C&P Draft [•]
LEASE AGREEMENT
by and between
Ferret Spółka z ograniczoną odpowiedzialnością
as the Lessor
and
[•]
as the Lessee
Dated [•] 2013
___________________________________________________________________________
This lease agreement („Agreement”) was made on [•] 2013 in Warsaw by and between:
Ferret Spółka z ograniczoną odpowiedzialnością with its registered office in Warsaw (02-672) at
ul. Domaniewska 50A, entered in the Register of Entrepreneurs of the National Court Register by the
District Court for the City of Warsaw, 12th Commercial Division of the National Court Register under
number 426921, share capital of PLN 5000.00, NIP 525-25-34-301, REGON 146211241, represented
by:
1)
Jan Dalik – attorney-in-fact duly authorized for this purpose,
hereinafter referred to as the „Lessor”,
and
1) [•] with its registered office in [•] at [•], entered in the Register of Entrepreneurs of the National Court
Register by the District Court in [•] under number [•], share capital of [•], NIP [•], REGON [•],
represented by:
[•] -[•],
pursuant to the current excerpt from the National Court Register attached as Enclosure No. 1 to the
Agreement,
hereinafter referred to as the „Lessee”.
The Lessor and the Lessee shall be hereinafter collectively referred to as the „Parties”, and individually as a
„Party”.
WHEREAS:
A. The Lessor is a perpetual user of the Real Estate (as defined below) and the owner of the Building (as
defined below);
B. The Lessee and the Lessor obtained all necessary approvals and both are duly authorized to enter into this
Agreement; and
C. The Lessor is willing to let certain premises in the Building to the Lessee, and the Lessee intends to rent
such premises from the Lessor.
THEREFORE, THE PARTIES HERETO HAVE MUTUALLY AGREED, AS FOLLOWS:
The terms used in this Agreement shall have the following meanings:
Building
means a building located on the Real Estate, marked on the map attached as
Enclosure No. 2 to the Agreement;
Rent
means amounts due and payable to the Lessor by the Lessee for the lease of the
Premises, increased by VAT in a due amount, other than the Service Charges
that the Lessee is obliged to pay monthly to the Lessor in accordance with
Clause 4 of the Agreement;
Parking Spaces Rent
means monthly amounts, plus VAT in a due amount, that the Lessee is obliged
to pay to the Lessor for the lease of the Parking Spaces in accordance with
Clause 4.1.4. of the Agreement;
Cash Deposit
means a guarantee deposit amounting to aggregate of [•]-month rates of: Rent,
Parking Spaces Rent and advance payments on account of the Service Charges,
increased by VAT in a due amount, that the Lessee is obliged to pay to the
Lessor's bank account in accordance with Clause 5 hereof;
Business Day
means any day other than Saturday, Sunday or any public holiday in Poland;
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CPINT3: 2566619.2
Commencement Day
means a day on which the Lease Period commences in accordance with the
provisions of Clause 2.1 hereof, i.e. [•] 2013;
Delivery Date
means the date of Delivery of the Premises and Parking Spaces to the Lessee in
accordance with Clause 3 hereof;
Termination Date
means the date on which the Lease Period expires, pursuant to the provisions of
Clause 2.1 hereof;
EUR
means the currency of the European Monetary Union;
EUR HICP
means the Harmonized Index for Consumer Prices of euro-zone Economic and
Monetary Union published by the Eurostat at the European Union for the
previous calendar year, or any index substituting the above index or statistics
applicable in the European Union, chosen at the Lessor's sole discretion;
Bank Guarantee
means an irrevocable, unconditional, assignable guarantee, payable in full or in
part at the first demand of the Lessor, issued by a reputable Polish or foreign
bank; the guarantee amount shall be equal to the aggregate amount of [•]-month
rates of: Rent, Parking Spaces Rent and advance payments on account of the
Service Charges, increased by VAT in a due amount; the form of the Bank
Guarantee is attached hereto as Enclosure No. 3;
Parking Spaces
means [•] Parking Spaces to be leased to the Lessee, located in the underground
garage under the Building, marked on the plan attached hereto as Enclosure No.
4;
Real Estate
means plot No. 161 (precinct 5-05-04) of the area of 1347 sq. m., located in
Warsaw at ul. Piękna 18, covered by land and mortgage register KW No.
WA4M/00201913/7 kept by the District Court for Warsaw-Mokotów in
Warsaw, X Land and Mortgage Registry Division, the excerpt of which
constitutes Enclosure No. 5 hereto;
Project
means the Building together with the Real Estate;
Lease Period
means a definite period of [•] months, commencing on the Commencement
Date;
Service Charges
means amounts, increased by VAT in a due amount, other than the Rent, that
the Lessee is obliged to pay to the Lessor for the lease of the Premises pursuant
to Clause 4.3 hereto;
PLN
means the currency of the Republic of Poland;
Premises
means office premises having the area of [•] square meters, located on the [•]
([•]) floor of the Building, marked on the plan attached as Enclosure No. 6
hereto;
Leasable Area of the
Project
means the total area to be leased to lessees of the Project increased by common
areas excluding vertical penetration, technical areas, structural columns and
parking spaces;
Leasable Area of the
Premises
means the area of the Premises increased by the add-on factor, referred to in
Clause 1.3 hereof;
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Delivery Protocol
means a document signed on the Delivery Date by both Parties or by the Lessor
only, in accordance with the provisions of this Agreement, describing the status
of the Premises;
Force Majeure
means any external occurrence, not predictable, entirely out of control of the
Parties to this Agreement, which may hinder or prevent the performance of the
obligations of the Parties under this Agreement. The occurrences of the Force
Majeure include, among others:
a) war or any other occurrence of a military character, invasion, mobilization,
embargo,
b) nuclear explosion, radioactive contamination,
c) rebellion, revolution, uprising, acts of terrorism or a civil war,
d) unrest, riots and any other similar occurrence threatening the public order,
with the exception of the occurrences pertaining solely to the employees of
either Party,
e) decisions, refusals or omissions of state or self-government authorities,
provided that they do not result from the negligence of the Lessor or the
Lessee,
f) natural disasters causing total desist of construction works or other business
activity in the Śródmieście District in Warsaw;
Agreement
means this Agreement including all the Enclosures hereto which constitute its
integral part;
VAT
means the goods and services tax as stipulated in the Law of March 11, 2004, as
amended;
Delivery
means delivery of the Premises and Parking Spaces to the Lessee in accordance
with Clause 3.1-3.2 hereof;
Collateral
means jointly the Cash Deposit and the Bank Guarantee or, if the context so
requires, any of them.
