Rental Contract
Between
Hesta Beteiligungsgesellschaft mbH,
Schutzenstrasse 18, 78315 Radolfzell,
- as landlord -
represented by General Manager Mr Arnold Kannenberg
and
Dentsply DeTrey GmbH, De-Trey-Strasse 1, 78467 Konstanz
- as tenant -
represented by Mr. Claus-Peter Jesch / Vice President and General Manager
and Mr. Antony Gerrit van Essen / Director Operations
the following rental contract for commercial space will be entered into
ss. 1 Rental Property
1. The landlord rents to the tenant the rooms and surfaces described in
the following, located at Schutzenstrasse 50 / Guttingerstrasse 35, 78315
Radolfzell, for the purpose of operating a logistics and merchandise
handling centre comprising warehouse, surfaces for offices and handling
processes, in accordance with the coloured maps in Attachment 1:
approx. 603 m(2) ramp surface, approx. 2167 m(2) high bay warehouse,
approx. 5.698 m(2) consignment surface, approx . 379 m(2) office
surface, approx. 673 m(2) secondary surface and 220 m2 reservespace.
Parking spaces, of which construction law states that evidence be
submitted, (according to pre-draft approx. 18 parking spaces) will be
made available by the landlord according to the traffic plan.
The tenant receives the rental property in the following constructional
status according to status description (Attachment 2) :
[detailed
description.............................................................]
Further renovation of the object for contractually stipulated use is
responsibility of the tenant. The landlord approves the measures,
provided no manipulation of the building substance takes place. The
renovation consists mainly of expansion of the sprinkler installation for
shelves.
The landlord guarantees that the rental property is suitable to meet the
requirements to fulfil the contractually intended purpose in both
constructional and legal aspects, at the point of contract begin, in
terms of type, situation, quality and condition.
The tenant must apply for and ensure, at own cost, the availability of
any necessary permits, concessions, approvals and other papers, as far as
these stand in connection with his person or employer.
2. Included in the rental property are the additional objects contained in
the enclosed inventory list, Attachment 3.
3. The following keys will be handed over to the tenant upon contract
begin: [..........................].
ss. 2 Duration of Contract
1. Rental is expected to begin on 01.01.2004 and end on 31.12.2008.
2. The tenant is entitled to demand in written form a five-year extension
(option) of the rental contract, of which the landlord must be in receipt
at least 12 months prior to termination of the rental contract. Within
this period of time, the tenant is entitled to give notice of contract
with 12 months notice to the end of each year.
3. If the tenant makes use of his right to option, the contract is
extended by one year at a time following expiry of the contract period
including the option period, that is, following 10 years since contract
begin, unless a contracting party objects to the extension in writing
with 12 months notice .
Investments made by the landlord to the benefit of the tenant will be
compensated upon termination of the contract according to the agreed terms
of ss. 15 subsection 3.
After termination of the rental contract, an implied extension of contract
according to ss. 568 BGB (civil code) will not be considered.
ss. 3 Revocation/Exceptional Notice
The parties are aware that the permits under public law for the legal
generation of the rental property have not yet been issued. The landlord is
entitled to revoke the agreement or give notice if the required permits are
not issued. The tenant is not entitled to submit a damage claim in such
case. Revocation or submission of notice must take place in writing, without
time limit. The landlord may give immediate notice with immediate effect for
important reasons, especially in the case of continued use of the rental
property in violation of the contract despite a warning or repeated
violation of the contract, insolvency of the tenant or insolvency
proceedings having commenced with reference to the assets of the tenant.
ss. 4 Rent and Operating Expenses
1. The annual basic rent amounts to (euro)500 000.00,
at contract begin the monthly rent amounts to :
a) basic rent 41 666.50 EURO
b) advance payment for operating expenses EURO 1,00/m(2) x 9742 m(2) =
9742.00 EURO
c) current valid turnover tax on a) and b) currently 16% EURO
Total: EURO
2. By mutual agreement, the rented useful floor space has been established
to be approx. 9742m(2) for calculation purposes. The useful floor space is
the sum of the secondary useful surfaces and the primary usable floor
space according to DIN 277 with reference to the architects plans.
Deviations of up to 5 % from the actual useful floor space are
acceptable. The entire usable floor space of the building has
provisionally been established to be approx. 42790 m(2) gross. The useful
floor space of the rental property thus initially corresponds to 21.99 %
of the useful floor space of the entire building. The tenant is aware
that within the process of converting the function of the building the
proportion of the surfaces of the rental property to the entire property
has not been finally established. The required adaptation of the
proportion will be undertaken by the landlord according to his fair
judgement.
3. The tenant also carries the operating costs acc. to Attachment 3 of ss.
27 subsection 1 of the Second Computation Ordinance in the currently
valid version (enclosure in Attachment 4) , insofar as they are allocable
to the tenant. Payments made by the landlord may be factored into the
determination of operating and administrative expenses and costs for
special services in the amount of the costs saved for comparable services
performed by Third Parties, but without accounting for turnover tax. For
the duration of the rental contract the landlord is entitled to transfer
newly incurred operating costs, taxes and fees to the tenant, as far as
this point was subjected to true assessment by the contracting parties at
contract begin.
