EXHIBIT 10.31
Lease Agreement
between
E/Shelter GmbH & Co. KG, Xxxxxxxxxxx Xxx. 0, 00000 Xxxxxxx,
- hereinafter referred to as "Lessor" -
and
Digital Island Corp., 00 Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, XX
00000 XXX
- hereinafter referred to as "Lessee" -
(S) Lease Object/Purpose of Lease
1.1 The Lessor warrants to become the owner of the property specified below:
Eschborner XxxxxxxxXx 000, 00000 Xxxxxxxxx xx Xxxx. The detailed
description of the property is given in the excerpt from the Land
Register, attached as Annex 1.
1.2 The Lessor shall rent to the Lessee the following premises of the
property specified above:
1.2.1 the entire building A,
approx. 14,600 sqm gross floor space
bordered in red in the plan, Annex 2,
for use as Internet-Center;
1.2.2 in the office building O,
the first upper floor with passage
for use as office
marked in blue in the plan, Annex 3,
with approx. 000 xxx xxxxx space altogether;
1.2.3 The following common areas in building O, used by all lessees jointly, in
proportion to the entire gross floor space: foyers, elevator vestibules,
stair cases, stair heads, doorman's office, toilet facilities, sanitary
room, telephone switchboard etc., marked in purple in the plans, Annex 3;
1.2.4 20 parking spaces,
marked in green in the plan, Annex 4,
The Lessee shall furthermore be entitled to use the roof area of building
A- subject to possibly required permits which have to be obtained at the
Lessee's cost. 1.4.2 and 1.4.3 apply accordingly. In addition thereto,
7.3 shall apply.
1.3 The accurate rented area shall be determined as decisive and binding for
this Agreement by a later measurement according to 2.2.
1.4.1 Any change of the purpose of use stated in clause 1.2 requires the
Lessor's consent. The consent requires written form and shall only be
denied for good cause.
1.4.2 Any declarations of consent of the Lessor shall always be given subject
to possibly required official permits regarding the change of use, even
if the declaration of consent does not explicit refer thereto. The Lessee
shall procure such permits at its own cost.
1.4.3 Prior to the execution of the approved change of use, the Lessee shall
prove to the Lessor, that either the required official permit has been
granted with full legal validity or that an official permit is not
required.
1.5 At the time of construction, the Lease object complied with the then
structural engineering requirements. The Lease object shall be provided
to the Lessee in a condition ready for operation according to the
requirements of that time, subject to its general aging. The Lessee
cannot claim any compliance of the Lease object with stricter or improved
structural engineering requirements arisen in the meantime or during the
term of the lease. The latter applies, in particular, to sound and
thermal insulation. The Lessee has taken note of the expert opinions of
the foundation engineering institute Prof. Dr. Ing. X. Xxxxxx & Partner
GmbH dated 21 June 2000 and of the engineering office Xxxx of 25 December
1999. The Lessor warrants that it will have the weakly fixed asbestos
products removed from the Lease object according to 1.2.1 and 1.2.2,
which has to be disposed of according to the expert opinion of the
engineer's office Xxxx, before handing over to the Lessee. The Lessor
shall submit to the Lessee a confirmation of an expert on the execution
of the works, which, however, is no prerequisite for the handing over.
The Lessor furthermore undertakes to dispose of all strongly fixed
asbestos products in the Lease object according to 1.2.1 and 1.2.2 by the
date of handing over. If asbestos is still detected in the Lease object
according to 1.2.1 and 1.2.2 after handing over of the Lease object, the
Lessor shall dispose thereof at its expense. Further claims shall be
excluded in such case. The Lessor furthermore warrants that it knows of
no use of further building substances hazardous to the health in the
Lease object described in 1.2.1 and 1.2.2.
1.6 Prior to the handing over, the Lessor shall at its expense basically
remove the core of building A according to the building specification.
Annex 5 and the plans, Annex 4 and carry out the reconstruction and re-
modification works in the Lease object as described in more detail in
Annex 4 and 5. These Annexes 4 and 5 moreover show the intersections for
the works to be carried out at the Lessor's expense as well as works
carried out by the Lessor at the Lessee's expense; the latter shall be
reimbursed to the Lessor by the Lessee within 14 days after submission of
invoice. The descriptions of the building specifications shall only
outline the obligation of the Lessor concerning the establishment of the
Lease object rather than constitute a warranted quality. In the case of
discrepancies between the building specifications and the plans, the
building specifications shall prevail. The Lessor shall endeavor to have
these modifications works completed in time prior to the scheduled
handing over date; the Lessor, however, does not assume any guarantee
therefor -except as otherwise provided for in this Agreement. If the
wording of the English text of the building specifications (Annex 5)
deviates from the wording of the respective German text, the German text
shall prevail. The same applies for the purpose of interpretation.
1.7 The Lessee intends to use the Lease object as Internet-Center. The
parties agree, that the Lessor shall not assume any obligation with
regard to the usability of the Lease object and that the Lessee shall
procure all possibly required measures concerning the intended use,
including the granting of possibly required permits etc. for the intended
operation.
The Lessor, however, shall warrant the buildability of the Lease object
subject to the building specifications and the plans (Annexes 4 and 5) as
well as its usability as Internet-Center subject to the preliminary
building notice of 12 May 2000 and the building permit, which may still
have to be granted. Any warranty exceeding the above shall not be given.
1.8 In particular, the Lessor does not warrant any possibility of electricity
supply exceeding the current electricity supply of the Lease object.
It is known to the Lessee that the Lessor intends to instruct an
electricity supplier with the extension of the connections to the mains
up to a total capacity of 90 MVA. This extension will result in costs, in
particular for the installation of high voltage lines, the installation
of a switchboard unit 110 kV, the delivery and installation of at least
two transformer units, for the provision of the necessary 110 kV-line
switchboard
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sections in the substations, and for a building costs contribution for
the extension of capacity to 90 MVA for the preceding net, furthermore
for measures in the preceding highest voltage net as well as further
planning, execution and other costs. In respect thereof the Lessor has
been submitted by a standard price offer plus supply concept with a
three-month binding period of Mainova AG for an output requirement of 90
MVA, which is known to the parties. The Lessee is obliged to pay for each
case to the Lessor against presentation of evidence and invoice 16.5 % of
all costs incurred by the Lessor for the execution of the respective
supply concept for an output requirement of 90 MVA (irrespective of the
supplier with which such an agreement will finally be concluded). By this
percentage the parties globally assess the capacities to be used by the
Lessee in proportion to the total capacity; any adjustment of this
percentage due to changed conditions shall be excluded. All payments
shall be made plus statutory VAT.
The Lessee may use the existing supply net for building electricity
(approx. two mega-watt) until the aforementioned extension of the net has
been carried out. The Lessor shall use its best efforts to ensure that by
1 February 2001 the extension works for the output requirement of 90 MVA
have been completed or can be provided to the Lessor in such form that it
can procure its output requirement of approx. 10 mega-watt.
Besides, cables and output capacities shall be procured by the Lessee
after agreement on the lead of cable lines with the Lessor and subject to
the provisions of this Agreement; the Lessee shall also conclude the
electricity supply contracts. The Lessor shall not assume any guarantee
for possible interruptions in the electricity supply and/or the damage of
the cable net within or outside of the property. Any possible
corresponding claims of the Lessor vis-a-vis third parties shall be
assigned by it to the Lessee upon demand.
Furthermore, the environment of the Lease object is known in detail to
the Lessee. Any claim & of the Lessee against the Lessor due to
environmental impacts (in particular pollutants) on the use of the Lease
object are therefore excluded.
(S) Rent
2.1 The monthly rent of the Lease object amounts to
2.1.1 for the Lease object according to 1.2.1 (except for
the office space marked in blue in Annex 2)
(..... sqm x DM32.00): DM...............
(DM 32.00/sqm)
2.1.2 for the Lease object according to 1.2.2, 1.2.3 as well as
the office space marked in orange blue in Annex 2 3
(approx. .....sqm x DM 25.00/sqm): DM...............
(DM 25.00/sqm)
2.1.3 for parking space.: DM 2,700.00
(DM 100,00 per parking space for six of the 20 parking spaces,
the remaining parking spaces DM 150.00 per parking space)
plus ancillary costs
(for the time being 15,100 sqm x DM 2.00) DM 30,200.00
plus VAT in the amount legally valid from time to time
(currently 16%) DM...............
total (preliminary) DM...............
