1
MILLER LEASING MIETE
GMBH
Louisenstrasse 145 - 61348 Bad Homburg - Tel.: (++49) 6172-4860-0
Fax (++49) 6172-4863-48
- --------------------------------------------------------------------------------
FULL AMORTIZATION LEASING AGREEMENT NO. 13 00 00
FOR HARD- AND SOFTWARE
with purchase, extension and return options
between and
CYBERNET INTERNET-DIENSTLEISTUNGEN MILLER LEASING MIETE GMbH
AG LOUISENSTRASSE 145
STEFAN-GEORGE-RING 19 61348 BAD HOMBURG
81929 MUNICH
- - hereinafter referred to as - hereinafter referred to as
the "lessee" - the "lessor" -
Tel. (++49)-89-993 15-0 Fax: (++49)-89-993-15-199
Bank: Sort code:
Account no.: Company registration no.:
The lessee hereby makes the lessor an offer to conclude a leasing agreement with
the latter in accordance with the provisions BELOW AND OVERLEAF. The specific
details of the individual leasing agreement are contained in a leasing system
confirmation. The lessee grants the lessor a period of one month from the date
of signature of the leasing agreement by the former to accept the contract
offered.
Should the lessor accept this contract offered, the lessee simultaneously
commissions the lessor to purchase the leased items selected by said lessee,
under the manufacturer/supplier's contractual conditions. The hard- and/or
software selected by the lessee itself will constitute the leased item.
This agreement constitutes a full amortization agreement with
purchaser/extension/ return options.
Insofar as a software license agreement exists between the lessee and the
manufacturer/supplier, the parties hereby agree that the lessor will take over
this contract in accordance with a separate agreement to do so, which will form
a constituent part of this leasing agreement.
The leasing agreement continues with Section 1-Section 13.
Munich, January 12, 1998 Bad Homburg, January 22, 1998
[stamped]
Internet-Dienstleistungen AG
Stefan-George-Ring 19
D-81929 Munich
Tel.: (++49)-89-9 93 15-0
Fax: (++49)-89-9 93 15-199
[illegible signature] [illegible signature]
(Lessee, legally-binding signature (Lessor)
and company stamp)
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MILLER LEASING MIETE
GMBH
Louisenstrasse 145 - 61348 Bad Homburg - Tel.: (++49) 6172-4860-0
Fax (++49) 6172-4863-48
- --------------------------------------------------------------------------------
SECTION 1
SUBJECT TO THE CONTRACT
(1) The lessor grants the lessee the right to use the leased item at the
specified location for the purposes intended by the manufacturer/supplier,
throughout the term of the leasing agreement, against payment. The leased
item is described in the leasing system confirmation submitted by the
lessor and appended to these general terms and conditions of leasing as a
constituent part thereof. It represents the leasing agreement, in
conjunction with these general terms and conditions of leasing and the
cover sheet. A new leasing system confirmation must be signed by the
parties for any exchange or expansion of or addition to the leased item
or parts thereof. The conditions of the leasing agreement also apply to
any exchange or expansion of or addition to the leased items.
(2) Use of the software will correspond to the conditions of the
manufacturer/supplier's software license agreement. Should the lessee
receive the software from the lessor direct, the former will consent to
these conditions.
(3) The lessee will take care of the lessor's property and observe the
relevant recommendations of the manufacturer/supplier when using the
leased item. The lessee will be obliged to maintain the leased item in
working order, at its own expense and risk.
(4) The lessee may not modify the leased item without the prior written
consent of the lessor. The lessee will be entitled, and, upon demand by
the lessor, obliged to restore the leased item to its original condition
upon termination of the leasing agreement, at its own expense and risk.
(5) The lessee will be obliged to conclude a maintenance agreement for the
hardware with the manufacturer/supplier or another specialist company, and
a support agreement for the software throughout the term of the leasing
agreement, at its own expense, and meet its resultant obligations. Any
repairs or spare parts required will be for the account of the former.
(6) The manufacturer/supplier will invoice the lessee separately for
subsidiary costs such as packaging, carriage and installation.
SECTION 2
SEPARATION AGREEMENT
(1) The lessee agrees that the content of the leasing agreement will be
legally and commercially separate from the consultancy agreement concluded
with the manufacturer/supplier or a third party, and will thus be
independent. The lessee will therefore be unable to assert any
counter-claims, objections or protests against the lessor under the
leasing agreement arising from poor fulfillment of the consultancy
agreement.
