such reasonable times during normal
business hours as may be requested by Landlord.
(b) Tenant shall deliver to Landlord and Lender within two
hundred ten (210) days of the close of each fiscal year of Tenant annual audited
financial statements of the Tenant Group and its Sister Companies certified by
Revision und Unternehmensberatung ▇▇▇▇▇-▇▇▇▇ GmbH
Wirtschaftsprufungsgesellschaft or a nationally recognized firm of independent
certified public accountants. Tenant shall also furnish to Landlord within sixty
(60) days after the end of every fiscal quarter (including the fourth quarter)
unaudited financial statements and all other quarterly reports of Tenant, the
Tenant Group and Sister Company, certified by Tenant's chief financial officer,
and all other filings required by any Law. In addition, Landlord shall have the
right at any time or from time to time during the first two (2) Lease Years and
for a period of two (2) Lease Years following the occurrence of an Event of
Default, to request, and Tenant shall promptly provide, monthly profit and loss
and cash flow statements and balance sheets from Tenant. All financial
statements of Tenant shall be prepared in accordance with GAAP consistently
applied. All annual financial statements shall be accompanied (i) by an opinion
of said accounting firm stating that (A) there are no qualifications as to the
scope of the audit and (B) the audit was performed in accordance with GAAP and
(ii) by the certificate of a duly authorized officer of Tenant dated within five
(5) days of the delivery of such statement, stating that (A) the signer knows of
no Event of Default or, if any such event has occurred and is continuing,
specifying the nature and period of existence thereof and what action Tenant has
taken or proposes to take with respect thereto and (B) except as otherwise
specified in such affidavit, that Tenant has fulfilled all of its obligations
under this Lease which are required to be fulfilled on or prior to the date of
such affidavit.
(c) All quarterly, annual and, if requested by Landlord, monthly
financial statements shall be accompanied by a certification in the form of
Exhibit "H" ("Covenant Certification") of the chief financial officer of Tenant
that Tenant is in compliance with the Operating Covenants (except as otherwise
specified in the Covenant Certification), together with a calculation of the
Maintenance Covenants described in Sections B (1) and B (2) of Exhibit "G".
(d) Upon the request, demand or requirement of any regulatory
agency or authority having jurisdiction over W.P. ▇▇▇▇▇ & Co. LLC or any of its
Affiliates, including the Securities and Exchange Commission, the Tenant Group
and its Sister Companies shall direct, and cause, its respective auditors to
consent to the disclosure by W.P. ▇▇▇▇▇ & Co. LLC or any of its Affiliates of
any financial statement provided pursuant to this Paragraph 28 within the
applicable financial disclosures or statements of W.P. ▇▇▇▇▇ & Co. LLC or any of
its Affiliates.
29. Determination of Value.
(a) Whenever a determination of Fair Market Value or Fair Market
Rental Value is required pursuant to any provision of this Lease, such Fair
Market Value or Fair Market Rental Value shall be determined in accordance with
the following procedure:
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(i) Landlord and Tenant shall endeavor to agree on Fair
Market Value or Fair Market Rental Value, as applicable, on the date (an
"Applicable Initial Date") which is (A) within thirty (30) days following the
date on which Tenant exercises its option under Paragraph 23 (l) or (B) within
six (6) calendar months prior to the Expiration Date unless Tenant has
previously exercised its option pursuant to Paragraph 5(b) not to have the Term
automatically extended. Upon reaching such agreement, the parties shall execute
an agreement setting forth the amount of such Fair Market Value or Fair Market
Rental Value.
(ii) If the parties shall not have signed such agreement
within thirty (30) days after the Applicable Initial Date, Tenant shall within
fifty (50) days after the Applicable Initial Date select an appraiser and notify
Landlord in writing of the name, address and qualifications of such appraiser.
Within twenty (20) days following Landlord's receipt of Tenant's notice of the
appraiser selected by Tenant, Landlord shall select an appraiser and notify
Tenant of the name, address and qualifications of such appraiser. Such two
appraisers shall endeavor to agree upon Fair Market Value or Fair Market Rental
Value based on a written appraisal made by each of them as of the Relevant Date
(and given to Landlord by Tenant). If such two appraisers shall agree upon a
Fair Market Value or Fair Market Rental Value, the amount of such Fair Market
Value or Fair Market Rental Value as so agreed shall be binding and conclusive
upon Landlord and Tenant.
(iii) If such two appraisers shall be unable to agree upon a
Fair Market Value or Fair Market Rental Value within twenty (20) days after the
selection of an appraiser by Landlord, then such appraisers shall advise
Landlord and Tenant of their respective determination of Fair Market Value or
Fair Market Rental Value and shall select a third appraiser to make the
determination of Fair Market Value or Fair Market Rental Value. The selection of
the third appraiser shall be binding and conclusive upon Landlord and Tenant.
(iv) If such two appraisers shall be unable to agree upon
the designation of a third appraiser within ten (10) days after the expiration
of the twenty (20) day period referred to in clause (iii) above, or if such
third appraiser does not make a determination of Fair Market Value or Fair
Market Rental Value within twenty (20) days after his selection, then such third
appraiser or a substituted third appraiser, as applicable, shall, at the request
of either party hereto (with respect to the other party), be appointed by the
President or Chairman of German Institution of Arbitration ("DIS - Deutsche
Institution fur Schiedsgerichtsbarkeit e.V.") located in Cologne, Berlin and
Munich, Germany The determination of Fair Market Value or Fair Market Rental
Value made by the third appraiser appointed pursuant hereto shall be made within
twenty (20) days after such appointment.
(v) If a third appraiser is selected, Fair Market Value or
Fair Market Rental Value shall be the average of the determination of Fair
Market Value or Fair Market Rental Value made by the third appraiser and the
determination of Fair Market Value or Fair Market Rental Value made by the
appraiser (selected pursuant to Paragraph 29(a)(ii) hereof) whose determination
of Fair Market Value or Fair Market Rental Value is nearest to that of the third
appraiser. Such average shall be binding and conclusive upon Landlord and
Tenant.
(vi) All appraisers selected or appointed pursuant to this
Paragraph 29(a) shall (A) be independent qualified appraisers (B) have no right,
power or authority to alter or modify the provisions of this Lease, (C) utilize
the definition of Fair Market Value or Fair Market Rental Value hereinabove set
forth above, and (D) be registered in Germany as officially recognized expert
for building and real estate ("Offentlich bestellter und vereidigter
Gebaudesachverstandiger").
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(vii) The Cost of the procedure described in this Paragraph
29(a) above shall be split equally between Landlord and Tenant unless an Event
of Default exists in which event the cost shall be paid by Tenant.
30. Non-Recourse as to Landlord. Anything contained herein to the
contrary notwithstanding, any claim based on or in respect of any liability of
Landlord under this Lease shall be limited to actual damages and shall be
enforced only against the asset of the Landlord not against any assets,
properties or funds of (a) any director, member, officer, general partner,
limited partner, employee or agent of Landlord, or any general partners or
shareholders of Landlord (or any legal representative, heir, estate, successor
or assign of any thereof), ( b) any predecessor or successor partnership or
corporation (or other entity) of Landlord, or any of its general partners,
either directly or through Landlord or its general partners or any predecessor
or successor partnership or corporation or their shareholders, officers,
directors, employees or agents (or other entity), or ( c) any other Person
(including ▇▇▇▇▇ Property Advisors, ▇▇▇▇▇ Fiduciary Advisors, Inc., W. P. ▇▇▇▇▇
& Co., LLC, ▇▇▇▇▇ Management LLC, and any Person affiliated with any of the
foregoing, or any director, officer, employee or agent of any thereof).
31. Financing. If Landlord desires to obtain or refinance any Loan,
Tenant shall agree, upon request of Landlord, to supply any such Lender with
such notices and information as Tenant is required to give to Landlord hereunder
and to extend the rights of Landlord hereunder to any such Lender and to consent
to such financing if such consent is requested by such Lender.
32. Security Deposit.
(a) Simultaneously with the payment of the purchase price for the
Leased Premises by Landlord in accordance with the Interest and Share Purchase
Agreement, Tenant shall deliver to Landlord a security deposit (the "Initial
Security Deposit") in the amount of Twenty-four Million Nine Hundred Sixty-Four
Thousand Seven Hundred Seventy-Nine and 00/100 and EURO (E24,964,779), which
Initial Security Deposit shall be increased on the sixth (6th), twelfth (12th),
eighteenth (18th), twenty-fourth (24th), and if the initial Term is extended,
the twenty-ninth (29th) anniversaries of the first Basic Rent Payment Date by
ninety percent (90%) of the cumulative increases in the GPI since the
Commencement Date.