1.
LEASE AND SUBJECT OF LEASE
1.1.
Under the terms and conditions set forth herein, the Lessor hereby leases the Premises to the Lessee,
and the Lessee hereby accepts the Premises for use and undertakes to pay the Rent and the Service
Charges, increased by VAT in a due amount. The Premises are presented on the plan attached as
Enclosure No. 6 to the Agreement.
1.2.
The Lessee shall use the Premises for office purposes only. The Lessee is not authorized to use or to let
using the Premises for any other purpose other than the purpose specified above. Any change of the
manner of use of the Premises by the Lessee requires prior written consent of the Lessor and a
respective annex to this Agreement.
1.3.
The area of the Premises is [•] square meters. For the purposes of specifying the Leasable Area of the
Premises, the area of the Premises was increased by an add-on factor of 3% comprising the Lessee's
share in the common areas of the Building (for instance reception, circulation areas, etc.). Therefore, the
Leasable Area of the Premises shall amount to [•] x 1.03 = [•] square meters. The Parties agree that the
above Leasable Area of the Premises will be the basis for calculation of the Rent and the Service
Charges.
1.4.
Under the terms and conditions set forth herein, the Lessor hereby leases to the Lessee the Parking
Spaces, and the Lessee hereby accepts the Parking Spaces for use from the Lessor and undertakes to pay
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the Parking Space Rent increased by VAT in a due amount. A plan presenting situation of the Parking
Spaces has been attached as Enclosure No. 4 hereto.
2.
LEASE PERIOD
2.1.
This Agreement has been concluded for the Lease Period. The Lease Period commences on [•] (the
„Commencement Date”) and terminates on [•], unless it has been terminated earlier in accordance
with the provisions of this Agreement or postponed in accordance with the delay of the Delivery Date
(the „Termination Date”).
2.2.
Subject to Clause 6.3.4. below, on the Termination Date, the Lessee shall leave the Premises and the
Parking Spaces, and deliver them to the Lessor in the same condition in which they were delivered to
the Lessee on the Delivery Date, taking into account normal wear and tear, unless the Parties have
agreed otherwise.
2.3.
On the Termination Date, the Lessee shall also return to the Lessor all means of access to the Premises
and the Parking Spaces. If the Lessee does not return to the Lessor the means of access to the Premises
and the Parking Spaces on the Termination Date, the Lessor is entitled to open and enter the Premises
and change the locks in the Premises or change the means of access to the Parking Spaces or block the
Lessee's access to the Premises and the Parking Spaces by other means, at the sole cost of the Lessee.
2.4.
If the Lessee fails to restore the Premises and the Parking Spaces to the condition described in Clause
2.2 above, the Lessor will be entitled to restore the Premises and the Parking Spaces to such condition
by itself and charge all costs of such works to the Lessee.
2.5.
The Lessee shall also remove all of its property from the Premises and the Parking Spaces by the
Termination Date. If the Lessee does not remove its property from the Premises and the Parking Spaces
by the Termination Date, the Lessor may, at its own discretion, order for removal of the Lessee's
property from the Premises and the Parking Spaces, and storage of such property in a place indicated by
the Lessor. In such case, the Lessee will return to the Lessor, at the first request of the Lessor, all costs
in connection with removal of the Lessee's property from the Premises and the Parking Spaces, and
storage of such property. In addition, the Lessee will pay a contractual penalty for delay in vacating by
the Lessee of any of the following components of the subject of lease: the Premises and/or Parking
Spaces, in the amount equal to double amount of the daily Rent (calculated on the assumption of 30
days in a month) for each day of delay of the Lessee in vacating the Premises and/or the Parking
Spaces. The Parties unanimously agree that the above contractual penalty will be due notwithstanding
the fact whether the Lessor incurs damage, or not. Payment of such penalty shall be without prejudice to
the right of the Lessor to take any other actions against the Lessee, if the loss incurred by the Lessor
exceeds the amount of the aforementioned contractual penalty, in particular the Lessor may seek
compensation under general rules. The Lessee will pay to the Lessor the amount of the above
contractual penalty forthwith at the Lessor's request, not later, however, than within 3 (three) Business
Days following the date of receipt of the Lessor's written request, to the bank account indicated in such
request.
2.6.
The Lessee irrevocably authorizes the Lessor or the Lessor's legal successors to disconnect the utilities
supplied to the Premises after the Termination Date.
3.
DELIVERY OF THE PREMISES AND FIT OUT WORKS
3.1. Conditions of Delivery
3.1.1.
Subject to the provisions of Clause 3.2 below, the Premises shall be delivered to the Lessee no later
than on [•] 2013 (the „Delivery Date”), provided that the Lessee previously effectively provides the
Collateral pursuant to Clause 5 of the Agreement.
3.1.2.
On the Delivery Date, the Premises shall be delivered to the Lessee in the condition presented on
photographs and in the description, forming Enclosure No. 7 hereto. Both Parties will confirm the
Delivery of the Premises by signing a protocol on the Delivery Date (the „Delivery Protocol”).
3.1.3.
The Lessor shall inform the Lessee in writing on the planned Delivery Date, at least one (1) Business
Day in advance indicating the day on which representatives of both Parties will deliver and accept the
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Premises, respectively. If the authorized representative of the Lessee is not present on the Delivery
Date, the Lessor will be authorized to sign the Delivery Protocol by itself.
3.1.4.
If the Lessee does not secure the presence of its authorized representative on the Delivery Date, the
Lessor shall be entitled to sign the Delivery Protocol without the Lessee's consent.
3.1.5.
