Exhibit 10.2
Dated ____________ 2008
WGN (GER) LLC
(as Landlord)
and
WAGON AUTOMOTIVE GmbH
(as Tenant)
LEASE AGREEMENT
Premises: Fabrikstrasse 6, 63857, Waldaschaff, Germany
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TABLE OF CONTENTS
PAGE
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1 Lease of the Premises................................................. 4
2 Guarantee............................................................. 4
3 Definitions........................................................... 4
4 Interpretation........................................................ 10
5 Lease Term............................................................ 11
6 Transfer of Possession................................................ 11
7 Rent.................................................................. 12
8 VAT................................................................... 12
9 Insurance............................................................. 14
10 Tenant's Obligations.................................................. 18
10.1 Rent and Other Payments......................................... 18
10.2 Repair and Replacement.......................................... 18
10.3 Alterations and Additions....................................... 19
10.4 Signs and reletting notices..................................... 21
10.5 Use, Occupancy.................................................. 21
10.6 Alienation...................................................... 21
10.7 Entry........................................................... 23
10.8 Compliance with Law............................................. 24
10.9 Outgoings, costs and fees....................................... 25
10.10 Taxes; VAT ..................................................... 26
10.11 General requirements concerning use............................. 26
10.12 Indemnity ...................................................... 26
10.13 Environmental requirements...................................... 26
10.14 Not to overload................................................. 27
10.15 Guarantee ...................................................... 28
10.16 Compulsory Purchase............................................. 28
10.17 Restoration .................................................... 28
11 Security Deposit...................................................... 31
12 Covenant of Quiet Enjoyment........................................... 32
13 Post Closing Obligations.............................................. 32
14 Intentionally Omitted................................................. 32
15 General Provisions.................................................... 32
15.1 Events of Default............................................... 33
15.2 Surrender of the Premises....................................... 34
15.3 Service of notices.............................................. 34
15.4 Failure to perform obligations.................................. 35
15.5 Waiver of right to forfeit...................................... 36
15.6 Covenants relating to adjoining Premises........................ 36
15.7 Entire understanding; Schedules................................. 36
15.8 Severance....................................................... 36
15.9 Governing law and jurisdiction.................................. 36
15.10 Non-recourse.................................................... 36
15.11 Requests for information........................................ 37
15.12 Amendments ..................................................... 37
15.13 Successors and Assigns.......................................... 37
15.14 Requirement of Written Form..................................... 37
15.15 Representation by Landlord...................................... 37
Annex 1 Premises.........................................................
Schedule 1 Intentionally Omitted.........................................
Schedule 2 Basic Rent and Provisions for Rent Adjustments................
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Schedule 3 Intentionally Omitted.........................................
Schedule 4 Corporate Covenants...........................................
Schedule 5 Post Closing Obligations......................................
Schedule 6 Fixtures......................................................
Schedule 7 Property Condition Report.....................................
EXECUTION of Lease Agreement:............................................ 39
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THIS LEASE AGREEMENT is made as of June ___, 2008
BETWEEN:
(1) WGN (GER) LLC, a limited liability company organised under the laws of the
state of Delaware, U.S.A. with an office at c/o W. P. Carey & Co. LLC, 50
Rockefeller Plaza, 2nd Floor,, New York, New York 10020, Attention,
Director Asset Management (hereinafter referred to as the "LANDLORD"); and
(2) WAGON AUTOMOTIVE GMBH, a company with its statutory seat in Waldaschaff,
Germany, and registered with the trade register maintained at the local
court of Aschaffenburg, Germany, under number HRB 7374 (hereinafter
referred to as the "TENANT");
the above companies hereinafter jointly referred to at the "PARTIES".
All of the terms of this Lease Agreement have been individually negotiated
between the 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 GUARANTEE
2.1 The Guarantor shall guarantee all obligations of the Tenant, so that
under this Lease, Guarantor shall (save as provided for in the
Guarantee) always be jointly and severally liable to the Landlord for
the performance of all of the Tenant's obligations under this Lease.
3 DEFINITIONS
In this Lease agreement the following expressions have the following
meanings:
3.1 ACQUISITION COST shall mean E17,366,500.
3.2 AFFILIATE of any Person means any Person which shall (i) control, (ii)
be under the control of, or (iii) be under common control with such
Person (the term "control" as used herein shall be deemed to mean
ownership of more than 50% of the outstanding voting stock of a
corporation or other majority equity and control interest if such
Person is not a corporation) and the power to direct or cause the
direction of the management or policies of such Person.
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3.3 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.
3.4 APPURTENANCES shall mean all easements, rights-of-way and rights
associated with the Land.
3.5 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 7 of this Lease.
3.6 CASUALTY means any damage to, or destruction of the Premises.
3.7 COMMENCEMENT DATE means the date the purchase price is paid under the
Purchase and Sale Agreement.
3.8 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.
3.9 COMPULSORY PURCHASE shall mean any expropriation or taking of all or a
material portion of the 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.
3.10 COMPULSORY PURCHASE NOTICE shall mean an official notice on the
commencement of any proceeding for Compulsory Purchase.
3.11 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 or necessary for a new technical invention in relation to
or 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.
3.12 DEFAULT AMOUNT means the Outstanding Amounts.
3.13 ENVIRONMENTAL CONSULTANT shall mean ENVIRON UK Ltd.
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3.14 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 Hazardous 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 Hazardous
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 Hazardous Substance. The term
Environmental Law includes inter alia, the Federal Emission Control
Act ("Bundes-Immissionschutzgesetz BImSchG"), the Federal Soil
Protection Act ("Bundesbodenschutzgesetz"), the Federal Water
Protection Act ("Wasserhaushaltsgesetz"), the Federal Recycling and
Pollution Prevention Act ("Kreislaufwirtschafts und Abfallgesetz"),
the German Civil Code, including all regulations (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.
3.15 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;
3.16 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.
3.17 EVENT OF DEFAULT means any breach or non-performance of the terms of
this Lease whether of a monetary or non-monetary nature, including
breach or non-performance of covenants, representations and warranties
of Tenant under this Lease.
3.18 FIXTURES means all plant and machinery as described in Schedule 6
hereto.
3.19 GERMAN CIVIL CODE means the German statutory law for civil matters
titled "Buergerliches Gesetzbuch" ("BGB").
3.20 GUARANTEE means the Guarantee issued on the date of this Lease by the
Guarantor in favor of Landlord in order to secure the performance of
all of the Tenant's obligations under this Lease.
3.21 GUARANTOR means Wagon PLC, whose registered office is at 3500
Parkside, Birmingham Business Park, Birmingham B37 7YG, a company
registered in England under registration number 150042 together with
its permitted successors and assigns and any guarantor that may be
substituted for Guarantor in compliance with the terms of this Lease
and the Guaranty.
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3.22 GUARANTOR INSOLVENCY EVENT means Guarantor Insolvency Event as defined
in Clauses 15.1.3(i) and (ii).
3.23 IAS means international accounting standards as issued by the Board of
the International Accounting Standards Committee (IASC) or any other
internationally recognized accounting standard consistently applied by
such Person, including, but not limited to German GAAP, UK GAAP and
IAS.
3.24 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.
3.25 INSURANCE PREMIUMS means all sums payable by the Tenant pursuant to
Clause 9.1.1 under relevant insurances.
3.26 INSURED RISKS means the risks insured to be against under Clause
9.1.1.
3.27 INTEREST means eight (8) percentage points above base rate as defined
in Sec. 247 para 1 of the German Civil Code.
