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Exhibit 10.49
Lease for Business Premises
between
GED Grundstücksentwicklungs-Gesellschaft
mbH,
Henkelstr. 164
40589 Düsseldorf
(Turnover Tax No.) 106/5709/2142
- Lessor/GED -
and
Coley Pharmaceutical GmbH
Represented by
Dr. Christian Schetter, Managing
Director
Elisabeth-Selbert-Straße 9
40764 Langenfeld
- Lessee -
Preliminary
Remark
The Life Science Center Düsseldorf, consisting of a
technology and founders centre and an office building, pursues the
objective of offering young enterprises, established companies,
scientific institutions and groups of researchers working in life
sciences (*) and their associated technologies (**), also
including service companies and institutions, an optimum platform
for their further development. The investor,
Gründstückgesellschaft Düsseldorf mbH (GED), rents
out office and laboratory space in the technology and founders
centre to the above mentioned technology-oriented and research and
development-intensive user groups and in this way would like to
contribute to the future orientation of the economic area of
Düsseldorf and to the maintenance and creation of jobs in the
high technology sector. The cooperation of the lessees of the
technology and founders centre and of the office building with
scientific establishments, primarily the Heinrich Heine University
in Düsseldorf, also among themselves, is explicitly
desired.
The Lessor offers conference and meeting rooms in the Life
Science Center which can be hired by all lessees in return for a
separate rent on a daily or hourly basis as required.
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(*):
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Biotechnology/genetic technology, medical
technology, bioinformatics, medical informatics, biopharmacy,
biomedicine
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(**)
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including information technology, laser
technology, new materials, measurement technology, nano technology,
optical technologies etc.
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1.
Object of Lease/Purpose of Lease
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1.1
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Within the framework of its ground lease (
Erbbaurecht ), the Lessor erected the Life Science Center
("property") on the land Merowinger Platz 1a in 40225
Düsseldorf.
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1.2
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With respect to this property, the Lessor shall
rent to the above mentioned Lessee in the second building section
the second and third storeys including the intermediate tract in
the second storey in the technology and founders centre with the
following floor space
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Office/laboratory and social
areas: 2224 square metres
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The rental areas have been calculated in accordance with the
guidelines on the calculation of rental areas (MF-B) of gif,
Gesellschaft für Immobilienwirtschaftliche Forschung e.V.,
Wilhelmstr. 12, Wiesbaden.
The information on floor space does not constitute a warranted
characteristic.
Deviations in floor space and changes to floor space of +/- 5%
shall have no influence on the amount of the rent. Larger
deviations shall cause an adjustment of the net rent, taking effect
on the month following the month the actual rental area was
established. Advance payments on ancillary costs shall not be
affected by the adjustment.
The rental areas are marked in red in the enclosed ground plans
( Appendix 1 ). In this respect, the ground plans serve to
explain this agreement, showing the location of the rental area in
the property and the adjacent areas. Other details shown in the
plan are not binding.
Those areas of the plot not built on are not rented out. They
may also not be used for storage or other purposes. However, the
Lessee is entitled to use the communal areas to the planned extent.
The wall areas on and in the building outside the rented premises
are also not rented out.
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1.3
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The rented premises shall be used to operate
offices and laboratories in the area of biopharmaceutical
Research and Development . The Lessor guarantees that the use
of these areas for the operation of commercial offices and
laboratories is permitted. Any amendment to this purpose shall
require the prior, written consent of the Lessor. The use of the
rented premises for living purposes is permitted neither in whole
nor in part.
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Target state and target fixtures and fittings of
the rented premises are listed in appendix 2 and 3 and are
recognized by the Lessee as suitable for his purposes.
Insofar as the operation or the activities of the Lessee require
the compliance with special safety or special supervisory and
disposal requirements, the Lessee must notify the Lessor of this
before entering into the lease. The Lessee shall bear the resultant
costs. If later laws, ordinances, guidelines or conditions imposed
by public authorities or the European Union determine an
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amendment to the limit values or a tightening of
the safety standard and/or the building, supervisory, examination
and disposal regulations, in this case the parties will discuss and
resolve the situation at hand..
