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Oregon
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000-22780
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93-0621989
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(State or other jurisdiction
of incorporation)
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(Commission
File Number)
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(IRS Employer
Identification No.)
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¨
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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¨
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Exhibit No.
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Description
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10.1
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Agreement on Future Lease Agreement and on Rights and Duties in Connection with Acquisition and Development of Land
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10.2
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Lease Agreement
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FEI COMPANY
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/s/ Bradley J. Thies
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Bradley J. Thies
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Senior Vice President, General Counsel and Secretary
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Exhibit No.
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Description
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10.1
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Agreement on Future Lease Agreement and on Rights and Duties in Connection with Acquisition and Development of Land
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10.2
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Lease Agreement
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AGREEMENT ON FUTURE LEASE AGREEMENT AND ON RIGHTS
AND DUTIES IN CONNECTION WITH ACQUISITION AND
DEVELOPMENT OF LAND
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1.1
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The Future Lessor hereby represents to the Future Lessee, that based on the Lease Agreement and Agreement on Future Purchase Agreement with Pre-emptive Purchase Right concluded between the City of Brno and CTP Invest, spol. s r.o. (ID: 261 66 453) on
December 21
st
, 2010
, as amended by the Amendment no. 1 dated
July 15
th
, 2011
by which the Future Lessor acceded thereto (hereinafter referred to as the
“Land Agreement with Brno”
), attached as
Annex 9
hereto:
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(i)
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the Future Lessor is the lessee of a below defined part of the land plot No. 2828/1 located in the cadastral area of Èernovice, municipality of Brno, district of Brno-mìsto, registered with the land registry administered by the Land Registry Office for the South Moravian Region, Cadastral office Brno - mìsto, on the ownership list No. 10001, and forming part of an industrial complex known as CTPark Brno II. The above mentioned part of the land plot No. 2828/1 in the area of approx. 63,845 sq m to be used for construction of the Property (as defined below) in accordance herewith by the Future Lessor and, upon completion and fulfillment of the terms and conditions contained herein, to be used by the Future Lessee in accordance with the Lease Agreement (as defined below) is marked on the site plan attached in
Annex 1
hereto (hereinafter referred to as the
“Land”
);
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(ii)
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the Future Lessor is entitled to build industrial, logistics and office facilities on the Land and lease such facilities to the Future Lessee; the Land is suitable for construction of the Property in accordance herewith and that the Land is not contaminated by any means;
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(iii)
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the Future Lessor is entitled to use and to enable the use of the Land and grant an unrestricted and unlimited access to the Land, and subsequently Property to the Future Lessee on the basis of the above mentioned Land Agreement with Brno; and
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(iv)
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upon fulfillment of conditions contained in the Land Agreement with Brno the Future Lessor shall become the owner of the Land with a right to lease facilities constructed on the Land to the Future Lessee.
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1.2
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The Future Lessor shall finance the construction of the below specified Facility and Building by means of a standard bank loan and own equity of the Future Lessor, therefore, the Parties hereto, subject to fulfillment of the conditions stipulated herein, undertake to conclude a lease agreement, draft of which is attached as
Annex 3
hereto (hereinafter referred to as the “
Lease Agreement
”), subject of which shall be a lease of the below mentioned Building and a sublease of the Land for the conditions stipulated in the
Annex 3
hereto.
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1.3
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The Future Lessor hereby undertakes to enable full use of the Property under the Lease Agreement to the Future Lessee for the purpose of lease as specified in the Specification of Property Use (as defined in the
Annex 6
hereto and in the Article 3.1 below) on
April 1
st
, 2014
at the latest (hereinafter referred to as the “
Target Date
”). The Parties confirm that they will exert their best efforts to ensure that the Commencement Date (as defined below) occurs prior to the Target Date. The Parties are aware that the Future Lessor shall be able to acquire the Use Permit only within thirty (30) days after the Future Lessee completes the installation of at least a part of the Future Lessee's machinery and equipment / technology in the Building in the required extent for issuance of the Use Permit and the Future Lessee hands over to the Future Lessor all certificates, protocols and manuals to the machinery and equipment / technology necessary for issuance of the Use Permit which will be requested by the Future Lessor timely and sufficiently in advance as well as description of necessary extent of installed machinery; all in accordance with Article 4.3 letter (iv) hereof.
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1.4
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The Parties hereby agree that following execution of the Hand-Over Protocol (as defined in the Article 7.3 below), stating that the Future Lessee accepted to take-over the Property for use and confirmed the due completion of the Extension in accordance herewith, each Party shall have the right to serve a written call to the other Party to execute the Lease Agreement (hereinafter referred to as the “
Call
”). After the delivery of the Call by one Party to the other, the other Party shall be obligated to execute the Lease Agreement without delay; however within eight (8) calendar days at latest and the lease under the Lease Agreement shall commence on the date of execution of the Lease Agreement by both Parties (hereinafter referred to as the “
Commencement Date
”). Should no Party deliver the Call according to this Article until
December 31
st
, 2014
, commencing from the following day none of the Parties shall be entitled to make the Call hereunder and each of the Parties shall be then entitled to withdraw herefrom, unless the Parties agree in writing otherwise.
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1.5
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After execution hereof, upon request of one Party, the other Party shall execute and deliver to the requesting Party, from time to time, any additional instruments or documents considered necessary or reasonably desirable by the requesting Party to evidence, effect, finalize, record and/or complete the transactions and/or the obligations contemplated by this Agreement.
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2.1
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The Future Lessor hereby undertakes to construct on the Land the following production/warehouse and office facilities with the adjacent paved areas:
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(
I.
) (i)
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a production/warehouse facility with a footprint of 33,115 sq m known as Facility “D2” and comprising of two parts D2.2 and D2.3 (hereinafter referred to as the “
Facility D2
”), part of which known as “D2.2” to be designated as the production / warehouse building with a footprint area of 20,900 sq m consisting of:
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(ii)
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adjacent paved areas consisting of an outer yard with a size of 10,090 sq m including manipulation areas for the trucks and loading ramps and a car park area with 484 surface car parking lots, all
for an exclusive use by the Future Lessee, and access roads for a non-exclusive (shared) use by the Future Lessee, all to be also located on part of the Land and to be constructed in accordance with the site plan forming an
Annex 1
hereto, preliminary construction documents forming an
Annex 15
hereto and in accordance with the Technical Specifications D2.2 and all other terms and conditions agreed hereunder (hereinafter referred to as the “
Paved Areas D2.2
”),
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(
II.
) (i)
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a multi-storey office facility with a footprint of 2,431 sq m and a total rentable area of 9,414 sq m known as building “D2.1” (hereinafter referred to as the “
Office Building
D2.1
” and jointly with Facility D2 hereinafter referred to as the “
Facility
”) consisting of:
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•
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the utilities and sanitary areas with a total size of 1,631 sq m (including 110 sq m of utilities/sanitary areas located in the basement);
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•
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cafe and canteen areas with a total size of 1,066 sq m;
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(ii)
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adjacent paved areas consisting of an outer yards, green and water elements with a total size of 1,520 sq m and a car park area with 28 surface car parking lots, all
for an exclusive use by the Future Lessee to be also located on part of the Land and to be constructed in accordance with the site plan forming an
Annex 1
hereto, preliminary construction documents forming an
Annex 15
hereto and in accordance with the Technical Specifications D2.1 and all other terms and conditions agreed hereunder (hereinafter referred to as the “
Paved Areas D2.1
”).
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2.2
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The Future Lessor and the Future Lessee confirm that the rentable areas of production/warehouse, office/laboratory/reception, cafe and canteen, utilities/sanitary and roof top terrace space of the Building and Extension are agreed areas and can be subject to change only upon request of the Future Lessee and the mutual agreement of the Parties in writing, such agreed change to be implemented in each case into the respective Technical Specification as of the signing of the Lease Agreement and the Parties confirm that any requested and agreed increase in the size of the individual areas of the Building and Extension will not result in an increase of the rental unit price as defined herein, unless expressly specified otherwise herein.
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2.3
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The Property shall be used by the Future Lessee as a production/warehouse facility, office facility, sanitary, laboratory and canteen premises and yard and car park area for operating and managing of the Future Lessee's business in accordance with the Future Lessee's business licenses and certificates and scope of business registered in the Commercial Register and Specification of Property Use.
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3.1
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The Future Lessor shall be obliged to take appropriate steps and hereby undertakes to finish construction of the Facility and Property without defects and backlogs not later than on:
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(i)
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March 25
th
, 2013
with respect to the Production/Warehouse Building D2.2, including floors, Extension to the extent that relevant surfaces may be measured and Paved Areas D2.2, mainly roads, manipulation areas for trucks and loading ramps to enable transport of materials and technology into the Building (landscaping not needed); and
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(ii)
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July 5
th
, 2013
with respect to the Office Building D2.1 and remaining parts of the Facility and Paved Areas D2.1, mainly roads to enable transport of materials and technology into the Building (landscaping not needed); and
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(iii)
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the Target Date with respect to the Extension (including floors) subject to completion status as described in Article 2.1 above and works under Fit-Out Contribution (as defined below) and Requested Changes (if applicable), except for such Requested Changes that should be completed later in accordance herewith and/or agreement of the Parties.
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3.2
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The Future Lessee shall be entitled to supervise designing and construction of the Facility and Property at its own costs and in the presence of the Future Lessor and provide the Future Lessor with the suggestions and recommendations with respect thereto. The Future Lessee's approval of drawings and other technical documentation does neither limit nor cancel the Future Lessor's liabilities and warranties in respect of the Facility and Property to be built and completed. The Future Lessor shall inform in writing the Future Lessee without any delay regarding inadequacy of such suggestions and recommendations made by the Future Lessee, otherwise the Future Lessor shall be liable for such inadequacy. The provisions of this Article 3.2 do not affect other provisions of this Agreement regulating changes to the Technical Specifications and in such a case a procedure regulating implementation of the Requested Changes shall apply.
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3.3
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The Future Lessor shall notify the Future Lessee in writing within five (5) days following the day of completion of the surfaces for the production/storage area, offices and sanitary rooms of the Property and Extension, that these surfaces are finished, thus allowing the Future Lessee to measure the dimensions of these surfaces and update the rentable areas within the Lease Agreement. Without affecting the foregoing the Future Lessee shall be entitled to measure the dimensions of these surfaces of the Extension and the Property and update the rentable areas within the Lease Agreement not later than within fifteen (15) business days after the Future Lessor's notification made in accordance with this paragraph.
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3.4
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The Future Lessor shall notify the Future Lessee in writing within five (5) days following that the walls, ceilings, roofs and/or floors are finished, allowing the Future Lessee to check the quality and other parameters of these parts of the Building and Extension according to the Technical Specifications or compared to the Technical Specifications modified by the mutual written agreement of the Parties during the construction of the Property and Extension, site and floor plans hereunder, preliminary construction documents hereunder and/or Requested Changes (if applicable). The procedure regarding remedy of defects under Article 3.5 below shall apply accordingly.
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3.5
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The Future Lessor shall announce in writing to the Future Lessee within five (5) days that the electrical installations and/or heating and/or other technical installations and/or sanitary hookups and equipment are ready for testing and approval. The Parties agree that any observed defects shall be remedied by the Future Lessor until the days stipulated for completion of relevant parts of the Facility in Article 3.1 above and any and all defects and backlogs shall be duly remedied by the Future Lessor so that the Commencement Date may occur on the Target Date at the latest.
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3.6
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For avoidance of doubt the Parties confirm that the above referred inspections are preliminary inspections with respect to completion of relevant parts of the Property and Extension that are carried out to duly observe construction process and, amongst others, inspect such parts of the Property and Extension that might not be capable of inspection on the days stipulated for completion of relevant parts of the Facility in Article 3.1 above. Nothing stated above excludes obligation of the Future Lessor to duly complete the Property and Extension in accordance with deadlines stipulated in Article 3.1 above. The Future Lessor will provide the Future Lessee within the above inspections with the already available documentation on maintenance and use manual for each part of the technical equipment installed within the Building along with report on the test results, data sheets and approval records. The Future Lessee is obliged to confirm takeover of these manuals for each part of the technical equipment within the Building and Extension.
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4.1
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The Future Lessor shall be obligated to complete the Property and Extension without any defects until the relevant dates as stipulated in Article 3.1 above.
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4.2
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The Future Lessor shall grant to the Future Lessee a free of charge (except for payments of the relevant Compensation and payment for utilities as specified below) an early access (hereinafter referred to as the
“Early Access”
): (i) to the Production/Warehouse Building D2.2 as of
March 25
th
, 2013
at the latest, and (ii) to the Office Building D2.1 as of
July 5
th
, 2013
at the latest (each of the dates separately or both dates together shall be hereinafter referred to as the
“Early Access Date”
) upon signing of the early access protocol draft of which forms
Annex 10
hereto (hereinafter referred to as the “
Early Access Protocol
”) which shall confirm, upon joint inspection by the Parties, the due completion of the works by the Future Lessor without defects and backlogs as stipulated in the Article 3.1 above. The Early Access shall be granted by the Future Lessor in order to enable the Future Lessee to carry out its fit-out works within the Building, including, but not limited to, completion of the floors, roof, walls and locks on the doors and other entrances to ensure security of installed machinery and equipment / technology of the Future Lessee and Paved Areas, mainly roads, manipulation areas for trucks and loading ramps to enable transport of materials and technology into the Building (landscaping not needed).
