EXHIBIT 10.11
LEASE AGREEMENT PERTAINING TO OFFICE PREMISES
and other industrial Units not in accordance with Article 7A: 1624 of the Dutch
Civil Code
The undersigned Multimodaal Transportcentrum Amsterdam Westpoint v.o.f.,
established at Cacaoweg 20, in Amsterdam (1047 BM) in the Netherlands,
hereinafter to be referred to as "Lessor," duly represented in this matter by Mr
A.C. Ramselaar by power of attorney, and Starbucks Manufacturing EMEA B.V., a
Dutch corporation, duly represented in this matter by Xx X.X. X'Xxxx,
hereinafter to be referred to as "Lessee" hereby agree as follows:
The Leased Premises, Designated Use and Use
1.1 This Lease Agreement pertains to warehouses (together approximately
6415 m(2)), office space on the ground floor level consisting of approximately
1160 m2 ("Ground Floor Office Space"), office space on the first floor level
consisting of approximately 1160 m2 ("First Floor Office Space") (the Ground
Floor Office Space and the First Floor Office Space are collectively referred to
herein as the "Office Space") and a designated parking area, to be constructed
by Lessor as outlined and specified in Section 5 herein, situated at Westpoint
II, referred to in the land register as: Municipality of Haarlemmerliede en
Spaarnwoude, Section L, number 3114 (partial) and fully known to both parties,
hereinafter to be referred to as the "Leased Premises," and as shown on EXHIBIT
A attached hereto and made a part hereof, as specified on the preliminary plans
attached as EXHIBIT B and the technical description attached as EXHIBIT C (as
used herein the term Leased Premises also refers to the "leased premises" as
expanded from time to time pursuant to the terms hereof).
1.2 Lessee shall have the right to occupy and/or use the Leased Premises
for any lawful purpose or purposes, subject to the restrictions contained in
Lessee's environmental permit and in the ground lease, including without
limitation as a business accommodation for uses such as production,
manufacturing, distribution and warehousing, including without limitation coffee
roasting, distributing, manufacturing and storage, with ancillary offices.
1.3 The maximum load to which the floors of the industrial Units within
the Leased Premises may be subjected is 2.500 kg/m2. However, a part of the
floors of the industrial Units within the Leased Premises is reinforced and may
be subjected to 4000 kg/m(2), this part is specified in EXHIBIT D, attached
hereto and made a part hereof. The maximum load to which the floors of the
offices within the Leased Premises may be subjected is 500 kg/m2. The floors may
not be subjected to any load that exceeds the maximum permissible load.
1.4 As of the date of the signing of the present Lease Agreement, Lessor
and the Municipality of Amsterdam, the bare owner (the "Owner"), shall have
entered into a ground lease in (the "Ground Lease") more particularly described
in EXHIBIT E attached hereto and made a part hereof. Pursuant to the letter from
the Owner to Lessee, dated 31 October 2001, attached as EXHIBIT F, the Owner has
consented to this lease, the Owner has consented to Lessee becoming a ground
lessee of the Leased Premises if Lessee exercises its option to purchase the
Leased Premises with Lessee in such event, and the Owner has consented that in
that event a direct ground lease relationship between the owner and Lessee in
respect of the Leased Premises will arise. Lessor hereby agrees that it will at
all times comply with all of the covenants, terms, conditions and obligations of
the Ground Lease, that it will keep the Ground Lease in full force and effect
and that
1
this lease and all of Lessee's rights hereunder are not and will not be subject,
in a manner disadvantageous to Lessee, to any liens.
General Terms and Conditions
2.1 The General Terms and Conditions applicable to lease agreements pertaining
to the lease of office space and other industrial Units not in accordance with
Article 7A: 1624 of the Dutch Civil Code, as filed at the Office of the District
Court in `s-Gravenhage on 29 February 1996, registered under number 34/1996
(hereinafter referred to as "the General Terms and Conditions") are considered
to constitute an integral part of this Lease Agreement. The content of the said
General Terms and Conditions is known to the parties hereto and Lessee has
received a copy of said General Terms and Conditions.
2.2 The General Terms and Conditions referred to in the previous clause apply to
the extent that the provisions set out in this Lease Agreement do not expressly
stipulate otherwise, unless the application of the said General Terms and
Conditions is not possible in the case of the Leased Premises.
Duration, Renewal and Termination of the Lease Agreement
3.1 This Lease Agreement is entered into for a period of ten (10) years and the
number of days between the date of Substantial Completion of the Leased Premises
and the Commencement Date, commencing on the date on which the Leased Premises
are Substantially Completed (as such term is defined in Section 5 below). For
practical purposes, the Commencement Date of the Lease Agreement will be deemed
to coincide with the first day of the month following the month in which the
Leased Premises are Substantially Completed.
3.2 Following the expiry of the term of the lease referred to in the previous
clause, this Lease Agreement is to be extended for an additional period of five
(5) years, unless this Lease Agreement has been terminated by Lessee in
accordance with the stipulation set out in clause 3.3 hereof. Upon the expiry of
the first option period as referred to above, the Lease Agreement will be
renewed 3 more times, each time by 5 years, unless Lessee terminates the present
Lease Agreement by the end of a current lease period in accordance with the
stipulation set out in Section 3.3 and Section 3.4. Lessor may thus not
terminate until by the end of the thirtieth year of the lease, also with due
observance of a term of at least 9 calendar months.
3.3 Termination of this Lease Agreement is to be by means of notice of
termination issued towards the end of a term of the lease with due observance of
a period of notice of at least nine (9) calendar months. Lessor will serve a
reminder notice in writing to Lessee at least twelve (12) calendar months before
the end of a term of this lease, in order to signal to Lessee that a notice of
termination might be issued by Lessee.
3.4 Notice of termination is to be served in the form of a writ or to be sent by
registered letter.
3.5 Premature termination of this lease is possible in the event that one of the
circumstances listed in Article 7 of the General Terms and Conditions arises.
2
3.6 This Lease Agreement may also end automatically in accordance with the
provisions set forth in Section 5 hereof.
Payment Obligation, Term of Payment
4.1 The payment obligation (the "Rent") incumbent upon Lessee under the terms of
this Lease Agreement comprises:
the Base Rent (as such term is defined herein)
the Additional Rent (as such term is defined herein)
the fee for any additional amenities and services
described in Section 7 plus any value added tax that may
apply
the value added tax that applies to the Base Rent and
Additional Rent or an equivalent sum in the cases
referred to in Section 13.2 of this Lease Agreement.
4.2 At the outset of the Lease Agreement, Lessee shall pay the sum of one
hundred and thirteen euros and forty-four eurocents (113.44) (two hundred and
fifty (250) guilders)/m(2) on an annual basis for that portion of the Office
Space which is more particularly shown on the drawing attached hereto as EXHIBIT
B and as indicatively technically described in the document attached hereto as
EXHIBIT C (the "Finished Office Space"), fifty-five euros and thirty-six
eurocents (55.36) (one hundred twenty-two (122) guilders)/m(2) for warehouse
space, and forty-five euros and thirty-seven eurocents (45.37) (one hundred
(100) guilders)/m(2) for the remaining portion of the Office Space that may be
completed in the future in accordance with Section 5.14 (the "Unfinished Office
Space") (collectively, the "Base Rent"). The Base Rent for the Unfinished Office
Space shall increase to one hundred and thirteen euros and forty-four eurocents
(113.44) (two hundred fifty (250) guilders)/m(2) per annum upon the completion
in accordance with Section 5.14. In the event that Lessee desires to lease
additional exclusive parking spaces (in addition to those provided under Section
13.7 below), Lessee shall provide written notice to Lessor. Such notice shall
include the number of additional exclusive parking spaces requested by Lessee.