3.28 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.
3.29 LAND means the parcels of land identified on Annex 1 hereto and
situated in Nagold, Germany.
3.30 LANDLORD means the Person first named herein as the Landlord and its
successors and assignees.
3.31 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.
3.32 LEASE means this Lease Agreement.
3.33 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.
3.34 LENDER shall mean 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).
3.35 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).
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3.36 MATERIAL LEASE DEFAULT shall mean an Event of Default under Clauses
15.1.1, 15.1.2, 15.1.3, 15.1.4, 15.1.5 or 15.1.7 of this Lease or
Clause 15.1.1 of the Nagold Lease.
3.37 MORTGAGE means any legal instrument which secures the Landlord's
obligation to repay a Loan.
3.38 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).
3.39 NAGOLD LEASE shall mean that certain lease agreement by and between
Landlord and Tenant with respect to a property located at
Lise-Meitner, Strasse 10, 72202, Nagold, Germany dated as of the date
hereof.
3.40 NET AWARD shall mean 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 reasonable expenses incurred by the Landlord in
collecting such award or proceeds.
3.41 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
10.6.6.
3.42 OUTGOINGS means all existing and future rates, taxes (such as local
real estate taxes), fees, 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 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 in so
far as they are reasonable and would be incurred by a reasonable and
prudent property owner making such payments itself.
3.43 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.
3.44 PARTIAL COMPULSORY PURCHASE shall mean any Compulsory Purchase which
relates to a non-material part(s) of the Premises.
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3.45 PERMITTED USE means industrial and manufacturing (except for metal
foundry) and other related activities, such as office use, to the
extent permitted by Law or otherwise in accordance with Clause 10.5.1
of this Agreement.
3.46 PERSON means an individual, legal person or other entity having no
legal personality under the Law.
3.47 POST CLOSING OBLIGATIONS shall mean the Post Closing Obligations
defined in Clause 13.
3.48 PREMISES means the Premises defined in Clause 1.2.
3.49 PURCHASE AND SALE AGREEMENT means the Purchase and Sale Agreement by
and between Landlord, as purchaser, and Tenant and Wagon Automotive
GmbH, as seller, with respect to the Premises notarized on _____
_________ 2008 by Dr. Peter Schmite, notary public, in Cologne,
Germany.
3.50 REINSTATEMENT VALUE shall mean the amount which would need to be spent
in order to fully reinstate the Premises to its previous physical
condition (including the Premises' structure and the Fixtures,
excluding the personal property of the Tenant used in the operation of
its business (e.g. racking) within the Premises and any elements of a
decorative nature), the physical condition of which complies with this
Lease, in the event that the Premises are entirely destroyed, provided
that such amount shall be subject to adjustments within the Term
following changes to applicable market prices (e.g. to reflect an
increase in the prices of construction materials); this amount should
also include the costs of demolition and site clearance, temporary
works, compliance with local authority requirements in connection with
any works of repair or reinstatement, architects', surveyors' and
other professional fees and other incidental expenses, and in each
case with due allowance for VAT, customs duty and other public
charges.
3.51 REMAINING PREMISES means the Remaining Premises defined in Clause
10.16(iii).
3.52 RENEWAL DATE means the Renewal Date defined in Clause 5.2.
3.53 RENEWAL TERM means the Renewal Term defined in Clause 5.2.
3.54 RENT means Basic Rent, VAT, Outgoings and any other amount payable by
Tenant to Landlord under the terms of this Lease.
3.55 RENT ADJUSTMENT means an adjustment of Basic Rent in accordance with
the provisions of SCHEDULE 2.
3.56 RENT ADJUSTMENT DATE(S) are as described in SCHEDULE 2.
3.57 RENT PAYMENT DATE means (a) with respect to each payment of Basic Rent
the fifth (5th) Working Day of each February (covering the calendar
months of February, March and April), May (covering the calendar
months of May, June and July), August (covering the calendar months of
August, September and October), and November (covering the calendar
months of November, December and January) 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 thirty (30) 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.
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3.58 REQUISITE NOTICE means a notice to the Tenant, forty-eight (48) hours
before any entry is made on any Premises provided that in the case of
an emergency no notice will be required.
3.59 REQUISITION shall mean any temporary requisition or confiscation of
the use or occupancy of any portion of the Premises by any
governmental authority, civil or military, whether pursuant to an
agreement with such governmental authority in settlement of or under
threat of any such requisition or confiscation, or otherwise.
3.60 RESTORATION FUND means the Restoration Fund as defined in Clause
10.17.2.
3.61 SECURITY DEPOSIT means a Security Deposit as defined in Clause 11.1.
3.62 SUBLET SECURITY DEPOSIT means a Sublet Security Deposit as defined in
Clause 10.5.2.
3.63 TENANT includes the Tenant and the Tenant's successors and/or assigns
in title which are permitted by the terms of this Lease.
3.64 TENANT GROUP means Guarantor and Tenant and their respective
subsidiaries if and for so long as each such Person shall be part of
the group for the purpose of reporting financial positions and results
on a consolidated basis.
3.65 TERM means Term as defined in Clause 5.1.
3.66 TERMINATION AMOUNT means Termination Amount as defined in Clause
9.2.8.
3.67 TERMINATION DATE means the date of expiration or earlier termination
of the Term.
3.68 TERMINATION EVENT means Termination Event as defined in Clause 9.2.8.
3.69 TERMINATION NOTICE means Termination Notice as defined in Clause
9.2.8.
3.70 UNDERLET PREMISES shall have the meaning given to it in Clause
10.6.3(i).
3.71 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.
3.72 WORKING DAY means any day excluding Saturdays, Sundays and national
holidays recognised by the laws of the Republic of Germany.
4 INTERPRETATION
In this Lease:
4.1 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).
4.2 The Clause headings (except for the definitions) are for ease of
reference and shall not affect the interpretation or meaning of this
Lease.
4.3 References to Clause numbers or schedules or paragraphs in schedules
mean the Clauses of or schedules to or paragraphs in schedules to this
Lease.
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4.4 Words importing persons shall be construed as including firms,
companies and corporations and vice versa.
4.5 Words importing one gender will be construed as importing any other
gender.
4.6 Words importing the singular will be construed as importing the plural
and vice versa.
4.7 The words "hereof", "hereunder", "hereto", "herein", and similar words
shall be construed as being references to this Agreement.
5 LEASE TERM
5.1 The initial term of this Lease for the Premises shall be for a period
of one hundred eighty (180) months (said initial term, as extended by
any Renewal Term, the "TERM"), commencing on the Commencement Date.
5.2 Provided that if, on or prior to the date upon which the 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 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 twelve (12) months (the "RENEWAL NOTICE DATE") prior
to the next Renewal Date that Tenant is extending this Lease as of the
next Renewal Date (each such notice, a "RENEWAL NOTICE"). If Tenant
elects to not send a Renewal Notice to Landlord, Tenant shall have the
right to extend the then current Term by a period of up to six (6)
months by giving to Landlord a written notice of such extension at
least twelve (12) months prior to the expiration of the then current
Term, which notice shall specify the length of such extension of the
Term (not to exceed six (6) months). Any extension of the Term shall
be subject to all of the provisions of this Lease, as the same may be
amended, supplemented or modified (except that 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.
