LEASE FOR OFFICE SPACE
and other business accommodation not under section 7A:1624 Dutch Civil Code
The undersigned:
1. Philips Industrial Electronics International B.V., established at
Xxxxxxxxxxx 0, Xxxxxxxxx, represented by Mr. G.R.C. Dierick, hereinafter
referred to as Lessor;
2. Philips Electron Optics B.V., established at Achtseweg, Eindhoven,
represented by Messrs W.A. Whitward and X.X. Vinkesteijn, hereinafter
referred to as Lessee,
have agreed to the following Lease:
THE LEASED PROPERTY, PURPOSE, USE
1.1 This agreement relates to 17,754 sq.x. xxxxx office space and industrial
space, car park and green area in or belonging to:
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BUILDING sq.x. xxxxx floor area Total annual sum due
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AAE 17,754 See Article 4 of this
Agreement
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hereinafter referred to as 'the Leased Property', situate at complex
Acht-Zuid at the Achtseweg-Noord in Eindhoven and as specified according to
building and site on the addendum attached to this agreement and certified
by the parties hereto, which constitutes part of this lease.
1.2 The Leased Property may only be used as office, production and storage
space.
1.3 Without Lessor's prior written approval Lessee is not permitted to give the
Leased Property a purpose other than defined in 1.2.
1.4 Lessee undertakes not to load the used floor area in excess of what is
structurally permissible.
CONDITIONS
2.1 The general conditions for leasing office space and other business
accommodation not under section 7A:1624 CC, deposited with the Clerk of the
Court in The Hague on 29 February 1996 and registered under number 34/96,
hereinafter referred to as 'the General Conditions', are an integral part
of this lease. The parties are fully acquainted with these General
Conditions. Lessee has received copy of these conditions.
2.2 The conditions referred to in Article 2.1 of this Agreement are applicable
except where this Agreement is expressly at variance with them or
applicability in relation to the Leased Property is not possible.
TERM, EXTENSION AND TERMINATION OF THE LEASE
3.1 This agreement is entered into for the period of ten (10) years, commencing
on 21 February 1997 and ending on 20 February 2006.
3.2 After expiry of the period mentioned in Article 3.1 hereof this Agreement
will be renewed for a period of five (5) years, consequently up to and
including 20 February 2011, if Lessee has not given notice of termination
of the lease at least 12 months before the end of the lease period referred
to in Article 3.1. After expiry of the second lease period the lease
agreement will be renewed again for a period of five (5) years,
consequently up to and including 20 February 2016, if Lessee has not given
notice of termination of the lease at least 12 months before the end of the
lease period referred to in Article 3.1.
3.3 This agreement will be terminated by the Lessee giving notice at the end of
a lease period subject to at least a twelve (12) months' notice period.
3.4 Notice of termination of the agreement shall be given by registered letter.
3.5 This agreement may be terminated prematurely by the parties in a
circumstance as mentioned in Article 7 of the General Conditions, in which
contrary to the provision in Article 7.2 of the General Conditions first a
notice of default is required.
PAYMENT OBLIGATIONS AND PAYMENT TERM
4.1 Lessee shall pay the following sums:
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(a) a payment for the rent in the sum of NLG 1,540,000 per year, exclusive
of value added tax (V.A.T.) (in words: one million five hundred forty
thousand Dutch guilders);
(b) a payment for specific facilities which constitute part of the Leased
Property in the sum of NLG 827,205 per year, exclusive of V.A.T. (in
words: eight hundred twenty-seven thousand two hundred five Dutch
guilders);
(c) the V.A.T. payable for (a) and (b), or a corresponding sum as referred
to in Article 5 of this Agreement, at least if parties have agreed a
rent taxed with V.A.T.
4.2 The payment for the rent as provided in Article 4.1.(a) of this Agreement
will be adjusted annually on 1 March, for the first time on 1 March 1998
and similarly for consecutive years in accordance with Article 4 of the
General Conditions. Parties agree that the payment as specified in Article
4.1(b) of this Agreement shall only be payable for the first 10 years of
the duration of this Agreement, after which Lessee will be deemed to have
paid the surplus value of the specific facilities of Leased Property
Parties agree that in the event of any adjustment of the rent after expiry
of 10 years, the availability of the specific facilities will not be taken
into consideration.
4.3 Contrary to the provision in Article 4.1 of this Agreement the total
payment due for the first year of the Agreement is $850,000 (in words:
eight hundred fifty thousand USDollars).
4.4 The payments to be made by Lessee to Lessor pursuant to Article 4.1.
respectively Article 4.3. of this Agreement shall be payable in equal
monthly instalments in a lump sum in advance, always before or on the first
day of the period to which the payment applies.
VALUE ADDED TAX
5.1 As Lessee and Lessor are part of the same tax entity, parties do not opt
for V.A.T. taxed rent. Parties agree that if Lessor at any time transfers
this Lease Agreement to a third party, not belonging to the same tax
entity, parties will at that time opt for a V.A.T. taxed rent and that
Lessor accordingly will charge V.A.T. over the total payment due. In such a
case Lessee hereby undertakes to accept the applicability of the following
terms.
5.2 Lessee shall at that time declare that he will use the Leased Property for
purposes for which a full or almost full (at least for 90%) right to
deduction of V.A.T. already paid
3
exists. Lessee shall at that time declare that he is entitled to fully or
almost fully deduct the V.A.T. with regard to the instalment.