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1.4
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The Lessor shall hand over the object of lease in
the state of construction specified in the description of fixtures
and fittings enclosed as Appendix 2 and in accordance with
the interface catalogue enclosed as Appendix 3 as well as in
accordance with the room book enclosed as Appendix 4 . The
Lessor shall assume the costs for the internal fixtures and
fittings work listed in Appendix 2 + 3 to the extent that the
parties agree lessor’s responsibility to bear the cost. The
cost of all fixtures and fittings work exceeding that specified in
Appendix 2 + 3 shall be borne by the Lessee. Certain special
fixtures/fittings, going beyond Appendix 2+3, and the cost
distribution thereof, are listed in Appendix 5 . The content
of Appendix 2 does not constitute a warranted characteristic but is
only a description of the property. Reasonable amendments shall be
permitted if a good reason exists and material of the same quality
and grade is used and if these do not restrict the range of use for
the Lessee.
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The Lessor warrants that the object of lease
complies with technical construction requirements. In case that
during the lease period, new stricter or improved construction or
official requirements are introduced, the parties will reach mutual
agreement how to proceed. The Lessee will in principle bear the
cost of additional construction costs caused hereby.
The obligation of the Lessee to satisfy the official
requirements pertaining to his operations at his own expense shall
not apply to official approvals and conditions which refer
exclusively to the structural nature of the object of lease at the
start of lease in accordance with the agreed standard and
purpose.
2.
Turnover Tax
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2.1
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With respect to renting out the object of lease
and pursuant to Section 9 German Turnover Tax Act (UStG), the
Lessor waived exemption from turnover tax pursuant to
Section 4 No. 12a) German Turnover Tax Act (UStG) (value
added tax option). As a result the value added tax at the statutory
rate (currently 16%) must be paid by the Lessee in addition to the
rent, ancillary costs and advance payments on ancillary costs (and
on compensation for use after end of lease).
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2.2
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The Lessee is aware that the value-added tax
option of the Lessor is only permitted under the conditions
specified in Section 9 (2) German Turnover Tax Act
(UStG). Section 9 (2) German Turnover Tax Act (UStG)
reads as follows: "Waiving tax exemption pursuant to paragraph 1 is
only admissible in the creation and transfer of hereditary building
rights ( Erbbaurechte ) (Section 4 No. 9 letter c), in
the renting out and leasing of the plot (Section 4 No. 12
letter a) and in the case of turnover described in Section 4
No. 12 letters b and c insofar as
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2.3
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With respect to the turnover tax option the
parties to the lease make the following agreements:
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The Lessee explicitly warrants that he is an
entrepreneur within the meaning of the German Turnover Tax Act
(UStG) and undertakes to use the object of lease exclusively for
turnover which does not exclude the input tax deduction by the
Lessor, in particular not to use the object of lease for living and
other non-entrepreneurial purposes.
He furthermore undertakes to provide the Lessor immediately at
any time when asked with those documents which permit the Lessor to
satisfy his duties of proof pursuant to Section 9
(2) German Turnover Tax Act (UStG) vis-à-vis the tax
authorities. To this extent the Lessor may only request the
presentation of those documents and/or declarations that the
competent tax authorities request from him.
If circumstances arise on the part of the Lessee or (insofar as
permitted) on the part of his sub-lessees or as assumed by the tax
authorities within the framework of external tax audits which
affect the admissibility of the value added tax option of the
Lessor, the Lessee shall be obliged to inform the Lessor of such
forthwith.
In the event of subletting the Lessee shall be obliged to opt
for value added tax with respect to subletting and otherwise to
impose the obligations arising from paragraph 2 of this lease on
the sub-lessee in the sub-lease such that also the Lessor may
derive direct rights against the sub-lessee from the agreement of
the Lessee with the sub-lessee (agreement in favour of third
parties). The Lessee shall be responsible to the Lessor for
ensuring that the sub-lessee complies with these obligations.
Insofar as and for as long as the tax authorities apply a safe
limit of 5% (also recognised by the financial courts) with respect
to the term "exclusive" use for turnover not excluding the input
tax deduction, this limit shall restrict the exclusivity term in
the provisions mentioned above.
In the event of the Lessee and/or the sub-lessee in the case of
sub-letting infringing the obligations arising from paragraph 2 of
this lease, the Lessee must replace all resultant damage caused to
the Lessor in this respect.
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3.