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3
MILLER LEASING MIETE
GMBH
Louisenstrasse 145 - 61348 Bad Homburg -
Tel.: (++49) 6172-4863-0 - Fax (++49) 6172-4863-48
- --------------------------------------------------------------------------------
(2) The same will apply insofar as the lessee concludes a software license
agreement directly with the manufacturer/supplier or a third party.
SECTION 3
TRANSFER OF THE LEASED ITEM
(2) The lessee will be obliged to provide the lessor with an immediate written
confirmation of transfer of the entire leased item or of a commercially
viable partial delivery, in perfect working order, by correct completion
of the transfer confirmation form provided by the lessor, including a
legally-binding signature, stating the date of transfer. The lessee agrees
that submission of such a transfer confirmation will constitute grounds
for payment of the purchase price by the lessor to the
manufacturer/supplier. As a result, incomplete or incorrect declarations
in the transfer confirmation will be the responsibility of the lessee,,
insofar as the lessor consequently suffers a loss or disadvantage. The
lessee will be at liberty to prove that it is not negligent, or negligent
only to a lesser degree compared to the software supplier, for the
incomplete or incorrect declaration.
(2) After acceptance, which is the lessee's obligation, the lessee must
inspect the leased item immediately and notify the manufacturer/supplier
and the lessor at the same time of any defects under Section 377, Section
378 or Section 381, sub-paragraph 2 of the HGB [German Commercial Code].
(3) When the transfer confirmation has been signed, the term of the lease of
the leased item will begin from the date of transfer. The lessee will be
obliged to sign the transfer confirmation when the leased item is put into
use at the latest, adding the date of transfer.
(4) Should the lessee infringe its obligation to submit the signed transfer
confirmation, the lessor will be obliged to set a reasonable extension to
the deadline, under penalty of refusal. Should the lessee not meet this
demand, the lessor will be entitled to terminate the contract.
SECTION 4
PAYMENTS
(1) The leasing installment must be paid monthly in advance by the first day of
every month to the lessor's account, charges paid. The date of the credit
will determine whether payment has been made on time. Should the beginning
of the term of the lease agreement under Section 3 (3) not fall on the
first of the month, an installment of 1/30 of the monthly leasing
installment will be payable for each day of potential use within the first
month. This will apply analogously to the last month of use.
(2) Should there be a change in the capital market interest rates on which the
leasing installment is based on the date of calculation, between
conclusion of
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4
MILLER LEASING MIETE
GMBH
Louisenstrasse 145 - 61348 Bad Homburg -
Tel.: (++49) 6172-4863-0 - Fax (++49) 6172-4863-48
- --------------------------------------------------------------------------------
the leasing agreement and commencement of the term of the lease under
Section 3 (3), the lessor will be entitled and obliged to increase or
reduce the leasing installment by the same proportion by which the capital
market interest rates rise or fall from the date of calculation to the
beginning of the term of the lease under Section 3 (3). This will apply
analogously in the event of a change in the purchase price as the basis of
calculation of the leasing installments, etc., insofar as the purchase
price changes between conclusion of the leasing agreement and delivery.
(3) The leasing installment, the VAT and all other amounts due will be
collected by direct debit. The lessee hereby grants the lessor the
necessary authorization to do so until further notice.
(4) The lessee will only be entitled to offset amounts if its counter-claims
are legally binding, accepted or undisputed.
(5) The lessee will be responsible for all fees, contributions, taxes and
other charges relating to the use or keeping of the leased item. The
leasing installment will only take account of the taxes applicable at the
time of conclusion of the leasing agreement. Should these change, the
lessee will have to pay the additional amount. The lessor will be entitled
and obliged to adjust the leasing installment accordingly.
SECTION 5
RISK -- INSURANCE -- PROPRIETARY RIGHTS
(1) Delivery, set-up, installation and de-installation of the leased item will
take place at the lessee's expense and risk.