4. In as far as it is possible to be invoiced directly by energy or
service suppliers, the tenant is obliged to do so.
5. The following cost assessment formula applies:
a) Recording of consumption/use according to consumption
b) For overlapping areas, recording of consumption/use according to use
and, for example, useful surface area.
c) According to useful surface area for all other.
The landlord may change the cost assessment formula acc. to his own fair
judgement, provided this is justifiably in his interest and mutually
agreed.
6. The tenant transfers monthly advance payments for operating expenses,
which are balanced annually by the landlord.. The landland can alter
payment intervals if justified by practical considerations. The tenant
receives annually a specified record of expenses.
7. Each party to the contract may, following balancing of annual accounts,
demand reasonable adjustment to the sum of the advance payment of
operating expenses, in writing
ss. 5 Change in Basic Rent
1. As a precautionary measure, the landlord declares his obligation to
obtain a negative attestation from the Bundesamt fur Wirtschaft (,,Federal
Department of Economy") (Address: Bundesamt fur Wirtschaft, Ref. III 6,
Frankfurterstrasse 29/31, 65760 Eschborn.) The parties agree that each
contracting party may demand adjustment of the amount of basic rent, if
the official cost of living index issued by the Federal Bureau of
Statistics, , based on 100 from the year 1995, changes by at least 5
points compared to the index applying at the time of signing of the
contract, or compared to a previous increase. The change is determined
according to rental rates applying to comparable objects rented for the
first time in similar locations (adjustment clause). Insofar as no other
agreement has been made, the change in basic rent applies in the month
following the demand for adjustment.. Should an agreement between the
parties not be forthcoming within a month, an official appraiser,
publicly appointed and sworn in by the responsible chamber of commerce,
will determine the amount of the new basic rent upon application
submitted by one of the contracting parties. The costs of the appraiser
will be born equally by both parties.
ss. 6 Security Deposit
1. The tenant is obliged to pay to the landlord, to cover all claims made
by the landlord in connection with the rental agreement, a security in
form of directly liable, irrevocable, unlimited and unconditional
guarantee drawn on a major bank or public savings institute at the value
of half the annual basic rent, that is 250.000 EURO. Upon increase of the
basic rent, the security deposit will be increased if so demanded by the
landlord. .
2. The tenant must hand over the written commitment to a bank guarantee to
the landlord prior to surrender of the rental property. Should this
commitment not be forthcoming in spite of warning, the landlord is
entitled to revoke the rental contract or give immediate notice.
3. The landlord is entitled to make use of the security deposit during the
rental period even if the tenant has objected to the claim by the
landlord. The landlord can require the tenant to replenish the depleted
security deposit to meet the sum agreed on in the contract.
ss.7 Rental Payment and Extra Charges
1. The rent including operating costs is payable to the landlord monthly
in advance, without charges, on the third working day of the month, as
follows.
Recipient: ........................
Account No.:........................
Credit Institute:........................
Bank Code No: ........................
2. Upon request by the landlord, the tenant is obligated to effect payment
by automatic deduction by the credit institute. By repeated delay in
payment the tenant may not derive entitlement to delayed payment.
ss. 8 Reduction, Set-Off, Right of Retention
1. The tenant can only effect set-off or reduction or retention by means
of a counter-claim to the claims by the landlord based on this contract,
on the condition that his counter-claim is undisputed, legally valid or
ripe for judgement. Set-off, reduction or exercising of right to
retention are only admissible if the tenant has notified the landlord in
writing of his intention at least one month prior to due date of rent.
2. A set-off, reduction or retention of the advance payment of operating
expenses by the tenant is not admissible.
ss. 9 Interior Redecoration, Minor Repairs and Maintenance
1. Interior redecoration is undertaken by the tenant during the rental
period. This comprises expert painting of walls and ceilings, heating
elements, panelling, windows, inner and outer doors. Interior
redecoration is to be carried out as soon as the degree of wear and
tear warrants such action. The tenant is further obligated to ensure,
when necessary, expert treatment of the present flooring including
bordering, and renewal if necessary.
2. The tenant bears the costs for minor maintenance and repair work on and
within the rented property up to a sum of 5 % of the net monthly rent
for single measures and limited to an annual maximum of
(euro) 10 000.00. Necessary maintenance measures are carried
out by the tenant and the costs carried by him.
ss. 10 Constructional Alterations
1. Constructional alterations effected by the tenant must be approved by
the landlord. Action taken without this approval must be retracted
immediately upon request by the landlord, by the tenant at the tenants'
costs whereby the building must be restored to its original state. .
Following warning with no reaction within a reasonable period of time,
the landlord is entitled to take action at the tenants' cost. The
landlords' right to demand restoration at tenants' cost of the original
constructional state following end of the rental period, is not
influenced by any approval he has issued for constructional changes by
the tenant. The tenant is liable for all damage arising from
constructional measures he has undertaken.