Period of Lease, Delivery
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3.1
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The object of lease pursuant to paragraph 1.2
shall be delivered
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on 1 May 2007 at the
earliest
on 1 August 2007 at the latest.
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3.2
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The lease relationship for the rented unit shall
commence on the date of delivering the object of lease and shall
end 3 years thereafter. The Lessee shall be given the option
to extend the lease relationship twice by a
further 5 years respectively beyond the above mentioned end
date. Both options shall come into force automatically without a
special declaration being required. If the Lessee does not wish to
exercise the option he must inform the Lessor of this 6 months at
the latest before the respective end date. A tacit extension of the
lease relationship pursuant to Section 545 German Civil Code
(BGB) shall be precluded. Before expiry of the two options both
parties shall undertake to conduct talks at an early date about the
long-term continuation of the lease relationship.
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3.3
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If the delivery has not taken place by the latest
date (pursuant to paragraph 3.1) the Lessee shall be entitled to
terminate the lease relationship without notice after setting a
period of grace of two weeks.
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3.4
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The lease relationship shall also start if the
Lessee fails to accept the property for no reason or if the Lessee
is responsible for the delay in delivery, e.g. because he failed to
provide the planning documents and information necessary for the
providing fittings and fixtures on the part of the Lessor in good
time or because the Lessor has a right of retention due to failure
to provide a letter of support (refer to paragraph
4.13).
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3.5
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The delivery shall be made as soon as the Lessor
has provided the fixtures and fittings work specified in Appendix 2
pursuant to the interfaces catalogue in Appendix 3 such that the
Lessee may start his fixtures and fittings.
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Delays in the completion of trades shall not
permit the Lessee to reject the delivery or demand a reduction in
rent or damages from the Lessor insofar as these do not
"essentially restrict" (Art. 640 I 2 German Civil Code (BGB)) the
use of the object of lease. The same shall apply if work on the
part of the Lessor is still to be performed in the object of lease
which does not restrict its use for the Lessee.
Insofar as technically possible and does not impede the progress
of construction, the Lessor shall permit the Lessee to start on its
work concerning fixtures and fittings in coordination with the
construction work on the part of the Lessor before delivery of the
object of lease. The approval of the Lessor in this respect shall
be required in writing.
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3.6
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When the object of lease is delivered a delivery
protocol shall be drawn up and signed by both parties in which any
defects or residual work shall be set out.
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3.7.
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The Lessor shall not charge rent for the first 3
months of the lease relationship starting from the date of
delivering the object of lease. The Lessee need not pay this so
that in the first 9.7 months he need only make the advance payment
on ancillary costs plus value added tax.
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3.8.
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As from the start of delivery of the rent unit
the Lessee shall be given an option for the duration of 9 months
for the entire space in the second storey of the first building
section of the technology and founders centre. The Lessor shall
grant the Lessee a prior right to rent any available space in the
second storey. The Lessor shall offer the Lessee this area without
obligation on either side. The Lessee has to exercise the option in
writing within max. 12 weeks after being officially informed by the
Lessor. The Lessor will offer this space to the Lessee without
obligo to either side.
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4.
Rent, Graduated Rent, Ancillary Costs
Offset Ban, Collateral
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4.1
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The monthly rent for the rental area pursuant to
paragraph 1.2. of this lease is as follows:
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12.50 EUR/sqm
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27,800.00 EUR
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3.50 EUR/sqm
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7,784.00 EUR
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35,584.00 EUR
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6,760.96 EUR
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42,344.96 EUR
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4.2
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In addition to the rent the Lessee must bear the
ancillary and operating costs of the object of lease plus any
applicable statutory value added tax on a pro rata basis, i.e.
proportionate to the rental areas pursuant to paragraph 1.2 with
respect to the total rental space of the property (paragraph 1.1),
subject to the different provisions in paragraphs 4.7 and 4.8 with
respect to distribution. Ancillary and operating costs shall be
deemed to be all costs specified in the German Operating Costs
Ordinance ( Betriebskostenverordnung ), as
revised.
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4.3
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Furthermore, the Lessee shall proportionately
(within the meaning of paragraph 4.2) bear the operating costs
listed in the following (if present) insofar as not already covered
by the German Operating Costs Ordinance (
Betriebskostenverordnung ).