(b) Each Security Deposit shall be either cash (a "Cash Security
Deposit") or an irrevocable bank guaranty ( a "Bank Guaranty") which shall be
issued by a bank acceptable to Landlord and having a long-term unsecured debt
rating of not less than "A" from Standard & Poor's Corporation and in form and
substance satisfactory to Landlord.
(c) Each Security Deposit, except for the Covenant Security
Deposit, shall remain in full force and effect during the Term as security for
the payment by Tenant of the Rent and all other charges or payments to be paid
hereunder and the performance of the covenants and obligations contained herein.
The Covenant Security Deposit shall be returned to Tenant within ten (10) days
following the date on which Landlord receives evidence reasonably satisfactory
to Landlord that Tenant is in compliance with the Breached Maintenance Covenant.
Any Bank Guaranty shall be renewed at least thirty (30) days prior to any
expiration thereof. If Tenant fails to renew any Bank Guaranty by such date,
time being of the essence, Landlord shall have the right at any time after the
thirtieth (30th) day before such expiration date to draw on such Bank Guaranty
and to deposit the proceeds of the Bank Guaranty as a Cash Security Deposit in
any account for the benefit of Landlord. Any Cash Security Deposit shall not be
commingled with other funds of Landlord or other Persons and interest accrued
thereon shall be due and payable to Tenant.
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(d) If at any time an Event of Default shall have occurred and be
continuing, Landlord shall be entitled, at its sole discretion, to draw on any
Bank Guaranty or to withdraw any Cash Security Deposit from the above-described
account and to apply the proceeds in payment of (i) any Rent or other charges
for the payment of which Tenant shall be in default, (ii) prepaid Basic Rent,
(iii) any expense incurred by Landlord in curing any default of Tenant, and/or
(iv) any other sums due to Landlord in connection with any default or the curing
thereof, including, without limitation, any damages incurred by Landlord by
reason of such default, including any rights of Landlord under Paragraph 23 or
to do any combination of the foregoing, all in such order or priority as
Landlord shall so determine in its sole discretion and Tenant acknowledges and
agrees that such proceeds shall not constitute assets or funds of Tenant or its
estate, or be deemed to be held in trust for Tenant, but shall be, for all
purposes, the property of Landlord (or Lender, to the extent assigned). Tenant
further acknowledges and agrees that (1) Landlord's application of the proceeds
of any Bank Guaranty or any Cash Security Deposit towards the payment of Basic
Rent, Additional Rent or the reduction of any damages due Landlord in accordance
with Paragraph 23 of this Lease, constitutes a fair and reasonable use of such
proceeds, and (2) the application of such proceeds by Landlord towards the
payment of Basic Rent, Additional Rent or any other sums due under this Lease
shall not constitute a cure by Tenant of the applicable default provided that an
Event of Default shall not exist if Tenant restores the Security Deposit to its
full amount within five (5) days of the date that Landlord has given written
notice to Tenant that Landlord or Lender, as applicable, has applied any portion
of a Security Deposit and in accordance with the requirements of this Paragraph
31, so that the original amount of the Security Deposit shall be again on
deposit with Landlord.
(e) Except in accordance with Paragraph 32(f) below, at the
expiration of the Term any Security Deposit then held by Landlord, shall be
returned to Tenant after deducting therefrom any Monetary Obligations due and
owing to Landlord.
(f) Notwithstanding anything to the contrary set forth herein, so
long as (1) no non-monetary Event of Default has occurred and is then continuing
and (2) there has been no monetary Event of Default for at least six (6)
consecutive months, (i) a portion of the Security Deposit equal to three months
of the Basic Rent then in effect shall be released to Tenant if and when Tenant
shall have achieved EBITDA for any Fiscal Year in excess of 50% of the annual
Basic Rent (the "50% Test"), (ii) a further portion of the Security Deposit
equal to three months of the Basic Rent then in effect shall be released to
Tenant if and when Tenant shall have achieved EBITDA for any Fiscal Year in
excess of 75% of the annual Basic Rent (the "75% Test"), and (iii) a further
portion of the Security Deposit equal to three months of the Basic Rent then in
effect shall be released to Tenant if and when Tenant shall have achieved EBITDA
for any Fiscal Year in excess of 100% of the annual Basic Rent (the "100%
Test"). If in any Fiscal Year following the Fiscal Year during which Tenant
achieves a 50% Test, 75% Test or 100% Test, Tenant's EBITDA falls below one or
more of the applicable tests, the Security Deposit shall be increased by three,
six or nine months of the Basic Rent then in effect, as applicable, in order to
cause Landlord to hold the Security Deposit it would have held if the applicable
tests had not been previously met. Notwithstanding the foregoing, at no time
shall the Security Deposit hereunder ever be less than three months of Basic
Rent then in effect. As used herein, "EBITDA" shall mean, with respect to any
fiscal period, the consolidated net earnings (or loss) of the Tenant Group's,
minus extraordinary gains, plus interest expense, income taxes, depreciation and
amortization, and non-cash charges related to restructuring or acquisition for
such period, as determined in accordance with GAAP provided that if any member
of the Tenant Group acquires all or any part of the shares or interests in a
Person in the DIY Business the losses of such Person shall not be included in
calculating EBITDA as long as such Person (i) is a separately operated business
concern, and (ii) prepares its own separate financial statements. In no event
shall any portion of the Security Deposit be released to Tenant prior to June 1,
2008.
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(g) Landlord shall have the right to designate Lender or any
other holder of a Mortgage as the beneficiary of any Security Deposit during the
term of the applicable Loan, and such Lender or other holder of a Mortgage shall
have all of the rights of Landlord under this Paragraph 32. Tenant covenants and
agrees to execute such agreements, consents and acknowledgments as may be
requested by Landlord from time to time to change the holder of any Security
Deposit as hereinabove provided.
33. Substitution and Exchange of Premises.
(a) So long as no Event of Default then exists, commencing on the
tenth (10th) anniversary of the Commencement Date, Tenant shall have the right
in its discretion, with respect to Related Premises that are no longer economic
or suitable for Tenant's continued use and occupancy in its business operations
(any such Related Premises, an "Obsolete Premises") to substitute the Obsolete
Premises for a property (i) the use of which is substantially similar to the use
of the Obsolete Premises and (ii) the appraised value of which is equal to or
greater than the appraised value of the Obsolete Premises as of the Commencement
Date or the appraised value as of the date of the Exchange (the "Exchange
Premises") and convey to Landlord and lease the Exchange Premises back from
Landlord in exchange for the conveyance to Tenant of such Obsolete Premises and
the termination of the Lease with respect to such Obsolete Premises (the
"Exchange"). In the event that Tenant elects to exercise such right, Tenant
shall deliver to Landlord a certificate of Tenant stating that the Obsolete
Premises are no longer economic or suitable for Tenant's continued use and
occupancy in its business operations, specifying in reasonable detail the
reasons therefore, and further certifying that Tenant intends to abandon its
operations at the Obsolete Premises.
(b) Tenant acknowledges and agrees that its right to effect an
Exchange is subject to and conditioned upon compliance with all reasonable
requirements of Landlord.
(c) From and after the date of an Exchange (i) the Exchange
Premises shall be a Related Premises, subject in all respects to the terms of
this Lease, and the Lease shall be amended accordingly, and (ii) this Lease
shall terminate with respect to the Obsolete Premises, except for Surviving
Obligations relative to the Obsolete Premises.
34. Provisions Related to the End of the Lease Term.
(a) Not more than twenty-four (24) months or less than twelve
(12) months prior to the last day of the Renewal Term and so long as this Lease
is in full force and effect, Landlord may offer by written notice (the "Renewal
Offer") to lease the Leased Premises to Tenant, at an initial annual basic rent
equal to Fair Market Rental Value of each Related Premises as determined by an
independent third party leasing consultant and upon such additional business
terms and conditions as Landlord would be willing to lease the Leased Premises
or any Related Premises to third parties. Landlord and Tenant each agrees that
this Paragraph 34 does not constitute an obligation on Landlord to offer the
Leased Premises to Tenant.
(b) Tenant shall have the right (but not the obligation) to
accept the Offer only by giving Landlord written notice of such acceptance (the
"Lease Notice") within sixty (60) days after delivery by Landlord to Tenant of
the Offer, and the Lease Notice shall specify the Leased Premises or any one or
more Related Premises for which Tenant has accepted the Offer. Time shall be of
the essence with respect to said sixty (60) day period and delivery of the Lease
Notice by Tenant. If Tenant shall accept the Offer, Tenant shall execute any
documentation reasonably required by Landlord to reflect Tenant's acceptance of
the Offer. If Landlord shall make the Offer, then, whether or not Tenant has
accepted the Offer, Landlord
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shall have the unilateral right, in Landlord's sole discretion, to revoke the
Offer or to enter into the Lease with Tenant if an Event or Default exists under
this Lease at any time prior to the expiration of the Term.