Plus financial contribution according to 1.8 (for the extension of the
net capacities)
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2.2 Prior to the handing over of the Lease object, the Lessor shall have the
Lease object measured by a surveyor. The rent stated in 2.1 shall then be
paid by the Lessee on the basis of the actually measured area pursuant to
the above mentioned square meter rate. The areas shall be measured as
gross floor space [Bruttogrundflache] according to DIN 277 [DIN = German
Industrial Standard]. Any deviation of the actual rented area compared to
the estimated rented area of up to 20 % shall exclusively result in the
above mentioned rent adjustment. After one year as from the handing over
of the Lease object, neither Lessor nor Lessee can claim any such rent
adjustment.
2.3 The rent is automatically changed on 1 January of every year if the price
index for private households (Basis 1995 = 100), issued by the Federal
Statistics Office, has changed in comparison to the status at the
beginning of the lease or compared to the status at the time of the last
rent adjustment, as the case may be.
2.4 The adjustment of rent corresponds to the change of the cost of living
index. It shall be effective for the first time for the month with regard
to which the index has changed according to clause 2.3.
2.5 If the Federal Statistics Office does no longer issue the index referred
to in clause 2.3 during the term of the lease, it shall be replaced by
the index then issued by the Federal Statistics Office or its succeeding
organization, as the case may be.
2.6 The rent has to be paid to the Lessor quarterly in advance by the 5th
working day of each quarter to an account to be named by the Lessor. The
timely payment does not depend on the date when the money is sent off,
but on the date it is credited.
Upon request by the Lessor, the Lessee shall be obliged to pay the rent
and the ancillary costs by pre-authorized payment.
2.7 If the Deutsche Xxxx eases to be the legal currency of the Federal
Republic of Deutschland in favor of the EURO, all payments have to be
effected in EURO as of this date. The conversion rate valid at the date
of the introduction of the EURO shall apply.
2.8 Until 1 January 2001, the Lessee shall not owe rent for the areas to he
handed over according to 5.3.1; the Lessee's obligation to pay the
ancillary costs for these areas pursuant to (S) 3 below remains
unaffected thereby.
(S) Ancillary Costs
3.1 In addition to the rent the Lessee shall pay for the ancillary costs -
should the case arise proportionately according to clause 3.4.
3.2 Ancillary costs within the meaning of this Agreement shall be:
3.2.1 Any ancillary costs within the meaning of Annex 3 of Section 27 Para. 1
of the II. Computation Regulation;
3.2.2 The cleaning costs for the exterior glass areas and the facade including
the cleaning costs for exterior blinds as well as the costs for the
operation and maintenance of the lifting system;
3.2.3 The costs of operation and maintenance of the technical access
restrictions (e.g. code-cards system);
3.2.4 The costs incurred by the Lessor for the operation and maintenance of the
ventilation systems and the air condition system for building O;
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3.2.5 The costs for the operation and maintenance of all other aforementioned
or in Annex 3 of Section 27 of the II. Computation Regulation not
mentioned technical systems and equipment of the building and the
property such as, in particular, fire extinguishing systems, emergency
power generating units, emergency lighting, xxxx- and intercom system;
3.2.6 The cleaning costs for the property and buildings as well as the cleaning
costs of the premises and the lighting of all common systems and parking
spaces including the necessary devices and materials;
3.2.7 The cleaning and maintenance costs of all exterior areas as well as green
-and garden space, pavements etc. including the necessary devices and
material as well as the replacement or replenishment of plants;
3.2.8 The costs incurred for the janitor or janitor service as well as other
personnel required for the operation and inspection of the building and
property (e.g. a doorman service (24 hrs/day), a guard and the like);
3.2.9 The costs resulting from the insurance mentioned in 3.3;
3.2.10 The costs of an appropriate technical and commercial building management,
against proof;
3.2.11 The costs of snow and ice removal or of the gritting, as the case may be,
as well as costs arising from the duty to make the premises safe for
persons or vehicles;
3.2.12 The costs of decorative repairs, the maintenance and repair of common
space and common systems as well as the costs of maintenance, restoration
and necessary repair of all technical systems and installations mentioned
above or in Annex 3 of Section 27 Para. 1 of the II Computation
Regulation or otherwise existing including the replacement of defective
door-and window panes and metal fittings in the premises which are not
exclusively used by the Lessee (also compare clauses 1.2.2 and 8.1.1);
3.2.13 All fees, taxes and levies based on law, ordinance or local regulations
which might be raised in future for the property or the building or their
use.
3.2.14 The parties agree that these costs shall only incur for the Lessor if and
in as far as it provides equipment within the scope of the use of the
Lease object; the Lessee shall be responsible at its own expense for the
objects and equipment installed by it;
3.3 The insurance of the Lease object against fire, frost, main water, storm,
hail damage and damage to bodies of water have to be concluded at
flexible original value. Such insurance, the building liability
insurance, an insurance against default in payment of rent as well as any
insurance concerning the Lease object which the Lessee may require shall
be concluded by the Lessor.
The Lessee shall receive copies of all insurance contracts and policies.
The policy holder's obligations and incumbencies resulting from the
policies shall be assumed by the Lessee; the Lessee shall, in particular,
be obliged to inform the Lessor and the insurance companies without undue
delay on any circumstances increasing the risks within the meaning of
insurance law.
3.4 The parties shall agree if and in as far as contracts shall be directly
concluded by the Lessee; in that case the Lessee shall without prior
solicitation present evidence to the Lessor that these contracts have
been maintained and contain any services possibly agreed with the Lessor.
As far as possible the Lessee shall directly settle all ancillary costs
within the meaning of 3.2. Insofar as this is not practicable or if
ancillary costs are calculated according to consumption, they shall be
charged to the Lessee in proportion to the rented area.
The Lessor shall decide at its reasonable discretion on the ancillary
costs to be apportioned according to consumption.
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Of the operation costs of the central heating system and the central hot
water supply unit, 70 % shall be apportioned according to the registered
consumption of heat and hot water, 30 % in proportion to the rented area.
The apportionment of the ancillary costs for the elevator shall not
affect the ground floor tenants .
3.5 VAT in the amount as legally valid from time to time shall be added to
the ancillary costs.
3.6 The accounting for the ancillary costs shall be effected on an annual
basis. The accounting period is the calendar year. Upon expiry of 3
months after receipt of the accounting statement, any objections with
regard to correctness shall be excluded.
3.7 For ancillary costs which are not directly settled by the Lessee, a
monthly prepayment in the amount of DM 2.00 per sqm plus VAT shall be
charged, due for payment together with the quarterly payable monthly
rent. Clause 2.7 applies accordingly.
Any differences resulting from the annual accounting in favor of the
Lessor or the Lessee, as the case may be, shall be settled by the Lessee
or the Lessor within one month after delivery of the accounting
statement.
3.8 In accordance with Section 315 German Civil Code, the Lessor shall adjust
the monthly prepayments on the ancillary costs to changed conditions. In
that case, the changed prepayment shall be due as of the month following
the delivery of the adjustment notification.
3.9 If the lease terminates within one accounting period, the accounting
shall not be effected in the interim, but only within the scope of the
general accounting.
3.10 Insofar as the Lessor incurs costs pursuant to the provisions above which
exclusively concern the Lessee, the Lessor shall charge them - plus VAT -
to the Lessee as they arise. The respective invoices of the Lessor are
each due within 4 weeks after receipt by the Lessee.
(S) Collateral
4.1 The Lessee shall, 4 weeks after the signing of this Agreement, i.e. by 28
September, 6 p.m. at the latest, deliver a guarantee for the fulfillment
of all obligations resulting from this Agreement in the form of a joint
and several guarantee, irrevocable and unlimited in time, issued by a
major German bank or a German credit institution subject to public law,
in the amount of 12 times the total monthly gross rent set forth in
clause 2 plus 12 times the monthly gross ancillary cost prepayment set
forth in clause 3. The guaranteeing bank shall undertake by the guarantee
certificate to pay on first demand; the guaranteeing bank shall not be
entitled to release itself from the guarantee liabilities by deposit. If
the Lessee does not deliver the guarantee on due date, the Lessor shall
be entitled to withdraw from this Agreement by written notification.
4.2 In the case of changes in the rent and the monthly ancillary cost
prepayment, the guarantee shall be adjusted thereto within one month
after the change has taken effect. The Lessee shall only effect any
possible adjustment after respective written request by the Lessor.
4.3 If the guarantee is called on by the Lessor within the term of the lease,
the Lessee shall be obliged to replenish it without undue delay.
(S) Handing over, Commencement of Lease, Term of Lease
5.1 The lease (and thus the obligation of rent payment) shall commence on the
day of the handing over pursuant to clause 5.3, unless otherwise provided
for in clause 5.2 or 2.8.