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a)
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Cost of surveillance and security:
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Cost of automatic locking systems (roller blinds,
sliding gates), intercom systems, surveillance and security
company, emergency power generators, close television surveillance,
alarm systems, locking systems, door code systems;
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b)
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Cost of fire protection and fire
fighting:
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Cost of examining and servicing the fire
extinguishers outside the heating system room and the rented
premises (including replacement of powder), fire and smoke detector
systems, wall hydrants and hose boxes, lightening protection
systems;
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c)
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Cost of waste disposal, waste collection, waste
sorting, waste volume calculation and waster
compressors;
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d)
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Cost of heating, air-conditioning, ventilation
and hot water:
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cost of supply with distant heating and distant
hot water and Cost of heating contracting, including cost of
operating and servicing the house systems, operating, cleaning,
pollution protection, servicing the ventilation, air-conditioning
and heat recycling systems, operating the central hot water supply
system, cleaning and servicing the hot water equipment; cost of
reading the hot water metres and consumption calculations, chimney
sweep;
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e)
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Cost of water and waste water systems
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Cost of water supply and drainage of house,
parking spaces and outside facilities, including garages and
ancillary buildings, cost of renting and other types of using water
metres, as well as costs of using them including costs for
calculating and distributing, cleaning of waste water pipes,
drainage and waste water ducts, gullies and drainage sieves, cost
of cleaning waste water, cleaning and heating gutters, flow
restrictor; cost of water consumption in the object of lease and
waste water;
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f)
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Cost of cleaning and lighting:
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Cost of cleaning and lighting the façade,
including the sun protection system, of doors and windows (interior
and exterior) of the community facilities, cost of road cleaning,
cost of pest control, also one-off activities; cost of cleaning
(including winter service) and lighting carpark, access routes and
community facilities, entrance areas, staircases and corridors,
lifts and community rooms such as basement, ground rooms, washroom
etc., including the replacement of light bulbs and fluorescent
tubes (personnel and material costs);
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g)
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Cost of property, liability and special
insurance:
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Cost of insuring the building against fire, storm
and water damage including tap water damage, cost of liability
insurance of the Lessor for the building, oil tank and lifts; cost
of natural hazard insurance and electronic insurance;
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h)
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Cost of transport systems:
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i)
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Personnel costs for the personnel of the common
reception, as well as building technician and caretaker or cost of
an external caretaker service;
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j)
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Cost of the ongoing public charges on the land,
in particular land tax ( Grundsteuer )
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k)
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Cost of community aerial and cable connection,
telecommunication, bell and intercom systems;
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l)
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Cost of caring for landscaped and exterior areas
including any roof landscaping;
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m)
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Service costs for the RWA plants, hall gates,
other costs in connection with maintaining the object of lease
(e.g. costs of mechanical washing facilities, heating of park deck
access, backlog systems, etc.);
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n)
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Cost of contributions and charges;
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o)
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Administration and management costs, in
particular cost of rent managements. These costs are set at a
blanket rate of 3% of the net rent;
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Insofar as the ancillary and operating costs
specified in this paragraph 4.3 arise exclusively for the
technology and founders centre (so-called H building), these costs
shall be borne by the Lessee in relationship of the rental areas
pursuant to paragraph 1.2 to the total rental area of the H
building.
In the case of all technical equipment and plant listed and
already contained in the BetrKV, the Lessee shall owe the costs
incurred for
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the operation, monitoring and care of the
systems;
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the regular checking of operational readiness and
safety;
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adjustment by a specialist;
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cleaning of the systems and the corresponding
operating rooms;
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checking and measurements in accordance with the
applicable pollution and environmental protection laws;
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renting or licensing of devices for recording of
consumption or equipment for recording of consumption, including
the costs of reading, calculation and distribution.
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4.4
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The costs pursuant to paragraph 4.2 and 4.3 shall
be accounted for once a year in retrospect by the Lessor with
auditable receipts insofar as this is not directly commissioned by
the Lessee pursuant to paragraph 4.7. The advance payment on
ancillary costs shall be accounted for once a year in retrospect
for a period of one year by the Lessor. The Lessor is at liberty to
choose whether
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he prepares the accounts after one year in time
(= 1 year starting from start of lease) or after one calendar year.