(2) The lessee will be responsible for the substantive and price risk. Should
the leased item be destroyed or damaged, the lessee will not be discharged
from further payment of the leasing installments. It will be obliged to
restore the leased item at its own expense. In the event of destruction or
major damage, both contracting parties will be entitled to terminate the
agreement without notice. In such a case, however, the lessee will remain
obliged to meet the lessor's claim for full amortization in accordance
with the stipulation under Section 7 (5).
(3) The lessor will take out electronic equipment insurance for the leased
item in accordance with the conditions of AVFE 76, at the lessee's
expense, from the commencement of the term of the lease in accordance with
Section 3 (3), at the site stipulated in the leasing system confirmation,
until the end of the term of the lease agreement. The conditions thereof
will be submitted to the lessee on request. The excess to be paid by the
lessee will be DM 1,000 each and every claim.
(4) The lessee itself will be responsible for appropriate insurance cover for
the preceding period. The lessee hereby assigns any claims arising from
said insurance to the lessor, who accepts such assignment.
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5
MILLER LEASING MIETE
GMBH
Louisenstrasse 145 - 61348 Bad Homburg -
Tel.: (++49) 6172-4863-0 - Fax (++49) 6172-4863-48
- --------------------------------------------------------------------------------
(5) The lessor must be informed immediately of any loss. Repair of the leased
item must be agreed with the lessor, insofar as the repair costs exceed DM
1,000. It will be the lessee's responsibility to ensure that insurance is
taken out to cover any loss in excess of this amount.
(6) The lessor will conclude data media insurance for the software from the
commencement of the term of the lease in accordance with Section 3 (3) to
the end thereof, at the expense of the lessee. The conditions will be
submitted to the lessee upon request.
(7) Removal of the leased item from the site specified on the leasing system
confirmation is not permitted without the lessor's prior written approval.
The lessor or its representatives will be entitled to satisfy themselves
of the condition of the leased item during normal business hours and check
that it is being used for its intended purpose. The lessor may demand that
the leased item be marked as its property.
(8) The lessee must inform the lessor immediately if its proprietary rights
are endangered, by seizure of the leased item by third parties, for
example. The lessee must inform the lessor in writing immediately of any
imminent or effective distraint upon the leased item. The same will apply
in the event of imminent forced sale or sequestration of the property on
which the leased item is located. The lessee will be responsible for all
intervention costs incurred for protection of the lessor's property.
(9) Should the leased item constitute a firm fixture of a property or
building, this will only be the case for a temporary purpose, with removal
of the leased item from the property or building at the end of the lease
agreement intended. Should the lessee not be the owner of the property or
building, the former must make it clear to the owner that the leased item
is only affixed for a temporary purpose. The lessor will also be entitled
to do this.
SECTION 6
LIABILITY -- GUARANTEE -- ASSIGNMENT
(1) In view of the fact that the lessor's personal liability towards the
lessee under the lease agreement is contracted out for the term of said
agreement, the lessor hereby assigns all claims to which it is entitled
from the purchase of the leased item from the manufacturer/supplier, with
the exception of the claim for performance, to the lessee. This will apply
in particular to claims arising from delay, poor performance, guarantee,
liability for sound title and other contractual or statutory claims. The
lessee will assert such claims against the manufacturer/supplier in good
time, at its own expense and at its own risk. This will apply in
particular to any guarantee claims which the lessee must assert
exclusively against the manufacturer/supplier.
(2) The lessee will indemnify the lessor against any third party claims
pertaining to the ownership and use of the leased item, particularly from
the breach of industrial proprietary rights.
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6
MILLER LEASING MIETE
GMBH
Louisenstrasse 145 - 61348 Bad Homburg - Tel: (++49)6172-4863-0
Fax (++49)6172-4863-48
- --------------------------------------------------------------------------------
(3) Insofar as the lessee institutes legal proceedings against the
manufacturer/supplier, particularly to cancel the contract or reduce the
purchase price, it will be obliged to ensure in the petition that
repayment will be made to the lessor direct. The same will apply if the
lessee reaches an out-of-court settlement with the manufacturer/supplier.
The lessee will also be obliged to inform the lessor in writing
immediately of any warranty claim or other defects which occur in the use
of the leased item. This will apply specifically in the case of
institution of legal proceedings, in which case the lessor must be given
the opportunity to participate therein.
(4) In the event of cancellation of the contract between the lessee and the
manufacturer/supplier, irrespective of whether this takes place on the
basis of contractual agreements or a court judgment, the commercial basis
of the leasing agreement will cease to exist, with retrospective effect.