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5.2 The lease shall commence at each of the dates set forth in clause 5.3,
even without prior handing over, in the case that
5.2.1 the Lessee does not take over the Lease object for reasons which are not
in Lessor's responsibility or
5.2.2 the Lessee has not delivered the guarantee pursuant to clause 4, or
5.2.3 the modification works to be carried out by the Lessor according to
clause 1.6 have not been completed by that date for reasons attributable
to the Lessee .
5.3.1 The handing over of the ground floor area of the Lease object pursuant to
1.2.1 shall presumably be effected on 1 November 2000. The Lessor shall
notify the exact date of the handing over 14 days in advance.
5.3.2 The handing over of the remaining area of the Lease object pursuant to
1.2.1 and of the parking spaces pursuant to 1.2.3 shall presumably be
effected on 1 January 2001.
The Lessor shall notify the exact date of the handing over 14 days in
advance.
5.3.3 The handing over of the rented area pursuant to 1.2.2 shall presumably be
effected in the period between 1 January 2001 and 31 December 2001.
The Lessor shall notify the expected week of the handing over 2 months in
advance. The Lessor shall notify the exact date of the handing over 14
days in advance.
5.3.4 In the cases outlined in clause 5.2, the handing over shall be effected
respectively according to the dates set forth in 5.3.1 to 5.3.3, more
precisely
a) with regard to clause 5.2.1 upon expiry of the default in
acceptance by the Lessee;
b) with regard to clause 5.2.2 concurrently against delivery of the
guarantee;
c) with regard to clause 5.2.3 after completion of the modification
works.
5.4 The dates set forth in clause 5.3 can be postponed, in particular due to
bad-weather days, strikes and force majeure or other circumstances beyond
the Lessor's control.
In the case of delay of the compliance with the date set forth in clause
5.3.1 by more than two calendar months as well as in case of non-
compliance with the date set forth in clause 5.3.2, the Lessee shall be
entitled to claim from the Lessor a rent-free period of three days each
for every delay of one working day.
If the last date set forth in section 5.3.2 be postponed by more than
three months, the Lessee may withdraw from the Agreement. Any further
claims shall be excluded in the case of withdrawal.
5.5 Upon handing over of the Lease object to the Lessee, a joint protocol
shall be drawn up, listing possible defects which then have to be
remedied by the Lessor without undue delay.
As far as the protocol does not contain specific defects to be remedied,
the Lessee accepts the condition of the Lease object as being in
compliance with the Agreement by signing the protocol, with the exception
of hidden defects. The Lessor is thus not liable for any defects which
were noticeable during handing over but not complained of by the Lessee
and not recorded in the protocol.
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5.6 Minor defects existing at the handing over as well as works that have not
been carried out at the outdoor installations and the exterior of the
building which do not impede the operation of the Lessee's business and
which can also be remedied without impeding the business operations of
the Lessee do not delay the handing over. However, such defects have to
be remedied by the Lessor within an appropriate period of time.
5.7 The lease is terminated 17 years after the handing over of the rented
area pursuant to 5.3.2.
5.8 The Lessee has the one-time option to request the renewal of the lease
under the conditions of this Agreement by five years by written
notification to the Lessor which has to be given at the latest 12 months
prior to expiry of the fixed term set forth in clause 5.7. In that case
the lease shall automatically be renewed by five years.
If the Lessee exercises the option pursuant to paragraph 1 above, the
Lessee shall furthermore have the one-time option to request the renewal
of the lease under the conditions of this Agreement by three years by
written notification to the Lessor which has to be given at the latest 12
months prior to the option period set forth in paragraph 1. In that case
the lease shall automatically be renewed by three years.
5.9 Besides, the lease shall be renewed by one year each, unless terminated
at the latest nine months prior to the expiry of the lease term.
5.9 The receipt of the respective notifications by the notification recipient
shall be decisive for the compliance with all time limits.
(S) Termination for good cause
The legal regulations shall apply to the termination of the lease for
good cause.
(S) Structural modifications carried out by the Lessee
7.1 The Lessor hereby grants the Lessee the consent to carry out at the
latter's expense the structural modifications described in Annex 6,
required in connection with the conversion of the Lease object into an
Internet Center. The Lessee shall and is obliged to solicit any required
permits and approvals in its own name, at its own risk and at its own
account. Clause 1.4.2 and clause 1.4.3 shall apply accordingly. The
Lessee may only start the intended works after these permits have been
granted; such permits have to be submitted to the Lessor without undue
delay.
7.2 It is known to the parties that the future electricity supply of the
Lease object may require further supply lines via the property into the
building and within the building. The Lessor shall lay, within the scope
of the modification obligations described in Annex 2 at least 20 empty
pipes, as described therein, via the property to the Lease object,
however, without any warranty as to the sufficient dimensioning required
for the purpose of the lease. The Lessee shall be allocated a maximum of
three of these pipes. The Lessee shall at its own expense lay and renew
as well as maintain cables therein, subject to the procurement of any
possibly required permits. Any necessary building measures exceeding the
mere laying of cables require prior written consent of the Lessor which
may only be refused for good cause. In any event the Lessee shall take
into consideration the interests of third parties and the other use of
the property. Except for the provision of the empty pipes the Lessor does
not assume any liability for the condition and the usability of these
empty pipes rather they are transferred to the scope of responsibility of
the Lessee upon handing over. The Lessee shall be responsible at its own
expense for the cable routing from empty pipes into the lease object
which has to lead via the inspection xxxxxxxx marked in Annex 2 directly
into the Lease object.
7.3 With regard to the also rented out roof areas of the building described
in 1.2.1, the Lessee is entitled to install cooling and satellite units
without further consent of the Lessor; in such case, however, the Lessee
shall assume the entire liability for any possible damage of the roof and
any damage that might result
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therefrom. The Lessor shall, within the scope of the restoration of
the roof areas for the building described in 1.2.1 conclude a
maintenance contract. The costs of this maintenance contract shall be
borne by the Lessee within the scope of the ancillary costs pursuant
to (S) 3. Any warranty claims (the Lessor shall agree with the
instructed company on a warranty period for the impermeability of the
roof of at least 10 years) shall be assigned by the Lessor to the
Lessee after handing over ((S) 5); insofar the Lessee is also
responsible for the assertion of any warranty claims. The Lessee shall
assume liability for any possible loss of warranty claims with regard
to the installations on the roof areas which have been carried out by
the Lessee.
The aforementioned installations may only be carried out by the Lessee
subject to the consideration of the permissible load bearing
capacities, the granting of the required official obligations and
permits which have to be provided by the Lessee at its own expense;
the stipulations of the development plan and any rights of third
parties have to be taken into account by the Lessee. The Lessee shall
not be entitled to any claim on the permissibility of such
installations. The Lessee has to reimburse any damage incurred to the
Lessor or any affected third party by these installations.
7.4 Within the scope of the modification works described in Annexes 4 and
5 the Lessor shall install so-called "knockout-panels" in the Lease
object. If the Lessee intends to replace these knockout-panels by
wires, the prior written consent of the Lessor is required which may
only be refused for good cause. Furthermore, the Lessee shall submit a
set of plans showing the exact laying of the wires and the extent of
removal of the knockout-panels.
7.5 Any structural changes inside the Lease object and the installation of
any additional fittings which might be necessary for the Lessee's
business may only be carried out with prior consent of the Lessor, in
as far as walls, ceilings and other structural building components
and/or the building static as well as the building technology or other
technical systems are concerned or used, as the case may be; the
Lessee has to submit to the Lessor suitable plans thereon in advance.
The consent requires written form. The Lessor may only refuse consent
for good cause; for the same reason it may revoke its consent.
With regard to all measures-including those that do not require
consent-the Lessee has to submit to the Lessor any possibly required
permits prior to the start of the execution of works.
The costs of the measures are at the expense of the Lessee. Clause
1.4.2 and clause 1.4.3 shall apply accordingly.
7.6 Upon termination of the lease the Lessee shall have to restore the
original condition, in as far as the Lessor refuses the taking over of
any modifications or fittings installed in the Lease object by the
Lessee, which have to be offered to it.
If the Lessor agreed to the taking over, the time value shall be
reimbursed. If an agreement cannot be reached with regard to the time
value, it shall be determined by an expert as arbitrator who shall be
appointed by the Chamber of Industry and Commerce competent for the
Lease object.