(c) If Tenant does not accept, or fails to accept, the Offer in
accordance with the provisions therein, Landlord shall be under no further
obligation with respect to such Offer pursuant to the terms contained therein,
and Tenant shall have forever waived and relinquished its right to such Offer,
and Landlord shall at any and all times thereafter be entitled to market the
Leased Premises to others upon such terms and conditions as Landlord in its sole
discretion may determine, except that if the initial annual basic rent ("Third
Party Rent") for which Landlord enters into a binding contract ("Third Party
Contract") to lease the Leased Premises or any Related Premises is less than
ninety-five percent (95%) of the initial annual basic rent offered to Tenant,
Tenant shall have fifteen (15) days in which to accept the Third Party Rent.
Tenant shall, within five (5) days after Landlord's request therefor, deliver an
instrument in form reasonably satisfactory to Landlord confirming the aforesaid
waiver, but no such instrument shall be necessary to make the provisions hereof
effective. In the event Landlord fails to provide the Offer in accordance with
Paragraph 34(a), Tenant shall in any event be entitled to accept the Third Party
Rent in accordance with this Paragraph 34(c).
35. Right of First Offer to Purchase.
(a) If Landlord decides to offer the Leased Premises for sale to
any third party, Landlord shall first offer by written notice (the "Offer") to
sell the Leased Premises to Tenant for a specific purchase price (the "ROFO
Purchase Price") and, upon such terms and conditions as Landlord, in Landlord's
sole discretion, would otherwise intend to offer to sell the Leased Premises,
prior to Landlord's offering to sell the Leased Premises to any such third party
except that the terms and conditions of any such sale to Tenant shall be (i)
consistent with the terms and provisions of this Paragraph 35 and (ii) the sale
to Tenant shall be "AS IS", "WHERE IS", without representation or warranty by
Landlord. If Landlord shall make the Offer, then, whether or not Tenant has
accepted the Offer, Landlord shall have the unilateral right, in Landlord's sole
discretion, to revoke the Offer if an Event of Default exists under this Lease
on the date on which Landlord shall give, or would otherwise be required to
give, Tenant the Offer.
(b) Tenant shall have the right to accept the Offer only by
giving Landlord written notice of such acceptance (the "ROFO Notice") within
thirty (30) days after delivery by Landlord to Tenant of the Offer. Time shall
be of the essence with respect to said thirty (30) day period and delivery of
the ROFO Notice by Tenant. If Tenant shall accept the Offer, Tenant shall
execute any documentation reasonably required by Landlord to reflect Tenant's
acceptance of the Offer. Notwithstanding anything to the contrary contained in
this Lease, upon the delivery of the ROFO Notice by Tenant, no event or
circumstances affecting the Leased Premises including, but not limited to, a
Condemnation or Casualty, shall give Tenant any right or option of Tenant to
cancel, surrender or otherwise terminate this Lease, and any other right or
option of Tenant under the Lease to acquire the Leased Premises, shall
automatically be deemed to have been waived by Tenant for all purposes under
this Lease.
(c) If Tenant does not accept, or fails to accept, the Offer in
accordance with the provisions herein, Landlord shall be under no further
obligation with respect to such Offer pursuant to the terms contained herein,
and Tenant shall have forever waived and relinquished its right to such Offer,
and Landlord shall at any and all times thereafter be entitled to market the
Leased Premises to others upon such terms and conditions as Landlord in its sole
discretion may determine, except that if the price ("Third Party Price") for
which Landlord enters into a term sheet ("Third Party Contract") to sell the
Leased Premises is less than ninety five percent (95%) of the ROFO Purchase
Price, Tenant shall have fifteen (15) days in which to accept the Third Party
Price. If the ROFO Purchase Price to be paid by a Third Party Purchaser
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is not to be paid in Euros, the value of the consideration to be paid shall be
calculated as of the date of the Third Party Contract. Tenant shall, within five
(5) days after Landlord's request therefor, deliver an instrument in form
reasonably satisfactory to Landlord confirming the aforesaid waiver, but no such
instrument shall be necessary to make the provisions hereof effective. Provided
no Event of Default shall have occurred and be continuing and this Lease shall
not have been terminated or expired, Landlord undertakes not to sell the Leased
Premises to a Competitor.
(d) If Tenant does not timely deliver the ROFO Notice and the
Leased Premises are transferred to a third party, Tenant will attorn to such
third party as Landlord so long as such third party and Landlord notify Tenant
in writing of such transfer. At the request of Landlord, Tenant will execute
such documents confirming the agreement referred to above and such other
agreements as Landlord may reasonably request, provided that such agreements do
not increase the liabilities and obligations of Tenant hereunder.
(e) Notwithstanding anything to the contrary contained herein,
the provisions of this Paragraph 35 shall not apply to or prohibit (i) any
mortgaging or other hypothecation of Landlord's interest in the Leased Premises,
(ii) any sale of the Leased Premises pursuant to a private power of sale under
or judicial foreclosure of any Mortgage or other security instrument or device
to which Landlord's interest in the Leased Premises is now or hereafter subject,
(iii) any transfer of Landlord's interest in the Leased Premises to a Lender or
other holder of a security interest therein or their designees by deed in lieu
of foreclosure, (iv) any transfer of the Leased Premises to any governmental or
quasi-governmental agency with power of condemnation, (v) any transfer of the
Leased Premises or any interest therein or in Landlord to any affiliate of
Corporate Property Associates 14 Incorporated ("CPA:14") or Corporate Property
Associates 15 Incorporated ("CPA: 15") or Corporate Property Associates 16 -
Global Incorporated ("CPA:16") or to any entity for whom W.P. ▇▇▇▇▇ & Co. LLC or
any of its Affiliates provides management or advisory services or investment
advice, (vi) a transfer to any person or entity to whom CPA:14, CPA:15 or CPA:16
sells all or substantially all of its assets, (vii) any transfer of the interest
of CPA:14 in Landlord to either CPA:15 or CPA:16 or any transfer of the interest
of CPA:15 in Landlord to either CPA:14 or CPA:16 or any transfer of the interest
of CPA: 16 in Landlord to either CPA:14 or CPA:15 or (viii) any transfer of the
Leased Premises to any of the successors or assigns of any of the persons or
entities referred to in the foregoing clauses (i) through (iv).
(f) If the Leased Premises is purchased by Tenant pursuant to
this ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ need not convey any better title thereto than that
which was conveyed to Landlord, and Tenant shall accept such title, subject,
however, to the Permitted Encumbrances and to all other liens, exceptions and
restrictions on, against or relating to any of the Leased Premises and to all
applicable Laws, but free of the lien of and security interest created by any
Mortgage or assignment of leases and rents and liens, exceptions and
restrictions on, against or relating to the Leased Premises which have been
created by or resulted solely from acts of Landlord after the date of this
Lease, unless the same are Permitted Encumbrances or customary utility easements
benefiting the Leased Premises or were created with the concurrence of Tenant or
as a result of a default by Tenant under this Lease.
(g) Upon the date fixed for a purchase of the Leased Premises
pursuant to this Paragraph 35 which shall be a date mutually acceptable to
Landlord and Tenant which shall be no later than either sixty (60) days
following acceptance of the Offer or the date specified in the Third Party
Contract, if applicable, (the "Purchase Date"), Tenant shall pay to Landlord, or
to any Person or entity to whom Landlord directs payment, the ROFO Purchase
Price and all other sums payable by Tenant under the Offer, in Federal Funds,
and the transfer of title shall be pursuant to a Standard Real Estate Purchase
Agreement under German law except that Landlord will make no representation or
warranty with respect to the Leased Premises.
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Effective as of the Purchase Date and the payment of the ROFO Purchase Price and
all other sums payable by Tenant under the Offer, this Lease and all obligations
and liabilities of Tenant hereunder shall terminate, except any obligations of
Tenant under this Lease, actual or contingent, which arise on or prior to the
expiration or termination of this Lease or which survive such expiration or
termination by their own terms. Any prepaid Monetary Obligations paid to
Landlord shall be prorated as of the Purchase Date, and the prorated unapplied
balance shall be deducted from the ROFO Purchase Price due to Landlord;
provided, that no apportionment of any Impositions shall be made upon any such
purchase.
(h) This Lease shall continue in full force and effect in
accordance with its terms until the Purchase Date has occurred and the ROFO
Purchase Price and all other sums payable by Tenant under the Offer have been
paid to Landlord.
