Exhibit 10.12
Dated 18 April 2008
TECH LANDLORD (GER) QRS 16-145, INC.,
a Delaware corporation
(as Landlord)
and
ACTEBIS PEACOCK GmbH
(as Tenant)
LEASE AGREEMENT
Premises: ▇▇▇▇-▇▇▇▇▇▇▇▇-▇▇▇. ▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇/▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
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TABLE OF CONTENTS
PAGE
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1 Lease of the Premises ................................................ 3
2 Definitions .......................................................... 3
3 Interpretation ....................................................... 8
4 Lease Term ........................................................... 8
5 Transfer of Possession ............................................... 9
6 Rent ................................................................. 9
7 VAT .................................................................. 9
8 Insurance ............................................................ 10
9 Tenant's Obligations ................................................. 13
9.1 Rent and Other Payments ........................................ 13
9.2 Maintenance, Repair and Replacement ............................ 13
9.3 Alterations and Additions ...................................... 14
9.4 Signs and reletting notices .................................... 15
9.5 Use, Occupancy ................................................. 15
9.6 Alienation ..................................................... 15
9.7 Entry .......................................................... 17
9.8 Compliance with Law ............................................ 18
9.9 Outgoings, costs and fees ...................................... 18
9.10 Taxes; VAT ..................................................... 19
9.11 General restrictions concerning use ............................ 19
9.12 Indemnity ...................................................... 19
9.13 Environmental requirements ..................................... 20
9.14 Not to overload ................................................ 21
9.15 Compulsory Purchase ............................................ 21
9.16 Restoration .................................................... 21
10 Security Deposit ..................................................... 21
11 Covenant of Quiet Enjoyment .......................................... 21
12 Intentionally Omitted ................................................ 22
13 Events of Default .................................................... 22
14 General Conditions ................................................... 23
14.1 Financing Bad ▇▇▇▇▇▇▇▇▇▇ Premises Expansion .................... 23
14.2 Surrender of the Premises ...................................... 23
14.3 Service of notices ............................................. 23
14.4 Entire understanding; Schedules ................................ 24
14.5 Severance ...................................................... 24
14.6 Governing law and jurisdiction ................................. 24
14.7 Non-recourse ................................................... 24
14.8 Amendments ..................................................... 25
14.9 Successors and Assigns; Joint and Several Liability ............ 25
14.10 Requirement of Written Form .................................... 25
Schedule 1 Property Allocation ....................................... 27
Schedule 2 Basic Rent and Provisions for Rent Adjustments ............ 28
Schedule 3 Improvements .............................................. 30
Schedule 4 Corporate Covenants ....................................... 31
Schedule 5 Post Closing Obligations .................................. 33
Schedule 6 Financing Building Expansion of Bad ▇▇▇▇▇▇▇▇▇▇............. 46
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THIS LEASE AGREEMENT is made as of 18 April 2008
BETWEEN:
(1) TECH LANDLORD (GER) QRS 16-145, INC., a Delaware corporation with an
address c/o W.P. ▇▇▇▇▇ & Co. LLC, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as the "LANDLORD"); and
(2) ACTEBIS PEACOCK GMBH, a company each with its statutory seat in ▇▇▇▇▇ ▇▇▇▇▇
▇▇/▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and registered with the trade register
maintained at the local court of Arnsberg under HRB 8075, (hereinafter
referred to as the "TENANT");
the above companies hereinafter jointly referred to at the "LEASE PARTIES".
All of the terms of this Lease Agreement have been individually negotiated
between the Lease Parties.
FOR GOOD AND VALUABLE CONSIDERATION RECEIVED THE LANDLORD AND THE TENANT AGREE
AS FOLLOWS:
1 LEASE OF THE PREMISES
1.1 The Landlord is the legal owner of the Premises as more fully
described in Annex 1 hereto.
1.2 The Premises shall include items (i), (ii) and (iii) of this Clause
1.2 now or hereafter located thereon or therein and appertaining
thereto: (i) the Land (as hereinafter defined) together with the
Appurtenances (as hereinafter defined), (ii) the Improvements (as
hereinafter defined), and (iii) the Fixtures (as hereinafter defined).
1.3 The Landlord hereby demises and lets to the Tenant, and the Tenant
hereby takes and leases from the Landlord the Premises for the term
and upon the provisions hereinafter provided.
2 DEFINITIONS
In this Lease agreement the following expressions have the following
meanings:
2.1 AFFILIATE means any company which owns or controls (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), directly or
indirectly, the voting rights over more than a 50 percent equity
interest, beneficial or otherwise, in a party (any such company being
a "Parent") or in which a party owns or controls, directly or
indirectly, more than 50 percent of the voting rights or more than a
50 percent equity interest, beneficial or otherwise (the "Subsidiary")
or in which a Parent or Subsidiary, directly or indirectly, owns or
controls the voting rights over more than a 50 percent equity interest
and the right to direct the management, beneficial or otherwise,
which, with respect to the Landlord, may be by contract.
2.2 ALTERATION OR ADDITIONS means all alterations and additions made to
any part of the Premises including without limitation additions or
alterations to the Fixtures, changes to the existing design or
appearance of the Premises or any alteration in or extension to the
electrical or other installations located in the Premises or the
erection of any new building or other structures.
2.3 APPURTENANCES shall mean all easements, rights-of-way and rights
associated with the Land.
2.4 BASIC RENT means the amount per annum set forth in Clause 1 of
SCHEDULE 2 as increased in accordance with the provisions of SCHEDULE
2, and payable in accordance with Clause 6 of this Lease.
2.5 BAD ▇▇▇▇▇▇▇▇▇▇ PREMISES means the portion of the Premises located in
Bad ▇▇▇▇▇▇▇▇▇▇, Germany.
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2.6 CASUALTY means any damage to, or destruction of either Related
Premises.
2.7 COMMENCEMENT DATE means the date the purchase price is paid under the
Purchase and Sale Agreement.
2.8 COMPETENT AUTHORITY means any national or local governmental agency,
body or other entity having enforcement or regulatory powers in
Germany in respect of any Environmental Law.
2.9 COMPULSORY PURCHASE shall mean any expropriation or taking of all or a
material portion of the Premises or either Related Premises, (i) by
compulsory purchase or other proceedings brought by any authorized
governmental or other public authority ("Enteignung") pursuant to any
Law, which relate to the same, or (ii) by reason of any agreement with
any purchaser in settlement of, or under threat of, any such
compulsory purchase or other proceeding brought by a governmental
body, agency or department, or (iii) a Requisition. The Compulsory
Purchase shall be considered to have taken place on the date in which
the decision enforcing the Compulsory Purchase, issued by a relevant
authority, becomes final or on the date on which an agreement
transferring the Premises (or portion thereof) to the applicable
governmental authority is entered into.
2.10 COMPULSORY PURCHASE NOTICE shall mean an official notice on the
commencement of any proceeding for Compulsory Purchase.
2.11 DANGEROUS SUBSTANCES means any substance (whether in the form of a
solid, liquid, gas or vapour) the generation, keeping, transportation,
storage, treatment, use or disposal of which gives rise to a risk of
causing harm to man or to any other living organism or causing damage
to the environment and includes (but without limitation) any
controlled, special, hazardous, toxic, radioactive or dangerous waste;
all substances in the Tenant's fittings, plant, machinery and stock
used for the Permitted Use will not be included in this definition of
Dangerous Substances, provided that: (i) such substances are in common
normal use for purposes analogous to the Permitted Use in terms of
applicable technical standards, (ii) they do not exceed maximum
quantities specified under applicable law, and (iii) they are properly
secured and do not constitute a danger of any kind to anyone.
2.12 DEFAULT AMOUNT means the aggregate of:
(a) the Prepayment Premium; and
(b) the Outstanding Amounts.
2.13 ENVIRONMENTAL CONSULTANT shall mean URS Deutschland GmbH.
2.14 ENVIRONMENTAL LAW shall mean (a) whenever enacted or promulgated, any
applicable federal, state 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 Dangerous Substance or (ii) concerning exposure to, or the
use, containment, storage, recycling, reclamation, reuse, treatment,
generation, discharge, transportation, processing, handling,
labelling, production, disposal or remediation of Dangerous
Substances, Hazardous Conditions or Hazardous Activities, 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 Dangerous 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, including all regulations
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(Rechtsverordnungen) which have their legal basis
("Ermachtigungsgrundlage") in the aforementioned statutes, each as
amended and as now or hereafter in effect and any similar state or
local Law.
2.15 ENVIRONMENTAL PERMITS means any and all consents, permits or
authorisations required under Environmental Law in connection with the
Tenant's use and occupation of the Premises;
2.16 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 Dangerous 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 could result
in any liability to Landlord, Tenant or Lender, any 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 could 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, (c) the abandonment or
discarding of any barrels, containers or other receptacles containing
any Dangerous Substances in violation of any Environmental Laws, (d)
any activity, occurrence or condition which could 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 creation
of a lien on any Related Premises under any Environmental Law or (e)
any violation of or noncompliance with any Environmental Law.
2.17 EUR (also EURO or E) means the single currency of the participating
Member States in the Third State of European Economic and Monetary
Union of the Treaty Establishing the European Community, as amended
from time to time.
2.18 EVENT OF DEFAULT means any of the events specified in Clause 13.
2.19 FIXTURES means all plant and machinery now in or serving the Premises
including (but without limitation) all window cleaning plant and
machinery, all electrical systems, all fire detection and fire
prevention systems, and all related control or monitoring systems and
installations and dock loading bays and together also with all plant
and machinery which may from time to time be installed to replace any
item of the foregoing, but specifically excluding all machinery and
equipment used by Tenant in the operation of its business.
2.20 GERMAN CIVIL CODE means the German statutory law for civil matters
titled "Buergerliches Gesetzbuch" ("BGB").