Lessee hereby declares that he will inform Lessor within 4 weeks after the
end of the financial year (of Lessee) in which Lessee has started to use
the immovable property of the use (i.e. whether the immovable property has
been used for purposes for which at least a 90% right to deduction exists).
5.3 Should Lessee, for any reason, at any time be unable to fully or almost
fully deduct the V.A.T. with regard to the instalment, Lessee shall
immediately notify Lessor in writing. Lessee shall inform Lessor of any
such change in his entitlement to deduction, if possible, always before it
produces effect. If Lessee, also after written notice, does not comply with
this obligation to inform and Lessor has as a result, in retrospect,
wrongly charged V.A.T. with regard to the instalments, Lessee shall be in
default and shall pay a sum corresponding with Lessor's financial loss at
the latter's first demand.
This loss particularly concerns the full additional
assessments/reassessments of V.A.T. payable by Lessor as well as the
relevant increases and interests, the administration cost Lessor has to
incur in that respect and all other expenses which are the result of the
termination by operation of law of the charged rent, where reasonably
attributable to Lessee. However, if Lessee shows that through Lessor's acts
or omission the option application has not been granted or not on the
agreed date or, whether or not with retroactive effect, is no longer
granted, Lessee shall not owe any payment.
5.4 Lessee undertakes in anticipation of such event vis-a-vis Lessor in the
event that he no (longer) uses the Leased Property for charged
performances, to pay to Lessor or his successors in title in addition to
and simultaneous with the rent:
(a) The V.A.T., which is no (longer) deductible as a result of the
termination of the charged rent, for the operating costs of the Leased
Property and/or investments therein.
(b) The V.A.T., which Lessor has to repay to and/or can no longer get back
from the tax authorities as a result of the termination of the charged
rent on account of recalculation as referred to in Section 15(4) of
the Wet op de omzetbelasting (VAT Act) 1968 or review as referred to
in Sections 11 up to 13 inclusive of the Uitvoeringsbeschikking
omzetbelasting (Implementation Decision) 1968.
(c) Any other loss which Lessor will incur as a result of the termination
of the charged rent, where reasonably attributable to Lessee.
4
5.5 Lessor shall have to inform Lessee which amounts Lessor has to be pay to
the tax authorities and give insight in the other loss claimed by Lessor.
Lessoor shall cooperate if Lessee wants to have the statement of the
amounts checked by an independant accountant.
5.6 The above provisions shall be in full force in the event of substitution as
provided in the law.
BANK GUARANTEE
6. Parties agree that, contrary to the provision in Article 8 of the General
Conditions, Lessee will not issue a bank guarantee. In stead FEI Company
warrants as Lessee's parent company Lessee's compliance with his
obligations under this Agreement.
ADMINISTRATOR
7. Until Lessor notifies otherwise, the administrator on behalf of owners will
be:
Philips International B.V.
Mr. G.R.C. Dierick
Gebouw VP-1
X.X. Xxx 000
0000 MD Eindhoven
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SPECIAL CONDITIONS
8.1 Lessor shall be entitled at any time to transfer the rights and obligations
arising from this Agreement to any third party.
8.2 Lessor shall not unreasonably withhold the permission referred to in
Article 3.1 of the General Conditions.
8.3 In respect of the specific facilities in or to the Leased Property
installed by Lessee himself the latter shall be entitled to transfer these
investments after termination of the Lease to a successive lessee. In the
event that transfer does not take place Lessor shall have the right to
request Lessee to remove these specific facilities from the building and to
deliver the building clean and vacated and in a good condition.
Contrary to what is stated in Article 9.1 of the General Conditions the
maintenance, both structural and the preservation of the daily maintenance
shall be at Lessee's expense and risk. Lessee shall, putting aside what is
prescribed in the Dutch Civil Code and in Article 9.1 of the General
Conditions in respect of maintenance, keep the Leased Property in a good
state of repair at his expense and to the satisfaction of Lessor. Lessee
shall have complied with said obligation if he has executed a maintenance
plan to be determined in consultation with and with the consent of Lessor
for the duration of the lease period. In the event of a difference op
ofinion about the maintenance plan to be determined and/or about the
execution of the same, parties will submit their dispute to an independent
expert.
8.4 Contrary to what is stated in Article 15.4 of the General Conditions the
charges and taxes in respect of the enjoyment under a right in rem
including the real estate taxes, the district water board charges and the
sewerage charges shall be at Lessee's expense.
8.5 Lessor shall see to the insurance of the structures at the expense of and
in consultation with Lessee.
Thus drawn up and signed in threefold:
At Eindhoven, date _______________ At Eindhoven, date _______________
/s/ G.R.C. DIERICK /s/ W.A. WHITWARD
---------------------------------- -----------------------------------
authorized on behalf of Philips Electron Optics B.V.
Philips Industrial Electronics
International B.V.
6
/s/ X.X. VINKESTEIJN
-----------------------------------
Philips Electron Optics B.V.
Addenda
- the General Conditions
- specification and drawing of the Leased Property
FEI Company, parent company of Philips Electron Optics B.V., by signature of its
authorized officer, hereby guarantees the fulfillment of the terms and
conditions herein by its subsidiary Philips Electron Optics B.V.
/s/ W.A. WHITWARD
----------------------------------
FEI Company
W.A. Whitward
The undersigned represents that the foregoing is a fair and accurate English
translation.