36. Ground Leases. Landlord and Tenant hereby agree as follows with
respect to the Ground Leases:
(a) Tenant shall have no authority to agree to any amendment,
modification or supplement to any Ground Lease or to waive any rights of the
lessee under any Ground Lease without the prior written consent of Landlord.
Landlord shall not modify, amend or supplement the terms of any Ground Lease
without the written consent of Tenant (which shall not be unreasonably
withheld). It shall not be unreasonable for Landlord or Tenant or Lender to
withhold approval of an amendment which would shorten the term of any Ground
Lease, increase any Ground Lease Basic Rent or increase in any material respect
any other obligations of the lessee under any Ground Lease.
(b) Landlord and Tenant shall each deliver to the other and to
the Lender, copies of all notices or other correspondence received by such party
related to any Ground Lease promptly after such party's receipt of the same.
(c) Tenant agrees that it shall be solely responsible, at
Tenant's sole cost and expense, for performing when due all the Ground Lease
Obligations to be performed by the lessee under any Ground Lease. Landlord
agrees that it shall cooperate in any manner reasonably requested by Tenant in
order to facilitate Tenant's performance of any Ground Lease Obligations;
provided that Tenant shall bear all costs and expenses associated therewith.
(d) In the event of a termination of any Ground Lease as a result
of Tenant's failure to perform any Ground Lease Obligations, Tenant shall
nonetheless remain obligated to continue to make payment of all Basic Rent,
Additional Rent and other amounts due under this Lease throughout the remainder
of the Term of this Lease without setoff, counterclaim, recoupment, abatement,
suspension, deferment, diminution, deduction, reduction or defense.
37. Post-Closing Obligations. Pursuant to certain environmental due
diligence assessments and certain technical due diligence assessments conducted
by ERM GmbH with respect to the Leased Premises, Tenant shall complete,
remediate or obtain certain obligations more particularly specified in Exhibit
"L" hereto within the time periods specified in Exhibit "L".
38. Miscellaneous.
(a) The Paragraph headings in this Lease are used only for
convenience in finding the subject matters and are not part of this Lease or to
be used in determining the intent of the parties or otherwise interpreting this
Lease.
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(b) As used in this Lease, the singular shall include the plural
and any gender shall include all genders as the context requires and the
following words and phrases shall have the following meanings: (i) "including"
shall mean "including without limitation"; (ii) "provisions" shall mean
"provisions, terms, agreements, covenants and/or conditions"; (iii) "lien" shall
mean "lien, charge, encumbrance, title retention agreement, pledge, security
interest, mortgage and/or deed of trust"; (iv) "obligation" shall mean
"obligation, duty, agreement, liability, covenant and/or condition"; (v) "any of
the Leased Premises" shall mean "the Leased Premises or any part thereof or
interest therein"; (vi) "any of the Land" shall mean "the Land or any part
thereof or interest therein"; (vii) "any of the Improvements" shall mean "the
Improvements or any part thereof or interest therein"; (viii) "any of the
Fixtures" shall mean "the Fixtures or any part thereof or interest therein";
(ix) "any of the Adjoining Property" shall mean "the Adjoining Property or any
part thereof or interest therein" and (x) "reasonable cost of counsel" or "legal
fees and expenses" shall mean "any costs or legal fees reasonably incurred but
in no case limited to statutory legal fees under the German Attorney Legal Fee
Ordinance ("RVG")".
(c) Any act which Landlord is permitted to perform under this
Lease may be performed at any time and from time to time by Landlord or any
person or entity designated by Landlord, provided that the notice provisions of
Paragraph 4(b) shall apply to any entry by Landlord or its agents onto any
Related Premises. Landlord shall not unreasonably withhold or delay its consent
whenever such consent is required under this Lease, except that with respect to
any assignment of this Lease or subletting of any Related Premises the standards
of Paragraph 21 shall apply. If consent is denied Tenant may seek the decision
from the court of law as to the reasonableness of such denial. Tenant covenants
and agrees that it shall not, in any event, have the right to terminate this
Lease as a result of any denial.
(d) Landlord shall in no event be construed for any purpose to be
a partner, joint venturer or associate of Tenant or of any subtenant, operator,
concessionaire or licensee of Tenant with respect to any of the Leased Premises
or otherwise in the conduct of their respective businesses.
(e) This Lease and any amendments hereto constitute the entire
agreement between the parties and supersede all prior understandings and
agreements, whether written or oral, between the parties hereto relating to the
leasing of the Leased Premises.
(f) This Lease may be modified, amended, discharged, assigned or
waived only by an agreement in writing signed by Landlord and Tenant. Tenant and
Landlord know of the requirement of written form according to Section 550 German
Civil Code. Tenant and Landlord hereby acknowledge the obligation to observe the
requirement of written form when modifying, amending, discharging, assigning or
waiving this Lease and agree to undertake any action necessary to comply with
the requirement of written form at any time and hereby waive any rights
referring to the fact that the requirement of written form may not have been
observed.
(g) The covenants of this Lease shall run with the land and bind
Tenant, its successors and assigns and all present and subsequent encumbrancers
and subtenants of any of the Leased Premises, and shall inure to the benefit of
Landlord, its successors and assigns. If there is more than one Tenant, the
obligations of each shall be joint and several.
(h) Notwithstanding any provision in this Lease to the contrary,
all Surviving Obligations of Tenant shall survive the expiration or termination
of this Lease with respect to any Related Premises.
-42-
(i) Should individual provisions of this Lease be or become
invalid or unenforceable in whole or in part, or should a gap in this Lease
become evident, this shall not affect the validity of the remaining provisions.
Instead of the invalid or unenforceable provision, or in order to fill the gap,
Landlord and Tenant shall agree upon an appropriate provision which, to the
extent legally permissible, comes closest to what the parties intended or would
have intended in view of the purpose of this Lease if they had considered this
point at the time of conclusion of this Lease.
(j) All exhibits attached hereto are incorporated herein as if
fully set forth.
(k) Any amendment to this Lease must be in writing.
(l) Tenant is not, nor will Tenant become, a Person with whom
U.S. persons or entities are restricted from doing business under regulations of
the Office of Foreign Asset Control ("OFAC") of the Department of the Treasury
(including those named on OFAC's Specially Designated and Blocked Persons list)
or under any statute, executive order (including the September 24, 2001,
Executive Order Blocking Property and Prohibiting Transactions with Persons Who
Commit, Threaten to Commit, or Support Terrorism), or other governmental action
and Tenant not will engage in any dealings or transactions or be otherwise
associated with such persons or entities.
(m) This Lease shall be governed by and construed in accordance
with the Laws of Germany.
(n) This Lease may be executed in a number of counterparts and by
different parties hereto in separate counterparts each of which, when so
executed, shall be deemed to be an original and all of which taken together
shall constitute but one and the same agreement.
(o) Upon the written request of Landlord, Tenant shall bifurcate
this Lease by entering into two or more leases, each with respect to a portion
of the Leased Premises (but with each such lease containing not less than five
(5) Related Premises), which leases shall be identical to this Lease except that
Basic Rent and Allocated Cost shall be divided accordingly.
(p) Landlord and Tenant acknowledge that in the event certain
conditions to the acquisition under the terms of the Interest Purchase Agreement
of either one or both of the Bonn-Beuel Premises and the Steinfurt Premises
(either, a "Non-Acquired Premises") are not met, this Lease shall terminate with
respect to the Non-Acquired Premises and this Lease shall remain in full force
and effect with respect to the remaining Leased Premises (exclusive of the
Non-Acquired Premises); provided, that the Basic Rent for the remaining Leased
Premises to be paid after such termination shall be the Basic Rent otherwise
payable hereunder with respect to the Leased Premises multiplied by a percentage
equal to the sum of the percentages set forth on Exhibit "F" for the remaining
Leased Premises (exclusive of the Non-Acquired Premises).
(q) Landlord and Tenant acknowledge that in the event certain
conditions to the acquisition of the Dortmund-Kley Premises under the terms of
the Interest Purchase Agreement are not met, and, as a result, the purchase
price for the Dortmund-Kley Premises is not paid by Landlord, this Lease shall
remain in full force and effect with respect to the Dortmund-Kley Premises,
except that the Basic Rent for the Dortmund-Kley Premises shall not be payable
and the Basic Rent otherwise payable hereunder with respect to the Leased
Premises shall be multiplied by a percentage equal to the sum of the percentages
set forth on Exhibit "F" for the remaining Leased Premises (exclusive of the
Dortmund-Kley Premises).