2.21 IAS means international accounting standards as issued by the Board of
the International Accounting Standards Committee (IASC).
2.22 IMPROVEMENTS means all buildings, premises, structures and other
improvements constructed on the Land and any future improvements
developed on the Land within the Term of this Lease in accordance with
terms and conditions hereof.
2.23 INSURANCE PREMIUMS means all sums payable by the Tenant pursuant to
Clause 8.1.1 under relevant insurances.
2.24 INSURED RISKS means the risks insured to be against under Clause
8.1.1.
2.25 INTEREST means the statutory interest pursuant to Section 288 of the
German Civil Code.
2.26 INVOICE means any invoice issued by the Landlord to the Tenant for the
payment of the Basic Rent, the Outgoings, or other amounts to be paid
by the Tenant to the Landlord under the terms of this Lease.
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2.27 INITIAL TERM means Initial Term as defined in Clause 4.1.
2.28 LAND means the parcels of land identified as Parcel A and situated in
Bad ▇▇▇▇▇▇▇▇▇▇, Germany and identified as Parcel B and situated in
Soest, Germany.
2.29 LANDLORD means the Person first named herein as the Landlord and its
successors and assignees.
2.30 LAW includes any constitution, decree, judgment, legislation, order,
ordinance, regulation, statute, treaty or other legislative measure in
Germany (including zoning regulations) and any present or future
directive, regulation, guideline, practice, concession, request or
requirement issued by any German authority, as well as applicable
European Union regulations, directives and treaties, including, but
not limited to the German Civil Code.
2.31 LEASE means this Lease Agreement, as the same may be amended in
writing from time to time.
2.32 LEASE YEAR means, 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.
2.33 LENDER means any Person (and its respective successors and assignees)
which may, on or after the date hereof, make a Loan to the Landlord
(the Landlord will notify the Tenant of such Lender if the Lender is
different from the Mortgagee).
2.34 LOAN means any loan made by one, or more Lenders: (a) to the Landlord
in connection with the financing of the Premises or, at any time, or
from time to time, any increase in such loan or any refinancing of any
such loan (which may include any increase in the principal amount
thereof); or (b) to any purchaser in connection with the purchase of
the Premises or the interests in Landlord or, at any time, or from
time to time, any refinancing of such loan (which may include any
increase in the principal amount thereof).
2.35 MORTGAGE means any legal instrument which secures the Landlord's
obligation to repay a Loan.
2.36 MORTGAGEE means the holder of a Mortgage or similar lien (the Landlord
will notify the Tenant about the establishment of the Mortgage or
similar lien and such notification will indicate the Mortgagee).
2.37 NET AWARD means the entire award payable to the Landlord by reason of
a Compulsory Purchase or insurance proceeds payable by reason of a
Casualty whether pursuant to a judgment or by agreement or otherwise,
less any expenses incurred by the Landlord in collecting such award or
proceeds.
2.38 OFAC means the Office of Foreign Asset Control of the Department of
the Treasury, codified at 31 C.F.R. Part 500 as defined in Clause
9.6.6.
2.39 OUTGOINGS means all existing and future rates, taxes (such as local
real estate taxes), fees, charges, payments by virtue of the right of
perpetual usufruct, rental payments (if paid to third parties in
connection with the use of the Premises), duties, charges,
assessments, impositions and outgoings whatsoever, and all other
expenses referring to or in relation to the maintenance, operation or
management of the Premises, including, but not limited to, all rents
and charges for water, sewer, utility and communication services
relating to any of the Premises, including all costs and expenses
listed in Section 2 Operating Cost Order ("Section 2
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 communication systems, heating
systems, security systems, fire detectors, emergency power units,
generators, air and water cleaning filters, snow and ice removal,
street
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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 and whether or
not of a non-recurring nature.
2.40 OUTSTANDING AMOUNT means the sum of any amount payable by the Tenant
(including but not limited to the Basic Rent and the Outgoings) which
is past due under this Lease and which is unpaid and all Basic Rent
and Outgoings that would otherwise be paid in the future under the
remainder of the Lease Term should the Lease terminate earlier than
specified under this Lease Agreement.
2.41 PARTIAL COMPULSORY PURCHASE means any Compulsory Purchase which
relates to a non-material part(s) of the Premises.
2.42 PERMITTED USE means light industrial and manufacturing (except for
metal foundry) and other related activities, such as logistics and
office use, to the extent permitted by Law or otherwise in accordance
with Clause 9.5.1 of this Agreement.
2.43 PERSON means an individual, legal person or other entity having no
legal personality under the Law.
2.44 PREMISES means the Premises defined in Clause 1.2.
2.45 PREPAYMENT PREMIUM means any payment required to be made by the
Landlord to a Lender under a Loan solely by reason of any prepayment
by the Landlord of any principal due under a Loan and which includes
all "breakage costs".
2.46 PURCHASE AND SALE AGREEMENT means the Purchase and Sale Agreement by
and between Landlord, as purchaser, and Arques Immobilien ▇▇▇▇ GmbH &
Co KG, as seller, with respect to the Premises notarized on 18 April
2008 by notary public ▇▇. ▇▇▇▇▇▇▇, Wiesbaden, Germany.
2.47 REINSTATEMENT VALUE means all costs (including non-construction costs)
which would need to be spent in order to fully reinstate the
applicable Related Premises to the physical condition (excluding the
personal property of the Tenant used in the operation of its business)
which upon completion shall comply with the requirements of this
Lease.
2.48 RELATED PREMISES means either the Soest Premises or the Bad ▇▇▇▇▇▇▇▇▇▇
Premises, as the context may require.
2.49 RENT means Basic Rent, VAT, Outgoings and any other amount payable by
Tenant to Landlord under the terms of this Lease.
2.50 RENT ADJUSTMENT means an adjustment of Basic Rent in accordance with
the provisions of SCHEDULE 2.
2.51 RENT ADJUSTMENT DATE(S) are as described in SCHEDULE 2.
2.52 RENT PAYMENT DATE means (a) with respect to each payment of Basic Rent
the first (1st) Working Day of each August, November, February and
April during the Term, and (b) with respect to any payment of
Outgoings which are payable to the Landlord (as opposed to a third
Person) within ten (10) days following receipt of an Invoice and if
such date is not a Working Day then it will be payable on the
immediately preceding Working Day.
2.53 RENEWAL DATE means the Renewal Date defined in Clause 4.2.
2.54 RENEWAL TERM means the Renewal Term defined in Clause 4.2.
2.55 REQUISITE NOTICE means a notice to the Tenant, seventy-two (72) hours
before any entry is made on any Premises provided that in the case of
an emergency no notice will be required.
2.56 REQUISITION means any temporary requisition or confiscation of the use
or occupancy of any of any Premises by any governmental authority,
civil or military, whether pursuant to an
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agreement with such governmental authority in settlement of or under
threat of any such requisition or confiscation, or otherwise.
2.57 RESTORATION FUND means the Restoration Fund as defined in Clause
9.16.2.
2.58 SOEST PREMISES means the portion of the Premises located in Soest,
Germany.
2.59 TENANT includes the Tenant and the Tenant's successors and/or assigns
in title which are permitted by the terms of this Lease.
2.60 TERM means Term as defined in Clause 4.1.
2.61 TERMINATION DATE means the date of expiration or earlier termination
of the Term.
2.62 VAT means value added or similar tax which is payable by the Landlord
on the Basic Rent, Outgoings (if applicable) or any other amount due
from Tenant under the terms of this Lease.
2.63 WORKING DAY means any day excluding Saturdays, Sundays and national
holidays recognised by the laws of the Republic of Germany.
3 INTERPRETATION
In this Lease:
3.1 Where any act is prohibited, the Tenant will not allow or suffer such
act to be done by someone under the Tenant's direction or control
(which shall include any subtenant or assignee).
3.2 The Clause headings (except for the definitions) are for ease of
reference and shall not affect the interpretation or meaning of this
Lease.
3.3 References to Clause numbers or schedules or paragraphs in schedules
mean the Clauses of or schedules to or paragraphs in schedules to this
Lease.
3.4 Words importing persons shall be construed as including firms,
companies and corporations and vice versa.
3.5 Words importing one gender will be construed as importing any other
gender.
3.6 Words importing the singular will be construed as importing the plural
and vice versa.
3.7 The words "hereof", "hereunder", "hereto", "herein", and similar words
shall be construed as being references to this Agreement.
3.8 Where German terms are used in brackets the meaning of the German
term shall prevail.
4 LEASE TERM
4.1 The initial term ("INITIAL TERM") of this Lease for the Premises shall
be for a period of one hundred ninety two (192) months (the Initial
Term, as extended by any Renewal Term, the "TERM"), commencing on the
Commencement Date.
4.2 Provided that if, on or prior to the date upon which the Initial Term
is scheduled to expire (the "EXPIRATION DATE") or any other Renewal
Date (as hereinafter defined) this Lease shall not have been
terminated pursuant to any provision hereof, then on the Expiration
Date and on the fifth (5th) anniversary and the tenth (10th)
anniversary of the Expiration Date (the Expiration Date and each such
anniversary being referred to herein as a "RENEWAL DATE"), Tenant
shall have the right to extend the Term (each such extension, a
"RENEWAL TERM") for an additional period of five (5) years with
respect to each Renewal Term, notification to Landlord in writing at
least twenty-four (24) months prior to the next Renewal Date that
Tenant is extending this Lease as of the next Renewal Date. Any such
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 Tenant shall not have the right to any additional Renewal
Terms). An extension of this Lease according to Section 545 German
Civil Code due to continued usage of the Premises by Tenant is
specifically excluded.