In this case, the lessor will be obliged to repay the leasing installments
received to the lessee, as if the lessee had not, or could not have,
obtained any benefit from the use of the leased item. Should the lessee
successfully assert a claim against the manufacturer/supplier for a
reduction, the leasing installments will be reduced accordingly.
(5) Should the lessee successfully assert a claim against the
manufacturer/supplier for a replacement delivery of the leased item,
title to the replacement leased item delivered will be transferred
directly to the lessor. The lessee will inform the lessor of the serial
number or other distinguishing marks of the replacement leased item after
it has been exchanged and confirm receipt and the efficiency of the
replacement leased item to the lessor.
SECTION 7
ARREARS OF PAYMENT BY THE LESSEE -- MATURITY -- NOTICE OF TERMINATION
(1) Should the lessee fall into arrears of payment in whole or in part, the
lessor will be entitled to charge interest on arrears at 5% above the
respective discount rate of the Deutsche Bundesbank [Central Bank of
Germany]. Should the lessor incur a further loss as a result of late
payment, this must be refunded by the lessee. However, should the lessee
prove that the late payment has entailed no, or a far smaller, loss, only
this lower amount must be refunded to the lessor.
(2) Should the lessee fall into arrears of two consecutive leasing
installments or a substantial proportion thereof, the lessor will be
entitled to serve notice of immediate termination. The same will also
apply if there is a substantial deterioration in the lessee's financial
circumstances, as a result of enforcement measures, refusal of payment of
bills of exchange or cheques, for example, or if composition or bankruptcy
proceedings are opened on the assets of the lessee or one of its
personally liable shareholders.
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7
MILLER LEASING MIETE
GMBH
Louisenstrasse 145 - 61348 Bad Homburg - Tel: (++49)6172-4863-0
Fax (++49)6172-4863-48
- --------------------------------------------------------------------------------
(3) Moreover, the lessor will be entitled to terminate the leasing agreement
without notice insofar as the lessee culpably breaches its essential
duties under the leasing agreement, despite a prior written warning.
(4) In all cases in which the lessor is entitled to serve notice of immediate
termination, the lessor will be entitled to demand compensation for
non-performance.
(5) Insofar as the lessor may be entitled to the right to serve notice of
immediate termination, the lessor's claim for compensation will be
calculated in such a way that all leasing installments due on the basis of
the claim for full amortization to which the lessor is entitled, plus
appropriate interest, will be due immediately. Insofar as the lessor
incurs additional expenses as a consequence of notice of termination
(valuation costs, compensation for prepayment, etc.), it will be entitled
to invoice these too, within the scope of a claim for compensation.
Insofar as the lessor saves expenses as a consequence of said notice of
termination, these must be deducted. The lessor will also be obliged to
dispose of the leased item as favorably as possible. Proceeds of disposal
must be credited to the lessee in the lessor's claim for compensation,
after deduction of the cost of disposal and/or seizure. The lessor will be
entitled to any excess proceeds. The lessee will bear the risk for the
lessor's ability to dispose of the leased item.
(6) Section 569 of the BGB [German Civil Code] will not apply.
SECTION 8
RIGHTS OF THE LESSEE AFTER EXPIRY OF THE BASIC TERM OF THE LEASE
(1) The lessee will decide no later than three months prior to expiry of the
basic term of the lease whether it will then exercise its extension option
hereby granted, return the leased item to the lessor, or exercise its
purchase option also hereby granted, at its discretion.
(2) In respect of the purchase option, the purchase price will depend on the
book value of the leased item determined at the end of the basic term of
the lease, allowing for depreciation for wear and tear (table)
[AfA-Tabelle], or its fair market value at that time, whichever is lower.
Proof that the fair market value is lower will be incumbent on the lessee.
Written confirmation of exercise of the purchase option will be required.
The purchase price will be due at the end of the term of the lease. Any
warranty claims will be precluded.
(3) Should the lessee decide to exercise its option to extend the leasing
agreement, the extension leasing installment will depend on the wear and
tear on the leased item, calculated on the basis of the book value at the
end of the basic term of the lease, taking account of depreciation for
wear and tear (table), or its fair market value at that time, if lower.