2. Externally visible advertising on the rental property must be approved
by the landlord. At the end of the rental period the original state is to
be restored, with no claim to reimbursement of costs, irrespective of any
approval issued by the landlord for advertising actions.
ss. 11 Liability of the Tenant
1. The tenant is liable to the landlord for damage to the rented rooms and
building as well as to the rented rooms or the facilities and
installations belonging to the buildings/economic entity, caused by him
or persons in the warehouse, as far as he can be held to account. The
tenant must provide proof that culpable conduct did not take place, in as
far as rooms, facilities and installations fall within his custody. The
tenant is liable for accidents or acts of God.
2. The tenant is responsible for traffic safety measures in the rented
facilities and surfaces. The tenant releases the landlord from claims
arising from violation of the traffic safety obligations, provided the
landlord cannot also be held responsible.
3. The tenant is obligated to take up and maintain the following insurance
with adequate coverage:
- Operational liability insurance including damage to persons,
possessions and assets. Glass insurance and operational interruption
insurance are recommended.
The insurance policies are to be signed at the latest immediately
following conclusion of the rental contract and shown to the landlord.
The tenant is obligated to inform the landlord immediately of any change
in his operations and of any technical or similar changes which could
increase the hazard level. The tenant is responsible for accounting for
such changes in any insurance agreements he is obligated to conclude.
Failure to provide or continue the agreed insurance despite warning
entitles the landlord to give notice with immediate effect.
ss. 12 Entering the Rental Property
The landlord or a person appointed by him may enter the rental property at
reasonable intervals during operating hours with due advance notice, for the
purpose of examining conditions. If the landlord intends to sell the
property or the rental contract has been terminated or revoked, the landlord
or an appointed person are allowed to enter the rented rooms with the person
interested in renting or purchasing. The tenant must ensure that the rented
facilities can also be accessed during extended absence (for example,
company holidays) in order to permit the landlord to exercise his rights as
landlord.
ss. 13 Subletting/Conversion
1. Subletting must be approved by the landlord, which approval only
applies to each single case of subletting and may be revoked by the
landlord for important reasons. If the tenant continues to sublet without
approval despite warning, the landlord is entitled to give immediate
notice of rental contract with immediate effect.
2. In the case of change of company proprietor or legal form of the
tenant, all rights and obligations are transferred to the new company
proprietor of the new legal form.
ss. 14 Termination of Rental Contract
1. The rental property is to be completely vacated at the end of the
rental period and restored to its original state at contract begin. Of
special importance are the constructional alterations which are to be
dismantled, added installations removed, and interior redecoration
carried out, irrespective of issued approval by the landlord.
2. The landlord is entitled to adopt and reimburse the tenant at a fair
price any installations, facilities and constructional alterations added
by the tenant.
3. The landlord has made significant investments to the benefit of the
tenant at begin of the contract period. The total planned investment volume
for the rental property amounts to EURO 3 054 000.00, the proportion of
expenditures to the benefit of the tenant amounts to EURO 706 000.00. This
proportional sum capitalises over 10 years to EURO 1.264.000,00, per year
EURO 126.400,00. If the rental contract is terminated before a 10-year
period of time, the tenant pays compensation to the landlord for the
investments made in relation to and for the tenant in the amount of EURO 706
000.00, as follows: For the number of years for which the option according
to ss.2 subsection 2 was not made use of, a compensation payment becomes due
in the amount of EURO 126 000.00 multiplied by the number of years involved.
The amount of EURO 126.000,00 is based on the above mentioned capitalised
investment sum of EURO 1.264.000,00 divided by 10 years. The following
compensation payments will thus become due:
End of contract on 31.12.2008: EURO 632.000,00
31.12.2009: EURO 504.000,00
31.12.2010: EURO 378.000,00
31.12.2011: EURO 252.000,00
31.12.2012: EURO 126.000,00
The compensation payment becomes due on the above mentioned last day of
the rental period and as of this point in time interest of at least the
legal interest rate according to ss. 288 subsection 2 BGB (civil code) will
be charged.
Should the total investment volume be reduced by more than EURO 50 000.00,
the compensation payments are to be reduced as a percentage in accordance with
the shortfall in relation to the total investment volume (for example (euro) 100
000.00 / (euro) 3 054 000.00 = 3.27 %). In this case the change must be mutually
agreed and specified in writing prior to begin of the rental contract.
ss. 15 Miscellaneous
1. Subsequent changes and additions to this rental contract must be in
written form. This also applies to partial waiver of the requirement for
written form. .
2. Should provisions of the contract be ineffective, remaining provisions
are not affected. The ineffective provision is to be replaced by an
effective one closest in meaning to the desired economic purpose. Should
a provision be missing regarding circumstances which should be regulated,
the parties must agree on a provision which reasonably takes into account
the interests of both parties.
3. The attachments are elements of this contract.
4.
Radolfzell, dated_____________ ______________, dated _________
Signature of Landlord Signature of Tenant