Provided such additional exclusive parking spaces are available, Lessor shall
lease such additional exclusive parking spaces to Lessee. Lessee and Lessor
shall reasonably agree on the location of all such additional exclusive parking
spaces. Lessee shall pay the sum of thirteen euros and sixty-one eurocents
(13.61) (thirty (30) guilders)/m(2) on an annual basis per additional exclusive
parking space leased to Lessee.
4.3 The Base Rent is established and indexed on the basis of the price index
that applies as per 1 September 2002. The Base Rent shall be revised for the
first time on the first (1st) anniversary of the Commencement Date, and every
year thereafter on an annual basis in accordance with Article 4 of the General
Terms and Conditions. The above also applies to the rent for the additional
exclusive parking space(s) referred to in the last sentence of Section 4.2.
4.4.1 For the Additional Improvements referred to in Section 5, Lessee shall pay
an amount equal to: (a) the annual amortization of the Additional Improvements
increased by (b) interest on the amount of the prime costs of the Additional
Improvements, which interest rate shall be equal to the effective interest rate
of the financing arrangement that Lessor will conclude hereto, after approval by
Lessee, to finance the Additional Improvements and commence as of the date which
is the latter
3
of: (i) the date of the investments concerned or (ii) the date on which Lessee's
obligation to begin paying Rent hereunder commences pursuant to Section 4.5
below, and also to be increased by (c) an additional two percent (2%) to cover
the development fee and risks for Westpoint (the "Additional Rent"). Upon the
full amortization of the Additional Improvements, Lessee shall no longer be
liable for the payment of Additional Rent. The amortization term for the
Additional Improvements shall be calculated as follows: (i) the Additional
Improvements related to the base building shall have an amortization term based
on the economic lifecycle of the Additional Improvements concerned and
determined in accordance with generally accepted accounting principles
consistently applied, but in no event will such term be less than ten (10)
years, and (ii) all other Additional Improvements shall have an amortization
term of 10 years. Lessor shall include the costs of the 13.1 meter clear height,
increased floor loading, and increased pile lengths (if necessary) in the Base
Rent as stated above and those improvements are therefore not characterised as
Additional Improvements. If Lessee terminates the Lease Agreement before expiry
of the amortization term of the Additional Improvements, Lessee shall within 3
months of the end of the lease compensate Lessor for the portion of the cost
price of the Additional Improvements concerned that was not amortized, increased
by any costs involved in the early repayment of the financing arrangement
concluded by Lessor for the purpose of those Additional Improvements, all this
in so far as not pertaining to Additional Improvements that are taken over by
subsequent lessees within two (2) years of the end date of the present Lease
Agreement. Lessor will inform Lessee in writing of subsequent leases until two
(2) years after the end date of the present Lease Agreement.
4.4.2 Lessee and Lessor have agreed a separate arrangement with regard to the
installation of a sprinkler system, based on a proposal by Lessor to Lessee,
dated 22 October 2001, and attached to the present agreement as EXHIBIT G, in
the manner set out in this Section 4.4.2. The sprinkler system to be installed
within the framework of the present agreement is capable of providing the entire
Westpoint II building, as currently envisaged by Lessor, the said building
consisting of 6 phases, with sprinkler facilities. The costs involved in the
installation of the sprinkler system can therefore be divided into the costs
involved in installation of the central sprinkler system, the so-called
"capacity costs", and the costs involved in the installation of the sprinkler
facilities per phase that are to be connected to the central sprinkler
installation, the so-called "direct costs", all this as explained in EXHIBIT G.
The direct costs for the sprinkler facilities of a certain phase will be
entirely for Lessee's account - in the manner to be set out below - if Lessee
leases the phase concerned and as soon as the sprinkler facilities concerned
have been realised (in the first instance, the Leased Premises will comprise
only phase 1). At Lessee's discretion, Lessee may either pay the direct costs by
characterising the sprinkler facilities related to the direct costs as
Additional Improvements, resulting in an Additional Rent to be calculated in
accordance with Section 4.4.1, or by paying the direct costs concerned directly
to the relevant contractor. Each of the parties shall pay one half of the
capacity costs. Lessee shall pay its portion of the capacity costs via the
Additional Rent with due observance of Section 4.4.1. As no more than
approximately 24.5% of the capacity costs pertains to phase 1, assuming the
final realisation and lease of all phases, the payment by Lessee of the
Additional Rent in respect of the remaining 25.5% of the capacity costs will be
decreased if and as soon as Lessor leases phases 2 and/or 3 to a third party, in
proportion to the floor area included in such lease. The direct costs and the
capacity costs shall have an amortization term of 20 years. Upon termination of
the Lease Agreement, Lessee will not be obliged to remove the sprinkler system
and the sprinkler provisions as referred to in EXHIBIT G.
4.5 Lessee's liability for Base and Additional Rent increased by the turnover
tax due thereon shall commence one month after the date on which the Leased
Premises were Substantially
4
Completed as referred to in Section 5. As from the date on which the Leased
Premises are Substantially Completed, as referred to in Section 5, Lessee shall
also pay the advance referred to in Section 4.6 and the turnover tax due
thereon.
4.6 Payment of the fee for the ancillary amenities and services referred to in
Section 7 is to be provided for by means of a system of advance payment with
final settlement at a later date, as described in Article 12 of the General
Terms and Conditions. At the outset of this Lease Agreement, the advance for
amenities and services amounts to nine euros and eight eurocents (9.08) (twenty
(20) guilders)/m2 for Finished Office Space (provided that such amount shall not
be applicable to the Unfinished Office Space until such time that the Unfinished
Office Space rent increase commences), one euro and thirty-six eurocents (1.36)
(three (3) guilders)/m2 for warehouse space, and twenty-three eurocents (0.23)
(fifty cents (0.5) guilders)/m2 for the exclusive parking space(s) for Lessee,
all on an annual basis.
4.7 The Base Rent, the Additional Rent, the advance payment relating to the fee
for the additional amenities and services and the value added tax, or the
equivalent sum as stipulated in Section 13.2, of this Lease Agreement are to be
paid in advance as a lump sum in the amount of two monthly instalments. Payment
is to be made by means of transfer to the bank account yet to be stipulated by
Lessor on or before the first day of the relevant calendar month.
"Build to Suit"
5.1 Lessor shall construct, for its own account and risk, the spaces referred to
in Section 4.2, which shall include access roads, driveways and the parking area
in accordance with the Plans attached hereto as EXHIBITS A, B AND C (the
"Preliminary Plans") and as possibly adjusted on account of any law, ordinance,
rule or regulation (hereinafter: the "Basic Facilities"). Initially, Lessor
shall construct the Office Space pursuant to the standards set forth in EXHIBITS
B AND C (excluding, however, the Unfinished Office Space, which shall be
completed in accordance with the provisions of Section 5.14 below).