5.3 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,
save for Tenant's right to terminate this Lease for cause ("AUS
WICHTIGEM GRUND") including, but not limited to, Sections 543 and 578
of the German Civil Code, or (ii) to any set-off of any Rent, unless
such amounts claimed by Tenant are not disputed by Landlord or have
been confirmed in a non-appealable judgment.
6 TRANSFER OF POSSESSION
6.1 The Tenant shall be entitled to take possession of the Premises as of
the Commencement Date.
6.2 The Tenant is aware of and hereby acknowledges that there may be legal
defects, and construction and environmental defects relating to the
Premises. The Tenant shall have no claims against Landlord with
respect to any defects now or hereafter existing.
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6.3 As of the Commencement Date, in addition to Tenant's obligations under
Section 10.2 and elsewhere under this Lease, the Tenant shall have the
general duty to maintain safety (Verkehrssicherungspflicht).
7 RENT
7.1 The Tenant covenants and agrees that it shall be responsible for the
payment of the Basic Rent annually and proportionately for any
fraction of a Lease Year from and including the Commencement Date and
from and including the 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 to be in respect of 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.
7.2 From and including the Commencement Date, the Tenant shall pay all
Outgoings, 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 10.9 of this Lease.
7.3 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 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.
7.4 If required by the Landlord, the Tenant shall pay the Basic Rent
reserved by Clause 7.1 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 another country which the Landlord has notified
in writing to the Tenant. If Landlord requires Basic Rent and VAT to
be paid to a bank account located outside of Germany and the cost to
wire transfer Basic Rent and VAT to such account exceeds the cost to
wire transfer such funds to an account in Germany, then such excess
cost shall be borne by Landlord.
7.5 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.
8 VAT
8.1 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 Landlord 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).
8.1.1 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 8.1 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.
8.1.2 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. 90 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.
8.1.3 The Landlord's claims against the Tenant according to this
Clause 8.1 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 8.1.2, 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.
8.2 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.
8.3 Tenant shall make all VAT payments arising from Tenant's obligations
under this Lease as and when due, at the option of Landlord, (i)
directly to the appropriate taxing authority and will provide Landlord
evidenced of such payment within thirty (30) days after the due date
thereof, or (ii) to Landlord's designated account. 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. All costs
reasonably and necessarily incurred by Landlord with respect to the
preparation, review or
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filing of any VAT returns shall be paid by Tenant excluding costs for
Landlord's own employees and resources.
8.4 Landlord shall, upon receipt of written request of Tenant, provide
Tenant with invoices satisfying the formal requirements of Section 14
of the German VAT Act with respect to the Basic Rent due under this
Lease. Landlord's costs of preparing and/or reviewing such invoices
shall be paid by Tenant.
9 INSURANCE
9.1 The Tenant shall:
9.1.1 insure the Premises, pay the Insurance Premiums and maintain the
following insurance against:
(i) loss or damage by fire, explosion, storm, tempest (including
lightning), flood, earthquake, burst pipes, impact, heave,
subsidence and (in peacetime) aircraft and articles dropped
there from, riot, civil commotion and malicious damage
impact by road vehicle 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 as the Landlord shall
reasonably request which is applicable to commercial
properties and constitutes a risk and an amount that it is
usual business practice to insure against in Germany;
(jointly referred as the "INSURED RISKS").
9.1.2 The 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,
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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.
9.1.3 ensure that the insurer has a claims paying ability rating of at
least AA- given by Standard & Poor's Rating Services, a Division
of MacGraw Hill Companies, Inc. or an equivalent rating by
Moody's Investment Services and is authorised to write insurance
in Germany, or, if the insurer does not possess such rating,
ensure that the insurer is reputable, authorized to write
insurance in Germany and reasonably acceptable to Landlord;
9.1.4 at least thirty (30) days prior to modifying or replacing any
insurance required under Clause 9.1.1 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. The Landlord's approval for
modifying or replacing any insurance is required if terms of the
insurance are different than set out under this Clause 9 or if
any deductible is increased. If the Landlord's approval is
required, the Tenant shall have the right to renew, modify or
replace the insurance policy, if such approval has been granted
in writing. The approval or disapproval should be issued by the
Landlord acting reasonably within fourteen (14) days, counting
from the day on which the Tenant proposed to the Landlord the
full details of the insurance;
9.1.5 comply with the requirements of the insurers relating to the
Premises;
9.1.6 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 the Premises;
9.1.7 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 9.3, including, but not
limited to, deductibles, reasonable legal fees, and costs of
Landlord's construction consultant.
9.1.8 notify the Landlord immediately if the Tenant, undertenant, or
any other lawful occupier vacates the Premises; and
9.1.9 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.
9.1.10 Undertake all reasonable endeavours to cause each insurer
carrier to issue a certificate of third party interest in the
insurance (Sicherungsbestatigung / Sicherungsschein) in favour of
Lender confirming that the legal provisions set out
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in sections 94 and 142 to 149 of the German Insurance Contract
Act (Versicherungsvertragsgesetz) apply to all kinds of property
insurances.
9.2 Reinstatement
9.2.1 If any part of any Premises is damaged by any of the Insured
Risks then,
(i) If the provisions of Clause 10.17.1 apply, the Tenant shall
apply the net Award (except those amounts relating to fees and
Rent) towards reinstating the Premises and Tenant shall be
responsible for any short-fall.
(ii) If the provisions of Clause 10.17.2 apply, upon receipt of
the Net Award by the Landlord, Landlord shall make the Net Award
available to the Tenant in accordance with Clause 10.17.2 for
reinstating the Premises.
9.2.2 The Tenant shall be obliged to arrange for the performance of
construction work aimed at reinstating the Premises. The detailed
scope and the schedule for the works will be subject to the
Landlord's approval, which approval shall not be unreasonably
withheld or delayed and subject to the requirements of the
insurers. The Tenant shall ensure that a contractor carrying out
any reinstatement works grants a construction quality guarantee
(Gewahrleistungsburgschaft) (as to the performed reinstatement
works) for the joint benefit of the Landlord and the Tenant or be
assigned to the Landlord.
9.2.3 If the payment of any insurance monies is refused for any reason
other than a default by Landlord under this Lease, the Tenant
will pay to the Landlord within fourteen (14) 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
9.2.1(ii).
9.2.4 The Landlord will not be obliged to comply with the obligations
under Clause 9.2.1(ii) 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 9.2.2 and 9.2.3.
9.2.5 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.
9.2.6 Tenant shall be obligated to restore the Premises as close as
possible to its value, condition and character immediately prior
to a Casualty (assuming the Premises to have been in the
condition required by this Lease), provided, however, that the
Tenant is not obliged to reinstate damage from a total or
substantial Casualty at the Premises caused by an Insured Risk
if,
(i) it cannot obtain every necessary consent under applicable
laws; or
(ii) a necessary legislative consent is granted subject to a
lawful condition and it would be unreasonable financial
burden to expect the Tenant to comply with that condition;
or
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(iii) the planning authority insists that as a precondition to
giving necessary legislative consent the Tenant must enter
into an agreement with the authority containing a term where
it would be unreasonable financial burden to expect the
Tenant to comply with that term; or
(iv) it is prevented from reinstating by another reason outside
the Tenant's control
but, if Tenant does not elect to reinstate, it must give to
Landlord a Termination Notice within the time period set forth in
Clause 9.2.8 below.