/s/ XXXXXXXXX A.M. XXXXXX
-----------------------------------
Xxxxxxxxx A.M. Xxxxxx
Chief Financial Officer and
Designated Officer
7
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GENERAL CONDITIONS FOR LEASING OFFICE SPACE
and other business premises not under section 7A:1624 CC
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According to the standard text decided upon by the Road voor Onroerenda Zoken
(Council for Real Estate deposited on 29 February 1996, under registration
number 34/1996 with the Clerk of the Court in the Hague. The Council is not
liable for any adverse consequences of the use of the standard text. The purpose
of the headings above the articles in these General Conditions is only to
improve their readability. The content and import of the clause covered by the
heading is therefore not limited to such heading.
--------------------------------------------------------------------------------
The Leased Premises
1.1 The Leased Premises include the installations and facilities which are
present, in as much as these are not excluded in the certified description
accompanying the lease. 1.2 The Leased Premises will be made available for
occupation and accepted in the state outlined in the certified description
accompanying the lease or, in the absence of such a description, in the state at
the commencement of the lease, in a good state without faults.
Use
2.1 The Lessee will make actual and proper use of the Leased Premises himself
during the entire term of the lease, exclusively for the purpose stipulated in
the lease. He shall in doing so observe existing limited rights and requirements
which have been or may be made by government authorities or public utility
companies. He shall provide the Leased Premises with sufficient furniture and
fixtures and keep the same so provided. 2.2 The Lessee shall act in accordance
with the law and local regulations and in accordance with accepted practice as
regards leasing, with regulations issued by the authorities, public utility
companies, the insurers and, if applicable, with the regulations of the agency
responsible for the sprinkler system and the "Silchring Nederlands Instituut
voor Liftechniek" and other competent authorities to issue the necessary
certificates. The Lessee shall also observe the instructions given in writing or
by word of mouth by or on behalf of the Lessor in the interests of the proper
use of the Leased Premises and of the inside and outside areas, the
installations and fixtures in the building or complex which the Leased Premises
are part of. This shall include instructions regarding the maintenance,
appearance, noise level, public order, fire protection, parking and the correct
operation of the installations and the building or the complex which the Leased
Premises are part of. 2.3 The Lessee may not create any nuisance or cause any
inconvenience when using the Leased Premises or the building or the complex of
which the Leased Premises form a part and will ensure that any third party
present on his behalf do likewise. 2.4 The Lessor has the right and the duty to
use the common facilities and services which are or will be available in the
interest of the proper functioning of the complex which the Leased Premises are
part of.
Licenses
2.5.1 The Lessee shall obtain the licenses and/or exemptions required to carry
on the business for which the Leased Premises are intended. Refusal or
suspension of the same shall not give cause for cancelling or annulling the
lease or for undertaking any other action against the Lessor. 2.5.2 If
alterations or improvements to the Leased Premises are necessary in connection
with 2.5.1, whether or not as a result of regulations issued by authorities, it
is the Lessee's responsibility (without prejudice to the conditions in 2.6 and
2.10) to ensure that the activities to that purpose are carried out in
accordance with the requirements made or to be made by the authorities and that
any necessary licenses are obtained, while the costs of the alterations or
improvements will be met by the Lessee.
Environment
2.6.1 If upon commencement or during the term of the lease an environmental
investigation is started with respect to the Leased Premises and afterward
during the term of the lease or immediately upon termination of the lease - in a
similar investigation - the concentrations of one or more substances found on,
in, at or around the Leased Premises are higher than those of the earlier
investigation, the Lessee shall compensate the damage
-1-
arising from the contamination and shall be liable to the Lessor for expenses
relating to the removal of such contamination or for the taking of actions. The
Lessee shall indemnify the Lessor against claims of third parties, including
government agencies. 2.6.2 The provision of 2.6.1 is not applicable if the
Lessee shows that the contamination has neither been caused by any fault or
negligence of himself, his personnel or persons or objects under his
supervision, nor by any circumstances which can be imputed to the Lessee. 2.6.3
The Lessor shall not indemnify the Lessee against (government) orders for
further investigation or the taking of actions.
Waste products/chemical waste
2.7 Where directives or regulations by the government or other competent
authorities are applicable to the (differentiated) presentation of waste
products, the Lessee shall continuously and carefully observe the same. In case
of non-observance or incomplete observance of this obligation the Lessee shall
be liable for any resulting financial, criminal and possibly other consequences.
Advertisements
2.8 Where the Leased Premises are part of a building or complex, the Lessor
shall have the right to make use of the roofs, outer walls, gardens and grounds
of that building or complex for (illuminated) advertisements, signs and the
like, both for his own benefit and for the benefit of the Lessee or any third
party. In exercising this right, the Lessor will take account of the Lessee's
interests.
Apartment titles (Appartementsrecht)
2.9.1 If the building, or the complex of which the Leased Premises are part, is
or is to be subdivided into apartment titles, the Lessee will be required to
observe the regulations arising from the property division agreement and rules
governing their use. The same applies if the building or complex of buildings is
or becomes the property of a cooperative. 2.9.2 Insofar as this is within his
power, the Lessor shall not assist in the formulation of regulations which are
in conflict with the lease. 2.9.3 The Lessor will ensure that the Lessee is
provided with the regulations regarding use as referred to in 2.9.1.