During the term of the present agreement, Lessee may request that Lessor
realises or has realised Additional Improvements with regard to the Leased
Premises (hereinafter and above referred to as Additional Improvements). To the
extent that the request must be deemed reasonably acceptable to Lessor, the
parties will in mutual consultation attempt to reach an agreement on all aspects
of the Additional Improvements concerned, with due observance of Section 4.4.1.
Lessor shall be responsible for paying the costs of the design and construction,
provided that if as a result of the environmental permit obtained by Lessee
additional improvements need to be constructed, such improvements shall be
included in the Additional Improvements.
A final set of Construction Plans (the "Final Plans") is to be approved by both
Lessor and Lessee in writing prior to commencement of construction, provided
that such Final Plans shall be consistent with the Preliminary Plans and that
which was agreed at the site meetings.
Lessor shall be responsible for procuring all necessary licenses and permits for
the construction of the Basic Facilities and will use best endeavours to procure
all necessary licenses and permits for the construction of the Additional
Improvements (the "Permits"), with the exception that Lessee shall
5
be responsible for obtaining the environmental permit necessary for its
operation of a coffee roasting plant, warehouse and distribution centre. All
costs related to the environmental permit are for Lessee's account. Procuring
the Permits will have to be done in close consultation between Lessee and Lessor
and Lessee will have to assist Lessor in procuring the permits as much as
possible.
5.2 Lessor shall have the right to select and approve the contractor who will
carry out the construction work referred to in Section 5.1, which contractor
will be Hercuton B.V. and/or Ooms Bouwmaatschappij B.V. Lessor shall be
exclusively responsible vis-a-vis Lessee for constructing the Additional
Improvements. In connection with the construction of the Additional
Improvements, Lessee shall have the right to require Lessor to acquire bids from
at least two (2) contractors that are reasonably acceptable to Lessee, which
bids shall be itemised in detail reasonably satisfactory to Lessee, and Lessee
shall be furnished copies of all bids received by Lessor. Lessee shall have the
right to select the contractor(s) who will construct the Additional
Improvements, notwithstanding the fact that the contractor to be selected has to
be reasonably acceptable for Lessor. However, Lessee assumes no obligations with
respect to the manner or quality of this construction.
5.3 Lessor shall (i) commence construction of the Basic Facilities and
realisation of the Additional Improvements agreed prior to the start of the
construction as soon as reasonably possible after obtaining all Permits (ii)
diligently proceed with the construction of the Basic Facilities and those
Additional Improvements, and (iii) achieve Substantial Completion (as such term
is defined below) of the same as soon as reasonably possible but in any event
within seven (7) months after obtaining the Permits referred to in Section 5.1,
including the environmental permit. Substantial Completion of the construction
of the Basic Facilities and the realisation of the Additional Improvements
agreed prior to the start of the construction shall be determined to be the
point at which (a) Lessor and its Architect deliver to Lessee a notice of
Substantial Completion, (b) Lessor delivers possession of the Leased Premises to
Lessee and (c) the construction of the Basic Facilities and the realisation of
the Additional Improvements that were agreed prior to the start of the
construction are Substantially Completed in accordance with the Final Plans
referred to in Section 5.1, subject only to minor items that will not and do not
materially interfere with Lessee's occupancy of the Leased Premises
(hereinafter: "Substantial Completion" or "Substantially Completed").
5.4 Lessor has indicated to Lessee that some lead time will be involved in the
acquisition of piles and piling equipment. The lead times and dates for ordering
such materials are described in EXHIBIT H attached hereto and made a part
hereof. No later than two weeks before issuance of the building permit, Lessee
shall notify Lessor if Lessor should order such materials or not order such
materials. If Lessee instructs Lessor to order such materials, then said seven
(7) month period described above shall not be changed and Lessee shall be
obligated to (i) pay the costs which Lessor incurs in that regard and shown in
EXHIBIT H or (ii) compensate the actual damages incurred by Lessor with respect
to the cancellation of the order for such materials, in so far as that damage is
lower than the aforementioned costs, if Lessee terminates the present agreement
pursuant to Section 5.12 and Lessor consequently cancels the order. If Lessee
fails to instruct Lessor to order such materials, the said seven (7) month
period shall be extended by one day for each day of delay in ordering such
materials beyond the specified date therefore shown in EXHIBIT H, Lessor shall
then order such materials immediately upon receipt of Lessee's notice to order
such materials.
6
5.5 Lessor shall advise Lessee no less frequently than monthly regarding the
status of the construction of the Basic Facilities and the Additional
Improvements. In addition, Lessor shall provide Lessee with at least ten (10)
days notice of the anticipated Substantial Completion date of the Basic
Facilities and the Additional Improvements agreed prior to the start of the
construction. Lessee shall have the right to have Lessee's Representative (as
such term is defined below) attend all job meetings with the contractor(s) and
the Architect, and Lessor shall keep Lessee advised as to the scheduling of all
such meetings.
5.6 Lessee shall, at all times, have the right to inspect the progress of the
construction work. Lessee shall give Lessor written notice of any incomplete
work, unsatisfactory conditions or defects (the "Punch List Items") within
thirty (30) days after the discovery of the same, and Lessor shall, in so far as
obligated thereto, comply with Lessee's requirements in that regard as soon as
possible. In addition, Lessee shall give Lessor written notice of any latent
defects discovered by Lessee after the Commencement Date promptly after the
discovery thereof and Lessor shall, in so far as obligated thereto, cause such
latent defects to be corrected as soon as reasonably possible and entirely for
its own account.
5.7 If Lessee requires any change, addition or alteration (collectively, a
"Change") in the (preliminary and/or final) Plans, Lessee shall notify Lessor of
such Change in writing ("Lessee's Change Notice"), providing detailed plans
and/or drawings showing such Change. Lessor shall not unreasonably withhold its
consent to any such Change in the Plans and Lessor shall inform Lessee of its
initial response within (5) business days In principle, Change Notices as
referred to above shall be given to Lessor at weekly site meetings only; in the
event of urgency, Change Notices may be sent to Lessor by registered letter,
signed return receipt requested. At the subsequent site meeting, Lessee will be
informed of the additional or lower costs involved in the Change or the (change
of the) Additional Rent proposed in relation thereto as well as the additional
construction time reasonable required for the Change concerned, after which
Lessee shall inform Lessor of its decision in that regard without delay. Lessee
may either pay the agreed price for the additional work directly to Lessor, or,
if applicable, to the contractor concerned, or have the agreed additional work
included in the Additional Rent in accordance with Section 4.4.1.