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4.3
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The Future Lessor shall be obligated to, in accordance herewith, timely obtain and/or amend all necessary permits and authorizations required under Czech law for the construction of the Facility, Property and Extension and use of the Facility and Property, in compliance with the business activities to be carried out by the Future Lessee in the Property pursuant to the Specification of Property Use and in accordance with the Technical Specifications, site and floor plans and preliminary construction documents attached hereto and Requested Changes (if applicable), in particular, but not limited to, the Environmental Permits (as defined below), the Building Permit (in Czech: "
stavební povolení
"), the Use Permit and Occupancy Permit
(in Czech: "
kolaudaèní souhlas
") (
hereinafter referred to as
the
“Permits”
).
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(i)
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the Future Lessee shall provide the Future Lessor until
February 1
st
, 2013
at the latest and at the costs of the Future Lessee with a final and complete plan of its equipment / technology to be installed within the Building and all connected complete and final documentation and available information related to the Future Lessee's equipment / technology in the Building (except for minor changes to the information provided, which do not impact meeting the Target Date) as reasonably required by the Future Lessor timely and sufficiently in advance, all such documents and information to be provided by the Future Lessee to the Future Lessor in the Czech or English language and in the written and electronic form (hereinafter referred to as the
“Technology Information”
). The Future Lessee is aware that any changes to the Technology Information provided to the Future Lessor after signing hereof may cause delay with the issuance of the Use Permit as of the Target Date in which case the Future Lessor shall not be responsible for any delay with the Use Permit; and
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(ii)
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the Future Lessee shall provide the Future Lessor at the costs of the Future Lessee with further necessary additional information and documents related to the Future Lessee's equipment / technology to be installed in the Building, if these are reasonably requested by the respective building authority or any other state authority during the administrative procedure aimed at issuing of the Use Permit, without undue delay after receiving such reasonable request from the Future Lessor, however within ten (10) business days at the latest. Such request shall be served by the Future Lessor immediately after getting knowledge about such additional request by the respective authority. Should any such request of the respective authority be likely to cause any delay in the agreed time frame, the time frame shall be accordingly postponed if such request does not result from failure on side of the Future Lessor or its contractors and such request could not be anticipated by prudent and experienced developer of production and office facilities; and
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(iii)
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the Future Lessee shall complete the fit-outs in the Building in the extent required for issuance of the Use Permit and the Future Lessee shall hand over to the Future Lessor all certificates, protocols and manuals to the fit-outs necessary for issuance of the Use Permit which will be requested by the Future Lessor timely and sufficiently in advance and/or the relevant building authority or any other state authority on or before
December 15
th
, 2013
at latest; and
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(iv)
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the Future Lessee shall complete at its own costs the installation of the Future Lessee's machinery and equipment / technology in the Building at least partially in the extent required for an issuance of the Use Permit and hand over to the Future Lessor all certificates, protocols and manuals to the machinery and equipment / technology necessary for issuance of the Use Permit until
February 21
st
, 2014
, subject to timely Early Access; provided that the Future Lessor specifies extent of the Future Lessee's machinery and equipment / technology that must be installed for purpose of issuance of the Use Permit and all certificates, protocols and manuals to the machinery and equipment / technology necessary for issuance of the Use Permit not later than on
October, 1
st
, 2013
.
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4.4
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For avoidance of doubt, should the respective building authority or any other state authority in relation to the Future Lessee's machinery and equipment / technology to be installed in the Building and to the Future Lessee's production process request the performance of the Environmental Impact Assessment (EIA) procedure resulting in issuance Environmental Impact Assessment Statement and/or issuance of a special Integrated Prevention Pollution Control permit (each of them separately or both together shall be hereinafter jointly referred to as the “
Environmental Permits
”) as a precondition for the issuance of the Use Permit enabling the Future Lessee the use of the Property as described in the Specification of Property Use, the Future Lessor shall ensure elaboration of the special technology project for the respective Environmental Permits at the costs of the Future Lessee, and ensure issuance of such Environmental Permits provided the Future Lessee gives to the Future Lessor upon request necessary cooperation (especially as under point (ii) of Article 4.3 above) to follow the procedure and obtain the Environmental Permits including submitting all documents and information necessary for the procedure and issuance of the Environmental Permits to the respective building authority or any other state authority in a sufficient form, complete and correct. The Future Lessor shall then ensure that all the Environmental Permits are issued allowing the Future Lessee to start operations under the Lease Agreement on the Target Date, however should the Target Date be delayed due to necessity of issuance of the Environmental Permits and such delay would be caused other that by fault on the side of the Future Lessor, the Future Lessor shall not be responsible for such a delay. In such a case the time frame of this Agreement shall be accordingly postponed by the time necessary for issuance of the Environmental Permits (i.e. the Early Access Date and/or Hand-Over).
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4.5
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The Parties shall be obliged to provide each other with any and all necessary assistance and cooperation so that all the steps necessary for obtaining of any Permits related to the Property and other authorizations are taken as soon as possible. The Parties shall provide themselves with any copies of all such Permits without undue delay after their issue and entry into legal force.
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4.6
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In case the Use Permit is issued only for certain period of time, the Future Lessor shall ensure issuing of the occupancy permit for the Facility (in general as a building, excluding the use of the Extension) and Property approving its use, including Technical Specifications, site and floor plans and preliminary construction documents attached hereto, Requested Changes (if applicable), use of the technology of the Future Lessee and in accordance with the Specification of Property Use that shall be duly connected to the Use Permit (hereinafter referred to as the “
Occupancy
Permit
”) after the trial use of the Property by the Future Lessee including the use of the installed machinery and equipment / technology that shall be duly effected without affecting in any way whatsoever the continual Future Lessee's business operations in the Property, and the Future Lessee hands over to the Future Lessor any documents and information necessary for obtaining the Occupancy Permit and proving due performance of the trial use of the Future Lessee's machinery and equipment / technology in the Building two (2) months prior the expiry of the Use Permit at the latest; a copy of the Occupancy Permit shall be provided to the Future Lessee without unnecessary delay after the Occupancy Permit becomes effective; however, not later than within five (5) business days thereafter. The Occupancy Permit must allow the Future Lessee to continue use the Property without any interruption during the lease term and for the purpose agreed under the Lease Agreement. The Future Lessor shall bear responsibility for delay with issuance and / or legal effectiveness of the Occupancy Permit unless this is caused due to delay or event of default of the Future Lessee or Force Majeure. The Future Lessor shall not bear responsibility due to circumstances the relevant building authority or any other state authority is responsible for.
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4.7
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Contractual Penalties
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5.1
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The Future Lessor offers to the Future Lessee that it will invest into the Property and/or the Extension (slabs and additions to the floors only) upon the written request of the Future Lessee the amount up to EUR 1,000,000 for the Future Lessee's fit-outs (hereinafter referred as to the “
Fit-Out Contribution
”). The Future Lessee is entitled to use the Fit-Out Contribution for fit-out works leading to the fitting-out of the Property and/or the Extension such as construction or installation of the external canopy, additional doors, gates, partitions and clean-rooms, slabs and additions to the floors and the like. The Fit-Out Contribution has been considered (included) in the amounts of the Rent (as defined in Article 6.1 below) however should the Future Lessee decide not to use the amount of the Fit-Out Contribution in full, it is not entitled to request a reduction of the Rent. The Future Lessor shall not reject implementation of the works required by the Future Lessee under the Fit-Out Contribution without good reason and hinder the Future Lessee from using the proceeds of the Fit-Out Contribution. The Parties agreed that the Future Lessor shall implement the works under Fit-Out Contribution at its costs. The Future Lessee shall submit to the Future Lessor request for the works under the Fit-Out Contribution and principles described below with respect to the implementation of the Requested Changes shall apply accordingly - namely the principle of written approval of the works and written agreement on a fixed price to be deducted from the Fit-Out Contribution; however in this case excluding the coordination fee of the Future Lessor. Any price suggestions should be based on fair market prices without any add-up by the Future Lessor. The Future Lessor must provide to the Future Lessee results of the tendering process for the above works, which must include at least three (3) bids and all background information, within reasonable time after the receipt of order from the Future Lessee, however within fifteen (15) business days after the receipt of order from the Future Lessee at latest. The Future Lessee shall not reject approval of such results of tendering process without a good reason. If the Future Lessee does not deliver its rejection to the Future Lessor within five (5) business days after the receipt of the bids from the Future Lessor, the results of tendering process shall be deemed confirmed and accepted by the Future Lessee. Given the fact that the Future Lessor provides for an option to adopt certain works under the Fit-Out Contribution, the Parties confirm that implementation of such works covered by the Fit-Out Contribution shall not affect timing hereunder, mainly reaching the Target Date and delays shall be considered as delays in meeting the Target Date hereunder.
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5.2
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Besides the Fit-Out Contribution the Future Lessee is entitled to request changes in the Technical Specifications, including obtaining of the relevant authorizations/permits during construction of the Property and Extension (slabs and additions to the floors only) (hereinafter referred to as the
"Requested Changes"
). The Requested Changes shall be requested by the Future Lessee sufficiently in advance, i.e. on or before (i) relevant Early Access Date, in which case the Future Lessor shall complete such Requested Changes not later than on December 15
th
, 2013 or (ii) September 1
st
, 2013, in which case the Future Lessor shall complete such Requested Changes not later than February 21
st
, 2014. After the submission of the Future Lessee's request, the Parties shall then agree on the exact specification, lump sum costs (capped) and timing for completion of the Requested Changes in writing, providing that Parties shall not unreasonably withhold or delay their consent with other Party's proposals, while it is understood by the Parties that the Requested Changes related to the fitting and improvement of the Property such as construction or installation of the external canopy, additional doors, gates, partitions and clean-rooms shall not be rejected without a good reason. The Parties have further agreed on an investment cap (for the purpose of rentalization of the Requested Changes only) which may be requested by the Future Lessee up to the total price equaling to EUR 3,000,000 (excl. VAT and incl. 7% Future Lessor's coordination fee) (hereinafter referred to as the
“Investment Cap”
), which is on top of the Fit-Out Contribution.
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5.3
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If the costs for the Requested Changes (excl. VAT and incl. 7% Future Lessor's coordination fee) exceed the Investment Cap, then the Future Lessee shall pay the costs exceeding the Investment Cap as the lump sum; the Future Lessor shall issue an invoice, in which it accounts the expenditures for the Requested Changes in construction of the Property including coordination fee in the amount 7% of the costs for the Requested Changes (covering the permitting and project management work of the Future Lessor) based on and not exceeding the Approved Price or part thereof (as defined below). The Future Lessee undertakes to pay to the Future Lessor the total amount contained in the relevant invoice within thirty (30) days after the completion of the Requested Changes. The Parties agree that no cap applies to the overall Requested Changes, i.e. the Investment Cap is cap for purpose of rentalization only.
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5.4
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The Future Lessor is entitled to perform any change in the Technical Specifications hereto and/or Requested Changes only upon agreement with the Future Lessee, such agreement to be in writing.
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5.5
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The Parties hereby agree that the Future Lessor shall not be entitled to make any alterations or modifications to the Property, Extension (shell and core and floors) and Land without prior written consent of the Future Lessee and/or install any equipment on the roof of the Facility and/or the Land. For avoidance of doubt the Parties confirm that the roof of the Facility and its outer facade is a part of the Building (part of the object of the Lease Agreement) and Extension.
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5.6
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The Future Lessee is entitled, since the Early Access, to place advertising boards anywhere on outside of the Building at its own costs provided that it does not violate any applicable laws, regulations, decrees or permits by doing so, and in case of placing the advertising boards on the Building the Future Lessee has to agree with the Future Lessor the exact design, size and placement on the roof. In addition the Future Lessee shall be entitled to install the roof sign to which the Future Lessor expressly agree. The location of the roof sign to be agreed by the Parties, provided that upon request of the Future Lessee the Future Lessor shall provide suggestions regarding location of roof sign within seven (7) business days following receipt of such request from the Future Lessee. The Future Lessor is obliged to provide the necessary cooperation to the Future Lessee, in particular to provide it with the necessary approvals required by the relevant public administration authorities. Any signs to be placed inside the Building by the Future Lessee do not require consent of the Future Lessor.
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6.1
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The rent for the use of the Property by the Future Lessee shall be calculated based on the following unit prices:
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6.2
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The actual Rent and Park Management Fee for purpose of the Lease Agreement and calculation of the Compensation hereunder shall be calculated (increased or decreased, as the case may be) proportionally in accordance with the actual size of the Property (within the permitted deviations under Article 3.3 hereof) marked in the measurement protocol being a part of the Hand Over Protocol (with respect to the Rent and Park Management Fee) and measurement as of the Early Access Date (with respect to the Compensation), provided the actual size of the Property differs from the sizes specified herein or compared to the Technical Specification and/or site and floors plans and preliminary construction documents attached hereto modified by the mutual agreement of the Parties or the Requested Changes during the construction period of the Property. Any permitted deviations of the actual total rentable area of the Property and / or its individual parts as referred to in Article 3.3 above, shall be reflected in the calculations of the total Rent and Park Management Fee adjustment; however only with respect to decrease of the areas. Any increase of the actual total rentable area of the Property and / or its individual parts shall not be reflected in the calculation of the total Rent, Park Management Fee and Compensation adjustment and total amounts of the Rent and Park Management Fee and Compensation shall not change. Any decrease of the actual total rentable area of the Property and / or its individual parts shall be duly reflected in the calculation of the total Rent and Park Management Fee adjustment.