7.7 Any gas and electric devices may only be connected to the existing
wire net to an extent not exceeding the intended load on the lines, on
which the Lessee has to inform itself in advance. Further devices may
only be connected with prior consent of the Lessor. The consent
requires written form. It may only be refused for good cause and
revoked for the same reason. In the case of connection the Lessee
shall bear the costs incurred by the required change of the net.
(S) 8 Liability concerning the condition of the Lease object, maintenance,
restoration and repair of the Lease object
8.1 Liability of the Lessor, maintenance, restoration and repair to be
carried out by the Lessor
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8.1.1 The Lessor undertakes the maintenance and restoration of the roof
including the insulation and the constructive components as well as
exterior walls, load-bearing interior walls, supports and foundations
as well as the facade without glassing and iron fittings of the doors
and windows of the building described in clause 1.2.2.
The costs arising therefrom shall be paid by the Lessee in addition to
the rent within the scope of the ancillary costs pursuant to (S) 3.
8.1.2 The Lessor shall provide for the appropriate decorative repairs, the
maintenance and restoration of the common facilities and common areas
as well as the maintenance, restoration and necessary repairs of all
common technical installations and facilities mentioned in clause 3.2
or in Annex 3 to Section 27 Para. 1 of the II. Computation Regulation
or otherwise existing, including the replacement of defective door-
and windowpanes and iron fittings in the premises which are not
exclusively used by the Lessee. The costs arising therefrom shall be
borne by the Lessee pursuant clause 3.2.12 proportionately as part of
the ancillary costs.
Any possibly necessary renovation of common facilities and common
areas as well as the common technical installations and facilities
shall also be borne proportionately by the Lessee.
8.1.4 Claims on damages due to defects of the Lease object can only be
asserted by the Lessee if the defect can be attributed to the Lessor's
intent or gross negligence or if the Lessor is in default with regard
to the remedy of the defects. If insofar the liability of the Lessor
is excluded, the Lessor shall assign to the Lessee any respective
claims vis-a-vis third parties.
8.1.5 Any reduction of rent or claims on damages on the part of the Lessee
due to emissions or obstructions concerning the access to the building
or building measures of third parties outside the building which are
beyond the Lessor's control shall be excluded, unless these are
attributable to third parties instructed by the Lessor or other
tenants of the Lessor on the property described in (S) 1 and make the
contractual use of the Lease object by the Lessee entirely or
substantially. The Lessor shall however endeavor to achieve the
elimination of emissions or obstructions of which it has obtained
knowledge. (S) 10 shall remain unaffected thereby.
8.2 Liability of the Lessee, maintenance, restoration and repair to be
carried out by the Lessee
8.2.1 The Lessee shall treat the Lease object with care, clean it and keep
it free of pests.
8.2.2 All decorative repairs inside the premises exclusively used by the
Lessee shall be carried out at its own expense; the same applies to
maintenance, restoration and necessary repairs of these premises and
all facilities, fittings and installations inside these premises
(including the secondary main and discharge pipes to the supply and
discharge systems from/to the main pipes, the blinds, the window
frames and the doors locking the Lease object including glass and iron
fittings).
With regard to the Lease object described in clause 1.2.1, the Lessee
shall carry out the works mentioned in paragraph 1 at the entire
building including roof and supporting parts, facade as well as the
entire building substance (including insulation, interior walls,
supports and foundations).
8.2.3 Defective window panes and fittings in premises exclusively used by
the Lessee as well as in the entire Lease object described in clause
1.2.1 shall be replaced by the Lessee, unless the defect is
attributable to the Lessor.
8.2.4 Clogging of discharge pipes has to be removed by the tenant that
caused it. The responsible person is also liable for any possible
consequential damage. With regard to the Lease object described in
clause 1.2.1, the Lessee is insofar liable for the entire removal
obligation, unless the clogging is attributable to the Lessor.
10
8.2.5 Upon termination of the lease, the Lessee has to hand over the
premises exclusively rented by it as well as the lease object
described in clause 1.2.1, entirely renovated and restored in a
workmanlike manner. This particularly includes the renewal of the
floor covering, the re-papering of the walls, the repainting of the
radiators and pipes, window and door frames as well as of the doors,
in the quality provided upon moving in.
8.2.6 If the Lessee hands back the lease object without having carried out
the works described in clause 8.2.5 and if the Lessee does not carry
out these works within (the additional period of time fixed by the
Lessor, the Lessor can carry out all necessary works at the Lessee's
expense, the claim on reimbursement of the costs also applies if the
works have been carried out by a subsequent tenant. Furthermore, the
Lessor shall in such case have a claim on reimbursement of possible
damage.
8.2.7 Before the putting up of heavy devices (machines, safes etc.), the
Lessee shall ask the Lessor about the load-bearing capacity of the
floor ceilings. The permissible load-bearing must not be exceeded. If
it is exceeded nonetheless, the Lessee shall be held liable for any
resulting damage and consequential damage and shall be obliged to
indemnify the Lessor from any possible claims of third parties.
8.2.8 The Lessee shall be responsible for any damage inside the lease
object, even if the damage has been caused by its relatives,
employees, colleagues, sub-tenants, visitors, suppliers or instructed
craftsmen.
Damages to or contamination of the property and building, if any,
outside the lease object, caused by and attributable to the Lessee,
its relatives, employees, colleagues, sub-tenants or instructed
craftsmen have to be remedied by the Lessee without prior solicitation
and without undue delay.
8.3 Joint obligations with regard to clause 8.1 and clause 8.2
The parties are obliged to have the maintenance and restoration as
well as repair works carried out within an appropriate period of time.
If one party does not comply in due time with its maintenance or
restoration obligation despite remainder and setting of an additional
period, the other party is respectively entitled to have urgently
necessary works carried out at the expense of the defaulting party.
In the case of imminent danger, each party shall be obliged to make
all necessary arrangements for the elimination of the danger.
8.4 The Lessee shall indemnify the Lessor from all claims on damages of
third parties which might result from the use of the lease object as
Internet-Center, including all claims due to obstructions resulting
from building measures, installations, secondary main and discharge
pipes and any other use intended by the Lessee. The Lessee shall in
this respect particularly guarantee that the operation of its
enterprise does not cause any emissions which exceed/fall below the
prevailing legal regulations and standards and/or are hazardous to
health. The Lessee shall shield its devices in such a way that the
transferred magnetic field strength does not influence the computer
working places in the neighboring buildings. For that purpose the
Lessee shall after conclusion of the Agreement and upon demand of the
Lessor regularly (approximately once a calendar year) measure the
radiation in the entire lease object and at the property described in
(S) 1 and will then pass on the results of the measuring to the
Lessor. The costs of these measurings shall be borne by the Lessee.
(S) 9 Access to the rented premises
The Lessor, respectively persons authorized by it, are free to inspect
the lease object at reasonable business hours of the Lessee after
prior notification of at least 24 hours and upon demand of the Lessee
in the company of a person authorized by the Lessee. In cases of
danger the Lessor shall at any time be granted access.
(S) 10 Structural modifications to be carried out by the Lessor
11
10.1 The Lessor may carry out repairs and structural modifications which
are necessary for the maintenance or operation of the building or of
the lease object or for the avoidance of imminent danger or for the
remedy of defects without consent of the Lessee. The same applies to
works and building measures which are not necessary but expedient, in
particular the modernization or improvement or the better exploitation
or or expansions (including the building of additional floors and
extensions). The Lessee shall keep the respective premises accessible
and must not obstruct or delay the execution of the works. The Lessor
shall notify the measures to the Lessee in advance, except for cases
of imminent danger.
With regard to the lease object described in clause 1.2.1 the Lessor
shall, in deviation to paragraph 1 above, only be entitled to carry
out repair works and structural modifications for the prevention of
imminent danger only, as well as in the cases where the Lessee failed
to comply with its obligations set forth in (S) 8 despite request.
10.2 Modernization and improvement measures inside the lease object
described in clause 1.2.2 have to be accepted by the Lessee to a
reasonable extent.
10.3 The Lessee may assert reduction claims due to measures pursuant to
clause 10.2 and clause 10.2, if such measures are connected to
substantial obstructions of the Lessee's business operation or if they
exclude the use of the lease object entirely or partly. Claims on
damages may only be asserted by the Lessee in cases of intent or gross
negligence on the part of the Lessor or its vicarious agents
[Erfullungsgehilfen]. The right to terminate according to Section 541
b) Paragraph (2) German Civil Code shall be excluded.