After the execution of the Delivery Protocol by both Parties or by the Lessor alone in accordance with
the above provisions, the Premises shall be deemed delivered to the Lessee.
3.1.6.
Any minor defect which does not prevent the Lessee from using the Premises, shall not constitute a
ground for refusing to sign the Delivery Protocol in accordance with the provisions of this Agreement,
and to accept the Premises. If the Lessee does not accept the Premises for any other reasons different
from those specified herein, the Premises will be deemed delivered to the Lessee from the Lessor on the
date set forth in the Delivery Protocol. The defect referred to above shall be removed by the Lessor
within 14 (fourteen) Business Days following the Delivery Date.
3.1.7.
The Parking Spaces will be deemed delivered to the Lessee as of the date of execution of the Delivery
Protocol in accordance with Clauses 3.1.2 or 3.1.4 above.
3.2.
Delay in Delivery Date
If any Force Majeure event occurs or if the Lessee does not deliver the Collateral to the Lessor pursuant
to the provisions of Clause 5 hereof, the Lessor may, at its sole discretion, postpone the Delivery Date
for a period of duration of such event and time required to repair consequences thereof (if any) or for a
period of delay in delivery of the Collateral by the Lessee. The Lessor is obliged to notify the Lessee of
the Delivery Date postponed due to the above events. In such cases, the Lessee will not be entitled to
any compensation, claims or penalties resulting from the delay of the Delivery Date, and the
Commencement Date and the Termination Date shall be postponed accordingly by the same number of
days by which the Delivery Date was delayed.
3.3. Fit out works
3.3.1.
No later than by the Commencement Date, the Lessee will perform and complete in the Premises the fit
out works according to the specification attached as Enclosure No. 8 hereto (the „Fit Out Works”).
The Lessee is obliged to prepare on its own all designs and obtain all construction permits or
notifications, in accordance with applicable provisions of law, necessary to perform the Fit Out Works
and deliver the Premises for use in connection with execution of such Fit Out Works. Prior to the
commencement of performance of the Fit Out Works, the Lessee will provide the Lessor, for the
Lessor's previous written acceptance, with all such designs regarding the Fit Out Works and permits
obtained or notifications made (as the case may be) no later than within 3 (three) Business Days
following the execution thereof by or at the request of the Lessee, or obtaining thereof.
3.3.2.
The Lessee will complete the Fit Out Works on the basis of the above designs, in accordance with the
applicable provisions of law and all standards respectively applied and will, after performance of such
works, make the Premises available to the Lessor for the purpose of verification of the status of the
Premises.
4.
RENT, PARKING SPACES RENT AND SERVICE CHARGES
4.1.
Rent and Parking Spaces Rent
4.1.1.
Subject to the provisions of Clause 4.1.2. - 4.1.4 and 4.2. below, the Lessee will pay to the Lessor for
the lease of the Premises monthly in advance, throughout the entire Lease Period, the Rent being a PLN
equivalent of EUR [•] (in words: [•] euro) per each square meter of the Leasable Area of the Premises
per month, that is in total a PLN equivalent of EUR [•] (in words: [•] euro) monthly, increased by
applicable VAT in a due amount.
4.1.2.
Subject to the provisions of Clause 4.2. below, the Lessee will also pay to the Lessor monthly in
advance throughout the entire Lease Period the PLN equivalent of EUR [•] (in words: [•] euro) for
each month of lease of each Parking Space, i.e. the total PLN equivalent of EUR [•] (in words: [•] euro)
per month, increased by applicable VAT in a due amount.
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4.2. Indexation
4.2.1.
The amounts of the Rent and the Parking Spaces Rent will be subject to annual indexation by EUR
HICP, if such index has a positive value (i.e. indicates increase of prices in the previous calendar year).
The basis for indexation will be EUR HICP starting from 2013 in the amount of 100%. The first
indexation based on EUR HICP shall come into force on 1 January 2014 and next indexations will be
made on each anniversary of such date.
4.2.2.
If calculation of the amount of the Rent and the Parking Spaces Rent, in their valorised amounts for the
first months of a given calendar year is not made prior to the date of payment of the Rent and the
Parking Spaces Rent for such months, the Lessee will pay to the Lessor the existing amount of the Rent
and the Parking Spaces Rent. However, the Lessee will pay to the Lessor for such months also the
difference between the existing amount of the Rent and the Parking Spaces Rent, and the amounts of
the Rent and the Parking Spaces Rent after valorisation, based on an additional invoice issued by the
Lessor for such period, on the date specified in such invoice.
4.2.3.
Indexation of the Rent and the Parking Spaces Rent does not constitute require any amendment to this
Agreement.
4.3. Service Charges
4.3.1.
4.3.2.
The Lessee will participate in all costs and charges resulting from due maintenance and operation of the
Project incurred by the Lessor, provided that the Lessee's share in such costs and charges is equal to the
ratio of the Leasable Area of the Premises to the Leasable Area of the Project. Therefore, the Service
Charges constitute proportional Lessee's share in all such costs, in particular including the costs of:
(i)
heating, ventilation and cooling of the common areas in the Building,
(ii)
use of common areas, including costs of use of electricity and water on the common areas of
the Building and sewage disposal from the common areas of the Building,
(iii)
cleaning, maintenance and repairs of general facilities designed for use and benefit of all or
individual lessees, including common areas, car park and surrounding of the Project,
(iv)
costs of snow and ice removal from the Project,
(v)
costs of cleaning of window and front elevation of the Building,
(vi)
costs of maintenance of the greenery in the common areas of the Project,
(vii)
costs of disinfection, pest and rat control in the common areas of the Project,
(viii)
costs of management of the Building,
(ix)
garbage disposal costs,
(x)
costs of security and fire-fighting security,
(xi)
costs of property insurance specified in Clause 12 hereof below,
(xii)
costs of maintenance and repair of telecommunication equipment and facilities,
(xiii)
fees for depreciation and removal of fittings,
(xiv)
costs of installation, delivery, maintenance, renovation and replacement of all elements of
desmoking system, fire detection system, evacuation systems, safety systems and other
elements of technical installations in the Building,
(xv)
costs of maintenance staff, including costs of maintenance of premises and equipment for such
staff,
(xvi)
costs of Building's security and reception staff and/ or system of access control by the Lessee
of the common areas of the Building and/or Project (the security in the Building is on the 24hours basis),
(xvii)
costs of employment of other personnel in the Building than the personnel referred to in (xv)
and (xvi) above, and related expenses.