9.2.7 The Tenant may so reinstate the Premises in a different form to
that existing before the damage occurred where the variation:
(i) is required either by the Insurers or to comply with a
legislative requirement; or
(ii) reflects good building practice then current; or
(iii) is reasonably required by the Tenant for some other reason,
but any such variation must (a) be approved in writing by
Landlord and Lender, such approval not to be unreasonably
withheld or delayed and subject to the requirements of the
insurers, and (b) not make the Premises materially different in
size or less valuable than it was before the damage occurred.
9.2.8 In the event that Tenant does not elect to reinstate pursuant to
Clause 9.2.6 (such an event, a "TERMINATION EVENT"), then, Tenant
shall give to Landlord a Termination Notice (as defined below)
provided, that a Termination Notice must not be given more than
three (3) months following the date of the applicable Casualty,
provided, however, if, notwithstanding the diligent efforts of
Tenant, Tenant only first discovers after the expiration of such
three (3) month period that Clause 9.2.6 applies and, as a
result, Tenant does not wish to reinstate, then, the Termination
Notice may be given up to thirty (30) days after such discovery,
but in no event later than twelve (12) months following the date
of the applicable Casualty. As used herein, the term "TERMINATION
NOTICE" shall mean a written notice from Tenant to Landlord
whereby Tenant (i) requests that the Lease be terminated, (ii)
confirms that Landlord is entitled to retain the entire Net
Award, (iii) irrevocably commits to pay to Landlord the positive
difference, if any, between the Net Award received by Landlord
and the applicable Acquisition Cost less the value of the land
(the "TERMINATION AMOUNT") in order to cause Landlord to be paid
an amount in total that is not less than the applicable
Acquisition Cost less the value of the land.
9.2.9 If Tenant gives Landlord a Termination Notice as a result of a
Termination Event, then, upon receipt by Landlord of and the
Termination Amount (a) Tenant shall have no further liability to
Landlord, and (b) this Lease will terminate. Tenant shall cause
Landlord to be paid the Termination Amount within four (4) months
of the date of the applicable Casualty.
9.3 Landlord's insurance
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9.3.1 If the Tenant fails to provide insurance complying with Clause
9.1, the Landlord may effect and maintain reasonable insurance of
the Premises within the same scope and the Tenant shall pay to
the Landlord within twenty (20) days of written demand the cost
to the Landlord of effecting such insurance.
9.3.2 Immediately upon the Landlord giving written notice to the
Tenant that the Landlord has insured the Premises in accordance
with Clause 9.3.1 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 without the prior approval of
Landlord, which approval shall not be unreasonably withheld.
9.3.3 The Net Award shall be made available to Tenant for
reinstatement of the Premises in accordance with the terms of
this Lease.
9.4 The obligation to pay the Basic Rent and the Outgoings continues in
spite of the occurrence of any damages to the Premises. The Basic Rent
and the Outgoings payable to the Landlord shall be decreased by the
amounts received under the rent loss insurance carried by Tenant
pursuant to clause 9.1.1(ii) and paid to the Landlord.
10 TENANT'S OBLIGATIONS
The Tenant covenants with the Landlord:
10.1 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 except as
specifically provided in this 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 unpaid when due.
The payments of the Basic Rent shall be decreased up to the amounts
paid to the Landlord by the insurer in respect to such Basic Rent
following Casualty.
10.2 Repair and Replacement
10.2.1 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.
10.2.2 To keep the Premises in a clean and tidy condition and properly
cleansed and free from obstruction.
10.2.3 To comply with the terms of all warranties, guarantees or
similar documents which apply to all or any part of the Premises.
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10.2.4 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.
10.2.5 To keep any part of the Premises which may not be built upon,
adequately surfaced, in good condition, and swept clean and all
landscaped areas properly cultivated and free from weeds and to
ensure all grassed areas are mown and all parking spaces
adequately cleared of obstructions or vegetation and with a
maintained surface and free from ice and snow as and when
necessary so that the same shall have a neat and tidy appearance
at all times.
10.2.6 Any disagreement between the Parties with regards to the
Tenant's obligations with respect to repair, replacement,
maintenance or any other technical matter shall be finally
settled by a third party professional consultant to be appointed
by the Landlord and the Tenant jointly. Should the Parties fail
to agree on the appointment of a professional consultant, the
President of the local Chamber of Commerce shall be asked to
appoint a reputable consultant who shall be instructed to issue a
written opinion as to the dispute, which shall bind the Parties.
The consultant's fee shall be paid by the Party that loses the
dispute.
10.2.7 Except with respect to the Post Closing Obligations, nothing
contained, mentioned or referred to in this Lease shall require
Tenant to put or keep the Premises in any better state of repair
or condition than the condition described in the Property
Condition Report prepared by Colliers CRE and dated March 28,
2008, a copy of which is attached hereto as SCHEDULE 7.
10.3 Alterations and Additions
10.3.1 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
E500,000 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 E500,000, so long as at
the time of construction or installation of any such Fixtures or
Alterations or Additions no Event of Default exists and the value
and utility of the Premises is not diminished thereby (i.e. such
Fixtures, Alterations or Additions are of a quality and of a
nature comparable to the better of the quality and nature of the
Improvements and Fixtures in existence (a) as of the Commencement
Date or (b) immediately prior to such construction or
installation of Fixtures, Alterations or Additions). 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 E500,000 or if Tenant desires to
make structural Alterations or Additions, the prior
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written approval of Landlord shall be required, which approval
shall not, subject to the approval of Lender, be unreasonably
withheld. Landlord shall either approve or disapprove such
proposed Alterations, Additions or Fixtures within thirty (30)
days of receipt by Landlord of all documentation reasonably
required by Landlord with respect to such Alterations, Additions
or Fixtures. Tenant shall not construct upon the Land any
additional buildings without having first obtained the prior
written consent of Landlord which approval shall not, subject to
the approval of Lender, be unreasonably withheld. Landlord shall
not have the right to require Tenant to remove any Alterations or
Additions.
10.3.2 If Tenant desires to make any Alterations pursuant to this
Clause 10.3 or as required by Clauses 10.2, 10.8 or 10.17 (such
Alterations or Additions and actions being hereinafter
collectively referred to as "Work"), then (i) the market value of
the 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 promptly
discharge or remove all liens filed against any of the Premises
arising out of such Work within thirty (30) days of the filing
thereof, (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 10.17, whether or not such Work involves
restoration of the Premises.
10.3.3 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, which consent
shall not be unreasonably withheld.
10.3.4 If the Tenant makes any Alterations or Additions to the
Premises in breach of this Clause 10.3 then, in addition to any
other remedies and powers available to the Landlord (and without
prejudice to them) the Landlord may remove and reinstate such
Additions or Alterations and the proper cost of carrying out such
work will be repaid to the Landlord by the Tenant within fourteen
(14) days of demand.
10.3.5 The Tenant will not receive any compensation or reimbursement
of expenses incurred in connection with installing any
Alterations or Additions or
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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.
10.4 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).
10.5 Use, Occupancy
10.5.1 Not to use the Premises except for any use falling within the
Permitted Use except as the Landlord may first approve in
writing.
10.5.2 In the event that the premises are vacant the Tenant is (i) to
fully comply with its obligations under this Lease including all
maintenance and repair obligations and is to provide for
continuous twenty-four (24) hour on-site security at the
Premises, (ii) to actively, continuously and diligently marketing
the Premises for sublet and (iii) to deliver the Landlord an
additional Security Deposit (a "SUBLET SECURITY DEPOSIT") that
complies with the requirements of Article 11 and is equal to
three (3) months of the Basic Rent then in effect.