10.4 The Lessor will possibly reconstruct or newly construct the other
buildings on the property described in (S) 1 after commencement of the
lease. In view thereof the parties agree on the following, in
deviation to clauses 10.1 to 10.3:
The Lessor shall waive any claims on reduction of rent, claims on
damages, withholding rights, termination of the lease or other claims
to which it might be entitled due to obstructions resulting in
connection with the planned reconstruction measures on the property
described in (S) 1. The Lessor shall endeavor to keep such
obstructions-as far as reasonably possible-to a minimum.
The Lessor, however, shall warrant that it will have finished all
demolition works on the property described in (S) 1 by 1 September
2001 at the latest, if and insofar as such works might affect the
lease object by vibrations. If the Lessor infringes this obligation,
the Lessee may only demand reduction of rent or claims on damages in
the case of any damages occurred due to vibrations caused by the
demolition works of the Lessor. Any further claims of the Lessee shall
explicitly be excluded.
(S) 11 Advertising Design, Name Plates and Company Name Plates
11.1 Name plates and company name plates shall be uniformly designed and
installed. The determination rights lies with the Lessor that will
take into consideration any wishes of the Lessee insofar as a uniform
design allows for it.
The costs of name plates and company name plates and their
installation shall be borne by the Lessee.
11.2 In as far as advertising space has been rented out, their design,
which also has to be uniform, requires prior consent of the Lessor.
Other tenants and third parties may neither be disturbed nor affected
by advertising facilities.
Clause 1.4.2 and clause 1.4.3 also apply to advertising facilities
accordingly. The costs for the procurement, installation and
maintenance of the advertising facilities shall be borne by the Lessee
alone.
(S) 12 Subletting
12
12.1 Subletting shall only be permissible with prior consent of the Lessor
and may only be refused for good cause, except for the subletting to
affiliated companies to which the Lessor hereby explicitly agrees, if
and insofar as it does not exceed 25% of the lease object. The consent
requires written form. An already granted consent can be revoked if
any reasons are given by the person or the conduct of the subtenant
which would entitle the Lessor to terminate the lease without notice
if these reasons were given by the person or the conduct of the
Lessee.
12.2 The right to extraordinary termination of the Lessee according to
Section 549 Paragraph (1) Sentence 2 of the German Civil Code does not
apply if the Lessor refuses consent to the subletting due to reasons
given by the person of the subtenant or for any other good cause of
the Lessor.
12.3 In the case of unauthorized subletting the Lessor may demand that the
Lessee terminates the sublease agreement as soon as possible, at the
latest, however, within the period of one month. If the Lessee does
not comply therewith, the Lessor shall be entitled to terminate the
main lease agreement without notice.
12.4 The collocation (i.e.: the granting of the possibility of
installations for the operation of telecommunication and IT-facilities
inside the premises of the Lessee for third parties including access
thereto) do not constitute a subletting within the meaning of clause
12.1; clause 12.5 to 12.7, however, shall apply accordingly.
12.5 In the case of subletting, the Lessee shall be liable for any actions
or omissions of a subtenant without consideration of own failure.
12.6 In the case of subletting the Lessee shall already now assign to the
Lessor any claims with a pledge value in the amount of the Lessor's
claim, which it may assert against the subtenant, for security
purposes.
12.6 The Lessee undertakes to impose, in particular, the obligations set
forth in (S) 7, (S) 8.2.8, (S) 10 of this Agreement on all subtenants
and to exclude the protection against competition for subtenants.
12.7 Any other permission of use which exceeds temporary use and any change
in the legal form of the Lessee shall be deemed subletting.
(S) 13 Keys
----
13.1 As of the date of the complete handing over of the lease object
pursuant to clause 1.2.1, the lessee shall be responsible for the
installation of security systems/access restrictions for the Lease
object pursuant to clause 1.2.1. The Lessee shall not be given any
keys for the lease object. The Lessee shall at any time provide the
Lessor with an access possibility at any time by handing over code-
cards or similar things. Clause 7.6 shall apply accordingly upon
termination of the lease.
13.2 With regard to the remaining lease object the Lessee shall be given
the existing keys necessary for the access of the lease object.
Keys, possible produced pick-locks and code cards etc. for installed
access security systems (if and insofar as these have not been removed
by the Lessee) have to be handed over to the Lessor upon termination
of the lease.
If the Lessee does not comply with this obligation despite reminder
and fixing of an addition period, the Lessor shall be entitled to
replace the respective locks/access security systems at the Lessee's
expense.
Any loss of keys has to be notified to the Lessor without undue delay.
13
If a key of a locking-system has been lost, the Lessor can take the
necessary measures for the complete replacement of the entire locking-
system at the expense of the Lessee, unless any misuse of the lost key
can be excluded.
(S) 14 Expiry of the lease term
------------------------
Upon expiry of the lease them the lease shall not be considered
renewed for an unlimited time if the Lessee continues using the lease
object and the Lessor does not object; Section 568 German Civil Code
shall not be applicable.
(S) 15 Servitude/Agreement on vacation
-------------------------------
15.1 Creation of a servitude in favor of the Lessee
15.1.1 The part of the lease object described in (S) 1 clause 1.2.1, i.e.
building A, is located on the part of the property registered in the
Land Register of the Xxxxxxxxx Xxxxx Xxxxxxxxx xx Xxxx, xxxxxxxx 00,
volume 89, folio 2971, plot 22, parcels 5/6,5/13,5/12, 5/10,5/11,5/9
and plot 26, parcels 1/14, 1/13, 1/12, 1/11, building-and open area
Xxxxxxxxxx XxxxxxxxXx 000, entire size 53,593 sqm, marked in red in
the location plan attached to the Agreement as Annex 7 and
circumscribed with the letters A-B-C-D, of a size of approx 5,300 sqm.
Reference is made to this location plan.
15.1.2 The Lessor shall at any time upon demand of the Lessee after its
registration in the Land Register as owner of the property, at the
earliest, however, on 1 April 2001 have a limited personal servitude
entered in the Land Register, according to which the Lessee shall have
the exclusive right of operation of a telecommunication
center/internet center on the aforementioned part of the property
until 31 December 2026. The owner undertakes neither to permit any
third party a respective use as telecommunication center or internet
center for the same period on the aforementioned part of the property
nor to use it respectively itself. After the aforementioned date the
servitude shall be deleted upon application of the owner without any
requirement of consent of the entitled party
15.1.3 With regard to the law of obligations, it shall be clarified that the
aforementioned restriction is limited to the part of the property
marked in red and circumscribed with the letters A-B-C-D in the plan,
Annex 7, the size of which is approx ... sqm, and that the owner of
the property is thus entitled to either use the remaining areas of the
property as telecommunication center or internet center, as the case
may be, itself or to permit third parties a respective permission of
use in any respect as well as to create servitudes with the same
wording on account of those properties.
If the lease ends prior to 31 December 2026, either by termination of
the Lessee or by termination of the Lessor for reasons attributable to
the Lessee, the Lessee shall be obliged to co-operate in any manner in
the immediate deletion of the servitude in the Land Register. For this
purpose the Lessee shall undertake to already grant consent of
cancellation in the form required by the Land Register and to deposit
it in trust with the lawyers of Xxxxxxxx Chance Punder, Xxxxxxx
XxxxxxxxXx 00, 00000 Xxxxxxxxx xx Xxxx, being understood that these
lawyers shall be authorized to receive the consent of cancellation and
to hold possession thereon on behalf of the owner; upon receipt by the
lawyers, the consent of cancellation shall be binding according to
Section 873 Paragraph 2 German Civil Code. The owner of the property
is only obliged to present the granting of the servitude to the Land
Register for registration, concurrently against deposit of the consent
of cancellation with the lawyers of Xxxxxxxx Chance Punder, Xxxxxxx
XxxxxxxxXx 00, 00000 Xxxxxxxxx xx Xxxx.
14
15.1.4 The servitude shall be registered in Section II at next possible
ranking. In Section III, the servitude may rank behind possible
encumbrances already registered there on the registration date, even
those that serve for the financing the entire property described in
clause 1.1 rather than for the financing of the property part subject
to the present encumbrance.
15.2 The Lessee further undertakes to conclude with the Lessor the vacation
agreement according to Section 794 Paragraph 1 No. 5 German Code of
Civil Procedure, attached hereto as Annex 9 in a draft version, in
notarized form. Until the conclusion of the agreement, the Lessor
shall be entitled to refuse the handing over of the lease object.
(S) 16 No protection against competition
---------------------------------
The Lessor does not grant any protection against competition for the
property described in clause 1.1. It is known to the Lessee that the
Lessor intends to rent out the building to further telecommunication
companies for the same purpose of rent.
