THIS LEASE OF COMMERCIAL PREMISES
is made between
Berendes/Dr. Venator Gbr,
consisting of
a. Mr. Guido M. Berendes, Dipl. Ing.,
of Farberstrasse 100, 40223 Dusseldorf
b. Mr. Arwed Venator, Dr. jur.,
of Bugenbeck 112/114, 45470 Mulheim an der Ruhr
- LESSOR -
and the Firm of
BGS Systems, GmbH,
of Steinhof 39, 40699 Erkrath
-THE TENANT-
PRELIMINARY REMARKS
The Lessor is erecting on the ground site entitled Steinhof
3-5a, Erkrath, an office park, the first section of which
(Buildings V to VII) is complete, and the second and third
sections of which (Buildings I - IV) are still in the
process of construction.
The tenant wishes to rent premises on the Third Floor of
Building III (Steinhof 5) with a net floor area of approx.
420 square meters.
In this matter the following
LEASEHOLD OF COMMERCIAL PREMISES
has been concluded:
1. THE SUBJECT OF THE LEASE
(1) The Lessor shall lease to the Tenant
The area situated on the top floor of the Building III
(Steinhof 5) such area being edged in green in the
accompanying Ground Plan, having a net floor area of approx.
420 square meters.
12 vehicle parking spaces in the underground garage, the
precise position of which the Lessor shall determine in
accordance with 315 BGB [Federal German Code].
Use may be made of the general areas and facilities intended
for communal use.
(2) These premises shall be let exclusively for use as
office accommodation by the Tenant. Any change in the
purpose of the lease shall require the express permission of
the Lessor, and the Tenant shall enjoy no claim upon such
permission. Any alteration in the purpose of the lease
undertaken without this permission shall provide the Lessor
with grounds for immediate termination of contract.
(3) The description of the property and its fittings
is based on
the Ground Plan for the Third floor of Building III, as
contained in Appendix 1 of this Contract
the Building specification and Specification of fittings, as
set out in Appendix 2 of this Contract.
(4) Discrepancies from anything determined in Appendices 1
- 2 can only be allowed with the permission of the Tenant.
2. TERM OF THE LEASE, HANDING OVER
(1) The Tenancy shall begin on 1 January 1997. The keys to
the premises shall be handed over at the latest on 16
December 1996. Any delays in handing over shall not entitle
the Tenant to raise any claim - especially claims for
damages against the Lessor.
(2) This Lease is fixed for five years, to commence on the
day of handing over, in accordance with Section 1.
(3) The Tenant is entitled, by means of a written
declaration to be made to the Lessor by registered post at a
term of six months before the expiry of the fixed
contractual period, to require one extension of the
leasehold for a period of a further five years, retaining
all contractual agreements.
(4) The Leasehold Premises are subject to the Building
Specification (Appendix 2 of this Contract), and to the Room
Schedule, which is still to be drawn up, but about which the
Parties are in agreement as to its essential contents.
(5) When the finished Leasehold Premises are handed over, a
Memorandum of Transfer shall be drawn up to be signed by
both Parties. In this Memorandum the Tenant shall confirm
such transfer of the Leasehold Premises. The Tenant may
only refuse to take the premises over if essential
deficiencies are present, such as to cause major impairment
of their agreed purpose. In general the Memorandum of
Transfer shall list any deficiencies and final work which
the lessor must still undertake. Such work shall be carried
out by the lessor within an appropriate time. Moreover the
Memorandum of Transfer must contain a measurement of area,
which shall form the basis for assessing the rental payment.
3. RENTAL PAYMENT
(1) The monthly net rental payment for the premises leased
on the Third Floor of Building III shall be DM 19.00 per
square meter of net floor area: taking an expected net
floor area of approx. 420 square meters, this will therefore
be DM 7,980.00
(2) The monthly net rental payment for the 12 leased
vehicle parking spaces in the underground garage shall be DM
80.00 per parking lot, amounting to a total therefore of DM
960.00.