If the lease relationship does not start on 1.1. of a year and if
the Lessor wishes to prepare accounts in accordance with the
calendar year, he may prepare accounts for the period up to 1.1.
together with the subsequent calendar year. If the Lessor wishes to
alter the accounting period during the lease relationship, he must
inform the Lessee of this in writing at least 4 weeks prior
thereto. If the Lessee moves out during an accounting period, the
Lessor shall be obliged, on request of the Lessee, to take an
interim reading of the metres of the consumption-dependent
ancillary costs (e.g. electricity, gas, water etc.).
The Lessee may request that he inspect the accounting documents
at the office of the Lessor within 3 months of receipt of the
account. If the Lessee does not object to the account in writing
within 3 months of receipt, the account shall be viewed to be have
been deemed correct insofar as the Lessor has made explicit
reference to this period and its legal consequences in the
account.
The Lessor shall be at liberty to increase the advance payment
for the future if the annual total of the last account exceeds the
actual costs by 10% or more. The Lessee may request the adjustment
for the future if the annual total of the last account falls below
the actual costs by 10% or more. Any adjustment requires the
concent of the other party, which may only be refused with good
reason.
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4.5
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The contracting parties are agreed that after
conclusion of lease new operating costs, taxes and charges may be
imposed on the Lessor which would have been agreed as allocable to
the Lessee had they been known on conclusion of lease. The Lessor
shall therefore be entitled to allocate any such new operating
costs of the object of lease to the Lessee.
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4.6
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The Lessor may extend or reduce the ancillary and
operating costs to an appropriate extent if the technical
requirements and the comfort levels of comparable properties in
comparable locations alter. The Lessee must bear the resultant
additional ancillary and operating costs insofar as he can be
reasonably expected so to do. This shall include, for example,
plant and equipment by virtue of stricter public-sector energy and
environment provisions or new EU Directives such as recycling
plants, waste water cleaning and recycling plants as well as access
routes and lifts suitable for the disabled, property-specific
ancillary costs which arise as a result of an increased need of the
tenants for security, such as surveillance costs, porter service,
video systems or higher technical requirements with respect to
air-conditioning, heating or media connections.
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4.7
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The Lessee shall procure operationally related
electricity directly for his account from the responsible utility
company. Insofar as direct agreements are otherwise possible
between the Lessee and the utility companies, the Lessee shall
undertake to enter into any such agreements.
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4.8
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The Lessee shall bear the heating costs. They
shall be accounted for by the Lessor in accordance with the German
Ordinance on consumption-dependent charging of heating and hot
water costs (HeizkV).
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4.9
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If land tax is not yet charged by the city of
Düsseldorf for the respective accounting period or only
charged on a provisional basis, on the basis of land without
buildings for example, and if the final land tax notice is issued
at a time at which the account for the previous years has already
been prepared, the Lessor shall be entitled to charge the land tax
on a pro rata basis and retrospectively after presentation of the
final land tax notice. In the case of renting out of a new
building, as is the case here, all accounts of the first years
shall be issued subject to a subsequent demand for land tax until
such times as the final tax notice has been issued. If it is
possible to estimate the final tax burden, the Lessor may state an
appropriate estimated amount in the annual account in order to keep
the amount of the subsequent demand within reasonable limits,
subject to a final account after presentation of the tax
notice.
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4.10
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The rent and the advance payment on ancillary
costs must be paid at the latest by the third working day of a
month in advance without deduction. Receipt on the Lessor’s
account shall be decisive for the punctuality of
payment.
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4.11
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The contracting parties may not offset claims
arising from this lease relationship with counterclaims unless
these are undisputed and have been established with legal
effect.
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4.12
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If the Lessee defaults on payment of the rent, he
shall owe at least default interest of 5 percentage points above
the respective base rate. The right to assert further damages shall
remain.
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4.13
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The Lessee shall provide the Lessor with a
bank guarantee ( Appendix 6 ) by way of security for
all claims arising from the lease relationship and its termination
and processing
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amounting to EUR
127,034.88
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(3 months rent including advance payment on ancillary costs and
turnover tax).
This bank guarantee must be given to the Lessor before the start
of the lease. The Lessor shall have a right of retention to the
object of lease if the Lessee fails to hand over the guarantee with
the consequence that the Lessee must nevertheless pay rent and
ancillary costs as from the start of lease.