(S) 17 Restriction of set-off, reduction of rent, withholding rights
-------------------------------------------------------------
The Lessee can only set off such claims against the rent and the
ancillary costs which have either been determined with legal effect or
which have not been denied by the Lessor. The same applies to the
assertion of retention rights as well as for claims on reduction of
rent, if and insofar as the reduced amount does not exceed a total of
5% of the annual net rent to be paid by the Lessee and if the Lessee
has given written notice of the assertion of the reduction in rent at
least one month in advance.
(S) 18 Default
-------
In the case of default in payment of the rent and the ancillary costs,
the Lessee shall be obliged to pay default interest in the amount of
3% above the respective base rate of the European Central Bank. The
Lessor is furthermore entitled to assert possible further damage. The
Lessee shall not be deprived of the possibility to prove that only a
minor damage has occurred.
(S) 19 Written Form Requirement
------------------------
19.1 Side-agreements have not been made. The parties clarify that any
agreements made between the parties are settled in this Agreement
alone rather than in any possibly existing English translation of the
Agreement or any previous versions.
19.2 Changes and amendments of this Agreement require written form.
19.3 The specific legal written form requirement of Sections 566, 126
German Civil Code are known to the parties to this Lease Agreement.
They hereby undertake to take any actions and to give any declarations
required in order to comply with the legal written form requirement
upon demand at any time of either party, and not to terminate the
Lease Agreement prematurely with reference to the non-compliance with
the legal written form requirement. This shall not only apply to the
conclusion of the initial/main agreement, but also for any other
supplementary, changed or amended agreements.
(S) 20 Partial invalidity
------------------
If any part of this Agreement is invalid or voidable, the validity of
the Agreement shall not be affected thereof. In lieu of the legally
invalid part a provision shall be deemed agreed that according to law
corresponds closest to what the parties would had agreed if they had
known of the invalidity. The same applies to any gap in the Agreement.
15
(S) 21 Miscellaneous
-------------
21.1 Duty to make premises safe for persons or vehicles/duty of cleaning
The obligation to keep the property clean and to remove snow and ice
shall be with the Lessee.
21.2 The Lessor shall be entitled to issue house regulations and to decide
on its contents according to reasonable discretion.
21.3 Upon termination of the Lease Agreement the Lessee shall indemnify the
Lessor and the succeeding tenant from all other obligations which
might result from Section 613 a German Civil Code. The succeeding
tenant can directly assert claims against the Lessee from this
Agreement.
21.4 The Lessor waives any assertion of its pledge right as lessor with
regard to the objects brought into the lease object by the Lessee.
21.5 German law shall be applicable. Place of jurisdiction for all disputes
arising from this Agreement shall be, insofar as legally permissible,
Frankfurt am Main.
21.6 The Lessee furthermore authorizes Xx. Xxxx Xxxxxx, c/o Rechtsanwalte
Lovells Boesebeck Droste, Darmstadter LandstraBe 125, 60598 Frankfurt,
Attorney at Law, to irrevocably be entitled to act as recipient for
all declarations given by the Lessor to the Lessee. The authorized
person shall insofar be authorized recipient. Furthermore the
authorized person shall be the person authorized to accept service
within the meaning of Sections 174 et seqs. German Code of Civil
Procedure and counsel in court in the case of any legal action
according to Section 176 et. seqs. German Code of Civil Procedure. The
Lessee shall maintain this authorization for the entire period of the
lease and to present proof thereof to the Lessor if required. Any
revocation of the authorization requires written consent of the
Lessor; the Lessor shall grant consent if the Lessee appoints an
authorized person, also located in Frankfurt am Main, as a substitute,
unless the authorized person as such creates good cause to refuse
consent. Upon demand of the Lessor the authorized person shall declare
that he will not terminate the legal relationship underlying the
authorization. If the Lessee infringes the aforementioned obligations,
the Lessor shall be entitled to terminate the lease without notice
upon fixing of a two-week period.
21.7 The Lessor is willing to accept the transfer of all rights and
obligations of the Lessee resulting from this lease to a 100%
subsidiary of the Lessee, provided that the credit standing of this
company has been secured by a guaranty of the current Lessee in form
of a comfort letter, the contents of which will be prescribed by the
Lessor and provided that this lessee also fulfills, respectively will
fulfill, any future obligations resulting from the lease. In such case
the parties shall conclude an amendment which takes into consideration
the agreements and possible contractual adjustments required for an
entering. The Lessor shall only refuse the entering of such German
subsidiary of the Lessee for good cause.
(S) 22 VAT / Agreement on use with regard to VAT
-----------------------------------------
22.1 With respect to the renting out of the lease object according to
Section 9 German Turnover Tax Law, the Lessor has waived the exemption
from VAT pursuant to Section 4 No.12 a) Turnover Tax Law (VAT-option).
For that reason, the Lessee has to pay VAT in the amount legally valid
from time to time in addition to the rent and the ancillary costs.
It is known to the Lessee that the VAT-option of the Lessor is only
permissible under the conditions set forth in Section 9 Paragraph 2
Turnover Tax Law.
16
22.2 In respect thereto the parties agree on the following:
22.2.1 The Lessee undertakes to use the lease object exclusively for turnover
which does not exclude the deduction of input tax with the Lessor.
22.2.2 The Lessee furthermore undertakes to provide the Lessor upon request
at any time and without undue delay the documents that enable the
Lessor to comply with its obligation to proof towards the tax
authorities according to Section 9 Paragraph 2 Turnover Tax Law. The
Lessor can insofar demand the submission of those documents and/or
declarations from the Lessee which are demanded from it by the
competent tax authority.
22.2.3 If any circumstances should arise for the Lessee or any sub-tenant or
if such circumstances are assumed by the tax authorities within the
scope of fiscal investigations concerning the permissibility of the
Lessor's VAT-option, the Lessee shall be obliged to inform the Lessor
thereof without undue delay.
22.2.4 In the case of any subletting, the Lessee shall be obliged to opt for
VAT with regard to the subletting and to impose the obligations
resulting from clause 22.2.1 to 22.2.3 to the sub-tenant in the sub-
lease agreement in such a manner, that the Lessor can also derive
direct claims against the sub-tenant from the agreement between the
Lessee and the sub-tenant (contract qualifying for claims in favor of
third parties). The Lessee shall unrestrictedly be liable to the
Lessor for the compliance of the sub-tenant with these obligations.
22.2.5 In as far as and as long as the tax authorities apply a harmless xxxxx
amount cap-which is also recognized with the fiscal courts-with regard
to the definition of the "exclusive" use for turnover which does not
exclude deduction of input tax, this xxxxx amount cap at the same time
limits the exclusivity definition in the aforementioned provisions
(with regard thereto, see the ordinance of the Federal Ministry of
Finance on Section 9 Paragraph 2 Turnover Tax Law in Bundessteuerblatt
1999, pages 943 et seqs.).
22.2.6 If the Lessee and/or in case of subletting the sub-tenant infringes
the obligations pursuant to clauses 22.2.1-22.2.4, the Lessee shall
reimburse to the Lessor any damage resulting therefrom as well as any
other detriments.
22.2.7 The Lessor's claims against the Lessee pursuant to these provisions
shall fall under the statute of limitation after expiry of 6 years
after termination of the lease. If the Lessee or the sub-tenant, as
the case may be, does not comply with its obligation to inform
pursuant to clause 22.2.3, the period of limitation, however, shall be
extended to 10 years for all claims resulting from circumstances not
made known to the Lessor despite the Lessee's, respectively the sub-
tenant's, respective obligation.
___________ this ___________ __________,this ___________
_______________________________ _____________________________
(Lessor) (Lessee)
17
EXHIBIT 10.31
(ADDENDUMS)
Translation from the German language
------------------------------------
Addendum No.1
-------------
to the Lease Agreement dated 3 August 2000
------------------------------------------
Object: Eschborner Xxxxxxxxxxx 000,00000 Xxxxxxxxx xx Xxxx
----------------------------------------------------------
between
E/Shelter GmbH & Co. KG, Xxxxxxxxxxx Xxx. 0, 00000 Xxxxxxxx
- hereinafter referred to as "Lessor" -
and
Digital Island Inc., 00 Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, XX 00000
XXX
- hereinafter referred to as "Lessee" -
The Parties concluded a Lease Agreement on 3 August 2000 concerning areas in
the object Xxxxxxxxxx Xxxxxxxxxxx 000, Xxxxxxxxx xx Xxxx.
In addition to the agreements set forth in the Lease Agreement of 3 August 2000
the Parties agree as follows:
(S) 1 Firm Name of the Lessee
The Parties clarify that the Lessee has by mistake been referred to
as Digital Island Corp. in the Lease Agreement of 3 August 2000. The
correct firm name is "Digital Island Inc.".