5.8 In the event that the construction of Basic Facilities and the realisation
of the Additional Improvements agreed prior to the start of the construction has
not reached Substantial Completion within seven (7) months of obtaining all of
the Permits required hereunder, including the environmental permit, Lessee will
forfeit a penalty equal to one (1) time the daily amount of Base Rent and
Additional Rent due for each day the Substantial Completion is delayed beyond
such time for the first forty-five (45) days of such delay and two (2) times the
daily amount of Base Rent and Additional Rent due for each day the Substantial
Completion is delayed for any days of delay beyond such forty-five (45) day
period. Within 3 business days after establishing an exceeding of the term for
Substantial Completion of the Leased Premises Lessor will inform Lessee in
writing, well documented, what the causes of the delay have been and within what
term and in which manner the Leased Premises may reasonably be expected still to
be Substantially Completed. If the aforesaid term is exceeded by 90 days or
less, Lessor will not be liable for any damage incurred and costs made by Lessee
as a result thereof. In case of an exceeding of the aforesaid term of
Substantial Completion that amount to an exceeding of more than 90 days Lessee
will be able to use, for the benefit of her interests, all claim and remedy
possibilities mentioned in the Dutch Civil Code in relation to an attributable
default or a default, notwithstanding naturally the requirements that the Civil
Code formulates for use of those possibilities and without prejudice to the
defences accruing to
7
Lessor under the Dutch Civil Code. In case of an exceeding of the term for
substantial Completion Lessor will use best endeavours to still Substantially
Complete (or cause Substantial Completion of) the Leased Premises as soon as
possible.
5.9 Prior to the Completion, Lessee, its agents, contractors or employees shall
have the right to enter the construction site for the purpose of installing
Lessee's cabling, telecommunications and computer equipment, office furniture,
roasting and packaging equipment, racking and other furniture, fixtures and
equipment necessary for Lessee's use of the Leased Premises, provided that
Lessee shall consult with Lessor about such entry of the construction site and
Lessor's construction work is not materially interfered with.
5.10 The building shall be connected to a public sanitary sewer, potable water
supply, storm sewer, electricity and gas (the "Utilities"), which must be
adequate to serve the needs of Lessee in operation of the business which Lessee
intends to operate upon the Leased Premises, as those needs are described in
EXHIBIT C.
5.11 Lessor shall comply with all national, state, county, and city laws and
ordinances presently affecting or respecting the Leased Premises in the
construction of the Basic Facilities and the Additional Improvements.
5.12 Lessor has supplied the plans, documents and specifications required for
the building permit meanwhile applied for by Lessor. Lessee has supplied the
documents required for the environmental permit meanwhile applied for by Lessee.
Lessee may, but shall not be obligated to, terminate this lease if the building
permit and/or the environmental permit is denied, or is not finally and
irrevocably issued by April 15, 2002. Lessee shall not, however, terminate this
lease prior to June 1, 2002, if these permits can be reasonably expected to be
finally and irrevocably issued on or before this date. If the building permit
and/or environmental permit is not finally and irrevocably issued by June 1,
2002, then Lessee may terminate this Lease. In the event that a governmental
agency that is to grant the said Permits requires a modification in the Plans
that is reasonably unacceptable to Lessee and/or Lessor, the said permits will
be deemed not to have been granted, and Lessee or Lessor may terminate this
lease with immediate effect. In the event that this lease is terminated pursuant
to this Section 5.12, the parties hereto shall have no further rights or
obligations hereunder, unless such delay is a result of any breach of any
provision of this lease by Lessor or Lessee and without prejudice to the
obligation to compensate costs or damage as referred to in Section 5.4.
5.13 Lessor has good title of ground lease to the Leased Premises free and clear
of all liens per the date of signing this agreement, and per the date of signing
this agreement free from special charges and restrictions in the sense of
Article 7:15 of the Dutch Civil Code, other than described in EXHIBIT E and
other than knowledgeable from the public registers of the land register. For the
avoidance of doubt: after the date of signing this agreement Lessor is entirely
free to create security rights in respect of the Leased Premises, which will be
subordinated to this Lease Agreement and will not (cannot) infringe on the
continuity of this Lease Agreement.
5.14 At any time during the term hereof, Lessee may give Lessor written notice
that Lessor should undertake completion of the unfinished Office Space. Upon
receipt of such written notice, Lessor shall, at Lessor's sole cost and expense,
undertake the said completion and shall complete the work within one hundred and
twenty (120) days after Lessor's receipt of Lessee's notice, on the basis of a
completion level and a division of work or costs involved between Lessee and
Lessor as
8
set out in and arising from the documents attached hereto as EXHIBIT B and
EXHIBIT C. The realisation and substantial completion and the Commencement Date
of the office space referred to above are otherwise subject to the provisions of
Section 5 above, in so far as relevant to that completion .
Turnover Tax
6.1 All amounts mentioned in this lease are exclusive of turnover tax. Lessee is
required to pay turnover tax on the Base Rent and the Additional Rent and the
fee for additional supplies and services. Turnover tax will be charged by Lessor
and is required to be paid together with the rent and the fee for additional
supplies and services, or the advance payment for these.
6.2 Referring to the Decision of 10 April 1996, no. VB 96/354, amended by the
Decision of 24 March 1999, no. VB 99/571, parties agree that Lessor will charge
Lessee turnover tax on the rent as from the commencement of the lease. Referring
to above-mentioned Decision, Lessor and lessee waive the submission of a joint
request opting for taxed rent as referred to in Article 11, paragraph 1,
subparagraph b, under 5, of the Turnover Tax Xxx 0000.
6.3 The stipulations in Article 15.1, 15.2 and 15.3 of the general conditions do
not apply to this lease.
6.4 Lessee hereby declares that its financial year commences on 1 October and
ends on 30 September.
6.5 Lessor explicitly states that it will include this lease in its
administration in accordance with the provisions of Section 34a of the Turnover
Tax Xxx 0000.
Amenities and Services
7.1 The Parties agree that Lessor provides the additional amenities and services
set out in EXHIBIT I to Lessee.
Guarantee by the Group of Companies
8.1 Lessee is not obliged to furnish any bank guarantee because Starbucks
Corporation provides surety vis-a-vis Lessor for the obligations of Lessee under
this agreement in accordance with EXHIBIT J.
Administrator and representation during the construction
9.1 Lessor is to act as the administrator until further notice.
9.2 Lessee has designated Mr D. Organ as its sole representative with respect to
the matters set forth in this lease with respect to the construction and
realisation of the Basic Facilities and the Additional Improvements, who shall
have full authority and responsibility to act on behalf of Lessee as required in
this lease with respect to the construction and realisation of the Basic
Facilities and the Additional Improvements until further notice by Lessee.
Lessee may at any time appoint a new representative as referred to above, after
written notice to Lessor.
9
9.3 Lessor has designated Mr A.C. Ramselaar as its sole representative with
respect to the matters set forth in this lease with respect to the construction
and realisation of the Basic Facilities and the Additional Improvements, who,
until further notice by Lessor, shall have full authority and responsibility to
act on behalf of Lessor as required in this lease with respect to the
construction and realisation of the Basic Facilities and the Additional
Improvements. Lessor may at any time appoint a new representative as referred to
above, after written notice to Lessee.
Appendices
10.1 All of the appendices listed at the end of this agreement form part of the
present agreement.
Proviso
11.1 Lessee is aware of the fact that the project of which the Leased Premises
are a part is still under construction. Lessor reserves the right to (instruct a
third party) to introduce any changes in the plans and/or any alterations to the
project and the Leased Premises are reasonably necessary and related to the
construction of the adjacent parts of the building and adjacent industrial park
known as Westpoint II, provided, however, that the said changes in the plans or
alterations may not impair the quality and/or the utility of the Leased
Premises.