10.6 Alienation
10.6.1 (i) Not to assign this Lease or charge the Premises or any part
thereof during the initial Term of this Lease without the prior
written consent of the Landlord, which consent shall not be
unreasonably withheld or delayed provided that Tenant shall have
no right to assign this Lease if an Event of Default occurs and
is continuing. Notwithstanding the forgoing, so long as no Event
of Default then exists, Tenant shall have the right to assign
this Lease to a new tenant if (i) the proposed new tenant has,
immediately following such assignment and giving effect thereto,
publicly rated debt of "BB-" or better from Standard & Poor's
("S&P") Corporation or "Ba3" or better from Moody's Investor
Services, Inc. or, if such prospective tenant does not have rated
debt, a net worth calculated in accordance with IAS consistently
applied of not less than Two Hundred Million Euros
(E200,000,000) (a Person meeting such tests, a "CREDIT
ENTITY"), or (ii) the proposed new tenant provides a new
guarantee identical in all material respect to the Guarantee from
a guarantor that, immediately following such assignment and
giving effect thereto, is a Credit Entity, or (iii) the proposed
new tenant is an Affiliate of Tenant provided that such new
tenant remains an Affiliate of Tenant for the balance of the
Term.
(ii) As a condition precedent to any assignment of this Lease,
Tenant shall conclude a tri-party agreement with the proposed
assignee and Landlord (who shall be obliged to enter into such
agreement with respect to an assignment permitted pursuant to
Clause 10.6.1(i) above) at the time of such assignment. Such
tri-party agreement shall be a written document in recordable
form satisfactory to Landlord specifically observing the
requirements of a written form as stipulated by Section 550
German Civil Code, and duly executed by Landlord, Tenant and the
proposed assignee (the "ASSIGNMENT AGREEMENT") pursuant to which
(x) such assignee
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expressly assumes all the obligations of Tenant hereunder, actual
or contingent, including obligations of Tenant which may have
arisen on or prior to date of such assignment, and (y) if, but
only if, the proposed assignee is an Affiliate of Tenant (where
the Guarantee given by Guarantor remains in effect) or a Credit
Entity itself or provides a new guarantee identical in all
material respects to the Guarantee from a guarantor that,
immediately following such assignment and giving effect thereto,
is a Credit Entity, Tenant shall be released from all liabilities
under this Lease. No assignment shall impose any additional
obligations on Landlord under this Lease.
10.6.2 Subleasing
Without the prior written consent of the Landlord not to sublease
(or grant the right to use free of charge) in excess of
twenty-five percent (25%) of the leaseable space of the Premises
provided that Landlord shall not unreasonably withhold or delay
its consent to any subleasing in excess of twenty-five percent
(25%) of the leaseable space of the Premises. In addition, Tenant
may sublease up to 100% of the leaseable space in the Premises to
any Affiliate of Tenant without the prior consent of Landlord.
10.6.3 In connection with any subleasing to notify the Landlord of:
(i) the identity of the proposed sublessee; and (ii) the proposed
area to be underlet, prior to the date on which the sublease is
entered into.
10.6.4 The Tenant shall procure that any sublease contains:
(i) an unqualified covenant on the part of the sublessee with
the Tenant that: (A) the sublessee will not assign or
encumber (or agree so to do) any part or parts of the
Premises (as distinct from the whole) demised by such
sublease (the "UNDERLET PREMISES"); (B) the sublessee will
not part with or agree to do so or share possession of or
permit any person to occupy the whole or any part of the
Underlet Premises; and (C) the sublessee will not sublease
the whole or any part of the Underlet Premises;
(ii) an unqualified covenant by the sublessee (under which the
Tenant undertakes to use all reasonable endeavours to
enforce) to prohibit the sublessee from doing or suffering
any act or thing upon or in relation to the Underlet
Premises which will contravene any of the Tenant's
obligations in this Lease; and
(iii) a condition for re-entry upon breach of any covenant on the
part of the sublessee or any other ground in respect of the
sublessee specified in Clause 10.7.
10.6.5 Not enter into any collateral agreement nor give any side
letter varying or relieving the sublessee from any terms required
by Clause 10.6.4 to be contained in the underlease.
10.6.6 No 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 sublease
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had been made. No sublease shall impose any additional
obligations on Landlord under this Lease.
10.6.7 In case the Tenant subleases 50% or more of the Premises, the
Tenant shall assign to Landlord any claims against the
sub-tenant(s) deriving from the sub-lease, including Tenant's
statutory lien by way of security. This assignment is limited to
the amount of Landlord's present and future claims vis-a-vis
Tenant under this Lease including, but not limited to, the Basic
Rent, VAT and any Outgoings.
10.6.8 Notwithstanding any provision in this Clause 10.6 or elsewhere
in this Lease to the contrary, including any right or option the
Tenant may have or consent that Tenant may obtain from Landlord
to assign this Lease or sublease all or any portion of the
Premises, the Tenant shall, upon the request of the Landlord,
provide and cause any assignee or sublessee to provide, such
information (including, without limitation, any certification) as
to any proposed assignee or sublessee and its principals as may
be required for the Landlord and the Tenant to comply with
regulations administered by the Office of Foreign Asset Control
("OFAC") of the Department of the Treasury, codified at 31 C.F.R.
Part 500 (including those named on OFAC's Specially Designated
and Blocked Persons list) or under any statute, executive order
(including the 24 September 2001, Executive Order Blocking
Property and Prohibiting Transactions with Persons Who Commit,
Threaten to Commit, or Support Terrorism), or other governmental
action regarding persons or entities with whom U.S. persons or
entities are restricted from doing business.
10.7 Entry
10.7.1 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 for a reasonable time together with associated
work people, plant and materials:
(i) in order to examine their condition, including environmental
testing, and to take schedules of repairs;
(ii) in order to execute any works of construction, repair,
decoration or of any other nature within the Premises or the
Fixtures pursuant to Clause 10.7.2;
(iii) in order to exercise, without interruption or interference,
any of the rights granted to or reserved for the Landlord by
this Lease; and
(iv) 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.
The Persons so entering the Premises shall rectify any damage
caused to the Premises as a result of such entry to the
reasonable satisfaction of Tenant and shall not unreasonably
interfere with Tenant's proper use of the Premises.
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10.7.2 If as a result of an inspection or otherwise the Landlord
becomes aware of any breaches of the Tenant's obligations under
this Lease regarding the condition of the Premises, the Landlord
may give notice in writing thereof to the Tenant. Within one (1)
month after such notice (or promptly in respect of an emergency
notice) 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 enter the Premises under this Clause 10.7 and carry 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 thirty (30) days of a written
demand.
10.8 Compliance with Law
10.8.1 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.
10.8.2 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.
10.8.3 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), including, but not limited to, the River License and
the Water Permit as those terms are defined below, 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 expressly including but not limited to any acts
or omissions contravening (i) that certain license agreement (the
"RIVER LICENSE") with between YMOS-Metallwerke Wolf & Becker GmbH
& Co. ("YMOS") and the State of Bavaria giving YMOS the right to
build, use and occupy the Improvements over the Aschaff River,
which River License was amended by an agreement among Landlord,
the municipality of Waldaschaff and Tenant transferring all use
and occupancy rights granted under the River License to Landlord,
or (ii) that certain water permit (the "WATER PERMIT") initially
issued by the rural authorities (Landratsamt) of Aschaffenburg on
10 September 1962 (reference no III/9641) as amended, novated or
restated from time to time.
10.8.4 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
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obtaining the prior written consent of the Landlord to such
application, which consent will not be unreasonably withheld or
delayed.