(3) In addition to the net rental payment stated above, the
Tenant shall bear the running costs as set out in Appendix
III to Section 27 of the Second Accounting Order of the New
Buildings Leasehold Order, which is part of this Contract as
Appendix 3. The Parties to this Contract hereby agree that
the cost schedule for living accommodation mentioned has
been drawn up and must therefore be understood in an
extended sense, corresponding to commercial use. Should new
public charges be introduced or new running costs arise, the
Tenant shall be charged with these in the same way, insofar
as this does not exclude statutory regulations. Insofar as
these additional overheads to be born by the Tenant are not
charged to him directly, an allocation shall be levied.
Such a levy will be made for heating and hot water according
to consumption, as set out in the hot water order. Insofar
as a levy according to consumption or direct levy is not
made, a levy shall be made in the proportion which these
leasehold premises hold to the total leasehold premises
available in the whole Property. In goodwill the Lessor
will apportion the charges by a fair calculation in
accordance with Section 315 BGB (Federal German Code).
Should the Tenancy end during the accounting period, then
without the Tenant having any claim to receive an account in
advance of the end of the accounting period - an
intermediate reading of the measuring equipment shall be
carried out. Should an intermediate reading not be carried
out, then the charges shall be divided by the Lessor between
the Tenant and the subsequent Tenant or the Lessor himself
in accordance with a fair calculation.
The Tenant shall bear the costs of the administration of the
building by way of the apportioned levy. The levy shall be
made in the proportion which these leasehold premises hold
to the total leasehold premises available in the whole
Property. Monthly advance payments will be claimed for the
additional charges born by the Tenant amounting to DM 3.00
per square meter of area occupied. The monthly advance
payments are payable together with the rent. Subsidiary
charges shall be accounted annually by 30 Subsidiary charges
shall be accounted annually by 30 June of the following
year. The accounted sum is payable within two weeks after
receipt of the invoice. The Lessor is entitled - and, at
the request of the Tenant shall have the duty - to adjust
the advance payments to the probable trend of the subsidiary
charges themselves. An adjustment shall take place in any
case to the balance of the previous year.
(4) In addition to rental payment and subsidiary charges
the Tenant shall pay the turnover tax levied upon them at
the rate in statutory force for the time being.
(5) The probable monthly rent will amount to:
Office Premises DM 7,980.00
Vehicle parking spaces in
underground garage DM 960.00
Advance subsidiary charges DM 1,260.00
Turnover tax (currently 15%) DM 1,530.00
Total DM 11,730.00
The rental payment, the advance payment for subsidiary
charges, and the turnover tax levied on these shall be
payable in advance by the fifth calendar day of every month
and shall be transferred free of charge to Account Number
915 515 5 of the Nationalbank AG, Mulheim an der Ruhr (Bank
Sorting Code 362 200 30). In the case of delay the Tenant
shall be liable to additional late payment charges of at
least 6% above the current discount rate of the German
Federal Bank. Ingoing payments which fail to repay all the
Lessor's unpaid demands shall be applied firstly to the
interest, then to the subsidiary charges (firstly to the
earlier, then to the later), and lastly to the basic rent
(firstly to the earlier, then to the later), even if the
Tenant has directed a different repayment.
(6) The rental is further assured as follows:
If the index of prices for average cost of living according
to the Federal Office of Statistics, Wiesbaden, (households
of four people consisting of workers and employed persons
with a middle-range income, basis: 1985 = 100) changes by
10% or more up or down compared to its state when the
Leasehold Premises were handed over to the tenant, or
compared to its state when it formed the basis of the last
adjustment, the rental shall alter accordingly.
Such information shall be based on the monthly publications
of the currently continuing index of the Federal Office of
Statistics, Wiesbaden.
The rental payment shall alter at the same time as the index
prices for the average cost of living alters. In the case
of a rise the Lessor, in the case of a fall the Tenant shall
give notice of the change and present an account. If notice
is not given, or not given in time, this shall not be taken
to mean that the claim for adjustment has been abrogated.
The amended rental shall be paid retrospectively; any
difference shall be reimbursed retrospectively; however, the
Contracting Parties shall hereby be deemed to be in arrears
only after the relevant account has been presented and only
after a proper term of notice has expired.
Should the Federal Office of Statistics cease to continue
the agreed price index wholly or in part, then a subsequent
index of a suitable kind shall be used in its place, or an
index which guarantees the value of the rental to the same
extent as the original regulatory index, such guaranty being
the intention of the Parties.
The above value-assurance stipulation requires the approval
of the competent State Central Bank, which the Lessor shall
obtain.