Proof that the fair market value is lower will be incumbent on the lessee.
Written confirmation
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MILLER LEASING MIETE
GMBH
Louisenstrasse 145-61348 Bad Hornburg Tel.: (++49) 6172-4863-0
Fax (++49)6172-4863-48
- --------------------------------------------------------------------------------
of exercise of the extension option will be required. Claims under Section
537 and Section 538 of the BGB [German Civil Code] will be precluded.
(4) The lessee will be obliged to meet its obligations under the software
license agreement throughout the extension of the contract or after
exercising the purchase option.
Section 9
Return of the leased item
(1) The leased item, including the software, data media, full documentation and
accessories, will be returned to the lessor at the lessee's expense and
risk. The lessee must delete any other copies of the software it has and
the version installed on the hardware after expiry of the contract, and
confirm deletion to the lessor in writing. The lessor may specify any
location in Germany as the place of transfer. The lessor may instruct the
lessee to scrap the leased item, at the latter's expense, instead of
returning it.
(2) If the leased item is returned, it must be in a condition appropriate for
contractual use. The lessee will be liable for any defects and
shortcomings.
(3) Should the lessee fail to return the leased item after expiry of the basic
term of the lease, despite a request from the lessor to do so, the lessor
may demand the agreed leasing installment for the duration of retention as
compensation. The right to assert any further claim is reserved.
(4) Section 4(4) will apply analogously to any right of retention of the leased
item.
Section 10
Agreement on termination
(1) The agreement may be terminated prematurely prior to expiry of its basic
term, by agreement between the parties. However, this will not be
admissible until 40% of the ordinary useful life has expired, in accordance
with the official table for wear and tear of the leased item.
(2) Agreement on premature termination will be conditional on an offer by the
lessee to pay the lessor an amount for the remaining outstanding leasing
installments within the scope of the full amortization obligation of the
lessee, appropriately discounted, plus all individual costs associated with
premature termination of the agreement which the lessor has renounced,
particularly any compensation for prepayment, plus VAT at the statutory
rate.
(3) The lessor will be obliged to dispose of the leased item as favorably as
possible. 90% of the proceeds of disposal (net of VAT, but after deduction
of the cost of disposal) will be credit to the lessee up to the amount of
the claim for full amortization by the lessor.
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MILLER LEASING MIETE
GMBH
Louisenstrasse 145-61348 Bad Hornburg Tel.: (++49) 6172-4863-0
Fax (++49)6172-4863-48
- --------------------------------------------------------------------------------
Section 11
Assignment of the lessee's rights - Sub-leasing
(1) Assignment or transfer of any nature or pledging of the rights and claims
to which the lessee is entitled under this contract will not be permitted.
(2) Sub-leasing or cession of the leased item to third parties in any other way
will require the prior written consent of the lessor.
Section 12
Transfer of the lessor's rights and obligations - Refinancing
(1) The lessee consents to transfer of the rights and obligations arising from
this leasing agreement to third parties by the lessor in whole or in part.
This is admissible specifically within the scope of refinancing. The lessee
hereby consents to assignment of the leasing receivables.
(2) The lessee is obligated to make payments only to the specified account, in
accordance with a memorandum on this subject from the lessor or the
refinancing agency.
(3) The lessee will also be obliged to submit all declarations to the
refinancing agency which are normally demanded by the latter for the
purpose of refinancing, taking appropriate account of the lessee's
interests.
Section 13
Miscellaneous - Court of jurisdiction - Place of performance
(1) The lessee will provide the lessor with information and evidence of its
financial position annually, on its own initiative, after audited annual
accounts have been drawn up, and upon request. The lessor will be entitled
to submit the documents received from the lessee prior to conclusion of the
agreement and in subsequent years for the purpose of checking its
creditworthiness, to the respective refinancing agency for inspection.
(2) The lessee must inform the lessor in writing immediately of any transfer of
domicile or registered office and changes in the legal form and liability
of its company.
(3) Amendments or additions to this contract will only be valid if made in
writing.
(4) THE LESSEE CONSENTS TO STORAGE, AMENDMENT OR DELETION OF PERSONAL DATA
PERTAINING TO THE FORMER BY THE LESSOR, TAKING ACCOUNT OF THE PROVISIONS OF
CURRENT DATA PROTECTION LEGISLATION, AND COMMUNICATION THEREOF TO THIRD
PARTIES FOR THE PURPOSE OF REFINANCING.