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4.3 Except as otherwise expressly provided herein, Tenant shall have no
right and hereby waives all rights which it may have under any Law (i)
to quit, terminate or surrender this Lease or any of the Premises or
(ii) to any set-off or abatement of any Rent.
5 TRANSFER OF POSSESSION
5.1 The Tenant shall take possession of the Premises as of the
Commencement Date.
5.2 The Tenant is aware of and hereby acknowledges that there may be legal
defects, and construction and environmental defects relating to the
Premises including, but not limited to, defects assessed by (a)
Technical Due Diligence Assessment of the Premises (Project Nr.
43884119; Final Reports dated 8 April 2008) carried out by URS
(collectively, the "ENGINEERING REPORTS"), and (b) Environmental Due
Diligence Assessment (Project Nr. 43884118; Final Report for the Bad
▇▇▇▇▇▇▇▇▇▇ Premises dated 7 April 2008, for the Soest Premises dated
14 April 2008) carried out by URS (collectively, the "ENVIRONMENTAL
REPORT"). The Tenant shall have no claims against Landlord with
respect to any defects now or hereafter existing and accepts the
Premises in their condition on the Commencement Date.
6 RENT
6.1 The Tenant covenants and agrees that it shall pay the Basic Rent
annually and proportionately for any fraction of a Lease Year from and
including the Commencement Date and from and including each Rent
Adjustment Date such other Basic Rent as may become payable under the
provisions of SCHEDULE 2. Following the first rent payment on the
Commencement Date (with respect to the period defined in the next
sentence below), the Basic Rent shall be divided into four (4) equal
portions and each portion will be paid quarterly in advance on each
Rent Payment Date in every Lease Year. The first (1st) rent payment
shall be made on the Commencement Date and shall be for the period
from and including the Commencement Date to and including the Working
Day immediately preceding the next following Rent Payment Date
calculated on a daily basis.
6.2 From and including the Commencement Date, the Tenant shall pay all
Outgoings, interest, VAT and any and all other taxes or sums
whatsoever as become payable or refundable by the Tenant to the
Landlord under the provisions of Clause 9.9 of this Lease.
6.3 The Tenant shall, if possible, ensure that direct contractual
relationships are established between the Tenant and the contractor
for the services included in the Outgoings. If direct contractual
relationships between the Tenant and a contractor cannot be
established, the Landlord and Tenant shall reasonably agree on the
selection of a contractor and shall direct all such contractors to
account on a monthly basis directly to Tenant (or shall provide copies
on a monthly basis of any such accounting statements provided by such
contractor to Landlord together with the applicable statement),
payment of which shall be made by Tenant to the applicable contractor
within thirty (30) days following receipt of an Invoice from Landlord
or contractor, as applicable.
6.4 The Tenant shall pay the Basic Rent reserved by Clause 6.1 and VAT by
wire transfer or banker's standing order to a bank account or bank
accounts (but not more than two (2)) either in Germany or, at
Landlord's costs, another country which the Landlord has notified in
writing to the Tenant.
6.5 Any payments from the Tenant to the Landlord under this Lease
(including the payment of the Basic Rent) shall be made against
Invoices issued by the Landlord to the Tenant.
7 VAT
7.1 In accordance with Sec. 9 of the German VAT Act ("Umsatzsteuergesetz")
the Landlord has elected to waive the VAT exemption within the meaning
of Sec. 4 No. 12a of the German VAT Act. The Tenant is aware of the
fact that this requires the Tenant to use the Premises solely in its
capacity as entrepreneur and for the purpose of creating turn-over
that does not exclude pre-tax deduction and that in case of any
sub-leasing of the Premises of any part
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thereof, the Tenant elects for VAT and agrees to impose the
aforementioned obligations on any possible sub-tenant by way of a
contract for the benefit of the Landlord (echter Vertrag zugunsten des
Vermieters).
7.1.1 If the Landlord's conditions for opting for VAT are inapplicable
because the Tenant or any sub-tenant is not using the property in
accordance with the principles in Clause 7.1 above, Tenant will
indemnify Landlord for any cost arising out of this event, and
will in particular (i) reimburse Landlord for any VAT correction
amount which is payable by Landlord pursuant Sec. 15a VAT Act (or
under any of its successor statutes) because of this event and
(ii) bear any VAT owed by Landlord pursuant Sec. 14c VAT Act (or
under any of its successor statutes). Further rights of the
Landlord shall remain unaffected hereof.
7.1.2 The Tenant is aware of the Landlord's obligation to prove the
observation of the requirements of Sec. 9 ss. 1, 2 of the German
VAT Act to the financial authorities and therefore undertakes, on
request and without undue delay, to provide the Landlord with
documentation and to make representations enabling the Landlord
to comply with his obligations to report to financial authorities
under Sec. 9 ss. 2 sentence 2 of the German VAT Act. Moreover,
the Tenant shall be obligated to inform the Landlord promptly of
any events that could affect VAT opting.
7.1.3 The Landlord's claims against the Tenant according to this
Clause 7.1 shall not become time-barred prior to expiry of any
six (6) months period, starting upon receipt by the Landlord of
the relevant tax assessment notices. In case the Tenant or any
sub-tenant does not comply with the duty to provide information
according to Cause 7.1.2, the limitation period with respect to
all claims arising from the Tenant or such sub-tenants' failures
to provide information shall extend to ten (10) years.
7.2 Each payment of Basic Rent, the Outgoings and other amounts provided
for under this Lease shall be subject to VAT on such payment. To the
extent that any Basic Rent, the Outgoings and other amounts provided
for under this Lease is subject to VAT under any applicable VAT
provision, the Tenant shall pay such VAT imposed on any Basic Rent,
the Outgoings and other amounts provided for under this Lease at the
applicable rate in addition to any such Basic Rent, Outgoings and
other amounts payable by Tenant under this Lease.
7.3 Tenant shall make all VAT payments arising from Tenant's obligations
under this Lease as and when due to Landlord's designated account
together with each instalment of Basic Rent. If (x) an overpayment by
Tenant of VAT due on this Lease occurs and (y) a claim against the
German tax authorities for reimbursement of such overpayment of VAT
due on this Lease may only be asserted by Landlord, then promptly
after written request, and with Tenant's cooperation, Landlord shall
assert such claim against the German tax authorities for reimbursement
of such overpayment of VAT due on this Lease and, upon receipt of
reimbursement of such claim from the German tax authorities, shall
remit such reimbursement to Tenant.
7.4 Landlord shall, as set forth in Clause 6.5 hereinabove, provide Tenant
with (a) an invoice with respect to the Basic Rent due under this
Lease and (b) with invoices with respect to other costs charged to
Tenant pursuant to Clause 6.3 hereinabove, satisfying the formal
requirements of Section 14 of the German VAT Act. Landlord's costs of
preparing and/or reviewing all such invoices, except only for the
invoice referenced in Clause 7.4(a) above, shall be paid by Tenant.
8 INSURANCE
8.1 The Tenant shall:
8.1.1 insure the Premises, pay the Insurance Premiums and maintain the
following insurance against:
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(i) loss or damage by fire, explosion, ▇▇▇▇▇, ▇▇▇▇▇▇▇ (including
lightning), flood, earthquake, burst pipes, impact, heave
and subsidence for their full Reinstatement Value in the
name of the Tenant with the Landlord as additional insured
and Loss Payee as their interests may appear and the Lender
as additional insured and First Loss Payee as their
interests may appear;
(ii) the loss of rent payable under this Lease from time to time
(having regard to the review of Basic Rent which may become
due under this Lease) equal to twenty four (24) months of
Basic Rent or such longer period as the Landlord and the
Tenant may from time to time agree to in writing as being
sufficient or for the purposes of planning and carrying out
any reinstatement of the Premises following a Casualty in
the name of the Tenant with the Landlord as additional
insured and Loss Payee as their interests may appear and the
Lender as additional insured and First Loss Payee as their
interests may appear;
(iii) third party liability arising out of or in connection with
any matters involving or relating to the Premises in an
amount satisfactory to the Landlord, acting reasonably which
is in line with insurance usually effected by a prudent
owner of a property being of a similar nature to the
Premises and naming the Landlord and the Lender as
additional insured; and
(iv) such other insurance coverage required by Landlord, provided
that such insurance is available to Tenant on a commercially
reasonable basis and is consistent, as to types of coverage
and amounts, with the requirements generally of
institutional lenders or prudent owners or operators of
similar properties (jointly referred as the "INSURED
RISKS").
8.1.2 Tenant will procure at all times that all insurance policies
contain:
(i) a clause whereby such insurance policy will not be vitiated
or avoided as against a Mortgagee in the event or as a
result of any misrepresentation, act or neglect or failure
to make disclosure on the part of the insured party or any
circumstances beyond the control of any insured party; and
(ii) terms prohibiting the insurer from vitiating or avoiding any
insurance policy as against a Mortgagee in the event of any
misrepresentation, act or neglect or failure to make full
disclosure on the part of the Landlord, the Tenant or other
insured party and a waiver of all rights of subrogation.
8.1.3 ensure that the insurer has a claims paying ability rating of at
least A given by Standard & Poor's Rating Services, a Division of
MacGraw Hill Companies, Inc. or an equivalent rating by ▇▇▇▇▇'▇
Investment Services and is authorised to write insurance in
Germany;
8.1.4 at least thirty (30) days prior to modifying or replacing any
insurance required under Clause 8.1.1 provide the Landlord with
details of the proposed insurance, the form of policy, details of
the insurer, any excesses and deductible exclusions and
limitations under the policy, details of the full Reinstatement
Value including all professional fees, and details of all other
amounts insured under the policy, and Landlord shall respond to
Landlord's request for consent to any modification or replacement
within fourteen (14) days of receipt of the complete details of
such information;
8.1.5 comply with the requirements of the insurers relating to the
Premises;
8.1.6 promptly, but in any event within three (3) days of the
occurrence, give the Landlord written notice of any material
damage to or destruction of either Related Premises;
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8.1.7 pay the Landlord within ten (10) days of demand the reasonable
costs incurred by the Landlord in connection with any insurance
claim relating to the Premises arising from any insurance taken
out by the Landlord pursuant to Clause 8.3;
8.1.8 notify the Landlord immediately if any Related Premises is
vacant; and
8.1.9 provide to Landlord and to the Lender certified copies of
policies (or any substitute documents issued by the insurance
company) and receipts with respect to the payment of premium
within thirty (30) days following the commencement or renewal
date of the insurance.