Delivery of the Leased Premises at the end of this Lease Agreement
12.1 Upon delivery, the condition of the Leased Premises shall be laid down in a
dated delivery report drawn up in duplicate and signed by both parties, with
each of the parties retaining a copy of the said delivery report.
12.2 In the event of termination of this Lease Agreement the two parties to the
agreement are to act in accordance with the provisions set out in Article 5 of
the General Terms and Conditions, on the understanding that the reference to
Article 1, clause 2, should read "the delivery report as referred to in the
Section 12, paragraph 1, of the Lease Agreement." With regard to the silo
building, the provisions of Section 13, paragraph 11, of the Lease Agreement
apply. With regard to the sprinkler system and the sprinkler provisions as
referred to in EXHIBIT G, only the provisions of the last sentence of Section
4.4.2 apply.
Special Terms and Conditions
13.1 In the event that and to the extent that there are pipelines, cables,
cables ducts and/or meter cabinets (serving other industrial Units) in or only
accessible via the Leased Premises, Lessee hereby warrants vis-a-vis Lessor that
the said pipelines, cables, cables ducts and/or meter cabinets are and shall
continue to be freely accessible at all times. With regard to inspections and/or
work in or on the said pipelines, cables, cables ducts and/or meter cabinets or
any other such items, the provisions set out in Article 10 of the General Terms
and Conditions and any other relevant provisions apply.
13.2 Value Added Tax Clause
(a) Lessee and Lessor declare explicitly that the rent level was set
on the basis that Lessee will continue to use the Leased Premises, or have it
used, for activities of which at least
10
the legally determined percentage or percentage yet to be determined is eligible
for deduction of BTW on the grounds of which rent subject to turnover tax can be
opted for.
(b) Lessee declares that it will use the Leased Premises for
purposes for which the right exists to make a complete or practically complete
(at least 90%) deduction of BTW pursuant to Section 15 of the Turnover Tax Act
1968 and that Lessee belongs to one of the branches of industry indicated by the
State Secretary in order of 19 December 1995, no. VB 95/3796 and subsequently
amended, being employer's organisations, estate agents, travel agents and
working conditions services with an independent legal status.
(c) If Lessee does not use or no longer uses the Leased Premises for
activities which entitle it to deduct turnover tax as referred to above, Lessee
will no longer owe Lessor turnover tax on the rent, but Lessee will owe Lessor
in addition to the rent exclusive of turnover tax commencing on the date on
which the rent is exempted from turnover tax by way of a separate payment to
Lessor such an amount that the latter is fully compensated for:
(i) The turnover tax which is no longer deductible as a
result of the cancellation of the possibility to deduct
turnover tax from the operating costs of and/or from
investments in the Leased Premises.
(ii) The turnover tax which Lessor has to pay to the tax
authorities and/or can no longer reclaim from the tax
authorities as a result of the cancellation of the possibility
to deduct turnover tax due to a recalculation of the taxed
rent as referred to in Clause 15, subsection 4 of the Wet op
de omzetbelasting 1968 (Turnover Tax Act 1968) or revision as
referred to in Sections 11, 12 and 13 of the
Uitvoeringsbeschikking omzetbelasting 1968 (Turnover Tax
Implementation) Decree 1968).
(iii) All other loss which Lessor incurs as a result of
the cancellation of the possibility to deduct turnover tax.
(d) If a situation as referred to in (c) occurs, Lessor will inform
Lessee what amounts must be paid by Lessor to the tax authorities and provide
insight into the other losses as referred to in (c).
Lessor will give its co-operation if Lessee wishes to have Lessor's
specification checked by an independent registered accountant. The costs of this
will be at Lessee's expense.
The financial loss incurred by Lessor as a result of the cancellation of
the taxed rent must be paid by Lessee on Lessor's first demand.
(e) Lessee will be obliged to inform Lessor by means of a signed
statement within four (4) weeks of the end of its financial year in which it
started to lease the Leased Premises (also if it has been made available wholly
of partially to a third party), whether or not it has used the Leased Premises
in the past financial year for purposes for which a right, as laid down in
Clause 15 of the Wet op de omzetbelasting 1968, to make a complete or
practically complete (at least 90%) deduction of turnover tax exists and belongs
to one of the branches of industry designated by the State Secretary in his
decree of 19 December 1995, no. VB 95/3796 and subsequently amended,
11
being employer's organisations, estate agents, travel agents and working
conditions services with an independent legal status.
Lessee shall furthermore be obliged to inform Lessor after each
successive financial year by means of a signed statement within four weeks
following the end of the financial year concerned if the Leased Premises (also
if it has been made available wholly or partially to a third party) were not
used for purposes for which a right, as laid down in Clause 15 of the Wet op de
omzetbelasting 1968, to make a complete or practically complete (at least 90%)
deduction of turnover tax exists and belongs to one of the branches of industry
designated by the State Secretary in his decree of 19 December 1995, no. VB
95/3796 and subsequently amended, being employer's organisations, estate agents,
travel agents and working conditions services with an independent legal status.
In both cases Lessee will be obliged to send a copy of the statement to the tax
authorities within the same period.
(f) If Lessee does not fulfil the aforementioned obligation to
provide information or if it turns out in retrospect that its assumptions were
incorrect, and it turns out in retrospect that Lessor has wrongly charged
turnover tax on the rent, Lessee shall be in default, and Lessor shall be
entitled to recover the resulting financial disadvantage from Lessee. This
disadvantage concerns the full turnover tax still due by Lessor to the tax
authorities plus interest, as well as the turnover tax which Lessor cannot
deduct. The stipulations in this Section contain an arrangement for compensation
in the event that the taxed rent ceases to be applicable with retroactive
effect, in addition to the arrangement set out in this Section 13.2. The
additional loss which results for Lessor from the retroactive effect, will be
payable by Lessee immediately, in full and as a lump sum. Lessor will give its
co-operation if Lessee wishes to have Lessor's specification of this additional
loss checked by an independent registered accountant. The costs of this will be
at Lessee's expense.
(g) The stipulations set out in this Section will also apply if
Lessor is confronted with a loss after the termination of the lease, whether
premature or not, due to the cancellation of the taxed rent agreed upon by the
parties. This loss will then be payable by Lessee to Lessor immediately, in full
and as a lump sum.
13.3 Option to Expand the Leased Premises. Lessor hereby grants to Lessee an
option to expand the Leased Premises in accordance with the terms described
herein (the "Expansion Option"). During the term of the Expansion Option, Lessee
may expand the Leased Premises by electing to amend the terms of this lease, so
that one or two (2) similar Units directly adjacent to the Leased Premises,
which Units are more particularly shown on EXHIBIT K attached hereto, will form
part of the Leased Premises. Any time that Lessee exercises the Expansion Option
with respect to either one or both of the two (2) Units described above, such
Unit(s) shall be replaced with additional adjacent Unit(s), which additional
Unit(s) shall be subject to the rights contained in this Section 13.3 (the
"Expansion Replacement Unit(s)"), in so far as such additional units are
actually still available or will become available at that time. If no such
additional units are or will become available, the expansion option will not
apply at that time. The procedure for the replacement of Unit(s) described in
the preceding sentence shall be reapplied any time that Lessee exercises its
right to lease Unit(s) under this Section 13.3. The term of the Expansion Option
shall commence as of the date of the signing of the present agreement and expire
three (3) years from the Commencement Date referred to in Section 3.1 (the
"3-Year Date"). During this period, Lessee shall not be required to pay any fee
12
or compensation to Lessor in connection with the Expansion Option. Lessee shall
have the option to extend the term of the Expansion Option up to three (3)
consecutive times for a period of twelve (12) months each, provided that Lessee
and Lessor then reach an agreement about the conditions to be attached thereto.