10.8.5 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.
10.8.6 Within seven (7) days of its receipt to give copies to the
Landlord of any notice of default or violation relevant to the
Premises or relevant to the use thereof given to the Tenant or
the occupier of the Premises under any applicable Law and 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.
10.9 Outgoings, costs and fees
10.9.1 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, or maintenance of the
Premises or the management by Tenant's manager of the Premises.
However, nothing herein shall place any obligation on the Tenant
to pay, discharge, contribute or reimburse the Landlord the
amounts which represent (i) any management fee to Landlord or to
any third party management company retained by Landlord, or (ii)
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.
10.9.2 In the absence of direct assessment on the Premises, to repay
to the Landlord the proportion properly attributable to the
Premises (such proportion to be properly determined by Tenant
acting reasonably or in case of a dispute by an expert referred
to in Clause 10.2.7) within fourteen (14) days of demand, all
Outgoings, especially all charges (together with VAT, if
applicable) in respect of gas, electricity, steam, soil, water,
telephone, electrical impulses and other services supplied to or
consumed in the Premises, including all costs and expenses listed
in Section 2 Operating Cost Order ("Section 2
Betriebskostenverordnung"), to the extent that the Landlord has
paid or is required to pay the same to any third party.
10.9.3 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
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(ii) in respect of any application for a building permit 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).
10.9.4 The Landlord will make a settlement of account of the advances
for Outgoings and/or charges set out in Clause 7.
10.9.5 Within five (5) Working Days of receipt by Tenant of any real
estate tax or real estate assessment invoices with respect to the
Premises, Tenant shall deliver to Landlord copies of same. Tenant
shall provide to Landlord evidence of payment of such invoices
within five (5) Working Days following the applicable due date.
10.10 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, 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
use and/or ownership of the Land and Improvements (for the avoidance
of doubt, this does not include any taxes imposed on the Landlord
regarding its business such as 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.
10.11 General requirements concerning use
10.11.1 Not to use any part of the Premises for any illegal act or
purpose and not to commit any unreasonable nuisance or do
anything which may cause damage or unreasonable disturbance to
the Landlord or any other person.
10.12 Indemnity
10.12.1 The Tenant will fully pay, protect, defend, indemnify and hold
harmless the Landlord from and against all actions, demands,
proceedings, claims, damages, losses, costs, expenses and
liabilities arising directly or indirectly out of any breach of
the Tenant's obligations under this Lease or any failure to
comply with any applicable Law and against any liability for any
value added taxes, tax, stamp duty or other fees specifically
imposed on the Landlord in connection with the Premises or the
Basic Rent of whatever nature, including penalties and interest
on such overdue or unpaid tax (and penalties for failure to give
appropriate notices and information under any applicable Law) for
which the Landlord shall be liable as a result of any development
carried out on the Premises by the Tenant or its permitted
sublessees and shall within fourteen (14) days of demand pay to
the Landlord the amount of any such sum, provided that the Tenant
will not bear any responsibility or obligation where such
liabilities, claims, costs or expenses arose from the Landlord's
wilful misconduct or gross negligence.
10.13 Environmental requirements
The Tenant covenants with the Landlord as follows:
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10.13.1 to ensure at all times throughout the Term that the Premises
and the Tenant are in compliance 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;
10.13.2 not at any time during the Term 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;
10.13.3 not at any time during the Term 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;
10.13.4 in the event of a breach of its obligations contained in
Clauses 10.13.1, 10.13.2, 10.13.3 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, unless Tenant has
failed to commence to cure such breach within thirty (30) days of
written notice of such breach from Landlord or, following
commencement of such a cure, Tenant has failed to diligently and
continuously attempt to remedy such breach until it is cured,
then, 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;
10.13.5 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 Dangerous
Substances (regardless of when such Dangerous Substances first
came to be present in, on, over or under the Premises) 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 under Environmental Law or as may
be requested by a Competent Authority at any time in the future
and that it will comply with all requirements of any Competent
Authority made at any time thereunder provided that the Tenant
shall have no responsibility or obligation where such
liabilities, claims, costs or expenses arose solely out of the
gross negligence or wilful misconduct of the Landlord.
10.14 Not to overload
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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 the
Premises.
10.15 Guarantee
10.15.1 To ensure that the Guarantee is provided for the Landlord's
benefit upon the execution of this Lease.
10.16 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 the 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 the
Premises, and (c) the Lease shall terminate on the date the Net
Award is paid to Landlord.
(iii) In the event that the Partial Compulsory Purchase occurs with
respect to the 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 (the "REMAINING
PREMISES") with no reduction of Basic Rent.
(iv) Tenant shall be entitled to make a claim on its own behalf under
statutory law for any loss it suffers as a result of a Compulsory
Purchase provided that such claim does not diminish any Net Award
payable to Landlord.
10.17 Restoration
10.17.1 Unless the provisions of Clause 10.17.2 apply, any Net Award
in respect of any Casualty or the Partial Compulsory Purchase
shall be collected by the Tenant to reimburse Tenant for its
costs incurred in restoring the Premises. Tenant shall be
obligated to restore the Premises as close as possible to its
value, condition and character immediately prior to such event
(assuming the Premises to have been in the condition required by
this Lease).
10.17.2 If (i) the Premises are so destroyed or damaged by an Insured
Risk such that the insurers are willing to make one or more lump
sum payments of insurance proceeds in advance of reinstatement
being paid for and completed, or (ii) the proceeds from any
Partial Compulsory Purchase are in excess of E500,000, then,
the Landlord or Lender may hold the entire Net Award in a fund
(the "RESTORATION FUND") and Landlord or Lender shall disburse
amounts from the Restoration Fund in accordance with the
following conditions:
(i) prior to commencement of restoration, (A) the architects,
contracts, contractors, plans and specifications and a
budget for the restoration shall have been reviewed with the
Landlord, and (B) the Landlord shall be provided with
acceptable performance and payment bonds which insure
satisfactory completion of and payment for the restoration,
are in an amount and form and with a surety reasonably
acceptable to the
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Landlord taking into account market standards, and name the
Landlord as additional co-beneficiary or be assigned to
Landlord;
(ii) at the time of any payment, no Material Lease Default on the
part of the Tenant shall exist and no liens in favour of
workmen that have arisen through the conduct of work on the
Premises (other than those liens that arise automatically
under the Law) shall have been filed against any of the
Premises and remain undischarged;
(iii) at the time of any payment, the Tenant is not declared
bankrupt nor has the application for bankruptcy been
rejected with respect to the Tenant due to the lack of funds
sufficient for covering the costs of the bankruptcy
proceeding;
(iv) payments shall be made from time to time in an amount not
exceeding the cost of the work completed since the last
disbursement, upon receipt of (A) architects' certificates
showing the stage of completion and the estimated total cost
of completion) that the work to date has been performed in a
good and workmanlike manner in accordance with the
contracts, plans and specifications, (B) contractors' and
subcontractors' statements as to completed work and the cost
thereof for which payment is requested, and (C) paid
receipts so that the Landlord and Landlord's construction
consultant can verify in their reasonable discretion that
the amounts disbursed from time to time are represented by
work that is completed, in place and free from any material
technical defects and clear from any third party claims.
Landlord shall cause its construction consultant to provide
such a verification (or objection) within ten (10) Working
Days of the date all documentation required to be delivered
to Landlord and its construction consultant under this
clause (iv) being delivered and no such objection may be
based upon compliance by Tenant with the documentation
approved by Landlord pursuant to Clause 10.17.2(i).