Prohibitions and regulations regarding Public Order
2.10.1 The Lessee is not permitted:
a. to have environmentally hazardous materials, including malodorous,
inflammable or explosive substances, in, on, attached to or in the
immediate vicinity of the Leased Premises, unless such materials are part
of the normal carrying on of a profession or business;
b. to burden floors of the Leased Premises or the building or complex of which
the Leased Premises form a part more than is technically permissible or
specified in the lease;
c. to make such use of the Leased Premises that as a result of this use the
soil or environment becomes polluted, the Leased Premises suffer damage, or
the appearance of the Leased Premises is adversely affected, which is
understood to include the use of vehicles as a result of which the floors
may be damaged;
d. to make any alterations or additions in, on or to the Leased Premises which
are in conflict with regulations of the authorities and of public utility
companies or with the conditions under which the owner of the Leased
Premises acquired ownership of the Leased Premises or with any other
limited rights, or to make alterations or additions which create a nuisance
for other Lessees or the neighbors or hinder them in their use.
2.10.2 Without the Lessor's prior written permission the Lessee shall not be
permitted:
a. to make alterations or additions in, on or to the Leased Premises, which
shall include making holes in the outer walls;
b. to affix or have in, on, or to the Leased Premises or in the immediate
vicinity, any objects, including name boards, advertisements, xxxx boards,
announcements, publications, buildings, wooden structures,
-2-
scaffolding, packing materials, goods, vending machines, lighting, awnings,
aerials with fittings, flagpoles, etc., or to render windowpanes opaque;
c. to enter or allow others to enter the service and installation areas, roof
terraces, roofs and drains and the areas and places not reserved for
general use in the Leased Premises or the complex of which the Leased
Premises form a part, unless for work which the Lessee is required to carry
out under this agreement.
d. to park vehicles in places other than those appropriated for this purpose.
2.10.3 The Lessor shall not be liable in any way whatsoever for any alterations
or additions referred to in 2.10.2(a) and (b).
2.10.4 The Lessee shall keep fire fighting equipment and fire exits in the
Leased Premises free and clear at all times.
2.10.5 If the Leased Premises include a lift, rolling carpet, escalator
or automatic door mechanism, or if the Leased Premises can be reached by one or
more of the said facilities, the use of such facilities shall be entirely at a
person's own risk. All regulations issued or to be issued by or on behalf of the
Lessor, the installer concerned or the authorities must be carefully observed.
If and for as long as this is necessary, the Lessor may put the said facilities
out of operation without the Lessee being entitled to any damages or a reduction
in rent.
2.10.6 Where objects installed by the Lessee (including advertisements or other
signs) must be removed temporarily in connection with maintenance or repair work
to the Leased Premises, or the building or complex of which the Leased Premises
form part, the expenses or removal, possible storage and reinstallment shall be
at the Lessee's expense and risk, regardless of whether the Lessor has given
permission for the installations of the objects concerned.
Applications/permission
2.11.1 If the Lessee requires any deviation form and/or addition to any
provision of this agreement, the Lessee shall file his application for such
deviation of and/or addition in writing.
2.11.2 If and to the extent that any provision of this agreement requires the
Lessor's permission, it shall only be deemed granted if given in writing.
2.11.3 Any permission granted by the Lessor shall be for one instance only and
shall not apply to other or subsequent cases. The Lessor shall be entitled to
make his permission conditional.
Subletting
3.1 Subject to the Lessee's prior permission, the Lessee shall not be permitted
to relinquish all or part of the Leased Premises to any third party letting,
subletting or allowing the use of the same, or by transferring the rights of
lease in whole or in part to any third party or by bringing these rights into a
partnership, or legal entity.
3.2 In the event that the Lessee acts in breach of the above provision he will
forfeit to the Lessor for every calendar day that the breach continues an
immediately payable fine, equal to two times the then current daily rent payable
by the Lessee, without prejudice to the Lessor's right to demand compliance or
cancellation, as well as damages.
Rent Adjustment
4.1 Any adjustment of the rent as agreed in 4.3 of the lease will occur on the
basis of the revisions of the monthly index figure according to the consumer's
price index (CP) series CPI Employees Low (1990 = 100), as published by the
Central Bureau of Statistics (CBS). The adjusted rent will be calculated
according to the following formula: the adjusted rent is equal to the current
rent on the adjustment date, multiplied by the index figure of the calendar
month which lies four calendar months before the calendar month in which the
rent is adjusted, divided by the index figure of the calendar month which lies
sixteen calendar months before the calendar month in which the rent is adjusted.
4.2 The rent will not be adjusted if such adjustment would lead to a lower rent
than the most recent rent. In that case that most recent rent shall remain
unchanged, until at a next indexing the index figure of the calendar month,
which lies four calendar months before the calendar month in which the rent is
adjusted, is higher than the index figure of the calendar month, which lies four
calendar months before the calendar month in which the
-3-
last rent adjustment occurred. At that time the index figures of the calendar
months referred to in the previous sentence shall be used in that adjustment.
4.3 The adjusted rent will come into force even if the Lessee is not informed of
this.
4.4 If the CBS discontinues publication of the said consumer index figure or if
the basis of the calculation is changed, an index figure adjusted to this or as
similar to this as possible will be used. In the event of any dispute in this
regard, the party who takes action first may request a statement from the
director of the CBS which will be binding on all parties. Each party will pay
half of any costs arising from this.
End of Lease or Use
5.1 Subject to any statutory right the Lessee shall at the end of the lease, or
on termination of the use, deliver the Leased Premises to the Lessor in the
original state, as set out in the certified description drawn up at the
commencement of the lease as referred to in 1.2 and, in the absence of such
description, in a good state, entirely vacated, free of use or rights to use and
properly cleaned and return all keys, keycards and the like to the Lessor. The
Lessee shall remove at his own expense all objects added to the Leased Premises
or acquired by him from the previous Lessee or user. The Lessor shall not be
required to pay any sum for objects that are not removed.