The Service Charges will also include all and any charges and expenses related to the Project (including
property tax and perpetual usufruct fees) or resulting from the compliance with legal requirements
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connected with repairs, maintenance, replacement or renewal, if justified, or if in connection with the
operation and utilization of the Building and/or the Project.
4.3.3.
The Service Charges will not cover the following costs:
(i)
costs of electricity and water consumed by the Lessee, which will be calculated on the basis of
the readings of separate electricity and water meters installed by the Lessor, and payable by the
Lessee directly to the Lessor or to the utility provider,
(ii)
costs of heating, cooling and ventilation of the Premises, payable by the Lessee directly to the
Lessor,
(iii)
fees for telecommunication and Internet use by the Lessee, payable directly by the Lessee to
the Lessor or to the utility provider, and
(iv)
costs of cleaning of the Premises payable directly by the Lessee.
The Lessee is authorized to conclude agreements with telecommunication operators regarding provision
of telecommunication services in the Premises for the Lessee.
4.3.4.
The Service Charges reflect the costs incurred by the Lessor during exploitation of the Premises
released for use to the Lessee. The Service Charges will be accrued proportionally at costs in
accordance with the terms of Clause 4.3.1-4.3.3 hereinabove.
4.3.5.
In each month of the Lease Period, the Lessee shall pay advances on account of annual Service Charges
amounting to the PLN equivalent of the amount resulting from the settlement of actual Service Charges
according to the provisions of Clauses 4.3.6.-4.3.7. below, provided that advances on account of the
Service Charges in the first and each subsequent year of the Lease Period will amount to no less than
PLN [•] (in words: [•]) plus VAT per each square meter of the Leasable Area of the Premises per
month.
4.3.6.
The amount of monthly advance payments on account of the Service Charges in subsequent years will
be calculated based on the estimated amount of annual operating costs specified in Clause 4.3.1-4.3.2
above, such calculations being made by the Lessor on the basis of the actual amount of the Service
Charges for the preceding calendar year. The Lessor shall notify the Lessee in writing on the amount of
monthly advance payments on account of the Service Charges in a given calendar year immediately
after calculations referred to in the preceding sentence are made. Until the amount of monthly advance
payment on account of the Service Charges in a given year is specified, the Lessee will pay monthly
advance payments in the same amount as in the preceding calendar year. Any changes in the amount of
monthly advance payments on account of annual Service Charges do not require any amendment to this
Agreement.
4.3.7.
Following the end of every calendar year, but not earlier than in March of the next calendar year, the
total amount of the monthly advance payments on account of the Service Charges paid by the Lessee in
a given calendar year will be reconciled with the actual amount of annual Service Charges mentioned in
Clause 4.3.1-4.3.2 above. If the actual amount of the Service Charges for a given calendar year
attributable to the Lessee in accordance with Clause 4.3.1-4.3.2 hereof proves to be higher than the total
sum of advances on account of the Service Charges paid by the Lessee in that period, the Lessor shall
have a right to charge the Lessee with such difference by issuing an invoice to be paid by the Lessee
within 7 (seven) days from its delivery. Any overpayment by the Lessee on account of the Service
Charges will be counted towards future advance payments due pursuant to this Agreement. If it is
impossible to count the overpaid amount towards future advance payments, such amount shall be
returned to the Lessee within fourteen (14) days following the date of reconciliation based on a
corrective invoice.
4.4. Terms and conditions of payments
4.4.1.
The Rent, the Parking Spaces Rent and monthly advances on account of the Service Charges, and the
costs specified in Clause 4.3.3 above - shall be payable to the Lessor starting on the Delivery Date.
4.4.2.
If the Commencement Date is a date other than the first date of a month, then the Rent, the Parking
Spaces Rent and the Service Charges for such month shall be calculated proportionally to the number of
days covered by the Lease Term in such month. The above provision shall apply respectively to the
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rules of settling the amount of the Rent, the Parking Spaces Rent and the Service Charges, in the event
the Termination Date falls on a date other than the last day of a month.
4.4.3.
The amounts of the Rent, the Parking Spaces Rent and the Service Charges and the costs specified in
Clause 4.3.3 above, will be increased by applicable VAT in a due amount.
4.4.4.
Unless expressly provided otherwise, where Polish zloty equivalents of EUR are referred to in this
Agreement, the average EUR/PLN exchange rate of the National Bank of Poland applicable on the day
a payment is due will be applied for calculation or, in case of invoices issued by the Lessor, applicable
on the Business Day immediately before the date of issuing the invoice.
4.4.5.
Starting from the 25th calendar day of the month preceding the month for which the Rent, the Parking
Spaces Rent and the Service Charges, and the costs specified in Clause 4.3.3 above, are due, the Lessor
will issue and deliver to the Lessee invoices (or, at Lessor's discretion, one invoice) for the payment of
the Rent, the Parking Spaces Rent and the Service Charges and such costs specified above. Invoices for
the first month of the Lease Period shall be issued and delivered to the Lessee together with invoices for
the next calendar month of the Lease Period or, at the discretion of the Lessor, immediately after the
Delivery Date. The Lessee shall pay to the Lessor the amount indicated in the invoice within seven (7)
days of issuance of the invoice.
4.4.6.
The date of payment of the Rent, the Parking Spaces Rent and the Service Charges and the costs
specified in Clause 4.3.3 above, will be deemed the date on which the money was credited to the bank
account of the Lessor.
4.4.7.
In the case of delay in payment of the Rent, the Parking Spaces Rent or the Service Charges and the
costs specified in Clause 4.3.3 above, without prejudice to the rights of the Lessor to claim
compensation under general provisions of Polish law, and subject to any further rights provided for in
this Agreement and the provisions of law, the Lessor will have a right to charge the Lessee with late
payment interest in the four times the rate of the lombard loan of the National Bank of Poland
(maximum interest) per annum.