(v) each request for payment shall be accompanied by a
certificate from the Tenant, signed by an authorised
representative of the Tenant, describing the work for which
payment is requested, stating the cost incurred in
connection therewith, and stating that the Tenant has not
previously received payment for such work and, upon
completion of the work, also stating that the work has been
fully completed and complies with the applicable
requirements of this Lease;
(vi) the Landlord shall not unreasonably withhold or delay any
payment under this Clause 10.17.2 or the granting or
withholding of any consents or approvals with respect to the
reinstatement; and
(vii) the Landlord may retain ten percent (10%) of the Net Award
until the work is fully completed. So long as no Event of
Default then exists, any amounts so retained shall be paid
to Tenant or the general contractor, as applicable,
following final completion of the restoration work in
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compliance with this Lease and receipt by Landlord of all
documentation Landlord reasonably requires to verify same.
10.17.3 In the event Landlord's construction consultant objects as
provided in Clause 10.17.2 (iv)(C) and Tenant disagrees with such
determination by giving Landlord and Landlord's construction
consultant written notice of such disagreement within three (3)
Working Days of being notified in writing of such objection,
then, a representative of Tenant, a representative of Landlord
and Landlord's construction consultant shall meet (in person
and/or by telephone) within seven (7) Working Days of Tenant
notifying Landlord in writing of its disagreement with the
objection by Landlord's construction consultant (the "MEETING").
If the parties are unable to resolve such disagreement within
three (3) Working Days following the Meeting, then, Landlord and
Tenant will attempt to agree upon the appointment of an
independent construction consultant of good reputation and with
not less than ten (10) years experience monitoring similar
projects to resolve such dispute. If such independent
construction consultant comes to a different conclusion than
Landlord's construction consultant, the determination of such
independent construction consultant shall supersede and replace
the determination of Landlord's construction consultant. If,
however, Landlord and Tenant are unable to agree upon such an
independent construction consultant within fifteen (15) Working
Days of the Meeting or the independent construction consultant
does not make a determination without undue delay and at the
latest within twenty (20) Working Days of its appointment, then,
either Landlord or Tenant may refer such matter to the President
of the local Chamber of Commerce and Industry (Industrie-und
Handelskammer) locally competent for the Premises to select an
independent construction consultant. All out-of-pocket costs and
fees with respect to the procedure described in this Clause
10.17.3, including the fees and costs of the independent
construction consultant and/or the President of the local Chamber
of Commerce and Industry (Industrie-und Handelskammer) locally
competent for the Premises shall be paid by Tenant. The
determination made by the independent construction consultant
shall be deemed to be an arbitrator's expert opinion
(Schiedsgutachten) and no recourse to legal action to appeal such
determination shall be permitted.
10.17.4 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 or insurance
proceeds 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. The Landlord shall have the right to inspect the
application of funds raised by the Tenant for the restoration of
the Premises.
10.17.5 Any such sums held under Clause 10.17.2 shall be kept in an
account separate from any other funds of the Landlord and all
interest earned thereon shall form part of the Restoration Fund.
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11 SECURITY DEPOSIT
11.1.1 Concurrently with the payment of the purchase price under the
Purchase and Sale Agreement, Tenant shall deliver to Landlord a
security deposit in the amount of E401,600.25 (together with any
additional security deposit paid to Landlord pursuant to Clause
11.1.2 and Sublet Security Deposit, the "SECURITY DEPOSIT"). The
Security Deposit shall be either immediately available funds
("CASH SECURITY DEPOSIT") or in the form of an irrevocable letter
of credit (the "LETTER OF CREDIT") and shall be issued by a bank
acceptable to Landlord and having a long-term unsecured debt
rating of not less than "A" from Standard & Poor's Corporation
and in form and substance satisfactory to Landlord. The Security
Deposit shall remain in full force and effect during the Term as
security for the payment by Tenant of the Basic Rent, Outgoings,
and all other charges or payments to be paid hereunder and the
performance of the covenants and obligations contained herein,
and, if the Security Deposit is a Letter of Credit, the Letter of
Credit shall be renewed at least thirty (30) days prior to any
expiration thereof. If Tenant fails to renew the Letter of Credit
by such date, time being of the essence, Landlord shall send an
written reminder notice to Tenant. If Tenant has not yet renewed
the Letter of Credit within five Working Days after Landlord
gives Tenant such an written reminder notice, then Landlord shall
have the right to draw on the Letter of Credit and to deposit the
proceeds of the Letter of Credit as a Cash Security Deposit in
any account for the benefit of Landlord, but any failure of
Landlord to so draw on the Letter of Credit shall not mitigate
the obligation of Tenant to maintain the full amount of the
Security Deposit required pursuant to the terms of this Lease at
all times during the Term of this Lease. Any Cash Security
Deposit shall not be commingled with other funds of Landlord or
other Persons and no interest thereon shall be due and payable to
Tenant.
11.1.2 If at any time following an Asset Sale Without Lease Assumption
(as defined in the Guarantee) the Guarantor is not publicly
traded on a national exchange in the United Kingdom, the Tenant
shall increase the Security Deposit by an amount equal to one
year of the Basic Rent then in effect. Such increase shall be
made by delivering to Landlord either (i) cash (in Euros) in an
amount equal to one year of the Basic Rent then in effect, or
(ii) another Letter of Credit in an amount equal to one year of
Basic Rent then in effect.
11.1.3 If at any time an Event of Default shall have occurred and be
continuing, Landlord shall be entitled, at its sole discretion,
to draw on the Letter of Credit or to withdraw the Cash Security
Deposit from the above-described account and to apply the
proceeds in payment of (i) any Rent, Outgoings, or other charges
for the payment of which Tenant shall be in default, (ii) prepaid
Basic Rent, (iii) any expense incurred by Landlord in curing any
default of Tenant, and/or (iv) any other sums due to Landlord in
connection with any default or the curing thereof, including,
without limitation, any damages incurred by Landlord by reason of
such default, including any rights of Landlord under Clause 14.1
or to do any combination of the foregoing, all in such order or
priority as Landlord shall so determine in its sole discretion
and Tenant acknowledges and agrees that such proceeds shall not
constitute assets or funds of Tenant or its estate, or be
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deemed to be held in trust for Tenant, but shall be, for all
purposes, the property of Landlord (or Lender, to the extent
assigned). Tenant further acknowledges and agrees that (1)
Landlord's application of the proceeds of the Letter of Credit or
Cash Security Deposit towards the payment of Basic Rent,
Outgoings, any other sums due under this Lease or the reduction
of any damages due Landlord in accordance with Clause 14.1 of
this Lease, constitutes a fair and reasonable use of such
proceeds, and (2) the application of such proceeds by Landlord
towards the payment of Basic Rent, Outgoings, or any other sums
due under this Lease shall not constitute a cure by Tenant of the
applicable default provided that an Event of Default shall not
exist if Tenant restores the Security Deposit to its full amount
within fourteen (14) days and in accordance with the requirements
of this Clause 11, so that the original amount of the Security
Deposit shall be again on deposit with Landlord.
11.1.4 At the expiration of the Term and so long as no Event of
Default exists the Letter of Credit or the Cash Security Deposit,
as the case may be, shall be returned to Tenant. In addition,
provided no Event of Default then exists hereunder or under any
sublease, any Sublet Security Deposit held by Landlord shall be
returned to Tenant on the first anniversary of the date (i) the
entire Premises became occupied pursuant to a sublease, or (ii)
the Tenant re-occupied the entire Premises.