5.2 If the Lessee has terminated the use of the Leased Premises, whether or not
in due time, without returning the keys to the Lessor, the Lessor shall be
entitled to consider the lease to have expired, to gain access to the Leased
Premises at the Lessee's expense and to take possession of it, without the
Lessee having any right to damages or any other rights.
5.3 Any objects which the Lessee may be deemed to have abandoned by leaving them
in the Leased Premises on actually vacating the Leased Premises may be removed
at the expense of the Lessee by the Lessor, at the latter's discretion and
without any liability on his account, unless the Lessor has been informed that
the subsequent lessee has taken over the objects.
5.4 The parties shall inspect the Leased Premises together in good time before
the end of the lease or the use of it. The parties shall make a report of this
inspection, in which they shall record their findings. This report will also set
out which work in respect or repairs which appeared to be necessary at the time
of the inspection and the established outstanding maintenance for which the
Lessee is required to meet the costs, must still be carried out at the Lessee's
expense and in what way this must be done.
5.5 If the Lessee does not cooperate in the inspection and/or in the recording
of the findings and agreements in the inspection report within a reasonable
period, after having been duly given the opportunity to that effect, the Lessor
shall have the right to carry out the inspection without the Lessee being
present and to determine the report to be binding on both parties. The Lessor
shall give the Lessee a copy of the report without delay.
5.6 The Lessee shall carry out or cause the carrying out of the repairs he is
required to carry out on the basis of the inspection report within the term
specified in the report - or to be further agreed by the parties - to the
satisfaction of the Lessor. If the Lessee, after having been given notice of
default, fails completely or partly to fulfil the obligations arising from the
report, the Lessor shall have the right to have the relevant work carried out
himself and to recover the consequential costs from the Lessee.
5.7 For the period required to carry out the repairs, calculated from the date
of termination of the lease, the Lessee will be in debt to the Lessor for a sum
calculated on the basis of the most recent rent and additional supplies and
services, without prejudice to the Lessor's claim for compensation for further
damages and costs.
Damage
6.1 The Lessee shall take appropriate steps in due time to prevent and limit
damage to the Leased Premises, such as damage caused by short circuits, fire,
leakage, storms, frost and any other weather condition, the inward or outward
flow of liquids and gases. The Lessee shall inform the Lessor immediately if
such damage or an event such as referred to in 6.5 occurs or seems likely to
occur.
6.2 If the Lessee has the possibility to do so, the foregoing shall also apply
to the building or complex of which the Leased Premises form part.
6.3 The Lessee shall be responsible to the Lessor for any damage and loss to the
Leased Premises, unless the Lessee proves that he, the persons he has admitted
to the Leased Premises, his staff or the persons for whom he is responsible are
not to blame or that negligence cannot be held against him in that respect.
-4-
6.4 The Lessee shall indemnify the Lessor against penalties which are imposed on
the Lessor for actions or negligence of the Lessee.
6.5 The Lessor shall not be liable for any damage done to the person or goods of
the Lessee or of third parties - and the Lessee shall indemnify the Lessor
against liability for claims from third parties in this respect - due to the
emergence and the consequences of visible and invisible faults in the Leased
Premises or the complex of which the Leased Premises form part, or which arise
due to the occurrence of weather conditions, impediments to the accessibility of
the Leased Premises, impediments to the supply of gas, water, electricity,
heating, ventilation or air conditioning, due to faults in the installations and
apparatuses, due to the inward and outward flow of liquids and gases, due to
fire, explosion and other occurrences, due to disruption of the benefits of
leasehold or due to disruption or faults in supplies or services, all of which
to the exception of cases of damage resulting from gross faults or serious
negligence on the part of the Lessor in respect of the state of repair of the
Leased Premises or of the building or complex of which the Leased Premises form
a part.
6.6 The Lessor shall not be responsible for the Lessee's loss in trade resulting
from the activities of other lessees or obstructions to the use of the Leased
Premises caused by third parties, except in the event of gross fault or serious
negligence of the Lessor in that respect.
Interim Termination, Default
7.1 If the Lessee
- does not pay the sums due by him at the specified times;
- ceases to practise his profession or carry on his business wholly or for a
large part in the Lease Premises;
- does not comply with any other condition of the lease;
- does not heed any condition attached to permission given by the Lessor;
- loses power to dispose of his capital or a part of it;
- loses his status as a legal entity, is wound up or in actual fact is
liquidated, provided that the Lessee is not a natural person;
- is declared to be bankrupt;
- offers a settlement in lieu of bankruptcy, or if the goods of the Lessee
are attached;
- dies;
the Lessor shall have the right to terminate the lease prematurely. This shall
only be preceded by a notice if the law so requires.
7.2 If any specified period of payment should lapse or if any situation as
mentioned above should arise, the Lessee will be in default as a consequence.
7.3 The Lessee shall compensate the Lessor for all damage, costs and interests
as a result of a situation as mentioned in 7.1 and as a result of premature
termination of the lease, even in the event that he is granted a moratorium of
payments or is declared bankrupt. This damage shall include in any case the
rent, the expenses for additional supplies and services, including heating
costs, V.A.T. and the other amounts due, the costs of reletting the Leased
Premises as well as all costs incurred by the Lessor in actions in and out of
court, including those for legal assistance with regard to a situation as
referred to in 7.1.
7.4 The provisions of 7.1 to and including 7.3 shall not exclude the Lessor's
right to exercise his other rights, including his right to demand payment or
performance with damages.