5.
COLLATERALS
5.1.
In order to ensure the Lessee's compliance with the covenants of this Agreement, the Lessee will
provide the Lessor, within fourteen (14) days following the date of signing this Agreement, at the
Lessee's discretion, with a Bank Guarantee or a Cash Deposit. The Lessee will establish the Collateral
in EUR.
5.2.
Subject to the provisions of Clause 5.7 below, the Lessee will pay the Cash Deposit in the amount of
EUR [•] (in words: [•]) to the following bank account of the Lessor: [•] (account in EUR). The Parties
agree that for the purposes of calculating the above amount of the Cash Deposit they assumed - in
relation to advances on account of the Service Charges payable in zlotys - the average rate of exchange
PLN/EUR of the National Bank of Poland applicable on the Agreement execution date. The Cash
Deposit will remain on the Lessor's bank account throughout the entire Lease Period plus three (3)
months.
5.3.
The Lessee may substitute a Cash Deposit with a Bank Guarantee. In such case the Lessor shall return
the Lessee the Cash Deposit amount within 14 (fourteen) days after receipt of the Bank Guarantee.
5.4.
The Bank Guarantee will remain valid throughout the entire Lease Period plus three months.
5.5.
If the Lessee provides a Bank Guarantee whose term is shorter than that indicated in Clause 5.4 above,
and if the Lessee does not provide the Lessor, no later than one month prior to expiry of the existing
Bank Guarantee, with a replacement Bank Guarantee issued under the same conditions, provided that
the period of the replacement Bank Guarantee covers at least 12 (twelve) months after the expiry date of
the existing Bank Guarantee, then the Lessor will be entitled to use the existing Bank Guarantee in its
full amount and to keep this guarantee as the Cash Deposit for the time period left until the expiry of the
Lease Period or till the date of delivery of the replacement Bank Guarantee. The Lessee is obliged to
provide the Lessor with the replacement Bank Guarantee no later than one month prior to the expiry of
the existing Bank Guarantee.
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5.6.
The Lessor will be entitled to draw from the Collateral to cover all due payments and charges unpaid by
the Lessee, including but not limited to:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
Rent;
Parking Spaces Rent;
Service Charges;
contractual penalties specified in this Agreement;
cost of restoring the Premises to the previous state in the case the normal wear and tear of the
Premises after the Lease Period exceeds the level resulting from their normal wear and tear;
costs payable by the Lessee pursuant to Clause 4.3.3 of the Agreement;
due VAT.
5.7.
In case of reduction of the Collateral's value for any reason, the Lessee will be obliged to restore, as the
case may be, the amount of the Cash Deposit or the Bank Guarantee, up to their full amount specified in
this Agreement, within 14 (fourteen) days following the receipt by the Lessee of the Lessor's notice
about reduction of the Collateral's amount.
5.8.
To avoid any doubts, the Parties agree that the Lessee will be also obliged to increase the Collateral's
amount in the case of increase of the amount of the Rent, the Parking Spaces Rent or the Service
Charges, within 14 (fourteen) days following the notice of the Lessee by the Lessor about increase of
any of such fees.
5.9.
If the Lessee does not provide the Lessor with the Collateral or does not replenish the Collaterals under the terms and conditions set forth in the Agreement, it will be deemed the breach of the
obligations under the Agreement authorizing the Lessor to terminate the Agreement with immediate
effect, with no notice period, by sending the Lessee a notice of such termination.
6.
USE AND MAINTENANCE OF PREMISES, ALTERATIONS
6.1.
Use and maintenance of the Premises during the Lease Period
6.1.1.
The Lessee will comply with regulations of the Building (the „Internal Regulations of the
Building”) and all provisions regulating use of the Building, which may be issued or altered by the
Lessor at any time during the Lease Period. The Internal Regulations of the Building binding on the
date of execution of this Agreement is attached as Enclosure No. 9 hereto. The Lessee has a right to
access the Building 24 (twenty-four) hours a day, 7 (seven) days a week. The Internal Regulations of
the Building cannot limit the Lessee's rights to use the Premises to the above extent.
6.2.
The Lessee undertakes to conduct its activity in the Premises in such manner that the behaviour of its
representatives, employees, visitors, clients, agents and contractors, does not disturb the order in the
Building and does not disturb other lessees or users of the Project.
6.2.1.
The Lessee undertakes to maintain the Premises and all internal and non-constructional parts of the
Premises in a good technical condition. During the Lease Term, the Lessee will maintain the Premises
and the Parking Spaces clean and in order.
6.2.2.
The Lessee is not allowed to bring in or store or allow to be brought into or stored in the Premises or the
Parking Spaces, any chemical agents or any other hazardous materials, the possession of which is
forbidden by Polish law or in defiance of the manner of using the Premises and Parking Spaces
specified in this Agreement.
6.2.3.
Any and all replacements, repairs and maintenance of the elements of the Premises belonging to the
Lessor at the moment of delivering the Premises, will charge the Lessor. This obligation does not relate
to damages caused by the Lessee or entities it is responsible for. The Lessee will inform the Lessor
immediately about the need of technical repairs of such elements.
6.2.4.
If the Lessee becomes aware of any damages to the Premises, the Parking Spaces and/or any part
thereof, the Lessee is obliged to immediately notify the Lessor of such damage so that the Lessor may
commence repairing the damage and restore the damaged areas to their previous condition. The Lessee
is obliged to undertake all necessary actions in order to limit the range of damage made in the Premises
and/or the Parking Spaces. If the Lessee fails to notify the Lessor on the damages, the Lessee will be
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solely responsible for the damages. The Lessee bears responsibility for damages made to the elements
comprising the Premises and/or the Parking Spaces and/or the Project belonging to the Lessor and
arising due to the fault of the Lessee or persons it is responsible for.
6.3.
Alterations
6.3.1.