In the event that Lessee exercises its rights under this Section 13.3, this
lease shall be amended to include the additional Units into the definition of
the Leased Premises. Such amendment(s) to the lease shall be on the same
material terms and conditions that apply to the existing Lease Agreement at the
moment of exercising (including but not limited to the then applicable Rent),
with the exception of the 7-months construction period referred to in Section 5.
Upon exercise of the expansion option, Lessor shall start the construction of
the additional unit(s) and/or the Additional Improvements without delay and
complete same within a reasonable term. The lease of the additional Unit(s)
shall expire co-terminously with the existing lease, as such may be extended.
13.4 First Right of Refusal to Lease Additional Space. Without limiting the
provisions of Section 13.3 above, Lessor hereby grants to Lessee a first right
of refusal to lease the four (4) adjacent units more particularly described in
EXHIBIT K attached hereto and made a part hereof (collectively the "Units" and
individually a "Unit") for the term of the lease, as may be extended. In the
event that Lessor, or Lessor's heirs, executors, successors or assigns, at any
time during the term of this lease or any extension thereof, intends or intend
to conclude a lease agreement with regard to the Unit with a third party, Lessor
or Lessor's heirs, executors, successors or assigns shall provide written notice
to Lessee, which notice shall set forth the rent and all other terms and
conditions of the intention concerned (the "Notice of Lease"). At Lessee's first
request, Lessor shall furnish plausible proof to Lessee, evidencing that a
concrete third party actually wishes to lease the Unit(s) concerned at the rent
and subject to other the terms and conditions set out in the Notice of Lease.
Within 10 days of receipt of the Notice of Lease, Lessee shall inform Lessor by
registered letter of whether it wishes to lease the unit referred to in the
Notice of Lease on the conditions set out in the Notice of Lease. If Lessee
timely exercises this first right of refusal in accordance with the conditions
accepted by Lessee, as set out in the Notice of Lease, a lease agreement with
regard to the unit concerned will be effected. If Lessee fails to respond within
the said term or informs Lessor within the said term that it does not intend to
exercise its right of first refusal, Lessor will be authorised to lease the unit
referred to in the Notice of Lease to third parties, provided not on conditions
more favourable to the said third parties than those set out in the Notice of
Lease. In the event that any material term of the Notice of Lease is
subsequently modified to the detriment of Lessee, the process described in this
Section 13.4 shall be reapplied. Each time when a Unit or Units is (are) leased
to a third party or to Lessee pursuant to this Section 13.4, the unit(s)
concerned shall be replaced by additional adjacent unit(s), which additional
unit(s) shall be subject to rights contained in this Section 13.4, in so far as
such additional units are or will become actually available at that time. If no
such units are or will be available, the right of first refusal set out in this
Section 13.4 does not apply at that time. The lease of the unit(s) ends
simultaneously with the existing lease agreement or extensions thereof.
13.5 Option to Purchase The Leased Premises. As from the signing of the present
agreement up to and including 3 years after the Commencement Date, Lessor shall
not sell or offer for sale the Leased Premises and the ground lease in respect
of the Leased Premises. Lessor hereby grants to Lessee an exclusive and
irrevocable option (the "Option") - commencing at the date of signing this
Agreement and valid for the term of the Agreement - to purchase the Leased
Premises and the ground lease in respect of the Leased Premises for the price
and upon the terms and conditions specified in this Article. The Option shall be
exclusive for a term of 3 years after the Commencement Date. During the term of
the present agreement, Lessee may exercise the Option
13
by giving Lessor notice of its intent to exercise the Option. Upon exercising
the Option, Lessor shall be obligated to sell and convey to Lessee and Lessee
shall be obligated to purchase from Lessor the Leased Premises and the ground
lease in respect of the Leased Premises for a purchase price equal to (i) eleven
and one half times the annual Base Rent, minus the annual ground rent Lessee
will become payable as soon as it has become the leaseholder (formula: 11.5 x
(annual base rent minus annual ground rent)), (ii) increased by the unamortized
value of the Additional Improvement and increased by any costs involved in the
early repayment of the financing arrangement concerned, (iii) increased by any
transfer tax and/or turnover tax and notarial charges due. In the event of
exercise of the purchase option, the parties will agree a provisional date for
the conveyance not later than 3 months after the date on which Lessor received
notice from Lessee that the latter intended to exercise the purchase option,
such also on account of Lessor's ground lease. The parties will then jointly
contact the Municipality of Amsterdam in order to effect a division and
conveyance of lessor's current right of ground lease, in so far as pertaining to
the Leased Premises, or creation of a new ground lease in respect of the Leased
Premises for the benefit of Lessee. The terms (including the ground rent) of the
divided right of ground lease or the new right of ground lease shall be
reasonably acceptable to Lessor and Lessee. Failing which the purchase option
will be deemed not exercised or no purchase agreement will be deemed concluded
and the Lease Agreement will be continued unchanged. The terms set out in
EXHIBITS E AND F are at any rate deemed to be reasonably acceptable to the
parties. The terms of the conveyance or the creation of the new ground lease
shall otherwise be consistent with the terms of such deeds and commercial
customs in the area in which the Property is located. Lessor and Lessee agree
that immediately after the signing of this agreement, the option as regulated in
this Section 13.5 will be entered in the public registers of the Land Register,
subject to co-operation of the Land Register, such for Lessee's account.