11.1.5 Landlord shall have the right to designate Lender or any other
holder of a Mortgage as the beneficiary of the Letter of Credit
or the Cash Security Deposit during the term of the applicable
Loan, and such Lender or other holder of a Mortgage shall have
all of the rights of Landlord under this Clause 11. Tenant
covenants and agrees to execute such agreements, consents and
acknowledgments as may be requested by Landlord from time to time
to change the holder of the Security Deposit as hereinabove
provided.
12 COVENANT OF QUIET ENJOYMENT
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.
13 POST CLOSING OBLIGATIONS
Tenant shall complete, remediate or obtain or caused to be completed,
remediated or obtained certain of the Disclosed Defects described in and
within the time periods specified in Schedule 5 (the "POST CLOSING
OBLIGATIONS").
14 INTENTIONALLY OMITTED.
15 GENERAL PROVISIONS
Provided always and it is agreed and declared as follows:
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15.1 Events of Default
Notwithstanding and without prejudice to any other remedies and powers
contained in this Lease or otherwise available to the Landlord, if:
15.1.1 the Tenant is in default of payment of the quarterly payments
of the Basic Rent provided, however, that with respect to the
each 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) Working Days after Landlord has given to
Tenant written notice thereof; or
15.1.2 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;
15.1.3 the Tenant or Guarantor:
(i) files, or is under statutory law obliged to file, for
insolvency proceedings; or
(ii) insolvency proceedings on the Tenant's assets are opened or
dismissed for lacking assets;
and, with respect to the Guarantor only, Lender has declared a
default under its Loan as a result of the Guarantor's insolvency
("Guarantor Insolvency Event");
15.1.4 the Tenant violates any of its obligations set out in Clause
9.1;
15.1.5 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 Grund) under
applicable statutory provisions and Tenant does not remedy such
failure within thirty (30) days after receipt of the Landlord's
written demand to do so;
15.1.6 the Tenant is in breach of any other terms of this Lease and
does not remedy the default within thirty (30) days after receipt
of the Landlord's written demand to do so;
15.1.7 Tenant shall fail to provide, maintain and, if necessary,
replenish the Security Deposit in accordance with the
requirements of Clause 11; or
15.1.8 an Event of Default (as that term is defined in the Nagold
Lease) shall occur under the Nagold Lease at any time during
which (i) the Guarantor first named hereunder is the ultimate
owner of the tenant under the Nagold Lease, or (ii) the ultimate
owner (or any Affiliate thereof) of the tenant under the Nagold
Lease is also the ultimate owner of the Tenant under this Lease,
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,
provided that with respect to a
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Guarantor Insolvency Event, Landlord shall act reasonably in making a
decision of whether to exercise its remedies, including its right to
terminate 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). If the
Landlord does not exercise its remedies in respect of a Guarantor
Insolvency Event then for the purpose of this Lease there shall be no
Event of Default.
15.2 Surrender of the Premises
15.2.1 Subject to any extensions of this Lease (including a short-term
extension of the Term of up to six (6) months pursuant to Clause
5.2), 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.
15.2.2 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.
15.3 Service of notices
15.3.1 Any demand or notice to be served on the Tenant under this
Lease will be validly served if sent by 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: WGN (GER) LLC
c/o W.P. Carey & Co. LLC
50 Rockefeller Plaza, Second Floor
New York, New York 10020
United States of America (USA)
Fax: +1-212-492-8922
For the attention of: Director,
Asset Management
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with copies to: Reed Smith LLP
599 Lexington Avenue, 29th Floor
New York, New York 10022
For the attention of: Chairman Real Estate
Department
Fax: +1 212-521-5450
TENANT: Wagon Automotive GmbH
Geschaftsfuhrung
Lise-Meitner-StraBe 10
D-72202 Nagold
Germany
Fax: +0121 329 5150
with copies to: Wagon plc
Company Secretary
3500 Parkside
Birmingham Business Park
Birmingham B37 7YG
United Kingdom
Fax: +0121 329 5150
15.3.2 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.
15.3.3 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.
15.3.4 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): Reed Smith LLP, Funf-Hofe,
Theatinerstrasse 8, Munich, D-80333, Germany, Attention:
Etienne Richthammer.
15.4 Failure to perform obligations
The Landlord will have a thirty (30) day cure period, after receiving
notice from the Tenant to remedy any default under this Lease. In case
of the Landlord's default, the Landlord shall be liable to compensate
the Tenant for loss or damage sustained by the Tenant from the
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day of occurrence of such default, subject, however, to the limitation
set forth in Clause 15.10.
15.5 Waiver of right to forfeit
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.
15.6 Covenants relating to adjoining Premises
Nothing contained in or implied by this Lease places any obligation on
the Tenant or gives the Tenant the benefit of or the right to enforce
or to prevent the release or modification of any covenant agreement or
condition entered into by any Tenant of the Landlord in respect of any
property not comprised in this Lease.
15.7 Entire understanding; Schedules
This Lease, together with all agreements specifically referred to
herein, embodies the entire understanding between the 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.
15.8 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 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.
15.9 Governing law and jurisdiction
This Lease shall be governed by, and construed in accordance with the
laws of Germany and the venue for any dispute hereunder shall be a
court of competent jurisdiction in Frankfurt, Germany.
15.10 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:
15.10.1 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);
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15.10.2 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
15.10.3 any person affiliated with any of the foregoing, or any
director, officer, employee or agent of any thereof.
15.11 Requests for information
15.11.1 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
authorized officer of the Tenant, certifying except as otherwise
specified, (a) that, except as otherwise specified, this Lease is
unmodified and in full force and effect, (b) the dates to which
Basic Rent and Outgoings have been paid, (c) that, to the
knowledge of the signer of such certificate and except as
otherwise specified, no default by either Landlord or Tenant
exists hereunder, (d) that there are no proceedings pending or,
to the knowledge of Tenant, 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, and (e) such other
matters as Landlord may reasonably request.
15.11.2 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.
15.12 Amendments
This Lease may be modified, amended, discharged or waived only by an
agreement in writing signed by both the parties.
15.13 Successors and Assigns
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.
15.14 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.
15.15 Representation by Landlord
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Landlord represents to Tenant that the Facilities Agreement which
shall evidence the terms of a Loan to be made by Societe Generale to
Landlord on or about the Commencement Date shall include the following
provision:
"The Finance Parties shall act reasonably in making a decision of
whether to declare a Default pursuant to this Clause 25.11
(Insolvency of Wagon PLC):"
THIS AGREEMENT has been entered into on the date stated at the beginning of this
agreement.
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EXECUTION OF LEASE AGREEMENT:
THE LANDLORD
SIGNED by Jeffrey S. Lefleur, )
Director, )
duly authorised for and on behalf of )
Conduit B.V. in its capacity as managing )
member of WGN (GER) LLC: )
ADDRESS: c/o W.P. Carey & Co. LLC
50 Rockerfeller Plaza, 2nd Floor
New York, NY 10020, U.S.A.
FACSIMILE NO: +1 212 492 8922
FOR THE ATTENTION OF: Director, Asset Management
THE TENANT
SIGNED by [-], )
duly authorised for and on behalf of, )
WAGON AUTOMOTIVE GmbH, )
ADDRESS: [-]
FACSIMILE NO: [-]
FOR THE ATTENTION OF: [-]
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