If the Lessee fails to provide the guarantee after request by
the Lessor with an appropriate period of grace, he may
alternatively request a cash deposit of the same amount or
terminate the lease relationship without notice after warning.
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4.14
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The contracting parties are agreed that the rent
stated in paragraph 4.1 is to be owed as follows:
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If the consumer price index of all private
households for Germany as a whole, as published by the Statistical
Federal Agency, rises or falls compared to the level that was
pertinent to the last stipulation of the rent, and for the first
time compared to the level of the index in the month of May 2007,
the rent shall alter in the same percentage relationship as the
index. The base year underlying the calculation is 2000 =
100 . The Lessor must provide evidence of the index change on
which the change in rent is based; proof must be provided when the
new rent is announced. The new rent shall be payable starting from
the month following the announcement by the Lessor.
If in a later index calculation other consumer circumstances are
taken as basis than that at the date of concluding the lease, the
index calculation on the basis of the altered consumer
relationships shall be viewed to be binding. If the above mentioned
index is not continued by the Statistical Federal Agency, the
comparable index, possibly from the Statistical Agency of the
European Community, shall be viewed to be agreed.
Any change in rent to be made by virtue of this agreement may be
asserted at the earliest after expiry of 3 years, starting from the
beginning of the lease, and, if the rent has already been changed,
at the earliest after expiry of 3 years since the last change in
rent.
5.
Insurance, Liability of Lessee and Lessor
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5.1
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The Lessor must insure the rented parts of the
building against fire, storm and tap water damage. The Lessee must
therefore inform the Lessor immediately of any damage to the object
of lease resulting from fire, storm or tap water. If the Lessee
fails to comply with this duty to report or fails to comply with it
completely or complies with it too late, the Lessee shall be liable
for Lessor’s damages.
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5.2
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The Lessee must take out an operational liability
insurance.
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5.3
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The Lessee shall be liable for all damage to
property and personal injury arising in the object of lease or on
the plot of the Lessor during the lease period, insofar as he is
culpably responsible for such.
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5.4
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The liability of the Lessee shall extent to all
damage culpably caused to the Lessor’s object of lease by
him, his personnel, or his vicarious agents.
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The Lessee shall be liable for damage he culpably
causes through handling fire, flammable material, water, gas, light
and power systems or by failing to comply with obligations
incumbent on him pursuant to this lease or in accordance with
statutory or official instructions.
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5.5
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The Lessor shall only be liable for damage to
objects the Lessee brings in due to initial defects to the building
(so-called "warranty liability" of the Lessor) and similarly for
damage resulting from moisture, fire, smoke or dirt to the things
brought in by the Lessee, if wilful intent or negligence (albeit
not minor negligence) is attributable to the Lessor, his
representatives and vicarious agents, visitors or other persons
entering the object of lease in connection with business
operations. This shall not apply insofar as an insurance of the
Lessor settles the claim.
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5.6
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Liability for indirect damage (e.g. lost profit)
shall be precluded.
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5.7
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If the electricity, gas or water supply or
drainage is discontinued as a result of a circumstance for which
the Lessor or his vicarious agents are not responsible, or if there
is a dip or change in voltage, the Lessee shall have no damage
claims against the Lessor. The Lessee must take suitable technical
precautions himself.
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6.
Servicing, Minor Repairs, Maintenance
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6.1
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The Lessor shall service the technical plant and
equipment in the object of lease or conclude service agreements
with specialised companies and distribute the costs for this to the
Lessee proportionately pursuant to paragraph 4.2 –
4.4.
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6.2
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The Lessor must be informed immediately of damage
to the object of lease. The Lessee may not tolerate third party
interference in the property of the Lessor. If the Lessee learns of
any such interference he must notify the Lessor of this
immediately. He shall be liable for all damage arising from failure
to report this.
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6.3
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The Lessor shall be responsible for the
maintenance and repair of roof and structures, the central
technical systems (heating, lifts, air conditioning system etc.)
and the window frames together with fittings, irrespective of the
cost-bearing responsibility of the Lessee within the framework of
the ancillary and operating costs. "Roof and structures" include:
the roof, the exterior walls and facade, the load-bearing walls,
the ceilings and the foundations as well as the lines laid by the
Lessor in and beneath the foundation and in ceilings and
walls.