8.2 Reinstatement
8.2.1 If any part of any Premises is damaged by any of the Insured
Risks then, subject to:
(i) receipt by the Landlord of the Net Award; and
(ii) the Tenant not being in arrears with the Rent payments,
upon receipt of any Net Award, the Landlord will, in accordance
with Clause 9.16, make the Net Award available to the Tenant
(except those amounts relating to fees and loss of Basic Rent)
and the Tenant shall apply the Net Award to restore the damaged
Premises.
8.2.2 For the avoidance of doubt, in the event that the Premises are
damaged by any of the Insured Risks, this Lease will not expire
and the Tenant shall not be entitled to terminate it. The Tenant
shall arrange for the construction work that is required in order
to restore the Premises. The detailed scope of work, construction
schedule, budget, contractor and construction contract (including
the construction quality guarantee) for the reinstatement work
will be subject to the Landlord's approval.
8.2.3 If the payment of any insurance monies is refused for any
reason, the Tenant will pay to the Landlord within thirty (30)
days of demand the amount so refused. The monies paid by the
Tenant to the Landlord shall be made available to Tenant in
accordance with Clause 8.2.1.
8.2.4 The Landlord will not be obliged to comply with the obligations
under Clause 8.2.1 if payment of the insurance monies has been
refused in whole or in part by reason of any act or default of
the Tenant or anyone under its control or the Tenant has not
complied with its obligations in Clauses 8.2.2 and 8.2.3.
8.2.5 For the avoidance of doubt, nothing in this Lease imposes an
obligation on the Landlord at any time, for any reason, to
reinstate or repair the damaged Premises.
8.3 Landlord's insurance
8.3.1 If the Tenant fails to produce satisfactory evidence that it is
in compliance with Clause 8.1 or if required by the Lender, the
Landlord may effect and maintain insurance against any or all of
the Insured Risks and the Tenant shall pay to the Landlord within
ten (10) days of demand the cost to the Landlord of maintaining
such insurance.
8.3.2 Immediately upon the Landlord giving notice to the Tenant that
the Landlord has insured the Premises against any of the Insured
Risks, the Tenant shall not maintain or take out any insurance of
the Premises for such risks in its own name and in such event the
Net Award shall be made available to Tenant for reinstatement of
the Premises in accordance with the applicable provisions of this
Lease.
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8.4 The obligation of Tenant to pay the Basic Rent and the Outgoings shall
not ▇▇▇▇▇ following any Casualty but shall remain in full force and
effect. The Basic Rent and the Outgoings payable to the Landlord shall
be decreased by the amounts received under the business interruption
insurance paid to the Landlord.
9 TENANT'S OBLIGATIONS
The Tenant covenants with the Landlord:
9.1 Rent and Other Payments
To pay the Basic Rent, the Outgoings and other amounts provided for
under this Lease without any deductions or set-off in accordance with
the Lease; in the event that any amount is not paid when due under
this Lease, the Tenant shall be required to pay the Interest on any
amounts from the date such payments were due.
9.2 Maintenance, Repair and Replacement
9.2.1 At all times to maintain ("instandhalten") and repair or if
necessary to replace parts of the Premises (including roof and
structure (Dach und Fach), mechanical and electrical
installations and equipments) and to keep the Premises (including
any part not built upon) in good and substantial repair and
condition (ordinary tear and wear excepted) and to yield up the
same at the Termination Date in accordance with the covenants by
the Tenant contained in this Lease (ordinary wear and tear
excepted). For the avoidance of doubt, the Tenant shall be
responsible for any and all repairs to or on the Premises
(including all structural and other major repairs) and the
Landlord has no liability in this respect.
9.2.2 To keep the Premises in a clean and tidy condition and properly
cleansed and free from obstruction and to maintain safety
(Verkehrssicherungspflicht).
9.2.3 To comply with the terms of all warranties, guarantees or
similar documents which apply to all or any part of the Premises.
9.2.4 To repair or replace forthwith by articles of similar kind and
quality and at its own expense any Fixtures (other than the
Tenant's or trade fixtures and fittings) in/on the Premises which
shall become in need of repair or replacement (ordinary tear and
wear excepted). Replacement within the meaning of the
aforementioned sentence shall mean acquisition of assets and
equipment which a reasonable, economically thinking facility
manager would not repair, taking into account service life,
severity of damages in relation to costs of repair in line with a
long term lease agreement.
9.2.5 Tenant shall complete the following matters at Tenant's sole
cost and expense consistent with the engineering findings and
recommended repairs as set forth in the Engineering Reports and
completed in a manner otherwise acceptable to Landlord in its
reasonable discretion, and shall provide to Landlord a written
report that such matters have been completed (which shall be
completed in a manner satisfactory to Landlord) no later than
June 1, 2009:
(i) Soeest Premises:
Costs in E
Item net excl. Fees + Vat
---- --------------------
1. Remediation of the triangular bay windows and the
inside construction. 25.000
2. Remediation of the triangular bay windows and the
inside construction. 20.000
3. Grease separator for the kitchen waste water. 25.000
------
Total 70.000
======
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(ii) Bad ▇▇▇▇▇▇▇▇▇▇ Premises:
Costs in E
Item net excl. Fees + Vat
---- --------------------
1. Renewal of the windows in the metal panel clad
facade. 20.000
------
Total 20.000
======
9.3 Alterations and Additions
9.3.1 Tenant shall have the right, without having obtained the prior
written consent of Landlord and provided that no Event of Default
then exists, (i) to make non-structural Alterations or Additions
or a series of related non-structural Alterations or Additions
that, as to any such Alterations or Additions or series of
related Alterations or Additions, do not cost in excess of
E250,000 with respect to any Related Premises and (ii) to
install Fixtures in the Improvements or accessions to the
Fixtures that, as to such Fixtures or accessions, do not cost in
excess of E250,000 with respect to any Related Premises, so
long as at the time of construction or installation of any such
Equipment or Alterations or Additions no Event of Default exists
and the value and utility of the Premises is not diminished
thereby. If the cost of any non-structural Alterations or
Additions, series of related non-structural Alterations or
Additions, Fixtures or accessions thereto is in excess of
E250,000 or if Tenant desires to make structural Alterations
or Additions to any Related Premises, 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 or Additions
except for those Alterations required by Law or for which
Landlord has agreed in writing that removal will not be required.
9.3.2 If Tenant desires to make any Alterations pursuant to this
Clause 9.3 or as required by Clauses 9.2, 9.8 or 9.16 (such
Alterations or Additions and actions being hereinafter
collectively referred to as "Work"), then (i) the market
value of each of the Related 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 all Laws, (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 to the
greater of (A) the value and useful life on the date hereof of
the Fixtures being replaced or (B) 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 pay all contractors for such Work in
accordance with and within the time frames set forth in any
agreement with such contractor for such Work, (vii) Tenant shall
procure and pay for all permits and licenses required in
connection with any such Work, (viii) all such Work shall be the
property of Landlord and shall be subject to this Lease, and
Tenant shall execute and deliver to Landlord any document
requested by Landlord evidencing the assignment to Landlord of
all estate, right, title and interest (other than the leasehold
estate created hereby) of Tenant or any other Person thereto or
therein, and (ix) Tenant shall comply, to the extent requested by
Landlord or required by this Lease, with the provisions of Clause
9.16, whether or not such Work involves restoration of any
Related Premises.
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9.3.3 The Tenant shall not be entitled to make any Alterations or
Additions to any part of the Premises if a building permit is
required for making such Alterations and Additions, unless
written consent from the Landlord is received.
9.3.4 To remove prior to the Termination Date any Alterations or
Additions or improvements made to the Premises if required by
Landlord, remove any plant and machinery installed at the
Premises by the Tenant or any other occupier and forthwith make
good any damage caused by such removal in a good workmanlike
manner.
9.3.5 The Tenant will not receive any compensation or reimbursement of
expenses incurred in connection with installing any Alterations
or Additions or improvements to the Premises, regardless of the
whether the Tenant removes them from the Premises or is
instructed not to do so by the Landlord.
9.3.6 For the avoidance of doubt the Lease Parties acknowledge that
all Fixtures, personal property and all trade fixtures, machinery,
office, manufacturing and warehouse equipment (including any
replacements thereof) which are not necessary to the operation of the
Improvements are and shall remain the property of Tenant, including:
- the entire conveyance system (Fordertechnik), namely
packages and pallet conveyance system including high bay
racking and automated small parts storage (Paket- und
Palettenfordertechnik inkl. Hochregallager und automatisches
Kleinteilelager),
- outdoor and indoor video equipment including the
corresponding IT hardware,
- all systems for storing goods, namely pallet rack, base
shelf and packages flow rack (Palettenregal, Fachboden und
Kollidurchlaufregale),
- all steel grating surfaces in ▇▇ ▇▇,
- electronic alert system for loading and unloading at all
ramps, including theft protection systems for truck trailers
(Elektronische Warnanlage zur Be- und Entladung an ▇▇▇▇▇
▇▇▇▇▇▇, inkl. Diebstahlsicherungssystem fur LKW-Anhanger),
- pallet elevator in WE (North side), and
- equipment for disposal of waste and paperboard containers
(new building, north side).