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7.1
|
The Property shall be handed over by the Future Lessor to the Future Lessee duly completed, free and clear of any backlog and defect, in accordance with the site and floor plans and preliminary construction documents attached hereto, the Technical Specifications, works under the Fit-Out Contribution and Requested Changes (if applicable) and suitable for use in accordance with Specification of Property Use and applicable legal regulations, with all Permits and fully approved by valid and effective Use Permit to be used by the Future Lessee in the full scope and, despite the Extension will not be handed over to the Future Lessee, it shall be duly completed, free and clear of any backlog and defect, in accordance with the site and floor plans, preliminary construction documents and Technical Specification D2.3 and floors completed in accordance with Article 3.1 above. The Future Lessee is obliged to take over the Property provided there are no defects and backlogs of the Property and Extension (only to the extent of the Extension Defects) on the Target Date at the latest and provided that the Future Lessor has delivered to the Future Lessee valid and enforceable Use Permit (the
“Hand - Over”
). Should the Future Lessee unreasonably refuse to take over the Property or does not at all react to the Future Lessor's invitation for the final handover, despite the Property and Extension is in a condition as above in this paragraph, the handover of the Property shall be deemed performed.
|
|
(i)
|
the Facility (in general as a building) and Property and Extension is constructed and completed in accordance herewith at the liability and costs of the Future Lessor, with the exception of the costs Requested Changes (if applicable), which will be reimbursed by the Future Lessee to the Future Lessor in a manner agreed herein;
|
|
(ii)
|
the legally effective Use Permit is issued and delivered with a written notice regarding the same to the Future Lessee;
|
|
(iii)
|
expiration of a full period of each Early Access, however this condition shall be deemed fulfilled in case the Early Access could not be granted by the Future Lessor on the dates set out in the Article 3.1 exclusively due to the default hereunder by the Future Lessee and only for period of such default; and
|
|
(iv)
|
expiration of a full period for installation of the machinery and equipment / technology (i.e. granting of access to completed Property by the Future Lessor on or before
December 15
th
, 2013
);
|
|
7.2
|
For avoidance of doubt the Parties confirm that during the construction process each Party shall be responsible for implementation of its own works and for such purpose they attach as
Annex 5A,
Annex 5B
and
Annex 18
hereto a general description of responsibilities of the Parties within construction process, mainly to identify major obligations of the Future Lessor with respect to a shell & core completion of the Facility, Property and Extension.
|
|
7.3
|
The Parties agreed that they shall jointly start to inspect the Property and Extension to evaluate their readiness for the final handover already from the Early Access Dates upon notification of the Future Lessor delivered to the Future Lessee. During this time period until the Hand-Over the Parties shall organize regular inspections to the Property and Extension in order to identify the potential defects and, if possible, ensure their removal until the Hand-Over. This does not relieve the Future Lessor from its obligation to complete and handover the Property and complete Extension (in the extent described hereunder) on time and in accordance herewith.
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|
7.4
|
If despite identified defects the Future Lessee accepts Hand-Over, the Future Lessor shall remove all defects of the Property and Extension (only to the extent of the Extension Defects) at its own cost within the shortest possible time, but not later than within fourteen (14) days following signing of the Hand-Over Protocol or within a different period as it shall be agreed in the Hand-Over Protocol. Should such defects, backlogs and/or remedy works limit the Future Lessee in the use of the Property in accordance with the Lease Agreement, the Future Lessee shall be entitled to the proportional reduction of the Rent and Park Management Fee until such deviations have been cured and contractual penalty in the amount of EUR 10,000 per day of delay commencing from the Target Date. Same principles and sanctions apply with respect to removal of the hidden defects which existed on the Property and were unidentifiable at the time of Hand-Over starting from the date of notification of the above hidden defects to the Future Lessor, however only if such defects result from the construction of the Property and are not subject to ordinary wear and tear.
|
|
7.5
|
The Party making the Call hereunder is obliged to amend and sign the Lease Agreement without any delays after the Hand-Over date at the latest in accordance herewith.
|
|
7.6
|
The wording of the Lease Agreement shall be amended especially in the following manner, unless the Parties agree otherwise:
|
|
(i)
|
the official date of the execution of the Lease Agreement;
|
|
(ii)
|
the exact and actual areas and specifications of the production / warehouse, office, sanitary/utilities, canteen areas within the Property shall be inserted, and the Rent and Park Management Fee shall be calculated and amended site and floor plans and Technical Specifications inserted; and
|
|
(iii)
|
all not-yet-known formal information (such as identification of the names of the representatives of the Future Lessor and the Future Lessee, contact details, missing amounts and numbers, etc.).
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7.7
|
None of the Parties shall bear responsibility for any negative impact or any breach hereof provided that it cannot fulfill its obligations hereunder due to reasons of Force Majeure. This provision shall apply mutatis mutandis to obligations of all Parties hereto. For the purpose hereof, “
Force Majeure
” shall mean a delay caused by strikes, lockouts or similar labour disruptions; earthquakes, fire, floods or similar natural disasters; significant and documented unusual and unanticipated weather delays; war, riot or civil insurrection; governmental moratoriums; or other similar causes beyond Party's control which could not be reasonably foreseen by the Party. For the avoidance of doubt, the Parties agree that for the purposes of this Agreement “Force Majeure” shall not include any of the risks associated with the activities of a real estate developer/lessor (such as, without limitation, failure or delay by sub-contractors in meeting deadlines, failure or delay in obtaining licenses-permits-certificates from competent authorities caused by reasons on side of the Future Lessor, unavailability of money or financing proceeds, negative effects of financial/economic crisis).
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8.1
|
All disputes arising from this Agreement and in connection with it, including any disputes in respect of the validity thereof, shall be finally decided in arbitration proceedings before the Arbitration Court affiliated to the Economic Chamber of the Czech Republic and the Agrarian Chamber of the Czech Republic in Prague by three (3) arbitrators appointed in accordance with the Rules of the Arbitration Court affiliated to the Economic Chamber of the Czech Republic and the Agrarian Chamber of the Czech Republic in Prague. The award issued by these arbitrators shall be final, binding upon the Parties and enforceable. The language of the legal proceedings shall be English.
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|
9.1
|
The Future Lessor shall be entitled to assign in full all its rights and obligations hereunder or resulting from this Agreement to a company belonging to the group (for the purpose of this Agreement member of the group is an entity belonging to concern pursuant to Section 66a of the Act 513/1991 Coll., as amended, the Commercial Code) provided that (i) such company shall become the sole owner of the Facility and
Property and Extension (including the Land, or shall become a lessee under the Land Agreement with Brno), (ii) all rights and obligations hereunder or resulting herefrom shall be assigned to such entity, including the Guarantee (as defined in Article 12.1 below), (iii) such company shall warrant a free, unrestricted, full access to the Property and Extension (if applicable) and (iv) such a company shall provide the Future Lessee in advance with (a) a parent company guarantee guaranteeing due fulfillment of the obligations hereunder and under the Lease Agreement and form of which forms
Annex 13
hereto to be issued by a parent company of the company to which this Agreement is assigned, provided that is has the same or better financial standing as the current guarantor of the Future Lessor, or (b) a guarantee form of which forms
Annex 13
hereto issued by the current guarantor of the Future Lessor. In addition the Future Lessor shall be entitled to assign receivables and Guarantee herefrom to a bank financing the construction of the Property.
|
|
9.2
|
The Future Lessee shall be entitled to assign and transfer all rights and obligations under this Agreement to any entity belonging to the same group of companies as the Lessee, controlled by, controlling or under common control of the Future Lessee pursuant to the § 66a of the Act No. 513/1991 Coll., the Commercial Code, as amended (hereinafter referred to as the “
Future Lessee Affiliate
”) under the fulfillment of the following conditions:
|
|
(i)
|
the Future Lessee shall inform the Future Lessor in writing about any contemplated assignment of rights and obligations under this Agreement to any Future Lessee Affiliate at the latest thirty (30) days prior such assignment (hereinafter referred to as the “
Day of Assignment
”);
|
|
(ii)
|
at the time of such assignment, the Future Lessee Affiliate shall have the same or better financial standing than the Future Lessee had at the time of concluding hereof;
|
|
(iii)
|
prior the Day of Assignment all payable financial obligations of the Future Lessee, especially the Compensation (if applicable), arising out of or howsoever connected with this Agreement and existing as of the Day of Assignment shall be paid to the Future Lessor in accordance with this Agreement;
|
|
(iv)
|
prior the Day of Assignment a new Guarantee substituting the Future Lessee's Guarantee in a form attached as
Annex 7
hereto securing from the Day of Assignment fulfillment of all financial obligations of the Future Lessee Affiliate arising out of this Agreement shall be delivered to the Future Lessor and the Future Lessor shall return the original Guarantee to the Future Lessee upon receipt of the new Guarantee.
|
|
9.3
|
Notwithstanding the foregoing, the Future Lessee, or its permitted successive assignees or transferees, may assign or transfer this Agreement or delegate any rights or obligations hereunder without consent of the Future Lessor in connection with a merger, reorganization, transfer, sale of assets, or change of control or ownership of Future Lessee, or its permitted successive assignees or transferees provided that: (i) the Future Lessee documents to the Future Lessor on or before assignment or transfer or delegation that the Future Lessee's successor hereunder has the same or better financial standing than the Future Lessee had at the time of conclusion hereof, (ii) all rights and obligations hereunder or resulting herefrom shall be transferred or assigned to such entity, including CTP Guarantee (as defined below), (iii) such a company shall provide the Future Lessor in advance with (a) a parent company guarantee guaranteeing due fulfillment of the obligations hereunder and under Lease Agreement and form of which forms
Annex 7
hereto to be issued by a parent company of the company to which this Agreement is assigned, provided that is has same or better financial standing as the current guarantor of the Future Lessee, or (b) a guarantee form of which forms
Annex 7
hereto issued by the current guarantor of the Future Lessee. Without limiting the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties and their permitted successors and assignees.
|
|
9.4
|
Only if all the conditions mentioned under the letters (i) to (iv) of Article 9.2 are fulfilled as of the Day of Assignment, the Parties hereto and the Future Lessee Affiliate shall, within thirty (30) business days following request of any Party or the Future Lessee Affiliate, enter into an amendment to this Agreement upon which all rights and obligations of the Future Lessee shall be transferred to the Future Lessee Affiliate, which shall take over all rights and obligations of the Future Lessee arising from this Agreement.
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10.1
|
The Future Lessor shall until the days specified in Article 3.1 construct and complete also:
|
|
(i)
|
an additional production/warehouse part of Facility D2 known as building “D2.3” with a footprint area of 12,215 sq m consisting of the production/warehouse area with a size of 12,215 sq m, to be located on another part of the land plot No. 2828/1 located in the cadastral area of Èernovice, municipality of Brno, district of Brno-mìsto and to be constructed according to the site plan and floor plan hereunder, technical specification attached in
Annex 18
hereto (hereinafter referred to as the “
Technical Specification D2.3
”)
and preliminary construction documents forming an
Annex 15
hereto (such part of the Facility D2 hereinafter referred to as the “
Extension Production/Warehouse Building D2.3
”), and
|
|
(ii)
|
additional adjacent paved areas consisting of an outer yards with a size of 2,580 sq m for an exclusive use by the future lessee of the Production/Warehouse Building D2.3 containing a car park area with 47 surface car parking lots for an exclusive use by the future lessee of the Production/Warehouse Building D2.3, to be also located on the additional part of the land plot no. 2828/1 as above and to be constructed in accordance with the site plan forming an
Annex 1
hereto, Technical Specification D2.3 hereto and preliminary construction documents forming an
Annex 15
hereto (hereinafter referred to as the “
Extension
Paved Areas D2.3
”),
|
|
10.2
|
The Future Lessee hereby acknowledges that the Extension shall be leased to a third party and that the Future Lessee shall be entitled to request the lease of the Extension upon a delivery of a written extension notice to the Future Lessor at least eighteen (18) months before the presumed lease commencement date of the Extension (hereinafter referred to “
Extension Notice
”), however the Extension Notice can be delivered to the Future Lessor on
October 1
st
, 2017
at latest. Should the Future Lessee exercise its extension right as mentioned above, the Future Lessor shall then be obligated to hand over and lease the Extension, in good conditions, free of any goods and without any defects to the Future Lessee within eighteen (18) months following the date of receipt of the Extension Notice by the Future Lessor (hereinafter referred to as the “
Extension Target Date
”). Within this period the Future Lessor shall be obliged to return the Extension into condition outlined in the Technical Specification D2.3 and increase the area of outer yards for an exclusive use by the Future Lessee by 140 sq m to a total size of 2,720 sq m and increase a number of surface car parking places by number 42 to a total number of 89 surface car parking lots for an exclusive use of the Future Lessee (as outlined in the site plan forming an
Annex 1
hereto). The Parties shall sign an amendment to the Lease Agreement or a new lease agreement the subject of which shall be the lease of the Extension within thirty (30) days following the Future Lessee's notice. The amendment to the Lease Agreement or the new lease agreement shall be concluded in all material aspects under the same conditions as this Agreement and the Lease Agreement (in particular an obligation of mutual cooperation, construction, hand-over, measurements, conditions for completion, requested changes, rent for production/warehouse space - EUR 3.79 per sq m per month + VAT, rent for outer yard - EUR 1,150 per whole area per month + VAT and rent for car park - EUR 1 per place per month + VAT, and no adjustment (increase) shall apply in this respect). The lease term of the Extension as well as the term of lease of the Property under the Lease Agreement shall terminate at the same moment, by expiration of premature termination. Should the Future Lessor fail to provide the Extension within the above period, it shall be obligated to pay to the Future Lessee a contractual penalty in the amount of EUR 10,000 for each commenced day of delay. For avoidance of doubt, the penalty hereunder is not applicable in case the delay is caused by the default of the Future Lessee (e.g. lack of the Future Lessee's cooperation) and only until lasting of such default, by the authorities (acting beyond or in breach of their duties) or by Force Majeure. If the Future Lessee requires carrying such production operations within the Extension, nature of which will be different than the operations carried out within the Property and as a result thereof there will be need to obtain an Environmental Permit, obtaining of which would cause that the Future Lessor would not be able to deliver the Extension on the Extension Target Date, the Parties shall in good faith negotiate prolongation of the delivery period. Should the Lease Agreement be already signed and stipulate sanctions with respect to breach of identical obligation of the Future Lessor the sanctions under the Lease Agreement shall apply.