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(r) In consideration for this Lease, Tenant shall execute the
Pledge Agreements in favor of Landlord.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
-44-
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be duly
executed under seal as of the day and year first above written.
LANDLORD:
▇▇▇▇▇▇▇ GMBH & CO.
VERMOGENSVERWALTUNGS KG,
a German limited partnership
By:
------------------------------------
Title:
---------------------------------
TENANT:
▇▇▇▇▇▇▇ DIE PROFI-BAUMARKTE
GMBH UND CO. KG,
a German limited partnership
By:
------------------------------------
Title:
---------------------------------
SIGNATURE PAGE TO HELLWEG II LEASE AGREEMENT, ANNEX B
EXHIBIT A-1
RELATED PREMISES LIST
1. Aschersleben Premises
2. Berlin-Biesdorf Premises
3. Berlin-WeiBensee Premises
4. ▇▇▇▇▇▇▇▇ Premises
5. Bochum-Hofstede Premises
6. Bonn-Beuel Premises
7. Bonn-Duisdorf Premises
8. Chemnitz II Premises
9. Dahlwitz-Hoppegarten Premises
10. Dortmund-Kley Premises
11. Ennepetal Premises
12. Essen-Altenessen Premises
13. Essen-Borbeck Premises
14. ▇▇▇▇▇-▇▇▇▇▇▇▇ Premises
15. Falkensee Premises
16. Gelsenkirchen Premises
17. Geltow Premises
18. Greiz Premises
19. Gronau Premises
20. Guben Premises
21. ▇▇▇▇▇▇▇▇▇▇▇ Premises
22. Halle Premises
23. Hennigsdorf Premises
24. Leipzig Premises
25. Ludenscheid Premises
26. Lutherstadt-Eisleben Premises
27. Magdeburg Mittagstr. Premises
28. Magdeburg Premises
29. ▇▇▇▇▇▇ Premises
30. Mettmann Premises
31. Nordhausen Premises
32. Paderborn Premises
33. Potsdam Premises
34. Quedlinburg Premises
35. Steinfurt Premises
36. Werl Premises
37. Zwickau Premises
EXHIBIT A - 1 TO HELLWEG II LEASE AGREEMENT, ANNEX B
EXHIBIT B
FIXTURES
All fixtures, machinery, apparatus, equipment, fittings and appliances of every
kind and nature whatsoever now or hereafter affixed or attached to or installed
in any of the Leased Premises as essential component parts (except as hereafter
provided), including all electrical, anti-pollution, heating, lighting
(including hanging fluorescent lighting), incinerating, power, air cooling, air
conditioning, humidification, sprinkling, plumbing, lifting, cleaning, fire
prevention, fire extinguishing and ventilating systems, devices and machinery
and all engines, pipes, pumps, tanks (including exchange tanks and fuel storage
tanks), motors, conduits, ducts, steam circulation coils, blowers, steam lines,
compressors, oil burners, boilers, doors, windows, loading platforms, lavatory
facilities, stairwells, fencing (including cyclone fencing), passenger and
freight elevators, overhead cranes and garage units, together with all additions
thereto, substitutions therefor and replacements thereof required or permitted
by this Lease, but excluding all personal property and all trade fixtures,
machinery, office and warehouse equipment which are not essential component
parts of the Leased Premises.
EXHIBIT B TO HELLWEG II LEASE AGREEMENT, ANNEX B - 1
EXHIBIT D
BASIC RENT PAYMENTS
1. Basic Rent.
(a) Initial Term. Subject to the adjustments provided for in Paragraphs 2,
3 and 4 below, Basic Rent payable in respect of the Term shall be Twenty-four
Million Nine Hundred Sixty-Four Thousand Seven Hundred Seventy-Nine and 00/100
Euros (E24,964,779.00) per annum, payable monthly in advance on each Basic Rent
Payment Date, in equal installments of Two Million Eighty Thousand Three Hundred
Ninety-Eight and 25/100 Euros (E2,080,398.25) each.
(b) Renewal Term. Annual Basic Rent for the first year of the Renewal Term
shall be an amount equal to the Fair Market Rental Value as of the first day of
the Renewal Term, as determined in accordance with Paragraph 29 of this Lease,
shall be payable in equal monthly installments and shall be subject to the
adjustments provided for in Paragraphs 2, 3 and 4 below.
2. GPI Adjustments to Basic Rent. The Basic Rent shall be subject to
adjustment, in the manner hereinafter set forth, for changes in the index known
as German Consumer Price Index (base year 2000 = 100) ("GPI") or the successor
index that most closely approximates the GPI. The GPI is defined by the parties
as the price index for the cost of the living of all private households in
Germany as determined by the German Federal Statistical Office (Statistisches
Bundesamt) or any successor organization. The parties agree that in the event
that the stipulated index is not being continued, but replaced by an equivalent
index by the German Federal Statistical Office or its successor organization,
such index shall apply instead of the GPI as defined above. If the GPI shall be
discontinued with no successor or comparable successor index, Landlord and
Tenant shall attempt to agree upon a substitute index or formula, but if they
are unable to so agree, then the matter shall be determined by arbitration in
accordance with the rules of the German Institution of Arbitration ("DIS -
Deutsche Institution fur Schiedsgerichtsbarkeit e.V.") located in Cologne,
Berlin and Munich, Germany. Any decision or award resulting from such
arbitration shall be final and binding upon Landlord and Tenant and judgment
thereon may be entered in any court of competent jurisdiction.
3. Effective Dates of GPI Adjustments. Basic Rent shall not be adjusted to
reflect changes in the GPI until the first (1st) anniversary of the Basic Rent
Payment Date on which the first full monthly installment of Basic Rent shall be
due and payable (the "First Full Basic Rent Payment Date"). As of the first
(1st) anniversary of the First Full Basic Rent Payment Date and on each
anniversary of the First Full Basic Rent Payment Date thereafter during the
Initial Term and on each anniversary of the first day of the Renewal Term Basic
Rent shall be adjusted to reflect ninety percent (90%) of the change in the GPI
during the most recent one (1) year period immediately preceding each of the
foregoing dates (each such date being hereinafter referred to as the "Basic Rent
Adjustment Date").
4. Method of Adjustment for GPI Adjustment.
As of each Basic Rent Adjustment Date when the average GPI determined in
clause (i) below exceeds or falls short of the Beginning GPI (as defined in this
Paragraph 4), the Basic Rent in effect immediately prior to the applicable Basic
Rent Adjustment Date shall be multiplied by a fraction, the numerator of which
shall be the difference between (i) the average GPI for the three (3) most
recent calendar months (the "Prior Months") ending prior to such Basic Rent
Adjustment Date for which the GPI has been published on or before the
forty-fifth (45th) day preceding such Basic Rent Adjustment Date and (ii) the
Beginning GPI, and the denominator of which shall be the Beginning GPI. Ninety
percent (90%) of the product of such
EXHIBIT D TO HELLWEG II LEASE AGREEMENT, ANNEX B - 1
multiplication shall be added to or, as the case may be, subtracted from the
Basic Rent in effect immediately prior to such Basic Rent Adjustment Date. As
used herein, "Beginning GPI" shall mean the average GPI for the three (3)
calendar months corresponding to the Prior Months, but occurring two (2) years
earlier. If the average GPI determined in clause (i) equals the Beginning GPI,
the Basic Rent will remain the same for the ensuing one (1) year period.
Effective as of a given Basic Rent Adjustment Date, Basic Rent payable
under this Lease until the next succeeding Basic Rent Adjustment Date shall be
the Basic Rent in effect after the adjustment provided for as of such Basic Rent
Adjustment Date.
Notice of the new annual Basic Rent shall be delivered to Tenant on or
before the tenth (10th) day preceding each Basic Rent Adjustment Date, but any
failure to do so by Landlord shall not be or be deemed to be a waiver by
Landlord of Landlord's rights to collect such sums. Tenant shall pay to
Landlord, within ten (10) days after a notice of the new annual Basic Rent is
delivered to Tenant, all amounts due from Tenant, but unpaid, because the stated
amount as set forth above was not delivered to Tenant at least ten (10) days
preceding the Basic Rent Adjustment Date in question.
5. Payment of VAT. Tenant shall pay to Landlord, together with each
installment of Basic Rent, the amount of VAT payable on each such installment.
6. Invoices Pursuant to Section 14 of the German VAT Act. Landlord shall,
upon receipt of written request of Tenant, provide Tenant with invoices
satisfying the formal requirements of Section 14 of the German VAT Act with
respect to the Basic Rent due under this Lease. Landlord's Costs of preparing
and/or reviewing such invoices shall be paid by Tenant.
