LONG-TERM LEASE AGREEMENT
Landlord Limited Liability Company “_______”
Tenant Limited Liability Company “________”
Premises
(meterage in accordance with the BTI measurements) Premises with a total area of ________ sq.m., comprising:
– Mezzanine with a total area of ________ sq.m.
– Warehouse Premises with a total area of ________ sq.m.
Term The Term shall commence on the Commencement Date and shall expire at ________ pm on 30 September ________.
Base Rent For the whole of the Premises – ________ Russian Roubles per annum which amount is subject to annual increase in accordance with Clause 4.3 of this Lease.
THIS LONG-TERM LEASE (the “Lease”) is made in Moscow, on 23 of May ________ by and BETWEEN:
(1) Limited liability company “________”, a company incorporated under the laws of the Russian Federation, with principal state registration number (OGRN) ________, INN ________, KPP ________, registered by Interdistrict Inspectorate of the Federal Tax Service No. 46 in Moscow on 22 April ________, with its address at________, Russia, represented by the General Director ________, acting on the basis of the charter (the “Landlord”); and
(2) Limited liability company “________”, incorporated under the laws of the Russian Federation, principal state registration number (OGRN) ________, INN ________, KPP ________, registered by Interdistrict Inspectorate of the Federal Tax Service No. 46 in Moscow on 6 January ________, with its registered address at: ________, represented by General Director ________, acting on the basis of the charter (the “Tenant”),
together the “Parties” and each a “Party”.
The Parties acknowledge the following:
(A) The Landlord has the right of ownership to the Building as confirmed by Ownership Certificate ________, dated 18 June ________, issued by the Registration Authority (registration No. ________).
(B) The Land Plot is owned by the Landlord as confirmed by Ownership Certificate No. ________ dated 04 February ________, issued by the Registration Authority (registration No. ________).
The Parties now agree as follows:
1. DEFINITIONS
Unless the context requires otherwise, the capitalised terms used in this Lease shall have the following meaning:
“Access Act” means the act confirming the fact of granting by the Landlord to the Tenant an opportunity to commence the Tenant’s Works in the Premises, as set forth in Clause 7.2.3 (subject to performance by the Tenant of its obligations set out in Clause 7.2.3 and Schedule 8), in accordance with this Lease or, if applicable, under the Short-Term Lease, to be signed by the Tenant and the Landlord (or unilaterally by the Landlord, if the Tenant unreasonably refuses to sign the Access Act within the terms provided under this Lease) in the form as set forth in Schedule 13. The Access Act shall not be construed as the document confirming transfer of the Premises into the lease of the Tenant and the Tenant is not entitled to use the Premises in accordance with their Permitted Use before the Commencement Date;
“Access Date” means 01 June ________ on which date the Landlord provided to the Tenant access to the Premises for carrying out the Tenant’s Works in the Premises in accordance with the Lease, only if (i) another date is not agreed by the Parties in writing, or (b) the Landlord does not provide to the Tenant access on a later date specified in the Access Act;
“Accounting Date” means 31 December in each year or such other date as the Landlord notifies in writing to the Tenant from time to time;
“Accounting Year” means the period from but excluding one Accounting Date to and including the next Accounting Date;
“Act of Division of Operating Responsibility” means the act agreed and signed by the Parties on or before the date of this Lease in the form attached as Schedule 12, setting out in detail the division of responsibility between the Landlord and the Tenant in relation to servicing and maintaining mechanical and electrical equipment of the Premises and/or the Building (in Russian “Акт разграничения эксплуатационной ответственности”);
“Additional Rent” has the meaning set out in Clause 4.1.4;
“Adjustment Date” means 1 October ________ and each anniversary thereof;
“Authority” means any statutory, executive, judicial or other authority (federal, regional or local) or any of their duly authorised officers;
“Base Rent” means a fixed part of the Rent for the Premises in the amount specified in Clause 4.1.1 which amount shall be subject to increase in accordance with Clause 4.3;
“BOMA Standard” means Method A (the Exterior Wall Methodology) of the standard method for measuring floor space in industrial buildings, published by the Building Owners and Managers Association International (BOMA) and the Society of Industrial and Office Realtors (SIOR) 2012 г. (ANSI/BOMA Z65.2 – 2012);
“BTI” means the Bureau of Technical Inventory (or any duly empowered replacement Authority or any other person, authorised to carry out cadastral activity and/or activity on preparation of the documents necessary for state cadastral registration of real estate objects located in [the Moscow Region]);