9.4 Signs and reletting notices
At the end of the Term, to remove any signs at the Premises and make
good any damage caused by that removal to the reasonable satisfaction
of the Landlord (ordinary tear and wear excepted).
9.5 Use, Occupancy
9.5.1 Not to use the Premises except for any use falling within the
Permitted Use except as the Landlord may first approve in
writing.
9.5.2 Not (a) to vacate either Related Premises other than for a
reasonable duration in connection with the reinstatement of the
Premises in accordance with Clause 8.2, except with prior written
approval of the Landlord, which approval shall not be withheld or
delayed so long as Tenant has established a plan for the
preservation, maintenance and security of the Premises (including
confirmation that the insurance required to be carried hereunder
by Tenant will remain in full force and effect notwithstanding
Tenant's vacating or abandoning of the Premises) reasonably
acceptable to Landlord or (b) to abandon either of the Related
Premises.
9.6 Alienation
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9.6.1 Except as specifically set forth in this Clause 9.6, Tenant may
not assign this Lease to any Person unless such Person is a
Credit Entity, or sublet all or any part of the Premises, or
charge the Premises or any part thereof without the prior written
consent of the Landlord. Any purported sublease or assignment in
violation of this Clause 9.6 shall be null and void. As used
herein, a "Credit Entity" shall mean any Person that immediately
following such assignment and having given effect thereto will
have a debt rating of "2.5" or better from Creditreform or a
rating of "BB" or better of Standard & Poors (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.
9.6.2 If Tenant desires to assign this Lease, whether by operation of
law or otherwise, to a Person ("Non-Preapproved Assignee") that
is a Credit Entity (each a "Non-Preapproved Assignment") then
Tenant shall, not less than ninety (90) days prior to the date on
which it desires to make a Non-Preapproved Assignment, submit to
Landlord and Lender information regarding the following with
respect to the Non-Preapproved Assignee (collectively, the
"Review Criteria"): (A) credit, (B) capital structure, (C)
management, (D) operating history, (E) proposed use of the
Premises and (F) risk factors associated with the proposed use of
the Premises by the Non-Preapproved Assignee, taking into account
factors such as environmental concerns and the like. Landlord and
Lender shall review such information and shall approve or
disapprove the Non-Preapproved Assignee no later than the
thirtieth (30th) day following receipt of all such information,
and Landlord and Lender shall be deemed to have acted reasonably
in granting or withholding consent if such grant or disapproval
is based on their review of the Review Criteria applying prudent
business judgment. If a response is not received by Tenant by the
expiration of such thirty (30) day period, such Non-Preapproved
Assignee shall be deemed disapproved.
9.6.3 Subject to the conditions of this Clause 9.6.3, Tenant shall
have the right, upon thirty (30) days prior written notice to
Landlord and Lender, to enter into one or more subleases (each, a
"Preapproved Sublet") (a) with any Affiliate for all or any part
of the Premises, with no consent or approval of Landlord being
required or necessary and (b) that, in the aggregate, up to, but
not to exceed ten percent (10%) of the gross leasable area of the
Improvements at the Premises, with no consent or approval of
Landlord being required or necessary. Other than pursuant to
Preapproved Sublets, at no time during the Term shall subleases
exist, in the aggregate, for more than ten percent (10%) of the
gross leasable area of the Improvements at the Premises without
the prior written consent of Landlord, which consent Landlord may
withhold in its sole discretion.
9.6.4 Tenant hereby represents to Landlord and Landlord hereby
acknowledges that, as of the date of this Lease, Tenant has
leased: (a) approximately 5,978 square meters of the gross
leasable area of the Improvements at the Soest Premises to
Hasbro, a German limited liability company ("Hasbro"), pursuant
to that certain Sublease Agreement between Tenant and Hasbro,
dated as of 25/26 November 2003 (the "Hasbro Lease"), and (b)
approximately 3,615 square meters of the gross leasable area of
the Improvements at the Soest Premises to a Targa, a German
limited liability company ("Targa"), pursuant to that certain
undated Sublease Agreement between Tenant and Targa, including
lease addenda dated 24 January 2005 und 25/27 April 2007 (the
"Targa Lease" and, together with the Hasbro Lease, collectively,
the "Existing Subleases") complete copies of which Existing
Subleases have been delivered to Landlord. Notwithstanding any
other rights or obligations of Tenant pursuant to this Clause
9.6, Tenant hereby
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represents, warrants and covenants that Tenant will not renew,
extend, modify or supplement any of the Existing Subleases or
enter into any new lease agreement with any Existing Subtenant or
any other Person, except for a Preapproved Sublet, without the
prior written consent of Landlord which consent shall not be
unreasonably withheld or delayed.
9.6.5 Notwithstanding anything to the contrary contained in this
Clause 9.6, 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 Premises to any Person at any
time that an Event of Default exists.
9.6.6 If Tenant assigns all its rights and interest under this Lease,
the assignee under such assignment shall expressly assume 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, by a written instrument delivered to
Landlord at the time of such assignment.
9.6.7 No assignment or sublease shall affect or reduce any of the
obligations of Tenant hereunder, and all such obligations of
Tenant shall continue in full force and effect as obligations of
a principal and not as obligations of a guarantor, as if no
assignment or sublease had been made. No assignment or sublease
shall impose any additional obligations on Landlord under this
Lease.
9.6.8 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 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.
9.7 Entry
9.7.1 To permit the Landlord and all persons authorised by it, at all
reasonable times upon the Requisite Notice to enter and remain
upon the Premises together with associated work people, plant and
materials:
(i) in order to examine their condition, to undertake
environmental testing and to take schedules of repairs and
the like and inventories of the Fixtures;
(ii) to carry out any repairs, decorations or other work which
the Landlord may carry out under the provisions of this
Lease upon or to the Premises;
(iii) in order to exercise, without interruption or interference,
any of the rights granted to or reserved for the Landlord by
this Lease;
(iv) in the last twelve (12) months before the Termination Date
in order to affix a sign or signs indicating that the
Premises shall be available to let unless the Lease will be
automatically renewed or the Tenant is actively pursuing its
right to renew the Lease; and
(v) for any other purpose connected with the interest of the
Landlord in the Premises including (but without limitation)
for the purpose of valuing or disposing of any interest of
the Landlord.
9.7.2 If as a result of an inspection or otherwise the Landlord
becomes aware of any breaches of the Tenant's obligations under
this Lease (other than relating to the payment of the Basic Rent
and the Outgoings or other amounts due under this Lease) the
Landlord may give notice in writing thereof to the Tenant. Within
one
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(1) month after written notice from Landlord to Tenant the Tenant
will remedy such breach of covenant in accordance with such
notice and the covenants contained in this Lease. If the Tenant
commences the remediation within thirty (30) days of such notice
(or promptly in case of an emergency) and diligently and
expeditiously continues to comply with such notice), but cannot
complete the remediation within such thirty (30) days period or
such breach may not be reasonably expected to be cured within
such period of time, then the Tenant shall have the right to
complete such remediation within ninety (90) days from the giving
of any such notice. If the remediation is not completed within
such ninety (90) day period, then the Landlord may carry out or
cause to be carried out all or any of the works referred to in
such notice or remedy the default of the Tenant. In such
circumstances, the Landlord will be under no liability to make
good any damage whatsoever and all proper costs of all such works
and all proper expenses incurred in remedying such defaults in
each case shall be paid by the Tenant to the Landlord within
fourteen (14) days of a written demand.
9.8 Compliance with Law
9.8.1 To comply with all applicable Law including (but without
limitation) any planning legislation and regulation or the
carrying out by the Tenant of any operations on or the use of any
part of the Premises.
9.8.2 At the Tenant's expense to obtain from the appropriate
authorities all licences, consents and permissions as may be
required for the carrying out by the Tenant of any operations on
or the use of any part of the Premises.
9.8.3 Not at any time during the Term to do or permit or suffer
anything which shall contravene any applicable Law or any
licences, consents, authorisations, permissions and conditions
(if any) from time to time granted or imposed under any
applicable Law nor to permit anything which would be a
contravention thereof and to comply with the same and to
indemnify the Landlord in respect of such acts or omissions.
9.8.4 Not to make any application for a building permit (including a
notification with regard to the construction works) without first
producing a copy of the same and obtaining the prior written
consent of the Landlord to such application, which consent will
not be unreasonably withheld or delayed.
9.8.5 Not at any time during the Term to do permit or suffer on the
Premises any act or cause or permit to be present on the Premises
any matter or thing which may cause a loss to the Landlord by
reason of any Environmental Law.
9.8.6 Within seven (7) days of its receipt to give full particulars to
the Landlord of any permission, notice, order or proposal
relevant to the Premises or relevant to the use thereof given to
the Tenant or the occupier of the Premises (together with a copy
of any notice, permission, letter or document) under any
applicable Law and without delay to take all necessary steps to
comply with such notice insofar as it relates to the Tenant's use
and occupation of the Premises and also at the reasonable request
of the Landlord to make or join with the Landlord in making such
objections and representations against or in respect of any such
notice, order or proposal, as previously mentioned, as the
Landlord reasonably requires.
9.9 Outgoings, costs and fees
9.9.1 To pay, discharge or to reimburse to the applicable Person (and
upon written notice from Landlord to Tenant directly to Landlord
in lieu of the Competent Authority), the Outgoings and other fees
or charges imposed upon the Premises or upon the Landlord in
connection with ownership, occupation, maintenance or management
of the Premises. However, nothing herein shall place any
obligation on the Tenant to pay, discharge, contribute or
reimburse the Landlord the
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amounts which represent the Landlord's general corporate and/or
income tax or other corporate overheads, including the costs
incurred by the Landlord in operating its business, including, by
way of example, accounting costs, legal fees and office rental
payments.