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|
10.3
|
Competition and Non-Disturbance Clause.
The Future Lessor undertakes not to lease any part of the Extension to any of the companies (including their subsidiaries, affiliates or any other enterprises in which they directly or indirectly participate) performing their business activities in fields mentioned in the list attached as
Annex 8
hereto or to a company, business operations of which would periodically exceed the limits of the vibration, EMI and acoustic as specified in
Annex 16
hereto.
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10.4
|
The Future Lessor further undertakes to ensure that: (i) any lessee of the Extension or its any part shall not disturb or limit the Future Lessee's operation in the Property, (ii) such lessee shall together with the Future Lessee contribute on proportional basis to the operating expenses connected with the use and management of the Property, Extension and CTPark Brno II, (iii) there will be “house rules” set up by the Future Lessor and the Future Lessee to govern the mutual relationship between the Future Lessee and the lessee of the Extension which will be binding for the Future Lessor, Future Lessee and for the lessee of the Extension. In the event of any disruption of the Future Lessee's operation in the Property by any lessee of the Extension, the Future Lessor shall pay to the Future Lessee the contractual penalty in the amount of EUR 10,000 per each commenced day of limitation since the third (3
rd
) day (inclusive) after the delivery of a written notice by the Future Lessee regarding such disruption, provided that the Future Lessor did not remedy the claimed disruption within first two (2) days after the delivery of such written notice by the Future Lessee regarding such disruption. Should the Lease Agreement be already signed and sanctions with respect to breach of identical obligation of the Future Lessor be agreed therein, the sanctions under the Lease Agreement shall apply.
|
|
11.1
|
In addition to any other similar right which the Future Lessee may be entitled to pursuant to any mandatorily applicable provisions of Czech law, the Future Lessor hereby grants or undertakes to ensure granting to the Future Lessee a right of first refusal for lease of any space within:
|
|
(i)
|
the Extension, and/or
|
|
(ii)
|
the building registered on the date hereof in cadastre as the building under construction built on the land plot No. 2828/227 located in the cadastral area of Èernovice, municipality of Brno, district of Brno-mìsto, and/or
|
|
(iii)
|
the building registered on the date hereof in cadastre as the building registered on the date hereof in cadastre as the building under construction built on the land plot No. 2828/232 located in the cadastral area of Èernovice, municipality of Brno, district of Brno-mìsto, and/or
|
|
(iv)
|
the new building to be built on the land plot No. 2828/1 located in the cadastral area of Èernovice, municipality of Brno, district of Brno-mìsto, as this building is marked on the plan forming an
Annex 17
hereto (hereinafter referred to as the “
Intended Building
”), if such Intended Building will be constructed,
|
|
(v)
|
including paved areas directly adjacent to the Extension and/or to the buildings mentioned above in points (ii) - (iv) (hereinafter all together or each of it separately referred to as the “
Additional Property
”) in future (hereinafter referred to as the “
Right of First Refusal
”).
|
|
11.2
|
In the event that the Future Lessor offers to and/or receives from any third party request for leasing the Additional Property (hereinafter referred to as the “
Third Party Lease Offer
”), it shall so notify in writing to the Future Lessee within thirty (30) days from receipt of the Third Party Lease Offer, thereby giving an appropriate information on: (i) the rent offered and (ii) the specification of the Additional Property, and (iii) all other appropriate information, such as lease term, break options, rent free periods, contributions, etc.
|
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11.3
|
The Future Lessee shall have a right to notify in writing, within forty five (45) days following a receipt of the notification of the Third Party Lease Offer from the Future Lessor, whether it intends to lease the Additional Property at the same terms and conditions of the Third Party Lease Offer.
|
|
11.4
|
The execution of the future lease agreement or amendment to the Lease Agreement regarding the lease of the Additional Property shall be made within thirty (30) days from a receipt by the Future Lessor of the Future Lessee's communication notifying its intention to lease the Additional Property at such date, place and time as shall be communication in writing by the Future Lessee to the Future Lessor under the same terms and conditions as specified herein or the Lease Agreement (except for rent and commercial terms specified in the Third Party Lease Offer).
|
|
11.5
|
If the Future Lessee does not accept the terms and conditions of the Third Party Lease Offer or does not response to the notice from the Future Lessor within the period mentioned above in the Article 11.3, the Future Lessor may lease such Additional Property to the entity identified in the Third Party Lease Offer only based on not more favorable conditions than stipulated in the Third Party Lease Offer. The Right of First Refusal hereunder shall apply anytime such Additional Property becomes vacant and potentially leased or if is not leased under the Third Party Lease Offer and negotiations start with another third party.
|
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12.1
|
The Future Lessee is obliged to provide the Future Lessor with a parent company guarantee issued for the benefit of the Future Lessor in the form attached as
Annex 7
within thirty (30) days after the conclusion hereof (hereinafter referred to as the
“Guarantee”
). The Guarantee shall cover financial risks arising under and in connection with this Agreement and the Lease Agreement. The Guarantee shall not be assignable otherwise than as stipulated under Article 9.1 above. The Future Lessee is obliged to keep this Guarantee valid and enforceable during the entire time hereof and the term of the Lease Agreement. Should the Future Lessee breach this obligation, the Future Lessor shall be entitled to a contractual penalty equal to EUR 500,- per each day the default of the Future Lessee is lasting. Should the Lease Agreement be already signed and sanctions with respect to breach of identical obligation of the Future Lessee be agreed therein, the sanctions under the Lease Agreement shall apply.
|
|
12.2
|
The Future Lessor is entitled to withdraw from this Agreement in case it does not sign a standard bank loan enabling it to start the construction of the Property until
July 15
th
, 2012
. In such a case the Future Lessor shall pay to the Future Lessee a compensation for already expended costs and damages in the amount of a lump sum equal to EUR 250,000.
|
|
12.3
|
Save as otherwise agreed in writing by the Parties, this Agreement shall be effective from the date hereof and shall continue to be valid and effective between the Parties until all obligations provided herein have been duly performed and/or all rights granted herein have been exercised and/or have expired.
|
|
12.4
|
By sending to the Future Lessor the relevant notice through registered mail, the Future Lessee shall have the right (but not obligation) to withdraw from this Agreement, which shall then cease to have any validity whatsoever, without prejudice to the right of the Future Lessee to contractual penalties and/or damages agreed hereunder, if the Early Access and/or Commencement Date does not occur within six (6) months following Target Date, unless such delay is exclusively due to default of the Future Lessee. In case of delay caused by the circumstances that fall exclusively within the responsibility of the Future Lessee, the new date, on which the Future Lessee has the right to withdraw from this Agreement, shall be extended for the period of delay that the Future Lessee bears responsibility for. It is understood that, in any event, in case of withdrawal from this Agreement, other than for breach by the Future Lessee, the Future Lessor shall not be entitled to any reimbursement or any other indemnity from the Future Lessee for any activity, including part or all the works done at any given time or at any other title.
|
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12.5
|
Any notice required or authorized to be given under this Agreement shall be made in writing and signed by (or by a person duly authorized by) the person giving it and may be hand delivered or delivered by registered post or courier to the address of the relevant Party as specified below (or to such other address as shall have been duly notified in accordance with this Article):
|
|
(i)
|
If to the Future Lessor:
|
|
(ii)
|
If to the Future Lessee:
|
|
12.6
|
This Agreement shall be governed by the Czech law.
|
|
12.7
|
If any provision of this Agreement is or becomes invalid or unenforceable, other provisions shall remain fully valid and enforceable and the Parties shall replace such invalid or unenforceable provisions by another provision, which shall come closest to the original intent of the Parties.
|
|
12.8
|
This Agreement has been executed in 2 (two) counterparts in the English language. Both Parties shall receive 1 (one) counterpart hereof.
|
|
12.9
|
This Agreement may be amended or modified only by a written instrument signed by all the Parties hereto. Any termination (including withdrawal) hereof must be in writing and delivered to the other Party.
|
|
12.10
|
The following Annexes form an integral part of this Agreement:
|
|
LEASE AGREEMENT
|
|
1.1
|
The Lessor hereby represents and guarantees to the Lessee, that based on the Lease Agreement and Future Agreement on Purchase Agreement with Pre-emptive Purchase Right concluded between the City of Brno and CTP Invest, spol. s r.o. (ID: 261 66 453) on
December 21
st
, 2010
, as amended by the Amendment No. 1 dated
July 15
th
, 2011
by which the Lessor acceded thereto
(hereinafter referred to as the “
Land Agreement with Brno
”), the Lessor:
|
|
(i)
|
is the lessee of the part of the land plot No. 2828/1 with acreage of [•] and land plot No. [•] with acreage of [•] located in the cadastral area of Èernovice, municipality of Brno, district of Brno - mìsto, which was created by division from the above mentioned part of the land plot No. 2828/1 upon registration of the Facility into the cadastre as the buildings under construction (in Czech:
“rozestavìná budova”
). Both above mentioned land plots are registered with the land registry administered by the Land Registry Office for the South Moravian Region, Cadastral office Brno - mìsto, on the ownership list No. 10001, and forming part of an industrial complex known as CTPark Brno II, will be used by the Lessee in accordance herewith and are marked on the site plan attached in
Annex No. 6
hereto (hereinafter collectively referred to as the “
Land
”);
|
|
(ii)
|
was duly entitled to build and has built the industrial, office and logistics Facility (as defined below) on the Land in accordance with the Future Lease Agreement and related agreements with the Lessee thereunder and is entitled to lease the Facility to the Lessee hereunder; the Land was is suitable for construction of the Property (as defined below) and is suitable for operation thereof in accordance herewith and that the Land is not contaminated by any means;
|
|
(iii)
|
is entitled to use and to enable the use of the Land to the Lessee hereunder on the basis of the above mentioned Land Agreement with Brno;
|
|
(iv)
|
upon fulfillment of conditions contained in the Land Agreement with Brno the Lessor shall become the owner of the Land and shall ensure uninterrupted use thereof by the Lessee, and
|
|
(v)
|
the Lessee shall be granted with an unrestricted and unlimited access to the Land and the Property for the entire duration hereof and the Lessor shall ensure such access free of charge for entire duration hereof.
|
|
(i)
|
is the exclusive owner of
a production/warehouse facility, which is registered in cadastre as the building under construction (in Czech:
“rozestavìná budova”
) placed on the land plot No. [•] located in the cadastral area of Èernovice, municipality of Brno, district of Brno - mìsto with a footprint area of [•] sq m known as Facility “D2” and comprising of two parts D2.2 and D2.3 (hereinafter referred to as the “
Facility D2
”) and is the exclusive user of adjacent paved areas consisting of an outer yard with size of [•] sq m, including manipulation areas for the trucks and loading ramps and [•] surface car parking places on a part of the land plot No. [•], as well as access roads as all shown on site plan attached hereto as
Annex No. 6
,
|
|
(ii)
|
is the exclusive owner of a multi-storey office facility, which is registered in cadastre as the building under construction (in Czech:
“rozestavìná budova”
) placed on the land plot No. [•] located in the cadastral area of Èernovice, municipality of Brno, district of Brno - mìsto and known as building “D2.1” with a footprint of [•] sq m, including office and laboratory, utilities and sanitary, cafe and canteen, roof top terrace and underground parking (hereinafter referred to as the “
Office Building D2.1
” and collectively with the Facility D2 the “
Facility
”) and is the exclusive user of adjacent paved areas consisting of an outer yard with size of [•] sq m
on a part of the land plot No. [•] and a car park area with [•] surface car parking lots on a part of the land plot No. [•], as all shown on site plan attached hereto as
Annex No. 6
,
|
|
1.2
|
The Lessor hereby also represents to the Lessee that it has completed in accordance with the Future Lease Agreement and related agreements with the Lessee thereunder
the Facility in the following extent and specifications:
|
|
(I.)
(i)
|
a part of the Facility D2 which is known as building “D2.2” and designated for the production / warehouse with a footprint area of [•] sq m and total rentable area of [•] sq m consisting of:
|
|
•
|
the production/warehouse area with a size of [•]
sq m,
|
|
•
|
the office areas with a size of [•] sq m,
|
|
•
|
the
utilities/sanitary areas with a size of [•] sq m,
|
|
(ii)
|
adjacent paved areas consisting of an outer yard with a size of [•]
sq m including manipulation areas for the trucks and loading ramps and a car park area with [•] surface parking lots, all for an exclusive use by the Lessee (hereinafter referred to as the “
Paved Areas D2.2
”) and access roads for a non-exclusive (shared) use by the Lessee, all located on the part of the Land and constructed in accordance with the site plan forming an
Annex No. 6
hereto and in accordance with the Technical Specification D2.2 and the Future Lease Agreement;
|
|
(II.)
(i)
|
the whole Office Building D2.1 with a footprint area of
[•]
sq m and total rentable area of [•] sq m consisting of:
|
|
•
|
the office and laboratory areas with a size of [•] sq m,
|
|
•
|
the
utilities/sanitary areas with a size of [•] sq m (including [•] sq m of utilities/sanitary areas located in the basement),
|
|
•
|
the cafe and canteen areas with a size of [•] sq m,
|
|
•
|
the roof top terrace with a size of [•] sq m,
|
|
•
|
[•]
underground (basement) car parking lots,
|
|
(ii)
|
adjacent paved areas consisting of an outer yard with a size of [•] sq m including a car park area with [•] surface car parking lots, all for an exclusive use by the Lessee (hereinafter referred to as the “
Paved Areas D2.1
”) and access roads for a non-exclusive (shared) use by the Lessee, all located on the part of the Land and constructed in accordance with the site plan forming an
Annex No. 6
hereto and in accordance with the Technical Specification D2.1 and the Future Lease Agreement.