The Lessee is not entitled to make any architectonical alterations to the Premises and changes
interfering with the substance of the Premises, except for alterations to which the Lessor will explicitly
provide its prior consent in writing, and alterations resulting from the Fit Out Works made by the
Lessee - in the manner and under the terms set forth in Clause 3.3 hereof.
6.3.2.
In the event of any breach of Clause 6.3.1 above, the Lessee will, immediately after receipt of a written
notice from the Lessor, reinstate the Premises to the condition in which the Premises were before the
said breach. Should the Lessee does not promptly reinstate the Premises, the Lessor will be entitled to
reinstate the Premises to the previous condition on its own and charge all relevant costs and fees related
therewith to the Lessee.
6.3.3.
Notwithstanding the above, the Lessee will be obliged to insure any and all new structures,
improvements and alterations or additions to the leased space Premises against all construction risks
on the terms and conditions approved by the Lessor.
6.3.4.
The Lessee is obliged to remove, on or before the Termination Date, at its cost, all alterations,
improvements or supplements made by the Lessee in the Premises based on the Agreement, including
in particular alterations resulting from the Fit Out Works, or alterations, improvements or supplements
made by the Lessee contrary to the provisions of the Agreement, unless the Parties mutually agree
otherwise. The provisions of Clause 2.5. of the Agreement shall apply respectively.
6.3.5.
The Lessor may, if deemed necessary for the purposes of the entire Building or due to service
requirements to keep the Building in the best possible condition, make alteration or conversion on the
Project or its installation systems. The Lessor shall notify the Lessee in writing of the planned works
and the commencement date and schedule of works, no later than 1 (one) Business Day before the
commencement of the works.
7.
SIGNAGE
7.1.
The Lessee will be entitled to place its logo in the places appointed for that purpose by the Lessor in the
Building. All costs of installation, performance or design of such signage shall be borne by the Lessee.
7.2.
Furthermore, the Lessee shall be entitled to place its logo over the window of the Premises in the place
agreed with the Lessor, after previous acceptance of the signage design by the Lessor. The Lessee
undertakes to maintain the signage in a proper technical and esthetical conditions during the entire
Lease Period.
7.3.
Prior to the installation of the signage referred to in Clause 7.1 and 7.2 hereinabove, the Lessee is
obliged to obtain all permits required by law and explicit written consent of the Lessor, including the
design of the signage, its size and the manner of assembly.
7.4.
By the Termination Date, the Lessee shall remove, at its cost, the signage referred to in Clause 7.1 and
7.2 hereinabove.
8.
INTERRUPTIONS
The Lessor does not warrant that any of the utilities, services or equipment used in connection with the
services in the Project will be free from interruptions in supply or operation. Any such interruption in
supply of utilities, services or operation of the equipment shall not be deemed a disturbance of the
Lessee's use of the Premises. If the Lessor is informed by public providers of any disconnection or
interruption, the Lessor will immediately notify the Lessee of such fact.
9.
FIRE OR ACCIDENTS
9.1.
If the Premises are damaged as a result of fire, accident or other random event in such degree that the
damage does not prevent the use of the Premises in part or in total (provided that such damage was not
caused by the Lessee or that the Lessee did not breach the terms and conditions of the insurance policy
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covering the Premises), the Lessor shall repair such damage and there will be no decrease of the Rent or
the Service Charges, on the condition that the Lessee is practically still able to use the Premises.
9.2.
If, as a result of the event referred to in Clause 9.1, the Premises, in total or in more than 60% are not
suitable for practical use, the Lessor may (at its discretion):
(i)
repair the damage and decrease the Rent or the Service Charges proportionally to the time period
and scope of limitation with regard to the use of the Premises by the Lessee until the repairs are
completed, or
(ii)
within 3 months following the event referred to in Clause 9.1. hereinabove, terminate the
Agreement at one-month notice delivered in writing to the Lessee; after the expiry of the notice
period the rights and obligations of the Parties resulting from this Agreement shall expire, except
for the rights resulting from earlier defaults and the Lessee's obligation to pay the Rent and the
Service Charges with regard to the part of the Premises which are suitable for practical use for
the period until the date on which the Lessee vacates the Premises.
9.3.
Furthermore, in the case of damage of 60% or more of the Premises occupied by the Lessee as a result
of the event referred to in 9.1. hereinabove, and if the Lessor decides to repair the damage, such repair
must be completed in order to enable the Lessee the practical use of at least 60% of the Premises, within
6 (six) months from the occurrence of the event referred to in Clause 9.1 above, or within a different
time period agreed upon in writing by the Parties. If the Lessor does not complete 90% of the repairs
within 6 (six) months from the occurrence of the event referred to in Clause 9.1 above, or within a
different time period agreed upon in writing by the Parties, the Lessee may terminate this Agreement
with immediate effect sending a written notice to the Lessor, with the reservation that the notice on
termination of the Agreement will be delivered to the Lessor within 30 (thirty) calendar days following
the expiry of the above-mentioned period of 6 (six) months.
9.4.
In each case, if the Lessor decides to repair the damages but such repair is not completed within 9 (nine)
months from the date of occurrence of the event referred to in Clause 9.1 hereinabove, the Lessee may
terminate this Agreement with immediate effect.
9.5.
If the fire, accident or other random event in the Project was caused by the proven actions or
negligence of the Lessee or persons the Lessee is responsible for, the Lessee will pay to the Lessor,
under the terms specified in the Agreement, the Rent for the lease of the entire Leased Premises until
the expiry of the Lease Period. Payment of the Rent by the Lessee in accordance with the provisions of
the preceding sentence does not prejudice the rights of the Lessor to claim, on general terms of Polish
law, for compensation in the amount exceeding the amount of the Rent.
9.6.
The above provisions shall respectively apply to the Parking Spaces (and the Parking Spaces Rent), if
the Parking Spaces are damaged by fire, accident or another random event referred to above.
10.
TERMINATION OF THE AGREEMENT
10.1.