9.9.2 To pay to the Landlord all proper and reasonable costs, charges
and expenses (including lawyers costs and fees, other
professional advisers' costs and fees and bailiffs' commissions)
properly incurred by the Landlord:
(i) in connection with any breach of covenant by or the recovery
of arrears of Basic Rent or the Outgoings due from the
Tenant under this Lease; and
(ii) in respect of any application for a building permit applied
for, by, or on behalf of Tenant whether or not such building
permit is granted or the application is withdrawn (unless
the Landlord has unreasonably withheld its consent for
applying for such permit).
9.10 Taxes; VAT
To pay any and all VAT incurred or imposed on any payment made by the
Tenant under this Lease and to pay any stamp duty, transfer tax or
other fees assessed or assessable on this Lease, and to pay or
reimburse the Landlord for payment of all taxes, charges or fees
connected with the perpetual usufruct of the Land and/or ownership of
the Improvements (other than corporate income tax and trade tax of
Landlord imposed on the net income from the Lease). For the avoidance
of doubt, unless this Lease provides otherwise, any amounts due under
this Lease from the Tenant constitute net amounts and will be
increased by the applicable VAT.
9.11 General restrictions concerning use
9.11.1 Not to use any part of the Premises in violation of Law or
administrative regulation.
9.11.2 Not to do anything on the Premises which might reasonably be
expected to produce directly or indirectly corrosive, noxious or
poisonous fumes or vapours or moisture or humidity in excess of
that which the Premises were designed or have subsequently been
modified to bear.
9.12 Indemnity
9.12.1 Tenant shall pay, protect, indemnify, defend, save and hold
harmless Landlord, Lender and all other Persons described in
Clause 14.7 (each an "INDEMNITEE") from and against any and all
liabilities, losses, damages, penalties, costs (including
reasonable attorneys' fees and costs), causes of action, suits,
claims, demands or judgments of any nature whatsoever, howsoever
caused, without regard to the form of action and whether based on
strict liability, gross negligence, negligence or any other
theory of recovery at law or in equity (unless caused by the
Indemnitee seeking indemnification), arising from (i) any matter
pertaining to the acquisition, ownership, leasing, use, non-use,
occupancy, operation, management, condition, design,
construction, maintenance, repair or restoration of any of the
Premises, (ii) any violation by Tenant of any provision of this
Lease or (iii) any alleged, threatened or actual Environmental
Violation. Provided that Tenant has complied with all its
obligations under this Clause 9.12.1, Landlord shall, at Tenant's
written request, promptly assign or use its commercially
reasonable efforts to cause to be assigned to Tenant any and all
claims an Indemnitee may have against a third party in connection
with Tenant's indemnification of the Indemnitee hereunder.
9.12.2 In case any action or proceeding is brought against any
Indemnitee by reason of any such claim, (i) Tenant may, except in
the event of a conflict of interest or a
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dispute between Tenant and any such Indemnitee or during the
continuance of an Event of Default, retain its own counsel and
defend such action (it being understood that Landlord may employ
counsel of its choice to monitor the defense of any such action,
the cost of which shall be paid by Tenant provided, however, that
Tenant's obligation to reimburse Landlord for the legal fees of
such Landlord's counsel shall not exceed the remuneration set
forth in the German Lawyers Fees Act
(Rechtsanwaltsvergutungsgesetz RVG) plus 10%) and (ii) such
Indemnitee shall notify Tenant to resist or defend such action or
proceeding by retaining counsel reasonably satisfactory to such
Indemnitee, and such Indemnitee will cooperate and assist in the
defense of such action or proceeding if reasonably requested to
do so by Tenant. In the event of a conflict of interest or
dispute or during the continuance of an Event of Default,
Landlord shall have the right to select counsel, and the cost of
such counsel shall be paid by Tenant provided, however, that
Tenant's obligation to reimburse Landlord for the legal fees of
such Landlord's counsel shall not exceed the remuneration set
forth in the German Lawyers Fees Act
(Rechtsanwaltsvergutungsgesetz RVG) plus 10%.
9.12.3 The obligations of Tenant under this Clause 9.12 shall survive
any termination, expiration or rejection in bankruptcy of this
Lease.
9.13 Environmental requirements
The Tenant covenants with the Landlord as follows:
9.13.1 to ensure at all times that the Premises and the Tenant are in
compliance in all respects with Environmental Law in its use and
occupation of the Premises and, in particular, but without
limitation, that the Tenant or any other occupier of the Premises
obtains and complies with all Environmental Permits required for
the storage, use or disposal of any Dangerous Substances at, on
or from the Premises;
9.13.2 not at any time to cause or permit the deposit, spillage or
release onto the surface or into the sub-soil of the Premises of
any Dangerous Substances otherwise than in accordance with the
terms of a valid Environmental Permit;
9.13.3 not at any time to do or permit to be done anything on the
Premises which could cause disturbance to the operation of or
damage to the above ground or under ground storage tanks and
associated lines or pipe work at the Premises;
9.13.4 in the event of a breach of its obligations contained in
Clauses 9.13.1, 9.13.2, 9.13.3 above, to notify the Landlord
immediately in writing of the same and forthwith and with all due
speed and diligence to carry out such works of investigation and
remediation as may be necessary to remedy the consequences of the
breach and to reinstate the Premises to their condition prior to
the occurrence of the breach (taking into account at all times
all reasonable requirements of the Landlord with regard to the
nature and scope of such works) provided that the Landlord shall
have the option at its sole discretion to assume conduct of any
such works in which case the Tenant shall reimburse the Landlord
within fourteen (14) days of a written demand in respect of all
properly and reasonably incurred costs, fees, (including
professional fees) and expenses incurred in carrying out such
works;
9.13.5 that it will assume full responsibility for meeting all
liabilities, claims, costs and expenses arising or incurred
during the Term in respect of or in any way related to the
presence in, on, over or under the Premises of any Environmental
Violation (regardless of when such Environmental Violation first
occurred) including liability for and the costs of any works of
remediation (including on-going monitoring) which may be required
in order to mitigate or prevent a liability at any time in the
future and that it will comply with all requirements of any
Competent Authority made at any time thereunder.
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9.14 Not to overload
Not to place or keep on or in the Premises any heavy articles or
structures in such position or in such quantity or weight or otherwise
in such manner howsoever as to overload or cause damage to or be
likely to overload or cause damage to the Premises.
9.15 Compulsory Purchase
(i) The Landlord shall notify the Tenant of its receipt of a
Compulsory Purchase Notice.
(ii) In the event that a Compulsory Purchase with respect to of all or
substantially all of a Related Premises, (a) the Landlord shall
have no liability to the Tenant, (b) the Net Award will be solely
for the Landlord's benefit as a compensation for the
expropriation of such Related Premises, (c) the Lease shall
continue in full force and effect with respect to the Related
Premises not subject to such a Compulsory Purchase, and (d) Basic
Rent shall be reduced by the Basic Rent applicable to the Related
Premises that is subject to such Compulsory Purchase and SCHEDULE
1 shall be revised to reflect 100% for the Related Premises.
(iii) In the event that a Partial Compulsory Purchase occurs with
respect to either Related Premises, this Lease shall remain in
full force and effect as to the portion of the Premises which
have not been affected by such Partial Compulsory Purchase with
no reduction of Basic Rent.
9.16 Restoration
9.16.1 So long as the conditions set out in Clause 8.2.1 are
fulfilled, any Net Award up to and including E250,000 in
respect of any Casualty or the Partial Compulsory Purchase
collected by the Landlord shall be promptly transferred to the
Tenant who shall be obligated to restore the affected Related
Premises as close as possible to its value, condition and
character immediately prior to such event (assuming the affected
Related Premises to have been in the condition required by this
Lease).
9.16.2 If any Net Award is in excess of E250,000 in respect of
any Casualty or Partial Compulsory Purchase, the Landlord or
Lender may hold the entire Net Award in a fund (the "RESTORATION
FUND") and disburse amounts from the Restoration Fund in
accordance with customary construction disbursement requirements
of landlords and lenders, including (A) reviews of plans,
schedules, contractors, contracts and budgets, (B) waivers for
prior payments and (C) holdbacks until completion.
9.16.3 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 determined by the Landlord
and the Tenant, exceeds the amount of the Net Award available for
such restoration, the amount of such excess shall, upon demand by
the Landlord, be paid by the Tenant to the Landlord or directly
applied by the Tenant to the cost of the restoration.
10 SECURITY DEPOSIT
None
11 COVENANT OF QUIET ENJOYMENT
11.1 The Landlord covenants with the Tenant that the Tenant paying the Rent
reserved and observing and performing its covenants and conditions
contained in this Lease may peaceably and quietly hold and enjoy the
Premises without any unlawful interruption by the Landlord or any
person rightfully claiming through under or in trust for it.
11.2 Landlord may sell or transfer the Premises at any time without
Tenant's consent to any third party (each a "Third Party Purchaser"),
except to a Tenant Competitor. In the event of any
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such transfer, Tenant shall attorn to any Third Party Purchaser as
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. For purposes of this Clause 11.2, a "Tenant
Competitor" shall mean any Person whose primary business is the
wholesale distribution of IT information technology software and
hardware.