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|
1.3
|
The Lessor hereby leases to the Lessee and the Lessee hereby leases from the Lessor the Building, in the form of lease, and Paved Areas, in the form of sublease, and allows and grants free of charge the non-exclusive use of the access roads as referred to in Article 1.2 (I)(ii) and Article 1.2 (II)(ii) above as the areas for non-exclusive use of the Lessee. Unless expressly stated otherwise herein, the conditions applicable to the above lease shall also apply to sublease and non-exclusive use and therefore the term “lease” shall be interpreted as referring accordingly also to the above “sublease” and “non-exclusive use”. The Lessee shall be entitled to full and exclusive use of the Building and Paved Areas for warehousing, production, office, cafe and canteen (as applicable) and related ancillary uses and parking lots for parking in accordance with the terms and conditions of this Agreement during the entire Term and/or any Extended Term (as both terms are defined in the Article 4.1 below) and the Lessor fully acknowledges the above.
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|
1.4
|
The Lessee shall be entitled during the entire Term and/or any Extended Term to use all connections to public suppliers of utilities (electricity, gas, water, telephone, etc.) in the extent necessary for the operation of Lessee's plant and its business operations in the Property, but not exceeding the extent specified in the Technical Specifications attached hereto. The Lessor undertakes to secure for the benefit of the Lessee free and uninterrupted access to the supply of public services from the public utilities to the Property at all times during the Term and Extended Term. The Lessor shall in no case be responsible for power failure caused by circumstances or default of the particular public supplier of utilities; however the Lessor hereby undertakes to secure the uninterrupted use of all connections to public suppliers of utilities for the Lessee. Should the Lessor fail to comply with its obligations hereunder, it shall either remedy the default or provide alternative source of the utilities without any undue delay after the notice received from the Lessee; however not later than within 48 hours from such receipt. Should the Lessor fail to ensure such remedy or alternative supplies duly and on time according to the preceding sentence it shall pay to the Lessee a contractual penalty in the amount of EUR 10,000 per each commenced day of interruption of use of a connection to public supplier of utility
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|
1.5
|
The Lessor hereby declares that the Property is suitable for use in accordance with this Agreement and its Annexes and that there is valid and effective use permit issued enabling the use of the Property in accordance herewith which for the purposes of this Agreement is the temporary use permit or trial use permit (hereinafter referred to as the “
Use Permit
”). A copy of the Use Permit forms an
Annex No. 4
hereto.
|
|
1.6
|
The Parties shall be obliged to provide each other with any and all necessary assistance and cooperation so that all the steps necessary for obtaining of any administrative permit related to the Property and the Lessee's machinery, equipment and/or technology installed in the Property and other authorizations are taken as soon as possible. The Parties shall provide themselves with any copies of all such permits without undue delay after their issuance and entry into the legal force.
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|
1.7
|
The Lessee shall be responsible for obtaining and maintaining of all corporate administrative authorizations or licenses necessary for its contemplated activities performed within the Property, such as the trade licenses or authorizations under Act No. 455/1991 Coll., the Trade Licenses Act, as amended.
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|
1.8
|
The Lessor undertakes upon a written request of the Lessee to provide the Lessee with a consent to situate the seat of the Lessee at the address of the Facility D2 or Facility D2.1 (upon the Lessee's choice) with authorized signature not later than within 10 (ten) days after the delivery of a written notice from the Lessee. The Lessor further undertakes that upon a written request of the Lessee, the Lessor shall provide the Lessee with a written consent to state the address of the respective Building as the address of the Lessee's business premises in its trade license.
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|
2.1
|
The Property was handed over by the Lessor to the Lessee and taken over by the Lessee for the full use in accordance with the Future Lease Agreement prior or on the date hereof (hereinafter referred to as the “
Hand-Over Date
”).
|
|
2.2
|
On the day of the Early Access (as defined in the Future Lease Agreement) and/or Hand-Over Date a protocols were signed by the Lessor and the Lessee, in which the condition as well as all defects and backlogs of the Property and Extension (as applicable under the Future Lease Agreement), status of utilities meters and actual dimensions of individual surfaces of the Building and Extension (i.e. production, office, cafe and canteen, terrace and sanitary areas) measured in accordance with the Future Lease Agreement, handover of all keys, access cards and any other items including the maintenance manuals needed for use and maintenance of the Property by the Lessee were recorded (hereinafter collectively referred to as the “
Hand-Over Protocol
”). By signing the Hand-Over Protocol the Lessee accepted the Property for use hereunder subject to removal of the snags defined within the Hand-Over Protocol. A copy of the Hand-Over Protocol forms an
Annex No. 8
hereto.
|
|
2.3
|
The Lessor shall remove all the defects identified in the Hand-Over Protocol, as well as hidden defects which existed on the Property and were unidentifiable at the time of hand-over, not later than within 14 (fourteen) days following the signing of the Hand Over Protocol or the date of notification of the above hidden defects to the Lessor, as applicable or latest within the time periods agreed in the Hand-Over Protocol. Should such defects, backlogs and/or remedy works prevent the Lessee from the access and/or use of the Property in accordance with this Agreement, the Lessee shall be entitled to the full or proportional reduction of the Rent and Park Management Fee until such deviations are cured.
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|
3.1
|
The Property shall be used by the Lessee as a production/warehouse facility with office, sanitary, laboratory and cafe and canteen premises, yard and car park area to conduct business operations of the Lessee in accordance with its business licenses and authorizations at the time of conclusion of this Agreement or as revised from time to time during the Term and any Extended Term. Detailed specifications of the use of individual parts of the Property by the Lessee are described in Specification of Property Use and existing valid and effective administrative permits regulating the use of the Property. The Lessee is entitled to use the Property in accordance with its scope of business as stipulated in the extract from the Commercial Register attached
Annex No. 5
hereto.
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|
3.2
|
The Lessor undertakes not to initiate any proceedings regarding a different use of the Property or make any changes to the Facility and/or Property without a previous written approval of the Lessee.
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|
4.1
|
The lease term hereof shall start on the day of signing hereof (hereinafter referred to as the
“Commencement Date”
) and is concluded for a definite period until
March 31
st
, 2034
(hereinafter referred to as the
“Term”
).
|
|
4.2
|
The Lessor is authorized to an early termination of this Agreement within 30 (thirty) calendar days' notice period starting to run from the day following the delivery of the Lessor's termination letter by registered post to the Lessee solely in case any of the events listed below occurs:
|
|
(a)
|
the Lessee is in default with the performance of its financial obligations due under this Agreement for more than 30 (thirty) consecutive calendar days; or
|
|
(b)
|
the Lessee carries out substantial Structural Changes (as defined in the Article 9.2 hereof) on any part of the Property without the prior consent of the Lessor; or
|
|
(c)
|
the Lessee breaches one of the following substantial obligations under this Agreement:
|
|
(d)
|
the Lessee subleases the Property contrary to Article VII. hereof; or
|
|
(e)
|
a declaration of insolvency in accordance with the Act No. 182/2006 Coll., on Insolvency and Its Resolution, as amended, is issued by a court with respect to the Lessee, or a court denies a motion for a declaration of insolvency owing to the lack of property to cover the costs associated with insolvency proceedings; or the Lessee itself files a petition for a declaration of insolvency over its property; or a receiver or administrative receiver of the Lessee is appointed; or a resolution on the winding-up of the Lessee, either compulsorily or voluntarily (except for the purpose of amalgamation or merger) is adopted;
|
|
4.3
|
For any breach under the points (a) to (d) in the Article 4.2 above (not remedied within the remedy period under the Article 4.2 above and only after the expiration of such period), which may lead to the preliminary termination of this Agreement in accordance with the Article 4.2 above, the Lessee shall pay to the Lessor the contractual penalty in accordance with the following principles:
|
|
(i)
|
until the expiry of the 10
th
(tenth) year of duration of this Agreement: 48 (forty eight) monthly
Rent payments applicable on the day of termination of this Agreement; and
|
|
(ii)
|
from start of the 11
th
(eleventh) year of duration of this Agreement until the expiry of the Term: 36 (thirty six) monthly Rent payments applicable on the day of termination of this Agreement, but not more than the
remaining Rent to be paid until the expiry of the Term;
|
|
(iii)
|
during any Extended Term: 18 (eighteen) monthly Rent payments applicable on the day of termination of this Agreement, but not more than the remaining Rent to be paid until the expiry of the respective Extended Term.
|
|
4
.4
|
The Lessor and the Lessee shall be responsible for the behaviour and negligence of their representatives and employees. The Lessor shall be responsible for quiet enjoyment with respect to other lessees in CTPark Brno II.
|
|
4.5
|
The Lessee is entitled to early terminate this Agreement within 30 (thirty) calendar days notice period starting to run from the day following the delivery of the Lessee's termination letter by registered post to the Lessor solely in case any of the events listed below occurs:
|
|
(a)
|
the Lessee is unable or substantially restricted to access and/or use the whole Property (factually or legally, including lack of or limitation within the Use/Occupancy Permits) for more than 7 (seven) consecutive calendar days without the Lessee being at fault; or
|
|
(b)
|
the Lessee was unable access and/or to use (factually or legally, including lack of or limitation within the Use/Occupancy Permits) 35% or more of the currently leased production and warehouse area of Property as marked in the plan attached hereto as
Annex No. 1A
or 35% or more of the Property, both for more than 15 (fifteen) consecutive calendar days without the Lessee being at fault; or
|
|
(c)
|
the Lessee could not access and/or use any of the connections to the public suppliers of utilities for more than 14 (fourteen) consecutive calendar days without the Lessee being at fault; or
|
|
(d)
|
the Lessor fails to ensure and/or maintain a title of the Lessee to use the Land, which causes actual technical or legal inability of the Lessee to access the Property for more than 7 (seven) consecutive calendar days or the Lessor fails to ensure and/or maintain a title of the Lessee to use the Land for more than 60 (sixty) consecutive calendar days without the Lessee being at fault without any additional conditions; or
|
|
(e)
|
a declaration of insolvency in accordance with the Act No. 182/2006 Coll., on Insolvency and Its Resolution, as amended, is issued by a court with respect to the Lessor, or a court denies a motion for a declaration of insolvency owing to the lack of property to cover the costs associated with insolvency proceedings; or the Lessor itself files a petition for a declaration of insolvency over its property; or a receiver or administrative receiver of the Lessor is appointed; or a resolution on the winding-up of the Lessor, either compulsorily or voluntarily (except for the purpose of amalgamation or merger) is adopted, or
|
|
(f)
|
the Lessor breaches any of its obligations under Article 15.5 for more than 7 (seven) consecutive calendar days without the Lessee being at fault,
|
|
4.6
|
For any breach under points (a) to (d) and (f) in the Article 4.5 above (not remedied without the remedy period under the Article 4.5 above and only after the expiration of such period), which may lead to the preliminary termination of this Agreement in accordance with the Article 4.5 above, the Lessor shall pay to the Lessee the contractual penalty in accordance with the following principles:
|
|
(i)
|
until the expiry of the 10
th
(tenth) year of duration of this Agreement: 48 (forty eight) monthly Rent payments applicable on the day of termination of this Agreement;
|
|
(ii)
|
from start of the 11
th
(eleventh) year of duration of this Agreement until expiry of the Term: 36 (thirty six) monthly Rent payments applicable on the day of termination of this Agreement, but not more than the
remaining Rent to be paid until the expiry of the Term; and
|
|
(iii)
|
during any Extended Term: 18 (eighteen) monthly Rent payments applicable on the day of termination of this Agreement, but not more than the remaining Rent to be paid until the expiry of the respective Extended Term.
|
|
4.7
|
However, in case of events listed under Article 4.5 above, the Lessor shall not be obliged to pay the contractual penalties if the situations described under the points (a) to (d) or (f) of Article 4.5 above occurred due to reasons of the Force Majeure.
|
|
5.1
|
From the Commencement Date the Lessee shall be obliged to pay to the Lessor the rent for use of the Property by the Lessee (hereinafter referred to as the “
Rent
“) calculated as follows:
|
|
5.2
|
The Rent and the Park Management Fee shall be paid quarterly in a lump sum amount in advance in CZK using the CZK/EUR exchange rate of
25.785
fixed for the entire Term and Extended Term.