Regardless of other rights and claims of the Lessor, the Lessor may terminate this Agreement with
immediate effect:
(i)
if the Lessee uses the Premises contrary to the purpose specified in the Agreement and does not
stop such breach in spite of a written reminder of the Lessor;
(ii)
if the Lessee does not conduct its regular and ongoing business in the Premises, for a period of
more than 30 (thirty) consecutive days or if the Lessee removes all or substantially all of its
equipment and other possessions from the Premises, unless in the latter case the Lessee provides
security protection of the Premises, satisfactory to the Lessor;
(iii)
if, in spite of a written reminder from the Lessor, the Lessee does not observe the Building
regulations (which were notified to the Lessee) and continues or repeats the above breach after
the date for discontinuation thereof indicated by the Lessor in the reminder;
(iv)
in view of the fact that making all payments provided for in this Agreement on a due date by the
Lessee is particularly important to the Lessor, the Lessor may terminate this Agreement with
immediate effect, if the Lessee is in delay with any payment, including payment of the Rent, the
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Parking Spaces Rent or the Service Charges, in full or in part; the Lessor shall be obliged to
notify the Lessee of its intention to terminate the Agreement; in the notification, the Lessor shall
indicate a final one-month term during which the Lessee will be obliged to make overdue
payments;
(v)
if the Lessee does not fulfil its obligation to provide the Collateral, replenishment or increase of
the Collateral's amount, pursuant to the provisions of Clause 5 hereof;
(vi)
if the Lessee makes constructional changes, adaptation or improvements in the Premises,
without written consent of the Lessor, and if he did not restore the Premises to the condition
before the breach within 7 (seven) days from the date of receipt of a written call from the
Lessor;
(vii)
if the Lessee subleases or lets the Premises for free use to third parties or assigns rights and
obligations under the Agreement to third parties, contrary to the provisions of the Agreement,
and does not restore the condition from before such breach within the term indicated by the
Lessor in a written reminder;
(viii)
if the Lessee continuously infringes its material obligations under the Agreement, and if the
Lessee does not cure such breach within 7 (seven) days following receipt of a respective written
notice from the Lessor, or
(ix)
in the case of liquidation, or occurrence of circumstances leading to the Lessee's bankruptcy or
liquidation, including in particular:
(a)
assignment of all or substantially all of Lessee's assets to a third party;
(b)
initiation of enforcement from any substantial part of the Lessee's assets or any part
substantial for the conducting of the Lessee's activities; or
(c)
filing a motion for initiation of bankruptcy or liquidation proceedings against or by the
Lessee, if the Lessee does not cause the court to refuse or dismiss the motion within
thirty (30) days following its filing.
10.2.
In the event of termination of this Agreement with immediate effect for the above reasons, the Lessor
may claim damages from the Lessee, covering among others the lost rent and reimbursement of fees
and expenses, including those incurred in connection with the execution and termination of the
Agreement, for the term by which the Lease Agreement was to originally bind.
11.
SUBLEASING AND ASSIGNMENT
11.1.
The Lessee is entitled to sublease any part of the Premises upon the Lessor's prior written consent which
will not be unreasonably refused.
11.2.
From the moment of subleasing the Premises or allowing other entities to use the Premises, the Lessee
will continue to be responsible for performance of all its obligations as the Lessee under this Agreement
towards the Lessor.
11.3.
The Lessee is not entitled to assign any of its rights or obligations hereunder to any entity otherwise
than upon prior explicit consent of the Lessor in writing. The Lessor is entitled to assign its rights or
obligations under this Agreement to any entity without the consent of the Lessee.
11.4.
The Lessee will, while requesting the consent referred to in Clause 11.1 or 11.3 above, inform the
Lessor in writing about the name and object of activities of such third party and the basic conditions of
the planned agreement. The Lessee is obliged to inform the Lessor about the assignment made or a
sublease agreement concluded with a third party, no later than within 3 (three) Business Days following
the date of such action in the form of a written notice, accompanied by a copy of the document being
the basis of such action.
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12.
INSURANCE
12.1.
The Lessor shall insure the Building against any damages, fire and civil liability towards third parties.
The cost of such insurance will be included in the Service Charges, which will be divided
proportionately among all Lessees in the Building.
12.2.
The Lessee will not store any objects or undertake (or allow for the undertaking of) any activities in the
Premises, which may result in breach of the insurance policies executed by the Lessor pursuant to
Clause 12.1 above, or which might be an obstacle in the Lessor's negotiating of terms and conditions of
any such insurance policies acceptable to the Lessor. If any proven activities or omissions of the Lessee
result in an increase of the insurance premium payable by the Lessor in accordance with the insurance
agreement, the Lessee will reimburse the Lessor the full amount of such increase within 3 (three)
Business Days following receipt of the Lessor's request, to the bank account indicated by the Lessor in
such notice.
12.3.
The Lessee will insure all furniture, equipment and objects brought into the Premises (including
intangible assets and legal values) against loss or damage by such risks as they are customarily
insured against under a property insurance policy, including third party liability. The Lessee shall
maintain all insurance policies valid throughout the entire Lease Period. The Lessee will provide the
Lessor with certificates of insurance of the Lessee’s required insurance policies. copies of current
insurance policies with certificates of premiums paid before the Commencement Date and on each
anniversary thereafter upon their renewal.
13.
MISCELLANEOUS
13.1.
Legal costs
Each Party shall bear its own legal costs related to the conclusion of this Agreement.
13.2.
Notices
Notices will be in writing and effectively served by either Party upon the other if in any of the following
manners: (a) by personal delivery to the Party to be served or a representative of such Party, (b) by
courier, or (c) by registered mail, to the following addresses:
To the Lessor:
To the Lessee:
Zarządca Budynku „Zaułek Piękna”
Knight Frank Sp. z o.o.
ul. Mysia 5
00-496 Warsaw
[•]
[•]
[•]
or if notified in writing at least 5 days in advance of another address for such Party, at such later
address.
13.3.
Lessor's rights to access the Premises
13.3.1. Upon prior notice to the Lessee, the Lessor and its representatives are entitled to enter the Premises in
the presence of the Lessee's representative at reasonable times previously agreed with the Lessee, in
order to make repairs or inspect the Premises. The Lessor declares that the repairs and inspections shall
be made so as to cause the least possible nuisance to the quiet enjoyment of the Premises by the Lessee.