Bank Guarantee
8.1 As security for the correct fulfilment of his obligations arising from the
lease, the Lessee shall present the Lessor with a bank guarantee at the signing
of the lease according to a specimen indicated by the Lessor, for an amount to
be specified in the lease and related to the Lessee's payment obligations to the
Lessor, increased by the applicable V.A.T. This bank guarantee shall also apply
to extensions of the lease including amendments to it and shall remain valid
until six months after the date on which the Leased Premises are actually
vacated and the lease is terminated. This bank guarantee shall in addition apply
to the Lessor's assigns.
8.2 The Lessee may not demand a settlement for any amount against the bank
guarantee.
8.3 In the event that a claim is made against the bank guarantee, the Lessee
shall at the Lessor's first request arrange for a new bank guarantee which meets
the requirement stated in 8.1 and 8.4, for the full sum.
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8.4 After an upward adjustment of the rent, of the expenses for supplies and
services or of the advance payments for these, the Lessee shall take immediate
steps to ensure that a new bank guarantee is issued for a sum adjusted to the
new payment obligations.
8.5 If the Lessee does not fulfil his obligations as set out in this clause, he
shall forfeit to the Lessor for every breach an immediately payable fine of NLG
500.00 per calendar day he remains in default after he has been informed of his
omission by registered letter.
Maintenance and Preservation
At the Lessor's expense
9.1 Unless it concerns work which may be considered to be of a limited nature
and day-to-day repairs as referred to in the law (section 7A:1619 Dutch Civil
Code) or work on objects which are not installed by or on behalf of the Lessor,
the following shall be at the expense of the Lessor:
a. maintenance, repair and renovation of structural parts of the Leased
Premises, such as foundations, pillars, beams, concrete floors, roofs,
terraces, structural walls, outer walls;
b. maintenance, repairs and renovation of staircases, stairs, sewers, drains,
gutters, outer casings of windows and doors, and the like. In respect of
sewers the condition set out in 9.2.4 shall remain in full force;
c. replacement of parts and renovation of installations such as lifts, central
heating installations and fire hydrant boosters;
d. exterior paint work.
At the Lessee's expense
9.2.1 All other maintenance, repairs and renovations such as the following shall
be at the expense of the Lessee:
a. exterior maintenance if and insofar as it concerns work which must be
considered to be of a limited nature and day-to-day maintenance in terms of
the law (section 7A:1619 Dutch Civil Code), as well as interior maintenance
which does not include maintenance as referred to in 9.1 without prejudice
to the further conditions hereof;
b. maintenance, repair and renovation of hinges and locks, plate glass, window
glass and other glass, both inside and out;
c. maintenance, repair and renovation of roller blinds, Venetian blinds,
awnings and other blinds;
d. maintenance, repair and renovation of switches, sockets, doorbell systems,
light bulbs, lighting (including fittings), carpeting, upholstery, interior
paint work, sinks, toilet facilities;
e. maintenance, repair and renovation of pipes and taps of gas, water,
electricity from the meter or main tap with all appurtenances, subject to
renovation for normal wear;
f. maintenance, repair and renovation of fences as well as maintenance of
gardens and maintenance of the grounds;
g. daily maintenance and repair (and renovation of small parts) of the
technical installations of the Leased Premises.
9.2.2 The Lessee shall pay for maintenance, repair and renovation of objects
which have been or will be installed by or on behalf of the Lessee under an
approximate estimate made available to him by the Lessor.
9.2.3 The Lessee shall furthermore pay for the care for cleaning the Leased
Premises and keeping the same clean, both inside and out, which shall include
the cleaning of windows, window frames and outer walls of the Leased Premises.
9.2.4 In addition the Lessee shall be responsible for the emptying of grease
traps, the cleaning and unblocking of cesspits, gutters and all drains/sewers of
the Leased Premises up to the municipal main sewers, the sweeping of chimneys
and the cleaning of ventilation ducts.
9.3 If the Lessee fails to carry out maintenance, repairs or renovations at his
own expense after being reminded - or if these are carried out badly or
injudiciously in the opinion of the Lessor - the Lessor shall be entitled to
carry out this work or have it carried out at the expense and risk of the
Lessee. If the work to be carried out at the expense of the Lessee can brook no
delay, the Lessor shall be entitled to carry out this work or to have it carried
out at the Lessee's expense.
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9.4 In the event of maintenance, repair and renovation work to be carried out by
the Lessor, the Lessor will consult with the Lessee in advance in which case the
latter interests may be taken into consideration where possible. Extra costs for
work to be carried out at the Lessee's request outside normal working hours,
shall be at the Lessee's expense.
9.5 The Lessee shall be responsible for the proper and competent use and
maintenance of the Leased Premises including the technical installations in the
Leased Premises. The Lessee shall at his own expense and risk conclude service
contracts. Services contracts for the installations shall be approved in advance
by the Lessor. As far as the maintenance is concerned the above conditions shall
apply except and to the extent that 12.2 is applicable.
9.6 The Lessee shall notify the Lessor immediately in writing of any faults to
the Leased Premises.
9.7 If the Lessee an the Lessor have agreed that the objects which are at the
expense of the Lessee under this clause are not carried out on the instruction
of the Lessee but of the Lessor, the costs of the same shall be passed on by the
Lessor to the Lessee. The Lessor shall in a number of cases conclude maintenance
contracts for such purpose.