The Lessor will issue an invoice that will meet the requirements of Czech tax law.
|
|
5.3
|
In case of any outstanding payments resulting from this Agreement, the Lessee shall pay to the Lessor a default interest amounting to a fixed rate of 0.05% from the outstanding amount per each day of delay. In doubt whether the Rent or other financial obligation under this Agreement was paid on time or not the decisive day is the day on which the whole due amount is credited to the Lessor's account.
|
|
5.4
|
The Rent amount and the Park Management Fee shall be increased by a fixed indexation rate amounting to 1.25 % per calendar year, the indexation to take place as of the anniversary of the Commencement Date of each calendar year of the Term, however the first indexation shall take place on the fifth (5
th
) anniversary of the Commencement Date.
|
|
5.5
|
The Rent is paid duly if it is credited to the Lessor's account on the due date. The Rent for each quarter of the year shall be due within 30 (thirty) calendar days following the day of a delivery of the respective invoice; the invoice shall be issued on the 1
st
(first) business day of the 1
st
(first) month of the quarter for which the Rent is being paid. Should the Commencement Date occur other day then the 1
st
(first) day of the calendar quarter, the invoice for the Rent and the Park Management Fee for such quarter shall be proportionally decreased to correspond to number of days for which the Rent and the Park Management Fee is paid until the end of the relevant quarter in which the Commencement Date occurred and the invoice shall be issued on the Commencement Date. The same principle applies in case this Agreement terminates on other day that the last day of the calendar quarter.
|
|
5.6
|
Without prejudice to any other Lessee's rights hereunder or under applicable law, the Lessee shall be entitled to full or proportional reduction of the Rent and the Park Management Fee in the case that the access to or use of the Property or operation of its plant within the Property is limited due to circumstances that the Lessee bears no responsibility for.
|
|
6.1
|
Apart from the Rent the Lessee shall be obliged to pay to the Lessor park management services costs connected to the use of the Property in accordance with this Article VI. The costs for the park management services are the expenses and costs connected with the operation and maintenance of the Property and the common areas of the CTPark Brno II to be provided by the Lessor.
|
|
6.2
|
The park management services provided by the Lessor include the following services:
|
|
•
|
All necessary CTPark Brno II maintenance -
maintenance of all publicly accessible areas located outside the Property within CTPark Brno II (including common green areas etc.)
|
|
•
|
Snow and ice removal from all publicly accessible areas located outside the Property within CTPark Brno II, operation, maintenance and repairs of access roads
|
|
•
|
Operation, maintenance and repairs of public lighting on common areas of CTPark Brno II
|
|
•
|
Operation, maintenance and repairs of outdoor sewage system, major maintenance of all utilities outside the Building such as gas pipes, waste water pipes, drink water facilities
|
|
•
|
Park publicity and sign-posting
|
|
•
|
Insurance fees
|
|
•
|
Property tax
|
|
•
|
CTPark Brno II management - administrative and security services
|
|
6.3
|
The price for provision of all these Services amounts to EUR 3.00 (in words: three Euro) per 1 square meter of the rentable area of the Building (which shall be calculated as a sum of square meters of the Production/Warehouse Building D2.2, square meters of all aboveground storeys of the Office Building D2.1 and square meters of utilities/sanitary areas located in the basement of the Office Building D2.1; however in each case excluding office, utility and sanitary areas within the Production/Warehouse Building D2.2, i.e. [•] square meters in total), i.e. in total
EUR
[•] (in words: [•] Euro) per year plus mandatory VAT (hereinafter referred to as the “
Park Management Fee
”). The Park Management Fee shall be paid and indexed in the same manner as the Rent.
|
|
6.4
|
From the Commencement Date the Lessee shall enter by itself into agreements with the suppliers of utilities (electricity, heat, gas, drinking/sewage/rain water, telephone etc.) and bear the costs of supplies and the cost of electricity capacity charge.
|
|
6.5
|
If entering into such separate agreements as aforementioned is technically not possible, the respective contract / contracts with the suppliers of services / utilities (electricity, heat, gas, drinking/sewage/rain water, telephone etc.) shall be concluded by the Lessor. Based on this contract / these contracts the Lessor shall then issue and deliver to the Lessee a separate invoice for the utilities actually consumed by the Lessee in the Property without any surcharge. The consumption shall be measured by the measuring devices installed in the Building at Lessor's costs. The Lessee shall pay the invoice within 30 (thirty) days after the invoice has been delivered. The Lessor will not add a bookkeeping charge or “surcharge” on the actual cost for any agreement concluded by Lessor (other than Lessor's right to receive the Park Management Fee).
|
|
6.6
|
The Lessor shall ensure the maintenance and repairs of the sprinkler station (sprinkler tank including the sprinkler machine room) which shall be used by the Lessee and other lessees of the buildings connected to the sprinkler station and sprinkler tank. The Lessee shall jointly with other lessees of the buildings connected to the sprinkler station and sprinkler tank bear respective part of costs for daily maintenance and repairs of the sprinkler station (sprinkler tank including the sprinkler machine room), calculated for the Lessee according to the proportion of the total built-up area of the buildings connected to the sprinkler station and sprinkler tank to the built-up area of the Building. However the above maintenance and repairs shall be at liability of the Lessor during a period of the relevant warranties provided by the Lessor's suppliers or during a period for which usually such warranties are granted.
|
|
7.1
|
The Lessee shall be entitled to assign and transfer all rights and obligations under this Agreement to any entity belonging to the same group of companies as the Lessee, controlled by, controlling or under common control of the Lessee pursuant to the § 66a of the Act No. 513/1991 Coll., the Commercial Code, as amended (hereinafter referred to as the “
Lessee Affiliate
”), if the following conditions are fulfilled:
|
|
(i)
|
the Lessee shall inform the Lessor in writing about any contemplated assignment of rights and obligations under this Agreement to any Lessee Affiliate
30 (thirty) days prior such assignment at the latest (hereinafter referred to as the “
Day of Assignment
”);
|
|
(ii)
|
at the time of such assignment, the Lessee Affiliate shall have the same or better financial standing than the Lessee had at the time of concluding hereof;
|
|
(iii)
|
prior the Day of Assignment all outstanding financial obligations of the Lessee, especially the Rent and the Park Management Fee, arising out of or howsoever connected with this Agreement and existing as of the Day of Assignment shall be paid to the Lessor in accordance with this Agreement;
|
|
(iv)
|
prior the Day of Assignment a new Guarantee in the form attached as
Annex No. 7
hereto securing from the Day of Assignment a fulfillment of all financial obligations of the Lessee Affiliate arising out of this Agreement shall be delivered to the Lessor and the Lessor shall return the original Guarantee (as defined below) to the Lessee upon receipt of the new Guarantee. If the Lessor does not require a new Guarantee, the Guarantee that is currently in effect at the time of an assignment or other transfer shall automatically apply to the Lessee Affiliate.
|
|
7.2
|
Following the assignment and transfer of all rights and obligations under this Agreement to the Lessee Affiliate in accordance with the previous Article 7.1 hereof the Parties hereto and the Lessee Affiliate shall, within 30 (thirty) business days following request of any Party or Lessee Affiliate, enter into an amendment to this Agreement declaring assignment and transfer of all rights and obligations of the Lessee to the Lessee Affiliate.
In case the conditions mentioned under the letters (i) to (iv) of Article 7.1 above are not fulfilled, the assignment of rights and obligations to the Lessee Affiliate shall not be effective vis-à-vis to the Lessor, and the Lessee shall stay the contractual Party hereto.
|
|
7.3
|
Notwithstanding the foregoing, the Lessee, or its permitted successive assignees or transferees, may assign or transfer this Agreement or delegate any rights or obligations hereunder without a consent of the Lessor in connection with a merger, reorganization, transfer, sale of assets, or change of control or ownership of the Lessee, or its permitted successive assignees or transferees provided that: (i) the Lessee documents to the Lessor on or before assignment or transfer or delegation that the Lessee's successor hereunder has the same or better financial standing than the Lessee had at the time of conclusion hereof, (ii) all rights and obligations hereunder or resulting herefrom shall be transferred or assigned to such entity, including CTP Guarantee (as defined in the Article 16.1 below), (iii) such a company shall provide the Lessor in advance with (a) a parent company guarantee guaranteeing due fulfillment of the obligations hereunder and form of which forms
Annex No. 7
hereto to be issued by a parent company of the company to which this Agreement is assigned, provided that is has the same or better financial standing as the current guarantor of the Lessee, or (b) a guarantee form of which forms
Annex No. 7
hereto issued by the current guarantor of the Lessee. Without limiting the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties and their permitted successors and assignees.
|
|
7.4
|
The Lessee shall be entitled to further sublease the Property as whole or in parts in an unlimited number to other legal entities subject to previous written consent of the Lessor. The Lessor's consent shall not be unreasonably withheld or delayed. The consent shall be deemed reasonably withheld in case the Lessee intends to sublease the Property for the rent which is substantially under normal market conditions. Thus, for the purposes of the receiving the Lessor's consent, the Lessee is obliged to provide the Lessor with a specific amount of the rent for which the Property or its part should be subleased to the third entity. The Lessee undertakes not to further sublease the Property or any of its parts to the companies that keep in store or process hazardous raw materials.
In the event of further sublease or co-usage of the Property (as stated below in this paragraph), the Lessee shall remain the contractual Party of the Lessor to the full extent and for the whole duration of this Agreement and shall be fully liable for its sublessees or co-users. For avoidance of doubt the Lessee shall be entitled to sublease or part with possession to the whole or part of the Property to any Lessee Affiliate, to which Lessor hereby consents regardless of the rental amounts.
|
|
7.5
|
The Lessee is entitled to place advertising boards anywhere inside or on the Building at its own costs provided that it does not violate any applicable laws, regulations, decrees or permits by doing so, and in case of placing the advertising boards on the Building the Lessee has to agree with the Lessor the exact design, size and placement on the roof. The Lessor is obliged to provide the necessary cooperation to the Lessee, in particular to provide it with the necessary approvals required by the relevant public administration authorities. In addition the Lessee is entitled to maintain for entire Term and Extended Term the logo installed on the roof of the Facility under the Future Lease Agreement as displayed on plan attached hereto as
Annex No. 14
.
|
|
7.6
|
The Lessor undertakes to allow free and unrestricted access at all times, 24 hours per day, 365 days a year along all roads and paths to the Property and free and unrestricted use and peaceful enjoyment at all times, 24 hours per day, 365 days a year along the Property for purpose hereof and grant truck access to the loading and unloading areas of the Property, with the exception if such use and access is not possible due to the Force Majeure and shall ensure the same with respect to any third parties and other lessees of the Lessor. The Lessor shall be obligated to grant and provide for the entire Term and any Extended Term to the Lessee the Services in the extent as agreed herein.
|
|
7.7
|
The Lessor shall be entitled to assign in full all its rights and obligations hereunder or resulting from this Agreement to a company belonging to the group (for the purpose of this Agreement member of the group is an entity belonging to concern pursuant to Section 66a of the Act 513/1991 Coll., as amended, the Commercial Code) provided that (i) such company shall become the sole owner of the Facility, Property and Extension (including the Land, or shall become a lessee under the Land Agreement with Brno), (ii) all rights and obligations hereunder or resulting herefrom shall be assigned to such company, including the Guarantee (as defined in the Article 16.1 below), (iii) such company shall warrant a free, unrestricted, full access to the Property and Extension (if applicable) and (iv) such company shall provide the Lessee in advance with (a) a parent company guarantee guaranteeing due fulfillment of the obligations under this Agreement and Future Lease Agreement and form of which forms
Annex No. 10
hereto to be issued by a parent company of the company to which this Agreement is assigned, provided that such parent company has the same or better financial standing as the current guarantor of the Lessor, or (b) a guarantee form of which forms
Annex No. 10
hereto issued by the current guarantor of the Lessor. In addition the Lessor shall be entitled to assign
receivables herefrom and the Guarantee to the bank financing the construction of the Property.
|
|
8.1
|
The Lessee shall perform day to day repairs and maintenance of the Building (excluding outside areas of the Property) in the following extent: day to day upkeep and repairs, day to day maintenance, regular safety checks (in Czech: “
revize
”), controls and other day to day maintenance of the Building including all installed equipment and machinery within the Building including the electrical (such as electrical doors, gates, docks) and compressed air equipment as well mechanical equipment (such as mechanical doors, gates, dock), installations for heating and cooling (offices). With respect to the costs of the day-to-day maintenance and repairs, if the cost of maintenance and repairs within the Property not caused by the Lessee exceeds an amount of 5,000.00 EUR / per event of maintenance and repair and 50,000.00 EUR / in total per year of the Term and the Extended Term, the amount in excess shall be paid by the Lessor to the Lessee within 30 (thirty) days after the delivery of the written request of the Lessee. In any case the maintenance of the equipment has to be carried out by the Lessee. If any parts of the Building are or usually would be under warranty, the maintenance (excluding upkeep) and repairs will be carried out by the Lessor - in such cases the Lessee shall not pay for the maintenance and repairs as well as in case the defects are caused by the Lessor. If the Lessor fails to pay the amounts of the expended costs in excess of the aforementioned amounts the Lessor shall pay to contractual penalty in the amount of 0.05% of a delayed amount per day of delay and the Lessee may set-off all amounts against any amount due to the Lessor, including the Rent and the Park Management Fee. Furthermore, the Lessee shall be liable to repair and maintain its assets or installations which were brought into the Property by the Lessee and remains its property separable from the Property.
|
|
8.2
|
The Lessor shall carry out (at its own expense) all repairs and maintenance of the Facility, Property and Extension except for those specified within Article 8.1 hereof; and it shall particularly ensure repairs of ceilings, floors, roof, external walls and cladding, downspouts, gutters and mezzanine floors and all the structural elements of the Facility, Property and Extension and CTPark Brno II, roads, paths, car parks and all outside areas of the Property. Any repairs and maintenance shall be performed by the Lessor at a time mutually agreed upon by the Parties and shall hinder the operation of the plant to the smallest possible extent.
|
|
8.3
|
The Lessee shall be liable towards the Lessor for direct damage to the Property caused by the Lessee or its representative(s), employee(s) and suppliers. The Lessor shall be liable to the Lessee for direct damage caused to the property of the Lessee and movable assets brought into the Facility and Property by the Lessee or its representative(s), employee(s) and suppliers and it shall also be liable for damage caused by any third parties if resulting from breach of its obligation to provide security services hereunder. The Lessee shall without unnecessary delay announce to the Lessor any damage to the Property, which the Lessee is not obliged to repair by itself. The Lessee shall be responsible for additional damage arisen as a result of not reporting of the primary damage in time. Provisions of the preceding sentence shall not affect the Lessee's right under the Article 5.6 above regarding the reduction of the Rent and the Park Management Fee. Notwithstanding applicable statutory regulations, all Lessee's (including its employees, directors and contractors) personal property, equipment, machinery, trade fixtures and temporary installations, placed or installed on the Property by the Lessee, shall remain Lessee's property free and clear of any claim by the Lessor for entire duration hereof.
|
|
8.4
|
The Lessor shall perform any and all repairs and maintenance that it is obliged to carry out under this Agreement without undue delay and within the shortest possible time as agreed by the Parties to hinder to minimum extent operations of the Lessee within the Property. If the Lessor fails to meet this obligation after receiving a written reminder from the Lessee and within reasonable time that does not cause impact to Lessee's operation, the Lessee is entitled to perform such repairs and maintenance at the Lessor's expense, such costs being reasonable (however considering that Lessee is remedying default of the Lessor and acting quickly and not in position of skilled developer), and the Lessor is obliged to refund it to the Lessee. The Lessee shall preserve the warranties given by the suppliers to the Lessor that are known to the Lessee (i.e. provably submitted by the Lessor to the Lessee prior to the commencement of the repair works) and covering the repaired parts of the Property.