(5) Insofar as the lessee is a businessman or a statutory body, or constitutes
a special public fund, the court of jurisdiction and place of performance
will be the court with jurisdiction at the registered office of the lessor.
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10
In my capacity as a public translator for the English language, duly
commissioned and sworn by the President of the Regional Court of Landshut
(Landgericht Landshut) I hereby certify that the foregoing is a true and
complete English translation of a photocopy of the document in the German
language submitted to me.
(Als vom Prasidenten des Landgerichts Landshut Offentlich bestellte und
allgemein beeidigte Ubersetzerin fur die englische Sprache bestatige ich:
Vorstehende englische Ubersetzung der mir in Photokopie vorgelegten, in
deutscher Sprache abgefassten Urkunde ist richtig und vollstandig.)
Landshut, Federal Republic of German,
September 3, 1998
/s/ BIRGIT PLEIER
Birgit Pleier
Sworn translator
11
MILLER LEASING MIETE
GMBH
Louisenstr. 145 - 61348 Bad Homburg - Tel.: (++49) 6172-4863-0 Fax (++49)
6172-4863-48
- -------------------------------------------------------------------------------
LEASING SYSTEM CONFIRMATION NO. 13 00 00
pertaining to leasing agreement no. 130000 of January 1998
- -------------------------------------------------------------------------------
between and
CYBERNET INTERNET- MILLER LEASING MIETE GMBH
DIENSLEISTUNGEN AG LOUISENSTRASSE 145
STEFAN-GEORGE-RING 19 61348 BAD HOMBURG
81929 MUNICH
as lessee as lessor
- --------------------------------------------------------------------------------
For the leased item described below in
more detail from the manufacturer/ TELEMATION
supplier: NETZWERK AG
Site/delivery address: TO BE ADVISED
Fixed agreed basic term of the lease: 36 MONTHS New system o
Non-binding delivery date: ASAP Second hand
Offer price in DM Section 8(1): -- system o
Order no. Date of initial
Date of calculation: DECEMBER 29, 1997 acquisition
- --------------------------------------------------------------------------------
Model no. Qty. Description Monthly leasing Purchase price as
installment excl. a basis for
maintenance (in calculation of the
DM, net of VAT) leasing installment
(in DM, net of VAT)
- -------------------------------------------------------------------------------
SEE APPENDIX
FOR
CONFIGURATION
- -------------------------------------------------------------------------------
Net amount: 32,269.00 --
- --------------------------------------------------------------------------------
Total for insurance for electronic 211.60 --
equipment (incl. insurance tax):
- --------------------------------------------------------------------------------
Net total: 32,480.60 1,058,002.50
- --------------------------------------------------------------------------------
plus VAT at the statutory rate 4,872.09 158,700.38
(currently 15%):
- --------------------------------------------------------------------------------
Gross total (subject to the 37,352.69 1,216,702.88
stipulation of Section 4 of
the leasing agreement):
- -------------------------------------------------------------------------------
Munich, January 12, 1998 Bad Homburg, January 22, 1998
<<Stamped:>>
Cybernet
Internet-Dienstleistungen AG
Stefan-George-Ring 19
D-81929 Munich
Tel.: (++49)-89-9 93 15-0
Fax : (++49)-89-9 93 15-199
<<illegible signature>> <<illegible signature>>
(Lessee, legally-binding signature (Lessor)
and company stamp)
Version of April 16, 1996
12
In my capacity as a public translator for the English language, duly
commissioned and sworn by the President of the Regional Court of Landshut
(Landgericht Landshut) I hereby certify that the foregoing is a true and
complete English translation of a photocopy of the document in the German
language submitted to me."
(Als vom Prasidenten des Landgerichts Landshut offentlich bestellte und
allegemein beeidigte Ubersetzerin fur die englische Sprache bestatige ich:
Vorstehende englische Ubersetzung der mir in Photokopie vorgelegten, in
deutscher Sprache abgefassten Urkunde ist richtig and vollstandig.)
Landshut, Federal Republic of Germany,
September 3, 1998
/s/ BIRGIT PLEIER
- ---------------------------
Birgit Pleier
Sworn translator