Should this approval be refused, or should the agreed value-
assurance stipulation be invalid for any other reason, then
its place shall be taken by a regulation which in its
financial import shall approach the intention of the agreed
value assurance stipulation as nearly as possible.
4. DECORATIVE REPAIR, BUILDING ALTERATIONS, LIABILITY
(1) All decorative repair in the premises shall be
undertaken by the Tenant at his own expense during the term
of the Lease. This includes the following work: painting
walls and ceilings, painting radiators and pipes, painting
interior doors, as well as the interior parts of windows and
external doors, care and maintenance of floors.
At the termination of the Lease the Tenant shall undertake
all decorative repair completely.
Decorative repair must be carried out in a professional
manner. Should the Tenant fail to fulfill his obligations,
then the Lessor, assuming that he has made requirement of
the Tenant to carry out such work without result, may demand
reimbursement of the costs attendant on carrying out the
work.
(2) Minor repairs over and beyond the Lessor's duty of
guaranty up to the sum of DM 500.00 in each case shall be
born by the Tenant, but not more than DM 3,000.00 per year
of the Lease. This sum shall be subject to amendment in
accordance with the regulation contained in the value
assurance stipulation as set out in Section 3, Par. 7.
(3) The Tenant may undertake building alterations to the
premises only if he has obtained the Lessor's written
permission in advance.
(4) The Tenant shall bear the risk of glass breakage.
(5) The Tenant shall be liable for damage caused by his
servants, employees or customers.
5. EQUIPMENT AND FURNISHINGS
(1) The Tenant may provide the leasehold area or parts
thereof with his own furnishings and equipment, such as
electrical installations and telephone equipment. He shall
thereby adhere to the proper spacial availability.
(2) At the close of the Tenancy the Tenant may take away
the furnishings and equipment which he has provided. He
shall put all things into their original order. Should at
the close of the Tenancy a mutual interest prevail to leave
any furnishings and equipment belonging to the Tenant in the
Leasehold premises, then the Parties to this Contract will
reach an agreement regarding these items at the close of the
tenancy.
6. ADVERTISING
The Tenant will draw attention to his trade to the usual
extent by affixing suitable advertisements in the area of
the building entrance, the lift and the entrance to the
Floor. With respect to the character of the building a
uniform design must be adopted corresponding to regulations
laid down by the Lessor. Any costs arising from alterations
shall be born by the Tenant.
7. DUTY OF TRAFFIC SAFETY
The Tenant shall undertake the duty of traffic safety in the
area of the leasehold premises, indemnifying the Lessor.
8. SUBLETTING
The Tenant shall be entitled to sublet in the context of the
stipulation of use in Section 1. such subletting shall not
affect the Tenant's liability in accordance with this
Contract. The Lessor shall be entitled to refuse permission
to sublet if the Sub-tenant is insolvent, or if there are
other reasons why the Sub-tenant is not acceptable to the
Lessor.
9. OFFSET, RETENTION, RENTAL REDUCTION
The Tenant cannot offset any claims which he may have
against the Lessor against the Lessor's claims for rental
payment, and therefore cannot assert any right to retention,
unless the Tenant's claims in question are unopposed or
determined at law.
A reduction of rental is only permissible if the claim to
reduction has been recognized or has been determined at law
with respect to its reason and size.
10. TERMINATION OF THE TENANCY
(1) The Leasehold premises shall be returned to the lessor
at the termination of the Tenancy in contractually proper
condition and taking into account the regulation in Section
5.
(2) If so demanded by the Lessor, the Tenant shall at this
time put everything into its original order.
(3) Paragraph 368 of the BGB (Federal German Code) shall
not apply. Any use of the Leasehold Premises after
termination of the Lease shall not lead to an extension of
the Tenancy for an indefinite time.
11. LESSOR'S RIGHT OF ENTRY
(1) The Lessor or his agent may enter the leasehold
premises at suitable intervals and at good notice, in order
to ascertain their condition or to read measuring equipment.
(2) Should the Lessor intend to sell the Premises, or
should the Lease be terminated, then the Lessor or his
agent, together with the Parties interested in sale or
leasing, shall be entitled to view the premises on weekdays
between 9:00 a.m. and 5:00 p.m., having given good notice.