13.6 Right of First Refusal to Purchase the Leased Premises. In the event that
Lessor, or Lessor's heirs, executors, successors or assigns, during the term of
this lease intends or intend to sell the Leased Premises or any portion thereof
to a third party, Lessor or Lessor's heirs, executors, successors or assigns
shall provide written notice to Lessee, which notice shall set forth purchase
price, as well as all other terms and conditions of such intention (the "Notice
of Sale"). At Lessee's first request, Lessor shall furnish plausible proof to
Lessee, evidencing that a concrete third party actually wishes to purchase the
Leased Premises and the Ground Lease in respect of the Leased Premises at the
price and subject to the other terms and conditions set out in the Notice of
Sale. Lessee shall inform Lessor by registered letter of whether it wishes to
purchase the Leased Premises and the Ground Lease pertaining to the Leased
Premises within 30 days of receipt of the Notice of Sale. Lessee may choose to
purchase the Leased Premises (and the Ground Lease) at the same price and on the
same terms of the offer set forth in the Notice of Sale or - such until 3 years
after the Commencement Date - per the terms of the Option set forth in section
13.5. If Lessee fails to respond within the 30-days term or informs Lessor
within the said term that it does not intend to exercise its right of first
refusal referred to in this Section or its purchase option referred to in
Section 13.5 (until 3 years after the Commencement Date), Lessor will be
authorised to sell the Leased Premises and the Ground Lease pertaining to the
Leased Premises to third parties, provided not on conditions more favourable to
the said third parties than those set out in the Notice of Sale or - if
applicable - set out in Section 13.5. If any substantial term of the Notice of
Sale is changed afterwards to the detriment of Lessee, the procedure set out in
this Section 13.6 shall be re-applied. If Lessee does timely inform Lessor that
it intends to exercise its right of first refusal referred to in this Section or
- if applicable - its purchase option referred to in Section 13.5, a purchase
agreement
14
with regard to the leased premises and the ground lease will arise between
lessor and lessee, on the terms set out in the Notice of Sale or - if applicable
- the terms set out in Section 13.5. In addition, the parties will agree a
provisional date for the transfer not later than 3 months after the date on
which Lessor received notice from Lessee that the latter intended to exercise
its right of first refusal or - if applicable - the purchase option, such also
on account of Lessor's ground lease. The parties will then jointly contact the
Municipality of Amsterdam in order to effect transfer of the Leased Premises/the
current ground lease of lessor, in so far as pertaining to the Leased Premises,
or creation of a new ground lease in respect of the Leased Premises for the
benefit of Lessee. The conditions of the division/transfer of the existing
ground lease in respect of the Leased Premises or the conditions of the creation
of a new ground lease in respect of the Leased Premises shall be reasonably
acceptable to Lessee and Lessor. The conditions set out in EXHIBITS E AND F
shall at any rate be deemed to be reasonably acceptable. In the event that any
material term of the Notice of Sale is subsequently modified to the detriment of
Lessee, the process set out in this Section 13.6 shall be reapplied. The rights
contained in this Section 13.6 shall be applicable to any and all intended sales
of the Leased Premises for the duration of the term of this lease. If the Leased
Premises (and the Ground Lease) are transferred to a third party, the option to
purchase the leased premises referred to in Section 13.5 will expire, but
Lessee's right of first refusal to purchase the Leased Premises referred to in
this Section 13.6 will continue to have effect for a period of no more than ten
(10) years after the Commencement Date as referred to in Section 3.1. A third
party in the sense of this Section does not refer to a legal entity of the group
of companies to which Lessor belongs.
If 3 years after the Commencement Date a situation arises of apparently
simultaneous receipt by Lessor of the notice of Lessee that it exercises the
Purchase Option in Section 13.5 and receipt by Lessee of the Notice of Sale, and
if there is reasonable doubt with regard to which event occurred first, Section
13.6 will prevail.
13.7 Parking Space. Lessor will provide for (paved) parking facilities for 50
passenger cars reasonably adjacent to the Leased Premises, designated to be
exclusively used by Lessee, as situated and indicated in the drawings attached
to this Lease Agreement as EXHIBIT A. The use of these parking facilities by
Lessee is included in the agreed lease price. Lessee cannot enforce any claims
against Lessor if third parties without authorisation make use of the parking
spaces. Lessee may place signs with its brand/name on or near the parking
spaces.
13.8 Signage's. Lessor has given approval to Lessee to establish signage's to or
near the Leased Premises, in order to make clearly visible that Starbucks is
established at Westpoint. The design of these signage's will be handed to Lessor
for prior review. This approval will primarily focus on the question whether the
intended signage's are not out of tune, in size or nature, with the existing
signage's of all Lessees on Westpoint II. The signage's must be in accordance
with statutory and local regulations. It is the responsibility of Lessee to
obtain all the necessary permits for the signage's.
13.9 Exclusivity. Lessor will not lease space at Amsterdam Westpoint I and
Westpoint II to third parties that roast coffee at the location and Lessor will
impose the same obligation on its legal successor in the form of a perpetual
clause.
13.10 Sensitivity of Coffee to Odours. In order to prevent damages to the coffee
as a result of odour emissions by other lessees of Lessor, Lessor will include
in all new lease agreements with respect to Units at Westpoint II, the
obligation for those lessees to refrain from causing any
15
repeatedly recurring emission of odours, that may adversely affect the coffee of
Starbucks, which means that those lessees would at least would have to refrain
from the following activities:
(a) Coffee roasting
(b) Manufacturing of perfumeries or other scented products (cosmetics, scented
household products, etc.)
(c) Paint manufacturing or paint application operations
(d) Private or municipal waste treatment
(e) Operations that raise, xxxxxxxxx or process livestock or fish
(f) Activities involving heavy use of solvents, degreasers or lubricants
(g) Chemical manufacturing or petroleum refining or processing
In addition, Lessor guarantees that any existing lease agreements with
respect to the Units mentioned here above do not permit the forbidden activities
as described in this clause and that Lessor will not provide consent under any
of these lease agreements to change activities towards the forbidden activities
as described in this clause. For the avoidance of doubt the parties expressly
agree that logistic activities with respect to the odorous goods indicated above
and cocoa storage and distribution will not be forbidden and furthermore, that
this clause only refers to repeatedly recurring emission of odours in relation
to manufacturing activities.
13.11 Silo building. During the lease term Lessor will, at Lessee's first
written request, construct and build the silo building, subject to the
conditions laid down in Section 5 of the present Agreement, with the exception
of the 7-months construction period, and furthermore in accordance with
requirements yet to be worked out by the parties. The costs of the concrete
structure of the silo building until a height of 13.1m will be for account of
Lessor and will be included in the Base Rent, whereby the Base Rent rate per m2
for the silo building - assuming the same specification level as the warehouse
space - will be equal to the base rent per m2 for the warehouse space of the
Leased Premises, to be increased by indexation pursuant to Section 4.3. A steel
structure will bring the silo building to a height of 22 m. The costs of this
steel structure will be considered Additional Improvements and the Additional
Rent related to this improvement shall be calculated as described in Section
4.4. It is agreed that the parties will make further agreements about the
amortization term when Lessee has requested the construction of a silo building.
Upon expiry of the present Lease Agreement, Lessor shall attempt to lease the
silo building to a third party.
Lessee will receive 50% of any amount in excess of the annually indexed
Base Rent that Lessor generates from the lease of the silo building in the
period of ten (10) years after termination of this lease. Upon expiry of such
ten (10) year period, Lessor (and its successors) will be under no restriction
any more with respect to exploiting the silo building and all the income
stemming from the silo building will be fully for the account of Lessor. If the
steel top structure would have to be demolished on reasonable grounds, then
Lessee would have to pay the costs thereof (but not the costs of closing the
roof again).
16
13.12 Where the present agreement or the General Terms and Conditions require
Lessor's consent, Lessor shall not unreasonably withhold its consent.
13.13 Lessee accepts that future building activities will take place at
Westpoint II. Lessor will start building new Units at the other end of the
Westpoint II site, in order to reserve for expansion by Lessee for as long as
possible. Lessor must use best endeavours not to hinder the activities of Lessee
as a result of the building activities. In any event the normal course of
business of Lessee must be able to be continued.
13.14 Lessee is aware that Lessor intends to realise a container debarking
terminal at the quayside alongside the Leased Premises, with a stacking area for
containers. This will not restrict normal operations of Lessee and access of
trucks to the loading docks. The containers will not block the view to the water
from the offices.