7. Approval. Should an approval by the Federal Authority for Economics
("Bundesamt fur Wirtschaft") be required for the GPI Adjustments set out
hereinbefore Landlord and Tenant shall, without undue delay, (i) use their best
efforts to agree on a change of the GPI Adjustment reflecting the economic
intent of the provisions above which will not require such approval or (ii) if
they cannot reach agreement within thirty (30) days of the applicable Basic Rent
Adjustment Date in question, file the above GPI Adjustment clause for approval.
EXHIBIT D TO HELLWEG II LEASE AGREEMENT, ANNEX B - 2
EXHIBIT E
ALLOCATED COST
1. Aschersleben Premises E 6,747,398
2. Berlin-Biesdorf Premises E 18,286,428
3. Berlin-WeiBensee Premises E 14,766,046
4. ▇▇▇▇▇▇▇▇ Premises E 9,778,838
5. Bochum-Hofstede Premises E 11,050,087
6. Bonn-Beuel Premises E 4,107,112
7. Bonn-Duisdorf Premises E 9,289,896
8. Chemnitz II Premises E 6,845,187
9. Dahlwitz-Hoppegarten Premises E 20,339,984
10. Dortmund-Kley Premises E 6,258,457
11. Ennepetal Premises E 7,627,494
12. Essen-Altenessen Premises E 12,223,548
13. Essen-Borbeck Premises E 16,624,025
14. ▇▇▇▇▇-▇▇▇▇▇▇▇ Premises E 3,520,382
15. Falkensee Premises E 27,380,747
16. Gelsenkirchen Premises E 12,174,654
17. Geltow Premises E 7,138,552
18. Greiz Premises E 7,334,129
19. Gronau Premises E 3,324,805
20. Guben Premises E 5,182,784
21. ▇▇▇▇▇▇▇▇▇▇▇ Premises E 6,062,880
22. Halle Premises E 9,289,896
23. Hennigsdorf Premises E 8,703,166
24. Leipzig Premises E 7,823,071
25. Ludenscheid Premises E 14,766,046
26. Lutherstadt-Eisleben Premises E 5,769,515
27. MagdeburgMittagstr. Premises E 3,129,228
28. Magdeburg Premises E 16,037,295
29. ▇▇▇▇▇▇ Premises E 9,387,685
30. Mettmann Premises E 9,621,050
31. Nordhausen Premises E 6,845,187
32. Paderborn Premises E 3,324,805
33. Potsdam Premises E 15,939,507
34. Quedlinburg Premises E 5,573,938
35. Steinfurt Premises E 4,400,744
36. Werl Premises E 7,040,764
37. Zwickau Premises E 10,169,992
E353,945,054
EXHIBIT E TO HELLWEG II LEASE AGREEMENT, ANNEX B
EXHIBIT F
PREMISES PERCENTAGE ALLOCATION OF BASIC RENT/
INITIAL ANNUAL BASIC RENT
1. Aschersleben Premises 1.91% E 475,913.73
2. Berlin-Biesdorf Premises 5.17% E 1,289,795.19
3. Berlin-WeiBensee Premises 4.17% E 1,041,492.37
4. ▇▇▇▇▇▇▇▇ Premises 2.76% E 689,730.05
5. Bochum-Hofstede Premises 3.12% E 779,394.95
6. Bonn-Beuel Premises 1.16% E 289,686.62
7. Bonn-Duisdorf Premises 2.62% E 655,243.54
8. Chemnitz II Premises 1.93% E 482,811.03
9. Dahlwitz-Hoppegarten Premises 5.75% E 1,434,638.49
10. Dortmund-Kley Premises 1.77% E 441,427.23
11. Ennepetal Premises 2.15% E 537,989.44
12. Essen-Altenessen Premises 3.45% E 862,162.56
13. Essen-Borbeck Premises 4.70% E 1,172,541.08
14. ▇▇▇▇▇-▇▇▇▇▇▇▇ Premises 0.99% E 248,302.82
15. Falkensee Premises 7.74% E 1,931,244.13
16. Gelsenkirchen Premises 3.44% E 858,713.91
17. Geltow Premises 2.02% E 503,502.93
18. Greiz Premises 2.07% E 517,297.53
19. Gronau Premises 0.94% E 234,508.22
20. Guben Premises 1.46% E 365,556.92
21. ▇▇▇▇▇▇▇▇▇▇▇ Premises 1.71% E 427,632.63
22. Halle Premises 2.62% E 655,243.54
23. Hennigsdorf Premises 2.46% E 613,859.74
24. Leipzig Premises 2.21% E 551,784.04
25. Ludenscheid Premises 4.17% E 1,041,492.37
26. Lutherstadt-Eisleben Premises 1.63% E 406,940.73
27. Magdeburg Mittagstr. Premises 0.88% E 220,713.61
28. Magdeburg Premises 4.53% E 1,131,157.27
29. ▇▇▇▇▇▇ Premises 2.65% E 662,140.84
30. Mettmann Premises 2.74% E 682,832.75
31. Nordhausen Premises 1.93% E 482,811.03
32. Paderborn Premises 0.94% E 234,508.22
33. Potsdam Premises 4.50% E 1,124,259.97
34. Quedlinburg Premises 1.57% E 393,146.13
35. Steinfurt Premises 1.24% E 310,378.52
36. Werl Premises 1.99% E 496,605.03
37. Zwickau Premises 2.87% E 717,319.25
100.00% E24,964,779.00
If any Related Premises cease to be subject to this Lease, the percentage shown
on this Exhibit F for each of the Related Premises which remain subject to this
Lease shall be adjusted proportionately so that the total of such percentages
shall be 100%.
EXHIBIT F TO HELLWEG II LEASE AGREEMENT, ANNEX B
EXHIBIT G
COVENANTS
A. Operating Covenants
1. Restricted Payments. Tenant shall not, directly or indirectly make,
or cause or permit any member of the Tenant Group to make, any Restricted
Payment, unless at the time thereof, and after giving effect thereto:
(a) no Event of Default shall have occurred and be continuing;
and
(b) Total Shareholder Equity of the Tenant Group, as determined
in accordance with GAAP, equals or exceeds One Hundred Million Euros
(E100.000.000,00), as increased annually by ninety percent (90%) of the
increase, if any, in the GPI in the same manner and time that Basic Rent is
adjusted by GPI in Exhibit "D" of this Lease; and .
(c) Such Restricted Payment is not greater than twenty-five (25%)
percent of Net Income in such Fiscal Year of the Tenant Group.
2. Fiscal Year; Notice of Business. (a) Tenant shall not change its
Fiscal Year except in connection with a Permitted Control Transaction pursuant
to clause (1) of Paragraph 21(m)(i) and (b) Tenant shall operate as a retail
business.
3. Actions on behalf of any Parent, Subsidiary or Sister Company.
Tenant shall not guaranty the obligations of or make additional capital
contributions to or borrow money on behalf of any Parent, Subsidiary or Sister
Company of Tenant or assume any debt of any such Parent, Subsidiary or Sister
Company except that such restrictions shall not be applicable to any Parent,
Subsidiary or Sister Company that guarantees the obligations of Tenant under
this Lease pursuant to a guaranty acceptable to Landlord and only so long as
after giving effect to any such capital contribution, borrowing or assumption of
debt no Event of Default (as defined in the Lease) shall exist.
B. Maintenance Covenant
1. Fixed Charge Coverage Ratio. The Tenant Group shall maintain at the
end of each fiscal quarter, commencing with the fiscal quarter ending May 31,
2008 and, a Fixed Charge Coverage Ratio of not less than 1.125 to 1.0 for the
four most recently completed fiscal quarters. For the avoidance of doubt, the
foregoing Fixed Charge Coverage Ratio test shall be deemed waived through and
including Tenant's fiscal quarter ending February 28, 2008.
C. Definitions for Operating and Maintenance Covenants
For the purpose of this Exhibit "G" terms not otherwise defined in
Paragraph 2 of the Lease shall have the following meanings:
"Capital Lease" means a lease that is required to be
capitalized for financial reporting purposes in accordance with GAAP.
EXHIBIT G TO HELLWEG II LEASE AGREEMENT, ANNEX B - 1
"Capitalized Lease Obligation" means the amount of the
liability of any Person which in accordance with GAAP should be capitalized or
disclosed on the balance sheet of such Person in respect of a Capital Lease.
"Closing Date" shall mean the date of this Lease.
"Consolidated Net Income" shall mean, for any period, the
aggregate net income (or loss) of the Tenant Group for such period on a
consolidated basis, determined in accordance with GAAP.
"Consolidated Net Worth" shall mean, at any date, the net
worth of the Tenant Group and its Subsidiaries on a consolidated basis,
determined in accordance with GAAP.