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8.5
|
The Lessee is aware of the fact that as an entity using the Property for its business activities, it is obliged to secure fulfillment of fire safety obligations (including periodical revisions of fire installations as in the Article 8.1) pursuant to the Act No. 133/1985 Coll., on Fire Protection, as amended, namely pursuant to Section 2, clause 2 of the Act on Fire Protection. If the Facility is used by more lessees and there are any common areas within the Facility used by these lessees or some of them, the Lessor shall secure fulfillment of the above mentioned obligations and the Lessee and the other lessees shall pay the pro-rata share of the accrued costs.
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8.6
|
The Lessee shall be a generator and also an owner of any and all waste produced in connection with its operation within the Property in accordance with the Czech Act No. 185/2001 Sb., on wastes, as amended, and undertakes to dispose with any and all waste fully in accordance with the valid legal regulations. The Lessee further undertakes to meet and fulfil all obligations imposed on it by applicable environmental laws and other legal regulations.
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9.1
|
The Lessee is entitled to perform non-structural changes (other than specified under Article 9.2 below) to the Property or any part of it or install additional machinery in the Property (if such installation does not require issuance of any additional permit or change of any of the existing Use Permit or Occupancy Permit) upon previous written notice given by the Lessee to the Lessor at the latest 10 (ten) business days prior to the performance of such changes or installations (hereinafter referred to as the "
Non-structural Changes
").
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|
9.2
|
The structural changes concerning the core of the Property or requiring a building permit (in Czech:
"Stavební povolení")
issued by the building authority, or a notification (in Czech:
“Ohlášení”)
to the building authority (hereinafter referred to as the "
Structural Changes
") shall only be performed by the Lessee upon previous written consent of the Lessor given prior applying for a building permit or prior notification to the building authority. The Lessor shall not refuse to give such consent without a serious reason.
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|
9.3
|
All permits and approvals or notifications required for the Non-structural Changes and Structural Changes shall be obtained by the Lessee at its own expense; the Lessor undertakes to provide the Lessee with all reasonable cooperation necessary for obtaining such permits (including granting all necessary powers of attorney).
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|
9.4
|
Should the Lessee perform or start to perform the Non-structural Changes in the Property without prior notification of the Lessor or Structural Changes without obtaining the prior consent of the Lessor, the Lessee shall be responsible for any and all damage caused to the Property by such changes. Furthermore, the Lessee shall be obliged to reimburse in such a case the Lessor for such damage caused by Non-structural Changes or Structural Changes at its own costs without undue delay as well as the Lessee shall indemnify and hold the Lessor harmless from any possible financial claims of the authorities connected with such non-permitted performance of the Structural Changes in the Property. Upon request of the Lessor, the Lessee shall be obliged to remove the Non-structural Changes and / or
Structural Changes performed by the Lessee in contradiction herewith; should the Lessee not fulfill this obligation within a reasonable time from a delivery of a written notification of the Lessor, the Lessor shall be entitled to remove such changes at the Lessee's costs.
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9.5
|
The Non-structural Changes or Structural Changes of any kind shall be carried out by the authorized companies while observing all applicable legal regulations solely at the expense and the risk of the Lessee.
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|
9.6
|
The Lessor hereby agrees and acknowledges that the value of the separate movable assets under the Section 26 of the Act No. 586/1992 Coll., on Income Tax, as later amended and further specified in the Instruction No. D - 300 of the unified application of several sections of the Income Tax with respect to the Section 26 of the Income Tax, if the separate movable assets is considered as the part of the Structural Changes (recognized, for the purposes of this lease, as technical improvements by the Parties) shall be depreciated by the Lessee during the Term and Extended Term (if applicable) and the Lessor hereby warrants that during the Term and the Extended Term it shall not increase the input price of the Lessor's own tangible assets by the amount of the costs related to the separate movable assets of the Structural Changes (technical improvements). For avoidance of doubt, the Lessor hereby agrees that the Lessee may depreciate also initial investments prior conclusion hereof as well as any other technical improvements of the Property and the Lessor hereby warrants that during the Term and the Extended Term it shall not increase the input price of the Lessor's own tangible assets by the amount of the costs related to the technical improvements of the Lessee.
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9.7
|
At the termination by the Lessor or expiration of the Agreement, the Lessee shall be obliged to either (i) remove all Non-structural Changes and Structural Changes, except such Non-structural Changes and Structural Changes made by Lessee in accordance with this Article IX., at its own expense in order to restore the Property to its original condition as of the conclusion hereof or (ii) leave the Non-structural Changes and Structural Changes in the Property, subject to the agreement with the Lessor on an extent and a compensation for the Non-structural Changes and Structural Changes to be left in the Property.
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9.8
|
Structural Changes, Non-structural Changes performed by the Lessor.
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|
9.9
|
The Parties hereby agree that the Lessor shall not be entitled to make any alterations or modifications to the Facility, Property, Extension and Land without a prior written consent of the Lessee and/or install any equipment on or in the Facility (including roof) and/or the Land. For avoidance of doubt the Parties confirm that the roof of the Facility and its outer facade is a part of the Building (part of the object of the lease hereunder).
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|
9.10
|
As to changes referenced in this Article or elsewhere (collectively, “
Lessor Changes
”) that would affect Lessee's right of use of the Property and common areas or access to the Property, the following will apply: (i) the Lessor Changes will not involve a change in location of the space that Lessee leases, adversely affect Lessee's right of use or operation of business at the Property or its access; and (ii) any Lessor Changes will be performed in a good and workmanlike manner and in a manner designed to minimize any adverse impact on Lessee's operation of business at the Property and use of common areas. In connection with any Lessor Changes, if the Property is rendered untenantable in whole or in part, there will be a proportionate and fair abatement of the Rent and the Park Management Fee and other charges during the period that the Property is made untenantable (without waiving any other right or remedy under this Agreement if the Property is made untenantable because of a violation of laws or as a result of the gross negligence or intentional misconduct of the Lessor, its employees, independent contractors or invitees).
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10.1
|
The representatives of the Lessor or the third parties' representatives appointed by the Lessor or the representatives of authorities have the right to enter the Property for the purposes of inspection on the condition that they notify the Lessee at least 3 (three) business days ahead and arrange a meeting within regular working hours, the right to be exercised
not more than once every quarter of the year, or upon agreement with the Lessee, if this right to be exercised more than once in every quarter of the year, however such limitation shall not apply to the last year of the Term or the Extended Term in order to introduce the Property to a new tenant interested in a lease of the Property after the Lessee. No other persons shall be allowed to enter the Property without a prior written consent of the Lessee. The visits of representatives of the Lessor or the third parties' representatives appointed by the Lessor and the representatives of authorities and a new prospective tenant shall not hinder due operation of the plant. The visits shall always take place at the presence of the responsible representative of the Lessee.
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10.2
|
In the case of immediate danger the Lessor is entitled to enter the Property at any time, however, only for purpose of forestalling such dangerous situations and only to the necessary extent. In such a case the Lessor shall notify the Lessee about such entry into the Property on the earliest possible occasion.
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10.3
|
In any case of above right to enter, the Lessor shall be solely responsible to the Lessee to ensure confidentiality regarding any information that may come to knowledge of the entering persons and that form a trade secret or intellectual property rights of the Lessee.
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11.1
|
Each Party shall carry its own costs in connection with the conclusion of this Agreement.
|
|
11.2
|
The Lessee is obliged upon the written (or e-mail) request by the Lessor to provide the Lessor by January 15
th
of each year of the Term at the latest with an information about the number of its employees employed in an employment relationship in the previous calendar year within the Property, followed by the written excerpt from the evidence kept by the respective bureau of social security
(in Czech: “správa sociálního zabezpeèení”)
. This information is to be provided by the Lessee in writing.
|
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12.1
|
Upon the termination or expiration of this Agreement the Property shall be handed over to the Lessor in the state as at the Commencement Date with permissible deviations from the original state of the Property resulting from:
|
|
(a)
|
Non-structural Changes and Structural Changes made by the Lessee in accordance with Article IX. hereof, and/or
|
|
(b)
|
usual wear and tear.
|
|
12.2
|
If the Lessee does not return the Property at the date of effective termination of this Agreement (either early termination or expiry of the Term or Extended Term in accordance hereof) or within period stated under Article 12.1 above, whichever is later, due to the Lessee's fault, the Lessee expressly confirms that the Lessor shall be in such a case entitled to enter the Property and terminate the unjustified use of the Property (other than use for purpose of vacating the Property if the Lessee is proceeding diligently) by the Lessee by removing all items belonging to the Lessee or used by it in connection with the Lessee's business in the Property (such as in particular, but without limitation, the equipment, stored goods and movable assets of the Lessee) from the Property at the costs of the Lessee; however in such a case the Lessor shall be liable for damage caused to property of the Lessee. Such removal by the Lessor shall be then deemed as termination of the factual use of the Property by the Lessee. Furthermore, the Lessee shall pay a contractual penalty in the amount of EUR 5,000 per each day of such unjustified occupation of the Property and on top of that a daily Rent and Park Management Fee per each day of such unjustified occupation as a compensation for such unjustified use. However, the total amount of the above contractual penalty together with the above compensation for unjustified use shall not exceed the maximum amount of EUR 1,800,000. The damages in excess of the aforementioned contractual penalty or above cap shall not apply and/or any additional compensation for use shall not apply; however the Lessee shall be obliged to pay (next to the contractual penalty specified above) also costs of the utilities consumed during the period of unjustified use as if the lease would not be terminated. The provisions of the Article 12.1 above shall not be affected and take precedence over this Article.
|
|
12.3
|
Upon the termination or expiration of this Agreement the Lessee shall remove all machinery and mechanical installations and pieces of equipment brought in by the Lessee at his own expense unless otherwise agreed by both Parties.
|
|
12.4
|
At the termination by the Lessee the Lessee shall be allowed to unilaterally terminate the agreements with the suppliers of utilities (electricity, heat, gas, drinking/sewage/rain water, telephone etc.). At the termination by the Lessor of this Agreement or expiration of this Agreement the Lessee shall not be allowed to unilaterally terminate the agreements with the suppliers of utilities (electricity, heat, gas, drinking/sewage/rain water, telephone etc.), otherwise the Lessee shall be responsible and indemnify the Lessor for any costs and risks the Lessor may incur in connection with such breach of the Lessee's obligations. The Lessor shall provide the Lessee with a sufficient cooperation and assistance leading to transfer the utility supplies from the Lessee onto the Lessor or a new lessee of the Property or any of its parts. In case the Lessor shall not enable the Lessee to transfer the utility supplies within five (5) business days after the termination by the Lessor of this Agreement or expiration of this Agreement, the Lessee shall be allowed to unilaterally terminate the agreements with the suppliers of utilities (electricity, heat, gas, drinking/sewage/rain water, telephone etc.) without the Lessee shall not be in such a case responsible for any costs and risks of the Lessor connected therewith.
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13.1
|
The Lessor shall conclude and maintain throughout the whole Term and Extended Term all risk property insurance covering especially damage caused to the Facility, Property and Extension in an amount sufficient to cover the costs for reconstruction of the Facility, Property and Extension including Requested Changes, which form inseparable part of the Building.
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13.2
|
As of the delivery of the Property and during the whole Term and Extended Term of this Agreement the Lessor shall conclude and maintain in effect a general public liability insurance, sufficiently covering claims, demands and actions for accidental injury or death, and for any liability arising from damages to property of the Lessee and/or third parties, related to, or connected with the Lessor's employees, agents, visitors, contractors undertakings in relation to the Property.
|
|
13.3
|
All insurance provided for in this Article shall be valid and enforceable policies issued by recognized and reputable insurance companies, which are authorized to do the business in the Czech Republic. Copies of the insurance policies shall be provided to the Lessee free of charge
upon its request.
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13.4
|
In case of casualty to the Property resulting in damage or destruction of the Property and/or Extension (within period when option hereunder may still be exercised by the Lessee), the Lessee shall promptly contact the Lessor within 24 hours after the casualty occurred and subsequently give written notice thereof to the Lessor. The Lessor shall start adjustment proceedings immediately, and the Lessor shall apply funds to begin restoration repairs immediately thereafter in order to restore the Property and Extension to its full use and quality as under the Future Lease Agreement and this Agreement as soon as practicable. During the time, in which the Lessee cannot use a part of the Property due to the completion of the restoration repairs, the Lessee's Rent and the Park Management Fee shall be reduced in the same proportion that the non-usable area represents compare to the total area of the Property during the period of repair (or according to proportion of decreased production, whichever has greater impact). If a substantial part of the Property cannot be used, the Lessor shall use all best endeavors to secure suitable facilities for the Lessee whilst the restoration of the Building is undertaken.