“Building” means the industrial warehouse complex, designated use: non-residential, 3 floors, with the total area of ________ square metres, inventory number ________, lit. B, conditional number 50-50-56/017/2009-241, cadastral number ________, located at: 23a, ________ which is shown edged in red on the Complex, Building and Land Plot Plan. The Landlord has the right of ownership to the Building as confirmed by Ownership Certificate ________, dated 18 June ________, issued by the Registration Authority (registration No. ________);
“Car Parks” means the area(s) designated from time to time by the Landlord for the purpose of surface car parking within the territory of the Complex;
“Commencement Date” means the later of (i) 1 October ________ or (ii) the date of the state registration of this Lease with the Registration Authority;
“Commercial Secrets Law” means the Federal Law No. 98-FZ “On Commercial Secrets” of 29 July 2004 (as amended);
“Common Areas” means the accesses, entrance areas, stairs, corridors, checkpoints, any access road(s) connecting the Complex to a public road, any other roads, footpaths, forecourts, service yards, Car Parks, Conduits, landscaped areas and any other areas of the Building, the Complex and the Land Plot from time to time designated by the Landlord for common use by more than one of the tenants, occupiers and visitors of the Building and/or the Complex;
“Complex” means the warehouse complex developed by the Landlord on the Land Plot comprising: (i) the buildings (including the Building) constructed on the Land Plot and other land plots as defined by the Landlord, (ii) the Land Plot and every part of it and alterations to it or replacement of it as well as other land plots required for the operation of the Complex and Conduits, (iii) Common Areas and (iv) Conduits;
“Complex, Building and Land Plot Plan” means the Complex, Building and Land Plot plan in Schedule 1;
“Complex Rules and Regulations” means the rules and regulations for use of the Building, Complex and/or the Land Plot from time to time made by the Landlord for all tenants in the Complex, which may be revised by the Landlord from time to time as necessary to ensure proper operation of the Building and/or the Complex;
“Complex Percentage” means, subject to the other provisions of this Lease, the proportion that the Rentable Area of the Premises bears to the Rentable Area of the Complex at any relevant time during the Term;
“Conduits” means any existing or future media and infrastructure (owned by the Landlord and/or third parties) serving the Building and/or any part of the Complex for the passage of substances or energy and any ancillary apparatus attached to them and any enclosures for them;
“Costs” means all costs and expenses associated with the Operating Actions incurred by the Landlord pursuant to Part II (A) of Schedule 5 and all the expenses set out in Part II (B) of Schedule 5;
“CPI” means the consumer price index in the Russian Federation as a whole for goods and services rendered to the population, and reflects changes over the preceding twelve months as a percentage for December to December of the preceding calendar year, being published annually by the Federal State Statistics Service of the Russian Federation on its official site www.gks.ru (or another duly empowered and replacing Authority);
“Estimated Operating Costs” means the Landlord’s or the Landlord’s Surveyor’s estimate of the Operating Costs for any Accounting Year notified in writing to the Tenant as provided herein;
“Estimated Utility Payments” means the Landlord’s estimate of the Utility Payments for the Accounting Year notified in writing to the Tenant as provided herein;
“Force Majeure Circumstances” means extraordinary events or circumstances which a Party could neither foresee nor prevent by reasonable means including but not limited to natural calamities or war, revolution, riot, civil insurrection, governmental pre-emption in connection with a national emergency, nuclear explosion, radioactive or chemical contamination or ionising radiation and other circumstances beyond a Party’s reasonable control, provided that lack of funds shall not constitute Force Majeure Circumstances;
“Full Cost of Reinstatement” means the costs (including the cost of shoring up, demolition and site clearance, architects’, surveyors’ and other professional fees and VAT) which would be likely to be incurred in or as a result of rebuilding or reinstating the Building in accordance with any applicable requirements (including the requirements of this Lease) at the time which such rebuilding or reinstatement is likely to take place having regard to other factors including any increases in building costs expected or anticipated to take place at any time up to the date upon which the Building shall be fully rebuilt or reinstated;
“Guarantee Deposit” means the guarantee deposit in the amount specified in Clause 4.4 which shall be a security for performance of the Tenant’s obligations under this Lease and which is described in more detail in Schedule 7;