(S) 2 Investment costs for electricity supply
2.1 According to (S) 1 clause 8 para. 2 of the Lease Agreement the Lessee
is obliged to reimburse against furnished proof and invoice a total of 16.5%
of all costs incurred by the Lessor for the implementation of the
corresponding supply concept for a power requirement of 90 MVA. The share of
the investment costs to be borne by the Lessee shall not be reimbursed to the
Lessor against presentation of invoice but shall be paid as additional rent
subject to the following provision:
(S) 3 Security
(S) 4.1 shall continue to apply on condition that the Lessee does not
create an unlimited guarantee but rather a guarantee for a limited
period of 19 years as of the commencement of the Lease. A sample of
the guarantee is attached hereto as Annex 1.
(S) 4 Term of the Lease
4.1 The Parties agree that the Lease shall automatically end upon expiry
of the fixed term of the Lease or, if applicable, after the expiry of the
option period.
(S) 5 clause 7 of the Lease Agreement, therefore, is revised as
follows:
"The Lease shall end - subject to clause 5.8 - 17 years after hand-
over of the rented area according to 5.3.2, whereby no prior
termination notice is required."
Clause 5.9 of the Lease Agreement ("The Lease shall be renewed...)
shall be deleted.
4.2 Clause 5.8 of the Lease Agreement shall be amended as follows:
The exercise of the option by the Lessee according to para. 1 and
para. 2 above shall be subject to the condition precedent that the
Lessee either creates a new guarantee in compliance with sample Annex
I or submits a statement of the guarantor that the existing guarantee
shall continue beyond the time limit, whereby the guarantee has to be
valid at least for the option period plus two further years.
(S) 5 Miscellaneous
Unless otherwise expressly agreed, all provisions set forth in the
Lease Agreement remain valid without change.
------------------------------- ------------------------------
(Place, Date) (Place, Date)
------------------------------- ------------------------------
(Lessor) (Lessee)
2
Translation from the German language
Addendum No.2
and
Entry Agreement
concerning the Lease Agreement dated 3 August 2000
and Addendum No. 1 dated____
Object: Eschborner Xxxxxxxxxxx 000,00000 Xxxxxxxxx xx Xxxx
between
E/Shelter GmbH & Co. KG, Xxxxxxxxxxx Xxx. 0, 00000 Xxxxxxxx
- hereinafter referred to as "Lessor" -
and
Digital Island Inc., 00 Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, XX 00000 XXX
- hereinafter referred to as "Previous Lessee" or "Digital Island Inc."
as well as
Digital Island GmbH,.....
- hereinafter referred to as "Entering Lessee" or "Digital Island GmbH" -
Preamble
The Lessor and the Previous Lessee agreed on a Lease concerning areas
in the object Xxxxxxxxxx Xxxxxxxxxxx 000, Xxxxxxxxx xx Xxxx according
to the Lease Agreement dated 3 August 2000 and Addendum No. 1 dated....
Pursuant to (S) 21 clause 7 of the Lease Agreement of 3 August 2000,
the Lessor has agreed to accept the transfer of all rights and
obligations of the leaving lessee to a 100% German subsidiary of
Digital Island Corp./1/
NOW, THEREFORE the Parties agree on the entry of the Entering Lessee into the
Lease, replacing the Previous Lessee.
(S) 1 Transfer of the Lease
The Parties agree that the Lessor will continue the Lease with
Digital Island GmbH as lessee in lieu of the Previous Lessee with
effect as per the first of the month after fulfillment of the
condition pursuant to (S) 2 below under the conditions set forth in
the Lease Agreement of 3 August 2000 - unless otherwise provided for
below.
(S) 2 Condition Precedent
--------------------------------
/1/ Remark of the Translator: The Company again is named "Corp." in the
German text, although according to Addendum No. 1 this was a mistake.
2.1 This Agreement is subject to the condition precedent that a comfort
letter of Digital Island Inc. be submitted to the Lessor with regard to the
fulfillment of the obligations of the Entering Lessee; the comfort letter
shall correspond to sample Annex 9 of the Lease Agreement.
2.2 This Agreement is furthermore subject to the condition precedent that
the Entering Lessee creates a security pursuant to (S) 4 of the Lease
Agreement with regard to its obligations resulting from the Lease. The
security can be created by a statement of the guarantor of the Previous Lessee
that the guarantee granted to the Previous Lessee will also extend to the
obligations of the Entering Lessee.
The Entering Lessee shall be liable for any consequences resulting
from a delayed creation of the security according to (S) 4 of the
Lease Agreement by the Previous Lessee in such a way as if the
Entering Lessee itself had not created the security in time. Clause
4.1 shall apply accordingly without change.
(S) 3 Hand-over
3.1 At the time of the conclusion of this Agreement, a hand-over of the
Lease Object has not yet taken place.
3.1.1 If Digital Island Inc. is in possession of the Lease Object at the
time of the transfer of the Lease according to (S) 1 above, the hand-over of
the Lease Object shall be carried out from Digital Island Inc. to Digital
Island GmbH.
Digital Island GmbH shall be obliged to accept any alterations of the
Lease Object carried out by Digital Island Inc. The condition of the
Lease Object at the time of hand-over to Digital Island Inc. shall be
considered as the original condition.
Upon request of the Previous Lessee, interim readings have to be
carried out for the statement of the ancillary costs. Any possible
additional costs shall be borne by the Previous Lessee.
3.1.2 If a hand-over of the Lease Object to the Previous Lessee has not yet
been carried out at the time of the transfer of the Lease, (S) 5.3.1 of the
Lease Agreement shall continue to apply.
3.2 Besides, (S) 5 shall remain unchanged.
(S) 4 Easement/Vacation Agreement
4.1 (S) 15 shall continue to apply on condition that the easement
according to clause 15.1 of the Lease Agreement shall be applied for in favor
of Digital Island GmbH.
4.2 Digital Island GmbH undertakes to conclude the Vacation Agreement,
attached to the Lease Agreement as Annex 8, with the Lessor in notarially
certified form according to section 794 para. 1 no. 5 German Civil Code; in
the case of (S) 3.1.1 above within one week after conclusion of this Agreement
and in the case of (S) 3.1.2 above prior to the hand-over of the Lease Object.
Besides, clause 15.2 of the Lease Agreement shall continue to apply without
change.
Digital Island Inc. and Digital can also jointly conclude the Vacation
Agreement according to section 794 para. 1 no. 5 German Civil Code in
compliance with the draft attached as Annex 1.
4.3 Besides, (S) 15 shall continue to apply without change.
(S) 5 Miscellaneous
Unless otherwise expressly agreed, all provisions set forth in the
Lease Agreement and Addendum No. 1 remain valid without change.
2
--------------------------------- ----------------------------------
(Place, Date) (Place, Date)
--------------------------------- ----------------------------------
(Lessor) (Digital Island Corp.)
---------------------------------
(Place, Date)
---------------------------------
(Digital Island Deutschland GmbH)
3
(Requirement: Notarial Deed!)
Done
at
Before me, the undersigning notary
with place of office in
appeared today:
1. E/Shelter GmbH & Co. KG, Xxxxxxxxxxx Xxxxxxx 0, 00000 Xxxxxxxx,
- hereinafter referred to as "Creditor" -
2a) Digital Island Inc., 00 Xxxxxxxx Xxxxxx, 00xx xxxxx, Xxx Xxxxxxxxx,
XX 00000 XXX
- hereinafter referred to as "Debtor " -
b) Digital Island GmbH, 00 Xxxxxxxx Xxxxxx, 00xx xxxxx, Xxx Xxxxxxxxx,
XX 00000 XXX
- hereinafter referred to as "Debtor " -
The notary has informed the parties on his obligation to ask the
persons appearing prior to the notarization whether one of his
partners or himself have already been acting in the matter to be
notarized. The persons appearing confirmed that this has not been the
case.
The persons appearing asked for the notarization of the following
Vacation Agreement
pursuant to Section 794 Paragraph 1 No.5 German Code of Civil Procedure
(S)1
Preamble
1.1 The Creditor and Debtor 1 have concluded the commercial lease
agreement dated 3 August 2000 on the areas described below located at the
property Eschborner Xxxxxxxxxxx 000, 00000 Xxxxxxxxx xx Xxxx:
- the entire building A, approx. 14,600 sqm floor space, bordered in
red in the plan Annex 1.
- in the office building O, the first upper floor with passage,
approx 500 sqm, marked in blue in the plan Annex 2,
- 20 parking spaces, marked in green in the plan Annex 3.