Adjustments
10. If the Lessor considers it necessary to carry out maintenance, repairs,
renewals, including extra facilities and alterations, renovations or other work
in, on or to the Leased Premises or the building or complex of which the Leased
Premises form part or on the adjoining properties, or to have such work carried
out, or if such work is necessary due to (environmental) requirements or
measures by the authorities or public utility companies, the Lessee shall permit
and suffer this work and these measures and the inconvenience, if any, without
being able to claim damages, reduction of his payment obligations or
cancellation of the lease, even if all of this lasts for longer than forty days,
without prejudice to the provisions of section 7A:1589 Dutch Civil Code. In the
execution of the work the Lessor shall take account of the Lessee's interests
where possible.
Access of the Lessor
11.1 If the Lessor wants (to have) an assessment of the Leased Premises, or
wants to carry out the work as referred to in 2.6, 5, 9.3 or 10, the Lessee
shall give the Lessor, or the person who will report to the Lessee for this
purpose, access to the Leased Premises and enable the latter to carry out the
necessary work.
11.2 For the purpose of 11.1 the Lessor and all persons designated by him shall
be entitled to enter the Leased Premises after consultation with the Lessee on
working days between 7:00 a.m. and 5:30 p.m. The Lessor shall be entitled to
enter the Leased Premises in cases of emergency without consultation and where
necessary outside the specified times.
11.3 In the event of the intended sale or auction of the Leased Premises and
after termination of the lease, the Lessee shall, after prior notice by the
Lessor or his attorney, without compensation, provide an opportunity for
inspection of the Leased Premises during at least two working days every week.
He will permit the usual notices or posters "To Let" or "For Sale" on or near
the Leased Premises.
Costs of Supplies and Services
12.1 In addition to the rent, the Lessee will meet the costs incurred for the
use of water and electricity for the Leased Premises, including the costs for
concluding an agreement for the supply and for the hiring of a meter, as well as
any other costs and penalties charged by public utility companies. The Lessee
shall himself conclude the agreements for supplies with the institutions
involved, unless the Leased Premises have no separate connections and the Lessor
sees to these matters as part of the agreed supplies and services.
12.2 If the parties have agreed on additional supplies and services to be
rendered by the Lessor, the Lessor will determine the sum payable by the Lessee
on the basis of the costs arising from the supplies and services and the
accompanying administrative tasks. This also applies to technical installations
and other supplies and services. If the Leased Premises form part of a building
or a complex and the supplies or services also relate to other parts of the
same, the Lessor shall determine a reasonable sum payable by the Lessee for the
Lessee's share of the cost of such supplies and services. The Lessor need not
take account of the fact that the Lessee may not make use of one or more of
these supplies or services. If one or more sections of the building or the
complex
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are not in use, the Lessor will ensure when determining the Lessee's share that
the share is not larger than it would be if the entire building or complex were
in use.
12.3 The Lessor shall render to the Lessee on an annual basis an itemized
statement of the cost of supplies and services, specifying the way in which
these have been calculated and the Lessee's share of the costs, where
applicable.
12.4 At the end of the lease a statement shall be provided for the period not
yet covered. This last statement shall be provided after expiry of a maximum of
14 months calculated from the period on which the previous statement was
provided. Neither the Lessee nor the Lessor shall claim early settlement.
12.5 If the statement on the period in question, taking account of advance
payments, shows any shortfall in payments by the Lessee or any excess receipts
by the Lessor, these will be paid or reimbursed within one month of the
statement being issued. Any disputes as to the correctness of the statement
shall provide no grounds for suspension of this obligation.
12.6 The Lessor has the right to alter or cancel the type and range of supplies
and services after consulting the Lessee.
12.7 The Lessor has the right to adjust the advance payments payable by the
Lessee of the expenses for supplies and services prematurely to the costs he
expects to incur, inter alia in an event as referred to in 12.6.
12.8 In the event that heating and/or hot water are included in the supplies and
services, the Lessor may adjust the method of determining the consumption of
these and the Lessee's share in the cost of this consumption after consultation
with the Lessee.
12.9 If the consumption of heating and/or hot water is measured using meters and
a dispute arises regarding the Lessee's share in the costs of consumption as a
result of the failure of malfunctioning of these meters, this share shall be
determined by a company specialised in measuring and determining consumed
heating and/or warm water consulted by the Lessor. This shall also apply in case
of damage, destruction of fraud in relation to meters, without prejudice to any
other claims the Lessor may have against the Lessee in such a case, such as a
claim for repairs to or replacement of the meters and compensation for damage
suffered.
12.10 Save in the event of serious negligence or gross fault, the Lessor shall
not be liable for any damage as a result of the malfunctioning or improper
supply of the supplies and services referred to herein. Nor shall the Lessee be
able to claim rent reduction in such cases.
Costs
13. In all cases in which the Lessor has a warning notice, a notice of default
or a writ served on the Lessee, or in the case of actions against the Lessee to
coerce him to act in accordance with the lease or to evict him, the Lessee shall
be required to reimburse the Lessor for all costs incurred, both in and out of
court, except for legal costs payable by the Lessor by virtue of a final
decision by the court. The costs to be incurred will be set in advance by the
parties at an amount which shall not be less than the usual rate charged by
bailiffs.
Payments
14.1 The payment of rent and all amounts payable under this lease will be made
at the latest on the due date in legal Dutch tender - without any suspension,
discount, reduction, or settlement with a claim which the Lessee has, or has in
his opinion, against the Lessor - by payment or transfer to an account specified
by the Lessor. The Lessor shall be free to alter the place or manner in which
payment is to be made by giving the Lessee written notice to this effect. The
Lessor shall be entitled to determine the outstanding amount under the lease
from which payments received from the Lessee will be deducted, unless the Lessee
specifically states otherwise upon payment. In the latter case section 6:50 of
the Dutch Civil Code shall not be applicable.