12 INTENTIONALLY OMITTED
13 EVENTS OF DEFAULT
13.1 Notwithstanding and without prejudice to any other remedies and powers
contained in this Lease or otherwise available to the Landlord, if:
13.1.1 the Tenant is in default of payment of the quarterly payments
of the Basic Rent provided, however, that with respect to the
first quarterly instalment of Basic Rent (or any portion thereof)
in any Lease Year that is not paid when due, an Event of Default
shall not exist solely as a result of such payment not being paid
when due until five (5) days after Landlord has given to Tenant
written notice thereof; or
13.1.2 the Tenant is in default of payment of VAT, real estate or
other taxes or Outgoings payable to Landlord or any other
payments under this Lease for more than fifteen (15) days after
written notice thereof from Landlord to Tenant; or
13.1.3 the Tenant:
(i) files a petition for bankruptcy; or
(ii) enters into a composition, assignment or arrangement with
its creditors; or
(iii) suffers the appointment of a receiver or similar officer
over it or all or a material part of its assets or
undertaking which is not discharged within twenty-one (21)
days; or
(iv) has a winding up or administration order or reorganization
order made in relation to it (by way of voluntary
arrangement, scheme of arrangement or otherwise) which is
not discharged within twenty-one (21) days; or
13.1.4 the Tenant violates any of its obligations set out in Clause
8.1;
13.1.5 any other circumstances occur where a failure of Tenant to
perform or other circumstances will allow Landlord to terminate
this Lease for cause (Kundigung aus wichtigem ▇▇▇▇▇) under
applicable statutory provisions; or
13.1.6 the Tenant is in breach of any other terms of this Lease and
does not remedy the default within sixty (60) days after receipt
of the Landlord's written demand to do so;
then, and in any such case, the Landlord may terminate this Lease
with immediate effect and re-enter the Premises or any part of
the Premises without prejudice to any right of action or remedy
of the Landlord against the Tenant for damages, including the
Default Amount or otherwise in respect of any breach
non-observance or non-performance of any of the covenants or any
conditions contained in this Lease. Tenant acknowledges and
agrees that it shall be required to pay to Landlord the Default
Amount upon a termination of this Lease as a result of an Event
of Default as a part of the damages payable to Landlord as a
result of the default. However, to the extent required by Law,
after receipt of all damages (including the Default Amount) the
Landlord undertakes to mitigate any and all losses or damages it
has suffered as a result of termination set out above, and in
such event will reimburse the Tenant to the extent of monies
received (after deduction of all reasonable reletting costs).
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13.2 No demand for or acceptance or receipt of any part of the Basic Rent
or the Outgoings shall operate as a waiver by the Landlord of any
right which the Landlord may have to forfeit this Lease by reason of
any breach of covenant by the Tenant notwithstanding that the Landlord
may know or be deemed to know of such breach at the date of such
demand, acceptance or receipt.
14 GENERAL CONDITIONS
14.1 Financing Bad ▇▇▇▇▇▇▇▇▇▇ Premises Expansion
14.1.1 Landlord hereby agrees to finance the expansion of the Bad
▇▇▇▇▇▇▇▇▇▇ Premises subject to the terms and conditions set forth
in Schedule 6 attached hereto and made a part hereof.
14.2 Surrender of the Premises
14.2.1 Subject to any extensions of this Lease, the Tenant shall
surrender the Premises to the Landlord on the last Working Day of
the Term (or if this Lease is terminated or expires before the
lapse of the Term, on the day immediately following such
termination or expiry). On such a date the Premises should be
clean, in a good state of repair, free from any of the Tenant's
equipment or furniture and in good condition.
14.2.2 In the event that the Tenant fails to surrender the Premises in
compliance with the foregoing provisions, it will be required to
pay to the Landlord, as compensation for unlawful use of the
Premises, an amount equal to twice the amount of the Basic Rent
on a daily basis as compensation for the delay in surrendering
the Premises; for the avoidance of doubt, the Tenant will also be
required to pay Outgoings relating to the period of such unlawful
use of the Premises.
14.3 Service of notices
14.3.1 Any demand or notice to be served on the Tenant under this
Lease will be validly served if sent by Federal Express or any
other internationally recognised over night delivery service or
facsimile addressed to the Tenant at its registered office, its
last known address, at the Premises or at the address below (or
such other address that Tenant may notify Landlord of in writing
from time to time). Any notice to be served on the Landlord will
be validly served if sent by internationally recognised over
night delivery service or facsimile addressed to the Landlord at
its address below (or such other address that Landlord may notify
Tenant of in writing from time to time).
LANDLORD: TECH LANDLORD (GER) QRS 16-145, INC.
c/o W.P. ▇▇▇▇▇ & Co. LLC
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
United States of America (USA)
Fax: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
For the attention of: Director, Asset Management
with copies to: ▇▇▇▇ ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
For the attention of: Chairman Real Estate Department
Fax: ▇▇ ▇▇▇-▇▇▇-▇▇▇▇
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TENANT: Actebis Peacock GmbH
▇▇▇▇▇ ▇▇▇▇▇ 43
D-59494 Soest
Germany
For the attention of: Managing Director ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
14.3.2 Any demand or notice sent by facsimile will be conclusively
treated as having been served when confirmed by an activity
report confirming the facsimile number to which such notice was
sent, the number of pages transmitted and that such transmission
was successfully completed.
14.3.3 However, a notice given in accordance with the above, but
received on a non-working day or after business hours in the
place of receipt will only be deemed to be served on the next
working day in that place.
14.3.4 The address and facsimile number of each party for all notices
under or in connection with this Lease are:
(i) those notified by that party for this purpose to the other
parties on or before the date of this Lease; or
(ii) any other notified by that party for this purpose to the
other parties by not less than seven (7) days' notice.
(iii) Landlord herewith appoints as its agent for service of
process (Zustellungsbevollmachtigten) in the sense Section
171 German Code of Civil Procedure (Section 171
Zivilprozessordnung): ▇▇▇▇ ▇▇▇▇▇ LLP, Funf-Hofe,
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇, ▇-▇▇▇▇▇, ▇▇▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇.
14.4 Entire understanding; Schedules
This Lease, together with all agreements specifically referred to
herein, embodies the entire understanding between the Lease Parties
relating to the Premises and to all the matters dealt with by the
provisions of this Lease. The schedules attached to this Lease are
incorporated herein as if fully set forth. The Landlord and Tenant are
business entities having substantial experience with the subject
matter of this Lease and have each fully participated in the
negotiation and drafting of this Lease. Accordingly, this Lease shall
be construed without regard to the rule that ambiguities in a document
are to be construed against the party which drafted the agreement.
14.5 Severance
Each of the Clauses of this Lease is distinct and severable from the
others and if at any time one (1) or more of such provisions is or
becomes illegal, invalid or unenforceable, the validity, legality and
enforceability of the remaining provisions will not in any way be
affected or impaired. For replacement of any ineffective or incomplete
clauses the Lease Parties undertake to agree upon effective or
complete clauses that correspond as much as possible to the economic
purpose of any ineffective or incomplete clauses.
14.6 Governing law and jurisdiction
This Lease shall be governed by, and construed in accordance with the
laws of the Republic of Germany without application of the rules on
conflicts of laws. ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ shall
have exclusive jurisdiction.
14.7 Non-recourse
Anything contained herein to the contrary, notwithstanding any claim
based on or in respect of any liability of the Landlord under this
Lease, shall be enforced only against the Landlord and not against any
other assets, properties or funds of:
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14.7.1 any director, officer, member, shareholder, employee or agent
of the Landlord or any general partner of the Landlord or any of
its members (or any legal representative, heir, estate, successor
or assign of any thereof);
14.7.2 any general partners, shareholders, officers, directors,
members, employees or agents, either directly or through the
Landlord or its shareholders, officers, directors, employees or
agents of any predecessor or successor partnership or corporation
(or other entity) of the Landlord; or
14.7.3 any person affiliated with any of the foregoing, or any
director, officer, employee or agent of any thereof.
14.8 Amendments
This Lease may be modified, amended, discharged or waived only by an
agreement in writing signed by both Lease Parties.
14.9 Successors and Assigns; Joint and Several Liability
The covenants of this Lease shall bind the Tenant and Landlord and
their successors and assigns and all subtenants of any of the
Premises, and shall inure to the benefit of the Landlord and the
Tenant and their respective successors and assigns. The Tenant hereby
consents to any assignment of the Landlord's interest in this Lease to
a Lender.
14.10 Requirement of Written Form
Landlord and Tenant acknowledge the requirement of written form
stipulated by Section 550 German Civil Code and undertake to observe
the requirement of written form at any time when altering, modifying,
amending, discharging, assigning or transferring this Lease and
undertake to commit any action necessary to ensure that the
requirement of written form is fulfilled at any time. Landlord and
Tenant, and their respective successors and assigns, hereby waive any
rights for termination of this Lease based on the argument that the
requirement of written form was not observed. This clause may only be
revoked in writing.
THIS LEASE AGREEMENT has been entered into on the date stated at the beginning
of this agreement.
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SCHEDULE 2
BASIC RENT AND PROVISIONS FOR RENT ADJUSTMENTS
1 BASIC RENT. Subject to the adjustments provided for in Paragraphs 2, 3 and
4 below, Basic Rent payable in respect of the Term shall be Two Million
Nine Hundred Ninety Nine Thousand Euros (E2,999,999) per annum,
payable quarterly in advance on each Rent Payment Date, in equal
instalments of E749,999.75 each. Pro rata Basic Rent for the period
from the date the purchase price is paid under the Purchase and Sale
Agreement (the "CLOSING DATE") through the day immediately preceding the
first Rent Payment Date immediately following the Closing Date shall be
paid on the Closing Date.
2 GPI ADJUSTMENTS TO BASIC RENT. The Basic Rent shall be subject to
adjustment, in the manner hereinafter set forth, for increases or decreases
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 Lease 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 Lease 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 Rent
Payment Date on which the first full quarterly instalment 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 Term, Basic Rent shall be adjusted to reflect increases or
decreases 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 "RENT ADJUSTMENT DATE").
4 METHOD OF ADJUSTMENT FOR GPI ADJUSTMENT.
4.1 As of each 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(a)), 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. The
product of such multiplication shall be added to or deducted from the
Basic Rent in effect immediately prior to such 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 one (1) year earlier. If the average GPI determined in
clause (i) is the same as the Beginning GPI, the Basic Rent will
remain the same for the ensuing one (1) year period.