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6.4
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Otherwise the Lessee shall be responsible for
maintenance and repair of the object of lease. The Lessee must
treat carefully and maintain in a functioning state all fittings
and fixtures such as interior and exterior doors, door closing
systems, gates, sun protection systems, all technical systems and
equipment inside the object of lease such as floor coverings,
air-conditioning devices, ventilation systems, heating and hot
water equipment (if provided by the Lessor), as well as sanitary
facilities, locks etc. Damaged panes of glass must be replaced by
the Lessee. The Lessee is only responsible for maintenance and
repairs if defects are caused by Lessee’s use of the lease
object. The Lessee is not responsible for pre-existing defects at
the begin of the lease.
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7.
Structural and Other Changes
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7.1
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All intended structural changes will be discussed
between Lessor and Lessee, to determine if these will be executed
by the Lessor, and how – in this case – the cost will
be charged to the Lessee, or, whether these structural changes will
be Lessee’s own responsibility. The following paragraphs only
refer to the latter case.
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7.2
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Structural changes to the object of lease may
only be made by the Lessee if these have been approved by the
Lessor in writing prior thereto. An approval will depend in
particular on whether aspects of statics, fire protection and trade
inspectorate have been taken into consideration and the Lessee also
assumes the costs for official approvals and any official
requirements. Changes to the outer skin of the building shall
require the approval of the Lessor at all events. Any structural
changes to the object of lease which cannot be easily removed after
the Lessee has moved in must be approved by the Lessor in writing.
The Lessor can only refuse his approval with good reason. This
approval shall not replace any approvals from the building
supervisory authorities which may be necessary. All costs incurred
by the Lessee for this must be borne by the Lessee himself. At the
end of the contractual relationship these changes are to be
eliminated at the expense of the Lessee if the Lessor so requests.
Lessor and Lessee will discuss whether the structural changes or
fittings justify an appropriately high security for the restoration
costs before starting work.
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The Lessor may refuse the approval required
pursuant to the above paragraphs only if he has a good reason so to
do.
If house systems (water, electricity, air-conditioning etc.) are
also affected by the measures, the Lessee shall assign the warranty
claims against the tradesmen involved to the Lessor. The Lessee
shall be liable to the Lessor for all damage culpably caused by
injury to the duties incumbent on him to take due care, in
particular also if supply and drainage lines, toilet, heating
systems etc. are incorrectly treated and the rooms are inadequately
ventilated, heated or not sufficiently protected from frost. Pipe
blocks to the main pipe of a line must be eliminated by the Lessee
at all events at his own expense. If, in the case of damage to or
blocks in the pipes, it cannot be determined which lessee cause
said damage or block, all lessees shall be joint and severally
liable whose rental area is located above the point concerned. The
Lessee shall be liable for damage which is culpably caused by
family members, workers, employees, sub-lessees, visitors,
suppliers, tradesmen etc. who are in the object of lease with his
knowledge or his tolerance or at his instruction.
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7.3
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Signs, advertising signs of the Lessee may only
be put up by the Lessee after agreement with the Lessor to the
extent that is usual in the vicinity under consideration of a
uniform appearance of the signs and entrance bells and only with
the written approval of the Lessor – which may only be
refused with good reason - and any approval from the building
supervisory authority which may be necessary.
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8.
Lessor’s Lien, Inspection
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8.1
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In order to secure his claims arising from the
lease relationship the Lessor shall have a statutory lien to the
objects brought in by the Lessee and subject to attachment. By
virtue of his Lessor’s lien, the Lessor may prevent the
removal of objects subject to the lien without recourse to the
courts. If the Lessee relinquishes the object of lease, the Lessor
make take the objects things into his possession if the claims of
the Lessor are due in whole or in part, without threatening the
sale of pledge and without meeting a deadline, and have them
publicly auctioned or sold, to the degree that he is legally
permitted to prevent the removal.
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8.2
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The Lessor and his authorised representatives are
entitled to enter and inspect the object of lease at appropriate
intervals in time during normal business hours and after prior
announcement and agreement with the Lessee, and more frequently in
the case of imminent danger also outside business hours and without
prior announcement and agreement with the Lessee. The business
operations of the Lessee may not be essentially impaired by this,
apart from
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