13.15 Changes to the General Conditions
Article 2.2. The second and third sentence of this Article are
replaced by the following:
"Lessee shall also observe the instructions given in writing
or by word of mouth by or on behalf of 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, if and
insofar as Lessee has been consulted properly by Lessor in
advance about the content of these instructions and if and
insofar as these instructions can be considered to be
reasonable and necessary. Lessee will - in principle - not be
bound to unreasonable instructions by or on behalf of Lessor
which have an adverse effect on the justified interests of
Lessee, on the rights of Lessee stemming from this Lease
Agreement or on the activities of Lessee. The instructions by
Lessor may inter alia relate to maintenance, image, noise
level, order, fire regulations, parking behaviour and the good
functioning of the installations, the building or the complex
which the Leased Premises are part of."
Articles 2.6.1 to 2.6.3 of the General Conditions are replaced
by the following:
Article 2.6.1. "Lessee knows that Lessor had a soil survey
report prepared by Omegam, called Nulonderzoek "Westpoint II",
Ruigoordweg in Amsterdam-Westpoint, reference 1106311/VO1,
dated 17 May 2001. The said report is attached to the present
agreement as EXHIBIT L. To Lessor's knowledge, the report
gives a true, accurate and complete description of the
condition of the soil of the parcel of land on which the Basic
Facilities and the Additional Improvements are to be
constructed. As the report dates from 17 May 2001, the Parties
agree to instruct Omegam to conduct an additional soil survey
and prepare a report thereon, the costs of which will be
shared by the parties (on a 50/50 basis). The said survey and
report shall be based on sampling of the soil of the parcel of
land on which the Basic Facilities and the Additional
Improvements are to be constructed, after slags and/or other
levelling-up materials have been applied but just prior to the
start of the
17
construction of the foundation. Lessee shall receive the
report timely before the start of the work on the foundation.
If Lessee has reasonable doubts about the accuracy of the
report it may have a further soil survey carried out for its
own account. If same leads to a delay, the seven-months term
referred to in Sections 5.3 and 5.8 will be extended. The
parties shall consult with each other about the term of the
extension.
Lessee is neither liable nor responsible for any
(environmentally) hazardous materials, the condition of the
environment or other circumstances as described in the
aforementioned reports. The term "hazardous materials" refers
to (environmentally) hazardous materials, (environmentally)
hazardous waste substances or (environmentally) hazardous
substances set out in or regulated by applicable laws or
regulations, in particular the Wet Bodembescherming (Soil
Protection Act) and the Wet Milieubeheer (Environmental
Control Act)
Any contamination of the leased premises established in the
aforementioned reports shall be cleaned up for Lessor's risk
and account, if Lessor is obligated thereto under current
regulations. The cleaning up shall be executed in the manner
prescribed by relevant applicable acts and regulations. In the
event of "serious soil contamination", as defined in the Soil
Protection Act and located on the place where the building
under consideration is to be built, Lessor shall clean up that
contamination before the start of construction work and the
seven-months (7) building term will be extended by the term
required for the cleaning up. If the consequences of the said
contamination are reasonably unacceptable to Lessor and/or
Lessee, the parties will seek a solution in mutual
consultation, taking into account the interests of both
parties.
At the end of the lease as well as in the event of transfer
of the Leased Premises (and the ground rent) to Lessee, a
similar soil survey will be carried out. If higher
concentrations of one or more of the substances to which
Omegam's previous surveys pertained are then found in, on or
around the Leased Premises, same will be deemed an indication
of Lessee having caused that contamination.
Article 2.6.2. "It is forbidden to Lessee, its personnel or
persons or goods under its control to contaminate in any way
(the soil of) the Leased Premises and Lessee shall compensate
the damage arising from contamination caused by Lessee, its
personnel or persons or goods under its control and he shall
be liable to Lessor and third parties for expenses relating to
the removal of such contamination or for the taking of other
measures.
Article 2.6.3. "Lessor does not indemnify Lessee against
(Government) orders for further investigation or the taking of
measures, unless those orders are related to a contamination
that has been caused by Lessor or pollution that was already
present on or in the Leased Premises prior to the Commencement
Date."
Article 2.10.2. Article 2.10.2 of the General Conditions is
not applicable:
1. with respect to Lessee's construction plans described in
EXHIBIT M;
18
2. interior alteration that are non-structural, if and insofar
these alterations do not adversely affect the Leased Premises;
3. structural alterations, subject to prior written approval
of Lessor, which approval can only be withheld on reasonable
grounds.
Articles 3.1 and 3.2. Contrary to the provisions in Articles
3.1. and 3.2 of the General Conditions it was agreed that:
1. sublease is permitted after prior written approval of
Lessor, which approval can only be withheld on reasonable
grounds;
2. transfer of the rights and obligations under the lease
agreement to a company of which all shares are directly or
indirectly held by Starbuck Corporation is permitted
Article 6.5. The words "gross" and "serious" in this Article
are considered to be deleted.
Article 6.6. The words "gross" and "serious" in this Article
are considered to be deleted.
Article 9.3. In addition to this Article 9.3 it is agreed that
Lessee is entitled to a 30 days cure period after written
notice by Lessor to cure the concerned defaults, before the
lessor can conduct the maintenance as described in this
Article himself.
13.18 Environmental Testing. At any time during the term hereof, Lessee may
undertake such environmental testing with respect to the Leased Premises and the
Land as Lessee deems desirable, including, without limitation, soil and ground
water testing.
14.1 Choice of law. The parties declare that the present agreement as well as
the guarantee attached as EXHIBIT J are governed by Dutch law.
14.2 Dutch version. The parties declare that only the Dutch version of the
present agreement will be binding. The English version of the agreement,
attached as an appendix to the present agreement, is for information purposes
only and in no way relevant to the legal relationship between the parties or the
parties' intent.
14.3 The Dutch Court has jurisdiction. The civil court in Amsterdam will have
exclusive jurisdiction to adjudicate any disputes arising from or related to the
present agreement, both in the first instance and on appeal.
[Signature Page Follows]
19
Drawn up and signed in Amsterdam on ____________________________.
Lessor: Lessee:
------------------------------- -------------------------------
Name: Name:
-------------------------- --------------------------
Title: Title:
-------------------------- --------------------------
Date: Date:
-------------------------- --------------------------
20
LIST OF APPENDICES AND EXHIBITS
EXHIBITS:
Exhibit A: the Leased Premises (indicated by means of hatching)
Exhibit B: Preliminary Plans (as attached to the application for the Building Permit)
Exhibit C: Technical Description (as to be provided by the contractor)
Exhibit D: reinforced floor area (increased maximum floor load)
Exhibit E: deeds of temporary issue of leasehold land
Exhibit F: letter for the Gemeentelijk Havenbedrijf Amsterdam, dated 31 October 2001 (reference:
01.06923)
Exhibit G: Sprinkler system proposal
Exhibit H: letter about the piling equipment and materials required
Exhibit I: list of addition amenities and services
Exhibit J: guarantee
Exhibit K: expansion option and first right of refusal to lease additional space
Exhibit L: soil survey report "Nulonderzoek "Westpoint II", Ruigoordweg in Amsterdam-Westpoint,
prepared by Omegam, dated 17 May 2001, project number 1106311
Exhibit M: Lessee's construction drawings
APPENDICES:
General Terms and Conditions lease of office space and other industrial Units
not in accordance with Article 7A: 1624 of the Dutch Civil Code
Power of attorney Westpoint
English translation of the present agreement
21