13.3.2. In urgent cases resulting in the necessity of immediate action, the Lessor and/or persons acting for the
Lessor will be authorized to enter the Premises without the Lessee's consent. In such cases, the Lessor
will be obliged to immediately notify the Lessee of the fact of its entry into the Premises.
13.3.3. Within 7 (seven) days from the conclusion of the Agreement, the Lessee shall provide the Lessor in
writing with a name and telephone numbers of at least 2 (two) persons responsible for the Premises on
the Lessee’s side.
13.3.4. The Lessor shall provide the Lessee, at its request and within the term previously agreed by the Parties,
with technical documentation of the Premises and equipment located in the Premises, possessed by the
Lessor.
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13.4.
Limitation of responsibility of the Lessor
Except for the negligence of the Lessor, the Lessor’s employees, agents, representatives,
contractors, subcontractors, or consultants, the Lessor shall not bear responsibility for any damages,
troublesomenss or inconvenience incurred by the Lessee, its employees or customers, resulting from
actions or defaults caused by another lessee or user of any other part of the Building, Project or
neighbouring properties.
14.
FINAL PROVISIONS
14.1.
Each provision of this Agreement is binding for both the Lessor and the Lessee and for their respective
legal successors and assignees.
14.2.
Any amendment or modification of this Agreement shall be in writing, otherwise being null and void.
14.3.
The headings are for convenience only and do not limit or affect the interpretation of the contents.
14.4.
Any disputes arising out of this Agreement (except for the dispute regarding payment of an invoice,
which may be brought by the Lessor to common courts in the course of simplified procedure), unless
amicably settled by the Parties in good faith negotiations no later than within 14 days of starting the
negotiations, will be referred to a common court competent for the registered office of the Lessor.
14.5.
If the Lessor's consent or declaration is required for performance of any action under this Agreement,
such consent or declaration must be in writing in order to be valid. The above provision shall not apply
to the matters related to the ongoing use of the Premises by the Lessee, to be agreed on a current basis
by the administrators of the Parties.
14.6.
This Agreement has been drawn up in two (2) counterparts in English, one (1) copy for each Party.
14.7.
This Agreement shall come into force upon its signing by the Lessor and the Lessee.
14.8.
The Enclosures hereto form an integral part of this Agreement.
14.9.
This Agreement and Enclosures hereto constitute the entire understanding between the Parties and
supersede any prior agreements and arrangements between the Parties relating to the subject matter of
this Agreement.
SIGNATURES OF THE PARTIES
Lessor
Lessee
[•]
Ferret Sp. z o.o.:
_______________________________
[•]
_____________________
Jan Dalik - Attorney in Fact
LIST OF ENCLOSURES:
Enclosure No. 1 – Current excerpts from the National Court Register (KRS) for the Lessor and the Lessee,
Enclosure No. 2 – Map for the Real Estate and the Building,
Enclosure No. 3 – Form of the Bank Guarantee,
Enclosure No. 4 – Plan and location of the Parking Spaces,
Enclosure No. 5 – Current excerpt from the land and mortgage registry for the Real Estate,
Enclosure No. 6 – Plan of the Premises,
Enclosure No. 7 – Description of the current fittings of the Premises,
Enclosure No. 8 – Fit-out Works,
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Enclosure No. 9 – Internal Regulations of the Building.
15 / 17
Enclosure No. 3 to
the Lease Agreement of [........................] 2013
FORM OF THE BANK GUARANTEE
Beneficiary:
Ferret Sp. z o.o.
ul. Domaniewska 50A
02-672 Warszawa ("Beneficiary")
Client:
[name]
[address] ("Lessee")
Re:
Lease Agreement of […. ] 2013 entered into between the Beneficiary as the lessor and the
Lessee (the " Lease Agreement")
BANK GUARANTEE NO. [……….]
With reference to the Lease Agreement, we [name of the bank] (the "Bank"), acting following the instructions of
the Lessee, undertake irrevocably and unconditionally, irrespective of the validity and legal consequences of the
concluded Lease Agreement, to pay the Beneficiary any amount up to
EUR ………………………….
(in words: ……………………………………… Euro),
at the first written demand of the Beneficiary stating that the Lessee failed to complete its obligations under the
Lease Agreement.
Your written payment request must be accompanied by a declaration that you delivered services to the Lessee in
accordance with the conditions of the Lease Agreement.
For the purposes of identification, the Beneficiary's request should be delivered to us through a bank keeping the
Beneficiary's bank account, which would confirm that the signatures on the Beneficiary's request are the
signatures of persons authorized to represent the Beneficiary.
The Bank's obligations under this Guarantee shall be reduced by the amount of each payment made for the
benefit of the Beneficiary as a result of realization of the claim under the Guarantee.
The payment shall be made, irrespective of any reservations of the Lessee, within 5 (five) days of the date of
receipt of the Beneficiary's written request. Each request of the Beneficiary under this Guarantee shall be
accepted by us as the final evidence that the requested amount is due to the Beneficiary under this Guarantee,
regardless of any disputes between the Beneficiary and the Lessee.
Any agreements made between the Beneficiary and the Lessee and all amendments to the Lessee's obligations
under the Lease Agreement shall not reflect our responsibility under this Guarantee and shall not release us from
such responsibility.
The Guarantee is valid until ………. and shall expire automatically and completely, if a written payment request
under this Guarantee is not delivered to the Bank by such date.
Further, the Guarantee shall expire automatically and completely in the following situations:
1.
when the amount of benefits under the Guarantee realized by our Bank meets the amount of the
Guarantee, or
2.
when the original document of the Guarantee is given back to our Bank before the expiry of the validity
of the Guarantee.
The original Guarantee should be returned to us after expiry of the term of the Guarantee.
The obligation of our Bank under this Guarantee shall expire as of ……………, even if the Guarantee is not
returned to the Bank.
Any and all rights and obligations under this Guarantee shall be subject to Polish law.
This Guarantee is assignable including the assignment of the liability secured by the Guarantee under condition
of the previous written notice to the Bank.
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