“Insurance Policies” means the insurance policies and/or insurance agreements maintained by the Landlord pursuant to Schedule 4, and “Insurance Policy” means any one of them;
“Insured Risks” means fire, storm, tempest, flood, earthquake, lightning, explosion, impact by aircraft (other than hostile aircraft) and other aerial devices or articles dropped therefrom, riot, civil commotion, malicious damage, terrorism, bursting or overflowing of liquids or pressure tanks, apparatus or pipes, impact by road vehicles (to the extent that such insurance cover is ordinarily available at a reasonable cost) as well as any damages to life, health and property of third persons, including the Premises, the Building and the Complex and any other property of the Landlord located within the Complex and any damages caused to goods of the Tenant kept in the Premises and such other risks or insurance as may from time to time be required by the Landlord and available in the market at reasonable rates (subject in all cases to such exclusions, excess and limitations as may be imposed by the insurers), and “Insured Risk“ means any one of them;
“Inventory” means the inventory of assets and equipment to be provided to the Tenant together with the Premises, signed by the Parties on the Access Date in the form contained in Schedule 11;
“Land Plot” means (a) the land plot with the total area of ________ square metres, land category: settlement lands, permitted use: for construction of the industrial and warehouse complex, cadastral No. ________, located at: ________;
“Landlord to Tenant Act of Transfer and Acceptance” means the Act of Transfer and Acceptance in the form set out in Schedule 9;
“Landlord’s Surveyor” means the Landlord’s surveyor or managing company appointed by the Landlord or an employee of the Landlord;
“Landlord’s Works” means the works in the Premises, Building, Complex or on the Land Plot performed or to be performed by the Landlord (or its (sub-)contractors) as [set out (in terms of a detailed list and associated time schedule) in Schedule 14;
“Landlord’s Works Completion Act” means an act which confirms completion of the Landlord’s Works (or their part), to be signed in the form set out in Schedule 15;
“Landlord’s Works Completion Date” means the date when the Landlord’s Works Completion Act is signed by the Parties or unilaterally by the Landlord if the Tenant unreasonable refused to sign it in accordance with Clause 7.6 of this Lease in respect of the Landlord’s Works (or their part);
“Lease” means this long-term lease agreement (including all schedules thereto) as well as any additional agreements to it (if any), and together with the Short-Term Lease, the “Leases”;
“Lettable Unit” means a part of the Building or the Complex which is let or constructed or adapted for letting to the Tenant or other tenants from time to time;
“Loading Area” means areas located immediately in front of the unloading docks of the Warehouse Premises;
“Loss of Rent” means the loss of the Rent and other payments due under this Lease and any VAT thereon for such period as the Landlord may reasonably require as the period estimated for full reinstatement of the Building;
“Mezzanine” means a part of the Premises to be used by the Tenant for warehouse purposes as described in more detail in Clause 2 of this Lease and in paragraph 2.3 of Schedule 3;
“Operating Actions” means the Landlord’s actions for maintenance and operating of the Building, the Complex and the Land Plot set out in Part II(A) of Schedule 5;
“Operating Costs” means costs and expenses incurred by the Landlord and to be payable by the Tenant to the Landlord under this Lease;
“Ownership Certificate” means certificate on the state registration of ownership title to a real estate object or extract from the Unified Real Estate State Register on the real estate object;
“Parking Permits” means permits designated for light motor vehicle parking and permits designated for truck parking in the Car Parks issued in accordance with the Complex Rules and Regulations as allocated by the Landlord to the Tenant from time to time;
“Payment Date” means first day of each calendar month, provided that if such first day of month is non-business day, immediately preceding business day;
“Permitted Use” means use only as warehouses in accordance with Clause 6.3;
“Premises” means, together, the Warehouse Premises and the Mezzanine, all located in the Building which are leased by the Landlord to the Tenant under this Lease and which are more fully described in Clauses 2.2 and 2.3 and in paragraph 2 of Schedule 3;
“Premises Plan” means the plan of the Premises in Schedule 2;
“Registration Authority” means the Moscow Region Department of the Federal Service for State Registration, Cadastral Records and Cartography (or any duly empowered replacement Authority authorised to register rights to and transactions with real estate located in Moscow Region);