"EBITDAR" means, with respect to any fiscal period and its
consolidated net earnings (or loss) of the Tenant Group, minus extraordinary
gains, plus interest expense, income taxes, depreciation and amortization,
rental expense, and non-cash charges related to restructuring or acquisition for
such period, as determined in accordance with GAAP, provided that if any member
of the Tenant Group acquires all or any part of the shares or interests in a
Person in the DIY Business the losses of such Person shall not be included in
calculating EBITDAR for thirty (30) consecutive calendar months of such Person
as long as such Person (i) is a separately operated business concern, (ii)
prepares its own separate financial statements and (iii) if the Person is
Marktauf Holdings GmbH or any of its Subsidiaries, Affiliates, successors or
assigns continues to operate under the name it has as of the date hereof unless
a written waiver to this condition (iii) is obtained from Landlord.
"Fixed Charge Coverage Ratio" shall mean as of any date of
determination for the immediately preceding period of four (4) consecutive
fiscal quarters, the ratio of (i) EBITDAR to (ii) the sum of (a) rental expense
paid during such period and (b) Interest Expense.
"GAAP" shall mean generally accepted accounting principles
as in effect from time to time in Germany, applied on a consistent basis.
"Indebtedness" of any Person shall mean, as of any date, all
obligations which would in accordance with GAAP be classified as debt, and shall
include (a) all obligations of such Person for borrowed money, (b) all
obligations of such person in respect of letters of credit, surety bonds or
similar obligations issued for the account of such Person, (c) all obligations
of such Person as lessee, user or obligor under any lease of real or personal
property which, in accordance with GAAP, are or should be capitalized on the
books of the lessee, user or obligor (excluding, in the case of Tenant, any
lease classified in accordance with GAAP as an operating lease), (d) all
obligations of such Person in respect of the deferred purchase price for goods,
property or services acquired by such Person, (e) all obligations of such Person
to purchase goods, property or services where payment therefor is required
regardless of whether delivery of such goods or property or the performance of
such services is ever made or tendered, (f) all obligations of such Person in
respect of any interest rate or currency swap, rate cap or other similar
transaction (valued in an amount equal to the highest termination payment, if
any, that would be payable by such Person upon termination for any reason on the
date of determination), and (g) all obligations of others similar in character
to those described in clauses (a) through (f) of this definition to the extent
such person is liable, contingently or otherwise, as obligor, guarantor or in
any other capacity, or in respect of which obligations such Person assures a
creditor against loss or agrees to take any action to prevent any such loss
(other than endorsements of negotiable instruments for collection in the
ordinary course of business),
EXHIBIT G TO HELLWEG II LEASE AGREEMENT, ANNEX B - 2
including, without limitation, all obligations of such Person to advance funds
to, or to purchase property or services from, any other Person in order to
maintain the financial condition of such other Person and, in the case of
Tenant, all Indebtedness which is non-recourse to the credit of Tenant but which
is secured by the assets or property of Tenant (but excluding any such
nonrecourse Indebtedness of Subsidiaries of Tenant in which Tenant has no
liability). Any Indebtedness which is extended or renewed (other than by an
option created with the original creation of such Indebtedness) will be deemed
to have been created when extended or renewed.
"Interest Expense" shall mean, for any period, consolidated
total interest expense (including, without limitation, that portion of any
Capitalized Lease Obligations attributable to interest expense in conformity
with GAAP and amortization of capitalized interest) payable in cash during such
period with respect to all outstanding Indebtedness of Tenant and its
Subsidiaries, including all commissions, discounts and other fees and charges
owed with respect to letter of credit and bankers acceptance financing,
prepayment charges, agency fees, administrative fees, commitment fees, net
payment owed under any interest rate hedging, cap or similar agreement or
arrangement, all as determined for Tenant and its Subsidiaries on a consolidated
basis for such period in accordance with GAAP.
"Net Income" shall mean Net Income determined in accordance
with GAAP.
"Person" shall mean an individual, partnership, association,
corporation or other entity.
"Restricted Payment" shall mean and include (a) any direct
or indirect purchase, redemption or other acquisition or retirement for value of
any equity security of Tenant or any option, warrant or right to acquire any
such equity security, or any security convertible into or exchangeable for any
such equity security, (b) any dividend, distribution, loan advance, guarantee,
extension of credit or other payment of transfer, whether in cash or property
and whether direct or indirect, to or for the benefit of any Person holding an
equity interest in the Tenant, whether or not such interest is evidenced by a
security, or any affiliate of any such Person, and (c) any direct or indirect
purchase, redemption, prepayment or other acquisition or retirement for value,
prior to its stated maturity, scheduled repayment or scheduled sinking fund
payment of any subordinated debt of the Tenant or any Subsidiary held by any
Person described in clause (b) above. In all events, the term Restricted Payment
shall not include (x) payments made to any partners of Tenant or any partners of
partnerships within Tenant's Group for personal income taxes ("Einkommen-,
Kirchen- und Vermogenssteuer") due as a result of the operations of the Tenant
Group at the rate of such taxation payable by such Person provided, however,
that any such payments shall be made only by way of a loan at a market rate of
interest if the making of such payment would violate the Total Shareholder
Equity requirements of Section A.1.(b) of this Exhibit "G" and (y) for the
salary of any partners of Tenant or any partners of partnerships within Tenant's
Group so long as such salary is included in the Tenant Group's income statement
as a personnel expense and is in a reasonable amount.
"Total Shareholder Equity" shall mean the sum of Subscribed
Capital ("Gezeichnetes Kapital"), Capital Reserves ("Rucklagen und Sonderposten
mit Rucklagenanteilen"), Retained Earnings ("Konzernbilanzgewinn"), Equity
Reserves ("Anteile anderer Gesellschafter"), Minority Interests ("Anteile
▇▇▇▇▇▇▇ Gesellschafter") and Liabilities due to Partners ("Verbindlichkeiten
gegenuber Gesellschaftern") as those terms are used in the Hellweg Group
financial statements as of February 28, 2004 ("MKD Vermogensverwaltungs GmbH")
plus twenty-five (25%) percent of the then current fiscal year's Net Income (as
defined under GAAP) and all earnings above book value from sale and lease back
financings of Tenant's trade fixtures and equipment.
EXHIBIT G TO HELLWEG II LEASE AGREEMENT, ANNEX B - 3
EXHIBIT I
REQUIRED EXPANSIONS
1. Leipzig
Expansion of the DIY market by 1,079 sqm. In addition a separate deliveries
area of 187 sqm will be added. The property which did not have a garden center
before will be receiving one with a warm and cold hall of 1,697 sqm. Another
addition will be an open-air storage space with a covered area of 310 sqm.
The application for permission to build has been filed. In accordance with
the building permit the property will receive the required additional number of
parking spaces.
The opening has been planned for May 25, 2007.
2. Mettmann
Expansion of the DIY market by 1,250 sqm. In addition the property will
receive a 1,560 sqm garden center consisting of a cold and warm hall.
At present first talks have been conducted with the local authorities. The
application for permission to build has not yet been filed. The design contains
the statutory number of parking spaces to be provided.
Completion of construction and opening in 2008.
3. Bonn-Beuel
Expansion of the DIY market by an additional space of 832 sqm. No garden
center will be added.
First talks with the authorities have been conducted. We intend to file the
application for permission to build within the next 3 months and to complete
construction in 2007. The design contains the statutory number of parking spaces
to be provided.
EXHIBIT I TO HELLWEG II LEASE AGREEMENT, ANNEX B
4. Bochum
Here the DIY market containing an integrated garden center on a total DIY
area of 1,000 sqm will be expanded by a separate garden center with a warm and
cold hall on a space of 1,268 sqm and a covered open-air storage of 288 sqm.
A preliminary building request was made and has been positively answered.
The application for permission to build is being drafted and the building permit
is expected to be granted within the next 2 - 3 months. The design contains the
statutory number of parking spaces to be provided.
The opening date has not been fixed yet but will probably be in February
2008.
5. Hennigsdorf
The DIY market will not be expanded. The existing garden center will be
expanded by a space of 837 sqm. The existing open-air storage will be relocated
to the new plot. No covered open-air storage is planned here.
With regard to parking spaces the local authorities have granted an
exemption to the effect that the statutory number of parking spaces (30) need
not be provided.on the property, however leaving the option open to install them
later if the need arises, which is no problem, given the available space on the
property.
The application for permission to build has been filed, the permit is expected
to be granted within the next 4 - 6 weeks. Thus the building project can be
completed in 2007.
An exact opening date has not been determined yet.