1.2 Debtor 1 has undertaken in the lease agreement dated 3 August 2000,
according to the provisions set forth in clause 15.2 on its obligation to
vacate the premises and hand over the lease object upon termination of the
lease, to subject itself to immediate execution in a deed pursuant to Section
794 1 No. 5 German Civil Code.
1.3 Debtor 2 intends to continue the Lease as lessee in lieu of Debtor 1.
In this case, the obligation outlined in clause 1.2 above shall apply to
Debtor 2.
NOW THEREFORE, the parties agree on the following and the Debtor declares:
(S)2
Subjection to immediate execution
2.1 The lease concerning the areas described in clause 1.1 shall
terminate, according to clause 5.7 of the lease agreement dated 3 August 2000,
17 years after the hand-over of the area pursuant to 5.3.2 of the Lease
Agreement. In addition thereto, Debtor 1 or Debtor 2, if applicable, has the
one-time right to demand the renewal of the lease by 5 years and the further
unique right to renew the lease by three years. Besides, the lease shall be
extended by 1 year each unless terminated at the latest 9 months prior to
expiry of the lease term.
2.1.1 With regard to its obligation to vacate and hand over possession of
the lease object described in clause 1.1 after expiry of the lease term, the
Debtors hereby subject themselves to immediate execution out of this deed.
2.1.2 The Creditor shall be exempt from the proof of termination of the
lease by expiry of the lease term by public or publicly certified deed
(Section 726 German Civil Code) after expiry of 31 December 2026. The Creditor
shall therefore be granted upon application one executionable copy of this
deed without proof of termination of the lease by expiry of the lease term by
public or publicly certified deed (Section 726 German Civil Code).
2.2 The lease agreement can be extraordinarily terminated according to
statutory regulations.
2.2.1 With regard to its obligation to vacate and hand over possession of
the lease object described in clause 1.1 in the case of extraordinary
termination by the Lessor for reasons attributable to the Lessee, the Debtors
hereby subject themselves to immediate execution out of this deed.
(S) 2.1.1 para. 2 shall apply accordingly.
2.2.2 The Creditor shall be exempt from the proof of the validity and the
respective Debtor's receipt of the extraordinary termination by public or
publicly certified deed (Section 726 German Civil Code) after expiry of 31
December 2026. The Creditor shall therefore be granted upon application one
executionable copy of this deed without proof of the validity and the
respective Debtor's receipt of the extraordinary termination by public or
publicly certified deed. For the issuing of an executionable copy of this deed
in the case of termination of the lease agreement by extraordinary termination
by the Lessor, however, the presentation of the written termination
declaration of the Creditor as well as a proof of service by means of an
acknowledgement of receipt of a lawyer of the law firm Lovells Boesebeck
Droste, irrevocably appointed by the Creditor as authorized recipient, to the
acting notary is required
2.3 The delivery of an executionable copy of this deed to one of the
lawyers of the law firm Lovells Boesebeck Droste is sufficient for the
compliance with the requirements for the performance of the execution against
the respective Debtor.
2.4 The aforementioned instructions to the notary on the granting of an
executionable copy of this deed cannot be revoked by either of the debtors.
(S)3
Validity of the Lease Agreement
All and any agreements between the parties pursuant to the lease agreement
dated 3 August 2000 as well as Addendum 1 and 2 shall not be affected by the
agreements made in this deed.
(S)4
Miscellaneous
4.1 The costs of this deed shall be borne by the Lessee up to an amount
of DM 10,000.00; the parties each shall pay half of the possibly exceeding
costs.
4.2 The notary is instructed to issue, for the time being, one copy of
this deed for the Creditor and one certified copy thereof for the Debtor.
The foregoing protocol has been read out to the persons appearing, was
presented to them for review, was approved by them and signed by them and the
notary in their own hands as follows:
2
Rent Guarantee
E/Shelter GmbH & Co. KG, Xxxxxxxxxxx Xxxxxxx 0, 00000 Xxxxxxxx
- hereinafter referred to as "Lessor" -
has concluded with
Digital Island Inc., 45 Freemont Street, l2th Floor, Xxx Xxxxxxxxx, XX 00000
XXX
- hereinafter referred to as "Lessee" -
a lease agreement on 3 August 2000 concerning office areas and areas for the
use of an Internet Center at Eschborner Xxxxxxxxxxx 000, 00000 Xxxxxxxxx xx
Xxxx. The contents of the lease agreement is known to us.
Pursuant to (S) 4 of the lease agreement, the Lessee is obliged to provide
security to the Lessor with regard to the fulfillment of all claims of the
Lessor resulting from the lease by furnishing a bank guarantee in the amount
of 12 times the gross monthly rent (including prepayment of ancillary costs
and VAT).
NOW THEREFORE we
--------------------------
(name of bank and address)
hereby assume vis-a-vis the Lessor the absolute, unlimited and irrevocable
guarantee in the maximum amount of
DM 7,509,283.20
(in words: Deutsche Xxxx seven million five hundred and nine thousand two
hundred and eighty three and 20 Pfennig)
for the security of all claims of the Lessor resulting from the lease
agreement as well as from any possible amendment or supplement agreements by
waiver of the defense of voidability as well as set-off and the defense of
failure to pursue remedies (Sections 770-772 German Civil Code) subject to the
provision that only claims on the payment of money can be asserted against us.
We undertake to effect payment upon first demand of the Lessor up to the
guaranteed amount.
We are not entitled to release ourselves from our obligations from this
guarantee by deposit.
This guarantee shall be liable besides possible further existing guarantees or
guarantees that might be provided in future. A joint and several liability of
the guarantor shall be excluded. Section 769 German Civil Code shall not
apply.
Our obligations resulting from this guarantee shall expire upon return of the
guarantee certificate to us, however, at the latest, 19 years after
commencement of the Lease.
---------------------,den---------- ------------------------------
(Credit Institute)
3
Mietbuergschaft
Die
E/Shelter GmbH & Co. KG, Xxxxxxxxxxx Xxxxxxx 0, 00000 Xxxxxxxx
- nachstehend "Vermieter" genannt -
hat mit
Digital Island Inc., 00 Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, XX 00000
XXX
- nachstehend "Mieter" genannt -
am 03.08.2000 einen Mietvertrag uber Bueflaechen und Flaechen zur Nutzung eines
Internet centers in der Eschborner Xxxxxxxxxxx 000, 00000 Xxxxxxxxx xx Xxxx
geschlossen. Der Inhalt des Mietvertrages ist uns bekannt.
Gemaess (S) 4 des Mietvertrages ist der Mieter verpflichtet, dem Vermieter fuer
die Erfuellung aller Ansprueche des Vermieters aus dem Mietverhaeltnis durch
Stellung einer Bankbuergschaft in Hoehe von der 12-fachen Monatsbruttomiete
(inklusive Nebenkostenvorauszalung und Umsatzsteuer) Sicherheit zu xxxxxxx.
Dies vorausgeschickt, uebernehmen wir, die
---------------------------
(Name der Bank und Adresse)
hiermit gegenueber dem Vermieter zur Sicherung aller Ansprueche des Vermieters
aus dem Mietvertrag sowie aus etwaigen Nachtrags- oder Zusatzvertruegen die
selbstschuldnerische, befristete und unwiderrufliche Burgschaft bis zum
Hochstbetrag von
DM 7.509,283,20
(in Worten: Deutsche Xxxx siebenmillionenfunfhundertneuntausendzweihundert-
dreiundachtzigundzwanzigpfennige)
unter Verzicht auf die Einreden der Anfechtung sowie der Aufrechnung und
Vorausklage ((S)(S)770-772 BGB) mit der Massgabe dass wir hieraus nur auf
Zahlung von Geld in Anspruch genommen werden koennen.
Wir verpflichten uns, auf erstes Anfordern des Vermieters Zahlung bis zur Hoehe
des verbuergten Betrages zu xxxxxxx.
Wir sind nicht berechtigt, uns von unseren Verpflichtungen aus dieser
Buergschaft durch Hinterlegung zu befreien.
Diese Buergschaft haftet neben etwaigen weiteren vorliegenden oder zukuenftigen
uebergebenen Buergschaften. Eine gesamtschuldnerische Haftung der Buergen ist
ausgeschlossen,; (S) 769 BGB gilt nicht.
Unsere Verpflichtungen aus dieser Buergschaft erloeschen mit Rueckgabe der
Buergschaftsurkunde an uns, spaetestens aber 19 Jahre nach Mietbeginn.
------------------------,don--------- ----------------------
(Kreditinstitut)