“Rent” means rent for the Premises (consisting of the fixed components specified in Clause 4.1.1 and Clause 4.1.4 and of variable components specified in Clauses 4.1.2 and 4.1.3) in the amount specified in Clause 4.1 which amount shall be subject to increase in accordance with Clause 4.3;
“Rentable Area” means rentable area of the Warehouse Premises, Mezzanine, Premises, Building or Complex (as the case may be), each as calculated and determined in accordance with the BOMA Standard and the results of which are set out in paragraph 1 of Schedule 3;
“Short-Term Lease” means the short-term lease of the Premises signed between the Parties simultaneously with this Lease;
“Suretyship” means the suretyship agreement executed between the Landlord and the Suretyship Guarantor in the form of Schedule 18 as a security for performance by the Tenant of its obligations under and in connection with the Leases;
“Suretyship Guarantor” means Limited liability company “________”, incorporated under the laws of the Russian Federation, principal state registration number ________, with its registered address at: ________;
“Tenant to Landlord Act of Transfer and Acceptance” means the Act of Transfer and Acceptance in the form set out in Schedule 10;
“Tenant’s Share” means the proportion which the Rentable Area of the Premises (measured and calculated according to paragraph 1 of Schedule 3) bears to the Rentable Area of the Building (measured and calculated according to paragraph 1 of Schedule 3) at any relevant time during the Term;
“Tenant’s Works” means any works in the Premises, Building, Complex or on the Land Plot, which may be performed by the Tenant (or its (sub-)contractors), whether before the Commencement Date or during the Term, as well as the results of such works;
“Term” means the lease term specified in Clause 3.1;
“Utility Payments” means the payments for the utility services necessary for operation of the Complex in accordance with its designated use in the aggregate amount of:
(a) cost of electricity consumed in the Premises,
(b) Tenant’s Share in the cost of electricity consumed in the Common Areas of the Building,
(c) Complex Percentage in the cost of electricity consumed in the Common Areas of the Complex (other than the Common Areas of any particular building in the Complex),
(d) cost of telephone and other telecommunication services consumed in the Premises (only to the extent the Tenant does not compensate for any services directly to the relevant provider),
(e) Tenant’s Share in the cost of telephone and other telecommunication services consumed in the Common Areas of the Building,
(f) Complex Percentage in the cost of telephone and other telecommunication services consumed in the Common Areas of the Complex (other than the Common Areas of any particular building in the Complex),
(g) Tenant’s Share in the cost of utility payments for water supply, heating supply and sewage services in the Building, and
(h) Complex Percentage in the cost of utility payments for water supply, heating supply and sewage services in the Common Areas of the Complex (other than the Common Areas of any particular building in the Complex);
“VAT” means the value added tax of the Russian Federation as well as any tax of a similar nature substituted for or levied in addition to the value added tax (if such similar or substituted tax is imposed under the applicable law of the Russian Federation); and
“Warehouse Premises” means a part of the Premises to be used by the Tenant for warehousing purposes as described in more detail in Clause 2 of this Lease and in paragraph 2.2 of Schedule 3.
2 SUBJECT OF THE LEASE
2.1 Under this Lease the Landlord leases to the Tenant and the Tenant leases from the Landlord the Premises on the terms of this Lease.
2.2 The Premises means that part of the Building the boundaries of which are shown edged in respect of the Warehouse Premises in blue and in respect of the Mezzanine in yellow on the Premises Plan and as is described in more detail in paragraph 2 and 3 of Schedule 3.
2.3 The total area of the Premises comprises ________ square metres in accordance with the BTI measurements and consists of: (a) ________ square metres of the Warehouse Premises in accordance with the BTI measurements and (b) ________ square metres of the Mezzanine in accordance with the BTI measurements. Description of each of the Warehouse Premises and the Mezzanine in accordance with BTI explication is given in paragraph 2 of Schedule 3.
2.4 The Parties agree that for the purposes of calculating the Base Rent, Estimated Operating Costs, Operating Costs, Estimated Utility Payments and Utility Payments the Rentable Area of the Premises in accordance with the BOMA Standard shall be used which comprises the total of ________ square metres for the whole of the Premises consisting of: (a) ________ square metres of the Warehouse Premises in accordance with the BOMA Standard and (b) ________ square metres of the Mezzanine in accordance with the BOMA Standard. Description and calculation of the Rentable Area of the Warehouse Premises and the Mezzanine is given in paragraph 1 of Schedule 3.