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13.5
|
The movable assets brought into the Property by the Lessee and/or Non-structural Changes made by the Lessee or on its behalf will not be included in the Lessor's insurance policy. The Lessee shall be obliged to obtain and keep in force at its own expense an adequate insurance against damage and loss of property of the movable assets brought into the Property and against damage of and/or Non-structural Changes made by it or on its behalf. The Lessee shall deliver to the Lessor a copy of the insurance policy certificate in respect of such insurance policies.
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14.1
|
This Agreement shall be governed by the laws of the Czech Republic, especially by the Act No. 40/1964 Coll., Civil Code, as amended, and also Act No. 513/1991 Coll., Commercial Code, as amended.
|
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14.2
|
All disputes arising from this Agreement and in connection with it, including any disputes in respect of the validity thereof, shall be finally decided in arbitration proceedings before the Arbitration Court affiliated to the Economic Chamber of the Czech Republic and the Agrarian Chamber of the Czech Republic in Prague by three (3) arbitrators appointed in accordance with the Rules of the Arbitration Court affiliated to the Economic Chamber of the Czech Republic and the Agrarian Chamber of the Czech Republic in Prague. The award issued by these arbitrators shall be final, binding upon the Parties and enforceable. The language of the legal proceedings shall be English.
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15.1
|
The Lessee is granted with a right to expand and lease:
|
|
(i)
|
an additional production/warehouse part of the Facility D2 known as a part “D2.3” with a footprint of [•] sq m and a total rentable area of [•] sq m consisting of the production/warehouse area with a size of [•] sq m, that was constructed according to the site plan forming an
Annex No. 6
hereto, floor plan forming
Annex No. 1A
hereto and technical specification forming
Annex No. 15
hereto (hereinafter referred to as the “
Technical Specification D2.3
”) and the Future Lease Agreement (such part of the Facility D2 shall be hereinafter referred to as the “
Extension Production/Warehouse Building D2.3
”), and
|
|
(ii)
|
additional adjacent paved areas consisting of an outer yard with a size of [•] sq m and a car park area with [•] surface car parking lots, all for an exclusive use by the Lessee, located on the additional part of the land plot No. [•] and constructed in accordance with the site plan forming an
Annex No. 6
hereto, Technical Specification D2.3 and the Future Lease Agreement (hereinafter referred to as the “
Extension Paved Areas D2.3
”),
|
|
15.2
|
The Lessee hereby acknowledges that the Extension shall be leased to a third party from the Commencement Date.
|
|
15.3
|
The Lessee shall be entitled to request the lease of the Extension upon a delivery of a written extension notice to the Lessor at least eighteen (18) months before the presumed lease commencement date of the Extension (hereinafter referred to “
Extension Notice
”); however the Extension Notice can be delivered to the Lessor on
October 1
st
, 2017
at latest.
|
|
15.4
|
Should the Lessee exercise its extension right as mentioned above, the Lessor shall be then obliged to hand-over the Extension to the Lessee, in good conditions, free of any goods and without any defects for the use in accordance with this Agreement within eighteen (18) months from the delivery of the Lessee's Extension Notice at the latest (hereinafter referred to as the “
Extension Target Date
”). Within this period the Lessor shall be obliged to return the Extension into condition outlined in the Technical Specification D2.3 and increase the area of outer yards for an exclusive use by the Lessee by [•] sq m to a total size of [•] sq m and increase a number of surface car parking places by number [•] to a total number of [•] surface car parking lots for an exclusive use of the Lessee (as outlined in the site plan forming an
Annex No. 6
hereto). The Parties shall within 30 (thirty) days following the delivery of the Extension Notice to the Lessor conclude an amendment hereto or new lease agreement subject of which shall be the lease of Extension. The amendment hereto shall be concluded in all material aspects under the same conditions as this Agreement and the Future Lease Agreement and the monthly rent unit prices applicable for the Extension shall be the same as the unit prices applicable for the Property on the Extension lease commencement date (with exception rent for the Paved Areas D2.3 which will be charged for EUR 1,150 + VAT per whole area per month). The lease term of the Extension as well as the Term of lease of the Property hereunder shall terminate at the same moment, i.e. at the expiry of the Term or the Extended Term (if applicable) hereunder or prematurely in accordance herewith. Should the Lessor fail to provide the Extension within the above period, it shall be obligated to pay to the Lessee a contractual penalty in the amount of EUR 10,000 per each commenced day of delay. For avoidance of doubt, the penalty hereunder is not applicable in case the delay is caused by the default of the Lessee (e.g. lack of the Lessee's cooperation) and only until lasting of such default, by the authorities (acting beyond or in breach of their duties) or by Force Majeure.
If the Lessee requires carrying such production operations within the Extension, nature of which will be different than the operations carried out within the Property and as a result thereof (i) there will be need to amend the Environmental Impact Assessment (EIA) statement and/or obtain a special Integrated Prevention Pollution Control permit, obtaining of each of them would cause that the Lessor would not be able to deliver the Extension on the Extension Target Date, the Parties shall in good faith negotiate prolongation of the delivery period.
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|
15.5
|
Competition and Non-Disturbance Clause.
The Lessor undertakes not to lease any part of the Extension to any of the companies (including their subsidiaries, affiliates or any other enterprises in which they directly or indirectly participate) performing their business activities in fields mentioned in the list attached as
Annex No. 9
hereto or to a company, business operations of which would periodically exceed the limits of the vibrations, EMI and acoustics as specified in
Annex No. 12
hereto. Should the Lessor breach any of its obligations hereunder it shall pay to the Lessee contractual penalty in the amount of EUR 10,000 per each commenced day of delay.
|
|
15.6
|
The Lessor further undertakes to ensure that: (i) any lessee of the Extension or its any part shall not disturb or limit the Lessee's operation in the Property, (ii) such lessee shall together with the Lessee contribute on proportional basis to the operating expenses connected with the use and management of the Property, Extension and CTPark Brno II, (iii) there will be “house rules” set up by the Lessor and the Lessee to govern the mutual relationship between the Lessee and the lessee of the Extension which will be binding for the Lessor, the Lessee and for the lessee of the Extension. In the event of any disruption of the Lessee's operation in the Property by any lessee of the Extension, the Lessor shall pay to the Lessee the contractual penalty in the amount of EUR 10,000 per each commenced day of limitation since the 3
rd
(third) day (inclusive)
after the delivery of a written notice by the Lessee regarding disruption, provided that the Lessor did not remedy the claimed disruption within first 2 (two) days after the delivery of a written notice by the Lessee regarding such disruption.
|
|
15.7
|
In addition to any other similar right which the Lessee may be entitled to pursuant to any mandatorily applicable provisions of Czech law, the Lessor hereby grants or undertakes to ensure granting to the Lessee a right of first refusal for lease of any space within:
|
|
(i)
|
the Extension, and/or
|
|
(ii)
|
the building registered on the date hereof in cadastre as the building reg. No. [•] built on the land plot No. 2828/227 located in the cadastral area of Èernovice, municipality of Brno, district of Brno-mìsto, and/or
|
|
(iii)
|
the building registered on the date hereof in cadastre as the building registered on the date hereof in cadastre as the building [•] built on the land plot No. 2828/232 located in the cadastral area of Èernovice, municipality of Brno, district of Brno-mìsto, and/or
|
|
(iv)
|
the new building to be built on the land plot No. 2828/1 located in the cadastral area of Èernovice, municipality of Brno, district of Brno-mìsto, as this building is marked on the plan forming an
Annex No. 16
hereto (hereinafter referred to as the “
Intended Building
”), if such Intended Building will be constructed,
|
|
15.8
|
In the event that the Lessor offers to and/or receives from any third party request for leasing the Additional Property (hereinafter referred to as the “
Third Party Lease Offer
”), it shall so notify in writing to the Lessee within 30 (thirty) days from receipt of the Third Party Lease Offer, thereby giving an appropriate information on (i) the rent offered and (ii) the specification of the Additional Property and (iii) all other appropriate information, such as lease term, break options, rent free periods, contributions, etc.
|
|
15.9
|
The Lessee shall have a right to notify in writing, within 45 (forty five) days following a receipt of the notification of the Third Party Lease Offer from the Lessor, whether it intends to lease the Additional Property, at the same terms and conditions of the Third Party Lease Offer.
|
|
15.10
|
The execution of the future lease agreement or amendment to this Agreement regarding the lease of the Additional Property shall be made within 30 (thirty) days from the receipt by the Lessor of the Lessee's communication notifying its intention to lease the Additional Property at such date, place and time as shall be communication in writing by the Lessee to the Lessor under the same terms and conditions as specified herein (except for rent and commercial terms specified in the Third Party Lease Offer).
|
|
15.11
|
If the Lessee does not accept the terms and conditions of the Third Party Lease Offer or does not response to the notice from the Lessor within period mentioned above in the Article 15.9, the Lessor may lease such Additional Property to the entity identified in the Third Party Lease Offer only based on not more favorable conditions than stipulated in the Third Party Lease Offer. The Right of First Refusal hereunder shall apply anytime such Additional Property becomes vacant and potentially leased or if it is not leased under the Third Party Lease Offer and negotiations start with another third party.
|
|
16.1
|
The Lessee has provided the Lessor before signing hereof with a parent company guarantee issued for the benefit of the Lessor, copy of which is attached in
Annex No. 7
hereto (hereinafter referred to as the "
Guarantee
"). The Guarantee is covering all financial risks arising under and in connection with this Agreement. The Guarantee shall not be assignable, otherwise than as stipulated under Article 7.7 above. The Lessee is obliged to keep this Guarantee valid and enforceable during the entire time hereof. Should the Lessee breach this obligation, the Lessor shall be entitled to a contractual penalty equal to EUR 500,- per each day the default of the Lessee is lasting.
|
|
16.2
|
The Parties agreed that the maximum amount of the contractual penalties hereunder that either Party shall be obligated to pay, except for termination contractual penalties stated in the Article IV. hereof and except for the penalty according to the Article 12.2 hereof, shall not in total exceed the aggregate amount of EUR 150,000 per each period of 1 (one) calendar year during the Term and/or Extended Term (hereinafter referred to as the “
Penalties Cap
”).
|
|
16.3
|
If any provisions hereof is or becomes invalid or unenforceable, the rest of the provisions shall not be affected thereby. The Parties shall replace such invalid provisions by other legally valid provisions, which shall be similar in their meaning and purpose to the invalid ones.
|
|
16.4
|
The rights and obligations resulting from this Agreement shall be assumed by all the Parties' legal successors.
|
|
16.5
|
Changes and amendments to this Agreement shall require a written and legally valid agreement of both Parties hereof or their legal successors in a form of a numbered amendment hereto. Any termination (including withdrawal) hereof must be in writing and delivered to the other Party.
|
|
16.6
|
The address to which any reminders, notices or any other official mail among the Parties (each, a “notice”) shall be delivered (hand delivered or delivered by registered post or courier) is the address stated in the heading of this Agreement, unless another address has been announced in writing by the Party to the other Party in accordance herewith. In all cases, when for the effectiveness of certain action (document) under this Agreement it is necessary its delivery to the other Party, this action comes into effect (besides the regular delivery to the addressee) also upon the day of the returned delivery of the mail to the sender, non-acceptance or non-collection of the mail by the addressee. Notices are not to be delivered to the Property and are not effective if delivered there (except that any notice required by law to be posted at or delivered to the Property will be effective for purposes of satisfying the legal requirement).
|
|
16.7
|
This Agreement has been executed in 2 (two) English counterparts. Each Party shall receive one (1) counterpart hereof.
|
|
16.8
|
Wherever a Party's consent, approval, decision or determination is required under this Agreement, such consent, approval, decision or determination shall not be unreasonably withheld or delayed and shall be made in writing and in a commercially reasonable manner. No change in Rent, the rights of the Parties or the economic terms of this Agreement shall be required as a condition to granting of consent, approval, decision or determination unless stated herein otherwise. Any denial of consent, approval, decision or determination will include in reasonable detail the reason for denial or aspect of the request that was not acceptable.
|
|
16.9
|
In the event of default by a Party under this Agreement, the other Party shall use reasonable efforts to mitigate its damages.
|
|
16.10
|
The Lessor warrants that the Lessee's use of the Property pursuant to (and in accordance with) this Agreement does not violate any covenants, conditions and restrictions that are binding on the CTPark Brno II project or Lessor's other leases or agreements which are binding on Lessor or the CTPark Brno II project.
|
|
16.11
|
List of annexes:
|
|
Annex No. 1A
-
|
Floor Plan of the Production/Warehouse Building D2.2 and Extension Production/Warehouse Building D2.3, including designation of production area
|
|
Annex No. 1B
-
|
Floor Plans of the Office Building D2.1
|
|
Annex No. 2A
-
|
Technical specification of the Production/Warehouse Building D2.2
|
|
Annex No. 2B
-
|
Technical specification of the Office Building D2.1
|
|
Annex No. 3
-
|
Description of the connection to the public suppliers of utilities
|
|
Annex No. 15
-
|
Technical specification of the Extension Production/Warehouse Building D2.3
|
|
Annex No. 16
-
|
Location of Intended Building
|
|
16.12
|
This Agreement has been read and jointly discussed by the Parties to the Agreement before its execution. The Parties hereby confirm that they have reached an agreement regarding all the contractual provisions hereunder.
|