14.2 Every time when an amount owed by the Lessee by virtue of the lease is not
paid promptly on the due date, the Lessee will forfeit to the Lessor by
operation of the law as of the due date an immediately payable fine of 2 per
cent a month of the amount owing with a minimum of NLG 250.00 per calendar
month, with each month after commencement counting as a full month.
Taxes, Expenses, Levies, Premiums etc.
15.1 If it has been agreed that V.A.T. will be charged on the rent, the Lessor
shall file an application as referred to in 5.2 of the lease to the inspection
in question.
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15.2 If the application is not to be granted, the Lessee shall owe the Lessor an
amount over and above the rent corresponding with the amount of V.A.T. that
would have been payable had the application been granted. If an application is
granted with effect from a later date than requested, the Lessee shall owe the
Lessor an amount over and above the rent corresponding with the amount of V.A.T.
as of the agreed commencement date up to the date of commencement of the taxed
rent.
15.3 If the Lessee shows the application was not granted or not granted on the
agreed date by the Lessor's action, the amount corresponding with the V.A.T. as
referred to in 15.2, shall not be payable.
Other taxes, expenses, levies, premiums etc.
15.4 The Lessee shall pay, even if the Lessor is assessed for the same:
a. the real estate tax and the district water board charges or polder dues
regarding the actual use of the Leased Premises and the actual joint use of
service areas, general areas and areas in common use;
b. other current or future taxes, sufferance dues, charges, levies and
utilization taxes with respect to the Leased Premises and property of the
Lessee, except for the real estate tax and the district water board charges
or polder dues in respect of the enjoyment under a right in rem and except
for the sewerage charges;
c. environmental levies including surface water purification levies and
charges for waste water purification and any other amounts on account of
environmental protection.
15.5 If the Lessor or other lessees in the building or the complex are charged a
higher premium for fire insurance for the building or the inventory of the
Leased Premises or the complex of which the Leased Premises form part, as a
consequence of the nature of performance of the profession or business of the
Lessee, the Lessee shall reimburse the amount over and above the normal premium
to the Lessor or such other lessees. The Lessor and the other lessees shall be
free to choose their insurance company, to set the value insured and to assess
the reasonableness of the premium payable. "Normal Premium" shall be understood
to mean the premium the Lessor of the Lessee may stipulate from any reputable
insurer established in the Netherlands for the insurance of the Leased Premises
or his inventory and goods, against fire risk at the time immediately preceding
the conclusion of the lease, without taking account of the nature of the
business or profession to be carried on by the Lessee in the Leased Premises, as
well as - for the duration of the lease - each adjustment of this premium, which
does not result from any change of the nature or extent of the risk insured.
Severability
16.1 If several (natural or legal) persons have committed themselves as Lessees,
they shall always be severally liable and each for the whole to the Lessor for
all commitments arising from the lease. Suspension of payments or discharge by
the Lessor to or of one of the Lessees or an offer to that effect, shall only
concern such Lessee.
16.2 The commitments arising from the lease are severable, also with respect to
the heirs and assigns of the Lessee.
Untimely Availability
17.1 If the Leased Premises are not available on the agreed commencement date of
the lease, as a result of the fact that the Leased Premises are not ready on
time - not being due to the Lessee's request - the previous user has not vacated
the Leased Premises on time or the Lessor has not yet obtained from the
authorities the licenses for which he, the Lessee, is responsible, the Lessee
shall be exempt from payment of rent or expenses for additional supplies and
services until the date on which the Leased Premises are available to him and
his other obligations and the agreed terms of the lease will be postponed
accordingly. The price index date shall remain unchanged.
17.2 The Lessor shall not be liable for damage to the Lessee resulting from the
delay, unless serious negligence or gross fault can be imputed to him in this
respect.
17.3 The Lessee may not claim cancellation, unless the overdue delivery is a
result of premeditated action or negligence on the part of the Lessor, and as a
consequence leads to such a delay that the Lessee cannot reasonably be expected
to uphold the agreement without amendments.
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Data Protection Act (Wet Persoonsregistratie)
18. If the Lessee is a natural person, the Lessee's personal data may have been
recorded by the Lessor and the administrator (if any) in a personal data file.
Domicile
19.1 From the commencement date of the lease all communications from the Lessor
to the Lessee relating to the fulfilment of this lease, shall be addressed to
the Leased Premises.
19.2 The Lessee shall immediately notify the Lessor if he no longer actually
carries on his business in the Leased Premises, stating his new domicile in the
Netherlands.
19.3 In the event that the Lessee should leave the Leased Premises without
giving the Lessor his new domicile in the Netherlands, the address of the Leased
Premises shall be the Lessee's domicile.
Complaints
20. The Lessee shall submit his complaints and requests in writing. In urgent
cases, he may do so by word of mouth. In such cases, the Lessee shall confirm
his complaint or request in writing as soon as possible.
Administrator
21. Where an administrator is or has been appointed by the Lessor, the Lessee
will consult the administrator in all matters relating to the lease.
Final Clause
22. Should any part of the lease or of these General Conditions be null or
voidable, this shall not affect the remaining parts of the lease and these
General Conditions. Instead of the annulled or null part, the agreements which
are nearest to what the parties would have agreed, had they known of the nullity
or voidance, shall be considered to be agreed.
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