6. Nordhausen
On the existing plot, an expansion will be made of the DIY market by 1,135
sqm with a separate deliveries area.
Furthermore it is planned to expand the market by a 1,565 sqm garden center
consisting of a warm and a cold hall. In addition a covered open-air storage of
360 sqm will be added.
Given the space available on the property, it is no problem to provide the
statutory number of parking spaces.
The application for permission to build has not been filed yet
Expansion is expected to be completed by the end of 2008.
7. Ennepetal
The sublease of the beverage market shall be terminated, and the 480 sqm
area be reintegrated into the garden center.
A permit is not necessary, as the area had been approved and used as a
garden center before.
EXHIBIT I TO HELLWEG II LEASE AGREEMENT, ANNEX B
An opening date has not been planned yet.
8. Guben
Here we plan to reduce the area for DIY products by 1,000 sqm and use this
area for gardening products instead. Construction work is limited to venting and
shadowing measures and the installation of additional windows (necessary for the
plants).
Further measures are not planned here.
The application for permission to build has not been filed yet
An opening date has not been specified yet.
9. Bonn-Duisdorf
Implementation of a new DIY market and a garden center of the following
size:
DIY market: 6,250 sqm, garden center: 1,450 sqm and covered open-air
storage: 260 sqm
The existing underground parking of the existing DIY shall be extended in
the course of these construction works to the effect that a total of 90
underground parking spaces will be available. The remaining statutory parking
spaces can be provided above ground.
The application for permission to build will be filed shortly.
Opening is planned for spring 2008.
10. Magdeburg
Construction measures are limited to the expansion of the existing garden
center by some 700 sqm (cold hall). The existing covered open-air storage will
be done away with without being replaced. No additional construction measures
are planned here.
The application for permission to build will be filed shortly.
Opening is planned for March 2008. Der Eroffnungstermin ist fur Marz 2008
geplant.
11. ▇▇▇▇▇▇
The existing DIY is planned to be expanded by 750 sqm on the present plot.
The application for permission to build has not been filed yet. There is no
problem to provide the parking spaces necessitated by the expansion.
EXHIBIT I TO HELLWEG II LEASE AGREEMENT, ANNEX B
Exhibit K
List of Guarantors
(1) "BAUFREUND" Handelsgesellschaft m.b.H.
(2) "▇▇▇▇▇▇▇" Die Profi-Baumarkte GmbH & Co. KG Chemnitz
(3) "▇▇▇▇▇▇▇" Die Profi-Baumarkte Verwaltungsgesellschaft mbH Chemnitz
(4) ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Beteiligungs GmbH
(5) ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ GmbH & Co. KG
(6) ▇▇▇▇▇▇▇ Die Profi-Baumarkte Beteiligungs GmbH
(7) ▇▇▇▇▇▇▇ Die Profi-Baumarkte GmbH & Co. KG
(8) HELLWEG GmbH & Co. Grundbesitz KG
(9) HELLWEG GmbH & Co. Immobilien KG
(10) ▇▇▇▇▇▇▇ Handels GmbH
(11) Markische Industrie- und Baubedarfsgesellschaft mbH & Co. KG
(12) MKD Vermogensverwaltungs Beteiligungs GmbH Berlin
(13) Plantiflor Zierpflanzen GmbH
(14) Universal Haus & Garten Plantiflor Handels & Verwaltungs-GmbH
(15) Universal Haus & Garten Plantiflor Handels GmbH & Co. KG
EXHIBIT K TO HELLWEG II LEASE AGREEMENT, ANNEX B
EXHIBIT L
POST-CLOSING OBLIGATIONS
Tenant shall perform the following actions and provide Landlord with
written confirmation, satisfactory to Landlord, of completion of the activities
listed below. Documentation shall include copies of all relevant reports,
contracts, agreements and correspondence with relevant governmental authorities
and, where appropriate, photographic evidence documenting the completed
obligations.
I. GENERAL OBSERVATIONS (APPLICABLE TO MULTIPLE RELATED PREMISES IDENTIFIED
BELOW)
A. MOLD (ALGAE GROWTH) - Not later than September 1, 2007, Tenant
shall have taken such measures as required to remove the "algae growth" from the
shopping cart shelters at the following Related Premises: Leipzig Premises,
Magdeburg Premises, Chemnitz II Premises, Aschersleben Premises,
Lutherstadt-Eisleben Premises, Quedlinburg Premises, Halle Premises, Guben
Premises, Nordhausen Premises, Zwickau Premises, and Greiz Premises.
Documentation shall include before and after photographs.
B. MOLD (ROOF LEAKAGE) - Not later than March 1, 2008, Tenant shall
repair the roof leakages discussed by ERM GmbH in their supplemental reports for
the Bochum-Hofstede Premises and Guben Premises.
C. MOLD (STORMWATER INFILTRATION) - Not later than March 1, 2008,
Tenant shall take such measures as are necessary to prevent rain water from
collecting inside the garden center's at the following properties: Henningsdorf
Premises, Falkensee Premises, and Berlin-Weissensee Premises.
D. UNDERGROUND STORAGE TANK TIGHTNESS TEST - Not later than September
1, 2007, Tenant shall have retained a qualified consultant and shall have
conducted tightness tests to determine the integrity of the heating oil
underground storage tanks located at the following properties: Magdeburg
Premises and Aschersleben Premises. Tenant shall provide Landlord with a written
report from the consultant documenting the tightness test result and providing
the consultant's opinion as to whether the tanks evidence indication of any
leakage.
E. SECONDARY CONTAINMENT - Not later than September 1, 2007, Tenant
shall take such measures as necessary for the storage of diesel canisters for
the on-site forklift to be stored within a roofed area with secondary
containment at the following properties: Gelsenkirchen Premises,
Essen-Altenessen Premises, and Dortmund-Kley Premises. Documentation of the
completion of the actions shall include before and after photographs.
F. FLUORESCENT LIGHT TUBE STORAGE - Not later than September 1, 2007,
Tenant shall cease the storage of fluorescent light tubes in rain barrels and
arrange for the storage of spent or used fluorescent light tubes in properly
designed containers at the following properties: ▇▇▇▇▇-▇▇▇▇▇▇▇ Premises and
Essen-Borbeck Premises. Documentation of the completion of the actions shall
include before and after photographs.
II. INDIVIDUAL PROPERTIES
A. GELSENKIRCHEN PREMISES
1. Oil Staining - Not later than September 1, 2007, Tenant shall
take appropriate measures to secure the manholes in the waste collection area
from contamination as a result of spills of material in the waste collection
area. Documentation of the completion of the actions shall include before and
after photographs.
▇. ▇▇▇▇▇▇▇▇▇▇▇ PREMISES
1. Inspection of Press Container - Not later than July 1, 2007,
Tenant shall have arranged for the required inspection of the press container
and shall provide documentation of such inspection to Landlord.
C. DAHLWITZ-HOPPEGARTEN PREMISES
1. Waste Containers - Not later than July 1, 2007, Tenant shall
have arranged for the removal of the full containers of waste paint and lacquer
observed by ERM GmbH and discussed in their supplemental report. Documentation
of the completion of the actions shall include before and after photographs.
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▇. ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ PREMISES
1. Emergency Doors -Not later than September 1, 2007, Tenant
shall have arranged to improve the emergency doors.
E. GREIZ PREMISES
1. Fire Alarm System - Not later than September 1, 2007, Tenant
shall have arranged to install a fire alarm system.
F. HALLE PREMISES
1. New Flooring - Not later than September 1, 2007, Tenant shall
have arranged to install new flooring.
G. LUDENSCHEID PREMISES
1. Cold Wall - Not later than September 1, 2007, Tenant shall
have arranged to reconstruct the cold hall (glass wall).
▇. ▇▇▇▇▇▇▇▇▇▇ PREMISES
1. Fire Alarm System - Not later than September 1, 2007, Tenant
shall have arranged to install a fire alarm system.
III. COSTS
Tenant shall reimburse Landlord for all of Landlord's reasonable
costs, including attorneys' and consultants' fees, incurred by Landlord in
reviewing Tenant's progress in completing the activities listed herein.
III. REQUIRED NOTICE
Tenant shall provide all communications regarding the obligations set
forth in this Exhibit "L", including Tenant's proof of satisfactory completion
of each obligation hereunder, to Landlord addressed to the following:
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
ERM GmbH
▇▇▇▇▇▇-▇▇▇▇▇▇▇▇-▇▇▇. ▇
▇▇▇▇▇ ▇▇▇-▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Tele: +49 6102 - 206-145
Fax: +49 6102 - 206-204
Mob: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇.▇▇▇
AND
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
▇▇▇▇ ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tele: 412-288-8586
Fax: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
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