4.2 Effective as of a given Rent Adjustment Date, Basic Rent payable under
this Lease until the next succeeding Rent Adjustment Date shall be the
Basic Rent in effect after the adjustment provided for as of such Rent
Adjustment Date.
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4.3 Notice of the new annual Basic Rent shall be delivered to Tenant on or
before the tenth (10th) day preceding each 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 Rent
Adjustment Date in question.
4.4 The Lease Parties assume that the agreed indexation clause is deemed
approved pursuant to Section 4 para. 1 of the German Price-Clause
Ordinance (Preisklauselverordnung). The Tenant shall obtain without
undue delay an appropriate confirmation from the Federal Agency for
Economics and Export Control (Bundesamt fur Wirtschaft und
Ausfuhrkontrolle / "BAFA"). Should the BAFA consider the agreed
indexation clause to be ineffective, the Lease Parties shall without
undue delay agree on a new indexation clause, which comes as close as
possible to the indexation clause deemed ineffective by the BAFA.
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SCHEDULE 4
CORPORATE COVENANTS
1 Corporate Existence
1.1 Tenant covenants,
1.1.1 that it is a corporation duly organized and validly existing
under the laws of the Federal Republic of Germany.
1.1.2 that it has full authority and legal right to enter into the
lease and to perform and observe the terms and conditions of the
lease.
1.1.3 that it is not subject to any legal restrictions which have
material adverse effects on the Tenant's respective businesses,
properties, assets or financial condition as far as not expressly
otherwise provided for in this Lease Agreement.
1.1.4 that the financial statements of Actebis Peacock GmbH and its
consolidated subsidiaries for the fiscal year ending 31 December
2007 (audited) heretofore furnished by it to Landlord are true
and correct in all material respects, have been prepared in
accordance with generally accepted accounting principles
consistently applied throughout the periods indicated and fairly
present in all material respects the financial condition of
Actebis Peacock GmbH and its consolidated subsidiaries. From 31
December 2007 to the date hereof there has been no Material
Adverse Change in the financial or business situation of the
Tenant [nor shall there be a Material Adverse Change] during the
time period between the date of this Sale and Purchase Agreement
and the Transfer Date. A "MATERIAL ADVERSE CHANGE" is deemed to
have occurred if insolvency or similar proceedings have been
commenced or applied for in respect of the Tenant, or the Tenant
is over-indebted (uberschuldet) or unable to pay its due debts
(zahlungsunfahig), or such inability is impending (drohende
Zahlungsunfahigkeit) in respect of the Tenant as defined in
Sections. 17, 18 and 19 German Insolvency Statute
(Insolvenzordnung).
1.2 Tenant shall maintain its respective corporate existence, continue to
have the power and authority to own its respective assets and to
conduct the business which each conducts and/or proposes to conduct.
1.3 Tenant shall maintain a place of business within Germany.
1.4 Tenant shall not change its fiscal year more often than once every
five (5) years.
2 Sale of Assets
Tenant shall not, in a single transaction or series of related
transactions, sell or convey, transfer, abandon or lease all or
substantially all of its assets in a single transaction or series of
related transactions unless the purchaser of such assets shall expressly
assume in writing the Tenant's obligations and liabilities owing to the
Landlord under this Lease. For the purposes of Paragraph 2 of this SCHEDULE
4, the term "substantially" means seventy per cent (70%) or more as
determined by value.
3 Books and Records
3.1 To keep adequate records and books of account with respect to the
finances and business of the Tenant and with respect to the Premises
in accordance with IAS and to discuss the finances and business of the
Tenant with the officers of the Landlord at such reasonable times as
may be requested by the Landlord.
3.2 To deliver to the Landlord annual audited financial statements of
Tenant prepared by a nationally recognised firm of independent,
suitable, professionally qualified accountants within ninety (90) days
after the end of each fiscal year of the Tenant (the Tenant will
provide such statements sooner if they are signed off by accountants
prior to the above
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time period) and quarterly unaudited financial statements of Tenant
prepared by a nationally recognised firm of independent, suitable,
professionally qualified accountants within forty-five (45) days after
the end of each fiscal quarter of the Tenant.
3.3 To ensure that all annual financial statements do not have any
qualifications as to the scope of the audit and shall contain
confirmation from the said accountants that (i) the audit was
performed in accordance with IAS; and (ii) such statements give a true
and fair view of the respective entity's financial condition and
operations at the date and for the year then ended.
3.4 The Tenant shall, at the reasonable request of the Landlord, arrange
for a member of their senior management to meet with the Landlord to
give a presentation regarding the financial condition of the Tenant
and to discuss the same.
3.5 At any time upon not less than fourteen (14) days' prior written
request by the Landlord to the Tenant, the Tenant shall deliver to the
Landlord a statement in writing, executed by an authorised officer of
the Tenant, certifying except as otherwise specified, there are no
proceedings pending or, to the knowledge of the signing party,
threatened, against the Tenant before or by any court or
administrative agency which if adversely decided, would materially and
adversely affect the financial condition and operations of the Tenant.
Any such statements by the Tenant may be relied upon by the Landlord,
and any person whom the Landlord notifies the Tenant in its request
for the statement is an intended recipient or beneficiary of the
statement, any Mortgagee or Lender or their assignees and by any
prospective purchaser or prospective Mortgagee of any of the Premises.
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SCHEDULE 6
Financing Building Expansion of Bad ▇▇▇▇▇▇▇▇▇▇
1.1 So long as no Event of Default or Material Adverse Change (as defined
below) exists, Landlord shall until but not after the third anniversary of the
Commencement Date (the "Outside Date") subject to the terms of this Schedule 6,
pay for up to Seven Million Euros (E7,000,000) (the "Funding Cap") of the
hard and soft costs incurred by Tenant (the "Expansion Purchase Price") for an
expansion to the existing building on the Premises (the "Expansion").
1.2 Prior to commencement of construction of the Expansion, Tenant shall
provide to Landlord, each in form and substance acceptable to Landlord: (i) the
plans and specifications, (ii) a construction contract which shall provide,
among other things, that any change orders, including any reallocations of any
line items in the budget, in excess of E50,000 individually or
E250,000 in the aggregate shall require the prior written consent of
Landlord, (iii) an architect's agreement, (iii) all required municipal
approvals, (iv) a building permit, (v) a budget confirming that the total cost
of the Expansion will not exceed E7,000,000, (vi) a survey that confirms
that the Expansion will be within the property lines of the Land, and (vii) a
valuation prepared by a valuer acceptable to Landlord demonstrating that the
Expansion will increase the value of the Premises, and (viii) such other items
as Landlord or Lender may reasonably request. Landlord shall cooperate with
Tenant in order for Tenant to obtain the municipal approvals and building
permits required hereunder. Notwithstanding anything to the contrary contained
in this Clause 1.2, change orders may not increase the Expansion Purchase Price
or result in the decrease in size of the Expansion.
1.3 Prior to disbursement by Landlord to Tenant of the Expansion Purchase
price Landlord shall have received each of the following items in form and
substance acceptable to Landlord: (i) a copy of a final certificate of occupancy
from the applicable governmental authority with respect to the Expansion, (ii)
copies or other evidence satisfactory to Landlord of all warrantees issued with
respect to the Expansion enforceable by Landlord, (iii) a copy of an updated
cadastral map of the Premises, including the Expansion, (iv) excerpt from the
land registry evidencing that no mechanic's liens have been filed against the
Premises, (v) a copy of a certificate from the architect and contractor and a
report from Landlord's construction consultant each confirming that the
Expansion has been built in a good and ▇▇▇▇▇▇▇-like manner in accordance with
the previously approved plans and specifications and in compliance with all
applicable laws, (vi) copies of the as-built plans and specifications certified
by the architect and contractor, (vii) an amendment to the Lease that shall
provide for (A) increase of the annual Basic Rent by an amount equal to the
product of the Expansion Purchase Price multiplied by the 10-year Euroswap as of
the date of funding plus 437 basis points, and (B) an extension of the
Expiration Date of the initial Term to fifteen (15) years from the date that
Landlord pays to Tenant the Expansion Purchase Price (as defined below) and
Expiration Date, and (viii) such other items as Landlord may reasonably request,
including any items reasonably required by Lender.
1.4 Nothing contained in this Schedule 6 shall be construed to modify
Clause 9.3 (Alterations and Additions), including the requirement for Landlord's
consent thereto, and, in all events, the Expansion shall be subject to the terms
of this Lease.
1.5 For purposes of this Schedule 6, the term "Material Adverse Change"
shall mean a material adverse change in (A) the business, property or financial
condition of Tenant ; (B) the ability of Tenant to perform and comply with any
of its obligations under this Lease, (C) the ability of Tenant to comply with
any of its obligations under any credit agreement or significant contract to
which it is a party; or (D) the validity, legality or enforceability of this
Lease.
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EXECUTION OF LEASE AGREEMENT:
THE LANDLORD
SIGNED by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, )
Director, )
duly authorised for and on behalf of )
TECH LANDLORD (GER) QRS 16-145, )
INC. )
ADDRESS: c/o W.P. ▇▇▇▇▇ & Co. LLC
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
▇.▇.▇.
FACSIMILE NO: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
FOR THE ATTENTION OF: Director, Asset Management
THE TENANT
SIGNED by )
duly authorised for and on behalf of )
ACTEBIS PEACOCK GMBH & CO. KG, )
ADDRESS: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇/▇▇
▇-▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
FACSIMILE NO: ▇▇▇ (▇)▇▇▇▇ ▇▇ ▇▇ ▇▇
FOR THE ATTENTION OF: Managing Director ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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