12. ALIENATION OF THE PROPERTY, ALTERATION IN THE LESSOR'S
SHAREHOLDINGS
The Lessor shall b entitled to transfer his rights and
duties in this contract to a Third Party. In the case of
the property being alienated, the Lessor's liability to
fulfill this contract shall end upon the alienation of the
property. Section 571, Paragraph 2 of the BGB (Federal
German Code) shall not apply.
The same shall hold in the case of either of the Lessor's
shareholders transferring his shareholding to a Third Party.
The liabilities of the departing shareholder under this
contract shall end with his departure from the Company at
Civil Law, the Company being the Lessor.
13. TENANT'S RIGHT OF ENTRY
The Tenant's employees and visitors have the right to enter
the leasehold premises at any time.
14. SECURITY GUARANTY
(1) As a guaranty of all the Lessor's claims against the
Tenant arising from this Contract, the Tenant shall pay a
surety amounting to three months' rental payments (plus
subsidiary charges and value added tax), estimated at DM
31,850.00
This surety shall be paid within two weeks of this Leasehold
Contract being concluded, at latest before the Leasehold
Premises are handed over. As long as it has not been paid
the Tenant has no right to claim transfer of the Leasehold
Premises. The Lessor shall place this surety at interest,
as a savings credit with a statutory notice of withdrawal,
in a credit institution of his choice. The interest shall
be credited to the sum held as surety.
(2) In place of a cash surety the Tenant may provide an
absolute guaranty from a German credit institution
registered as a customs and revenue guarantor to the same
amount, in which the guarantor institution pledges to pay
the sum at guaranty to the Lessor at first demand if the
latter shall show that the Tenant has not fulfilled his
obligations under the Leasehold Contract. Any facility to
free the guarantor by means of deposit must be excluded.
(3) The surety or bank guaranty shall be repaid without
delay following termination of the Leasehold Contract, as
soon as the Leasehold Premises have been returned in order
and in their proper contractual condition and no demands
under the Leasehold Contract are outstanding.
15 TERMINATION
(1) The Lessor may terminate the Leasehold Contract for
good reason. Good reason shall mean particularly: if the
Tenant is in arrears in payment of rent or subsidiary
charges amounting to a sum greater than two month's rent,
if proceedings in bankruptcy, or proceedings in legal
composition for the avoidance of bankruptcy, have been
initiated upon the Tenant's assets, or if an application has
been made for such initiation, or if the Tenant has ceased
trading.
(2) The Tenant may terminate this Leasehold Contract for
good reason, if proceedings in bankruptcy, or proceedings in
legal composition for the avoidance of bankruptcy, have been
initiated upon the estate of the Lessor, or if application
has been made for such initiation.
16. HOUSE RULES
(1) The Tenant shall have a duty to the Lessor and to the
other Tenants and users of the whole building to maintain
good order in the building and to practice mutual
consideration.
(2) To maintain good order in the building, and for the use
of communal facilities, the Lessor may draw up house rules.
No regulations contained in this contract can be altered by
any regulations contained in such house rules.
17. MISCELLANEOUS PROVISIONS
(1) Should any regulation contained in this Contract be or
become inoperative, then the efficacy of the whole Contract
shall not be affected. In such a case the Parties to the
Contract will replace the inoperative regulation by a
legally operative rule which approaches most nearly to the
intended commercial purpose of the inoperative regulation.
The same procedure shall be undertaken if any individual
stipulations cannot be carried out or if any omissions shall
be found in this Contract.
(2) No subsidiary agreements have been made with respect to
his Contract. Amendments and additions to this Contract, or
its suspension, must be in writing. Any amendment to this
stipulation of written procedure must also be in writing.
(3) The place of fulfillment and of jurisdiction shall be
Dusseldorf, insofar as this can be effectually signed.
18. PARTS OF THIS CONTRACT
The following are integral parts of this Contract:
Appendix 1 Ground Plan of the Third Floor of Building IV
Appendix 2 Building Specification and Specification of
Fittings
Appendix 3 Appendix III to Section 27 of the Second
Accountancy Order to the New Buildings Leasehold Order
Dusseldorf, 24 March 1996 /s/ Berendes/Dr. Venator
GbR
Erkrath, 22 March 1996 BGS Systems GmbH
[Signature]