2.5 Within 15 (fifteen) business days from the date of the Landlord’s receipt of the technical plan of the Premises, the Landlord shall notify the Tenant thereof. Within 10 (ten) business days from the date of such notification, the Parties shall execute an additional agreement to the Lease (in the form to be prepared by the Landlord) which amends the Lease for the purpose of the state registration of the Lease, subject to the following principal conditions (the “Additional Agreement”):
2.5.1. Column “Premises (meterage in accordance with the BTI measurements)” on the front page of the Lease shall be restated and amended on the basis of the BTI measurements;
2.5.2. Clause 2.3 of the Lease shall be restated and areas of the Premises shall be amended in accordance with and on the basis of the BTI measurements;
2.5.3. Schedule 2 “PREMISES PLAN” of the Lease shall be restated and amended in accordance with and on the basis of the BTI measurements;
2.5.4. Schedule 3 “PREMISES AND BUILDING AREA DEFINITIONS” of the Lease shall be restated and amended in accordance with and on the basis of the BTI measurements;
2.6 For the avoidance of doubt the Parties hereby confirm that this Lease would had been concluded irrespectively to the fact of conclusion of the Additional Agreement. Conclusion of the Additional Agreement shall not be deemed as changes to the subject matter under this Lease.
3 TERM
3.1 The Term under this Lease shall commence on the Commencement Date and expire at 11:59 pm on 30 September ________.
3.2 There shall be no automatic extension or renewal of the Term of this Lease and the Tenant shall have no pre-emption right with regard to the Premises by operation of law or otherwise or right for execution of a lease agreement with regard to the Premises for a new term, for extension or renewal of this Lease upon expiry of the Term, as well as there shall be no automatic extension or renewal of this Lease and the Tenant shall have no pre-emption right to lease the Premises for a new term under Clause 1 of Article 621 of the Civil Code of the Russian Federation.
3.3 The Landlord hereby objects to occupation and use by the Tenant of the Premises upon expiry or, if relevant, early termination of this Lease.
4 RENT, OTHER PAYMENTS AND PAYMENT PROCEDURE
4.1 For the Tenant possessing and using the Premises the Tenant shall pay to the Landlord (or to such person as the Landlord may direct) throughout the Term, without any deduction, counterclaim or (unless otherwise agreed between the Parties) set-off, the rent (the “Rent”) consisting of the following amounts:
4.1.1 the Base Rent, in the total amount of ________ Russian Roubles per annum for the whole of the Premises, calculated at the following rates:
(i) ________ Russian Roubles per annum per one square meter of the Rentable Area of the Warehouse Premises, and
(ii) ________ Russian Roubles per annum per one square meter of the Rentable Area of the Mezzanine),
which amount shall be subject to increase on each Adjustment Date in accordance with Clause 4.3;
4.1.2 the Operating Costs, and the Estimated Operating Costs, each payable in the manner, at the times and as calculated in accordance with Schedule 5. The Estimated Operating Costs for the period from the Commencement Date to 30 September ________ (inclusive) shall be calculated at the rate of 1,150 (one thousand one hundred fifty) Russian Roubles per square meter of the Rentable Area of the Premises per annum;
4.1.3 the Utility Payments, and the Estimated Utility Payments, each payable in the manner, at the times and as calculated in accordance with Schedule 6. The Estimated Utility Payments for the period from the Commencement Date to 30 September ________ (inclusive) shall be calculated at the rate of 250 (two hundred fifty) Russian Roubles per square meter of the Rentable Area of the Premises per annum; and
4.1.4 the additional rent (the “Additional Rent”) for the whole of the Premises in the total amount of ________ Russian Roubles per month.
Notwithstanding the above, the amount of the Rent for the last month of each Accounting Year during the Term shall be calculated by the Landlord in the manner specified in Schedules 5 and 6 to this Lease.
4.2 Intentionally left blank.
4.3 The Base Rent shall be subject to annual increase on each Adjustment Date by the higher of: (i) 5% (five per cent) and (ii) CPI, provided that each subsequent increase of the Base Rent shall apply to the rates of the Base Rent effective for the period immediately preceding the relevant Adjustment Date. The Parties hereby agree that for the increase of the Base Rent in accordance with this Clause 4.3 the signing of any additional agreements to this Lease by the Parties is not required.
4.4 The Tenant shall, not later than ten (10) days from the date of signing of this Lease but in any case not later than the Access Date, pay to the Landlord the Guarantee Deposit in the amount of ________ (seven hundred seventy nine thousand one hundred sixteen and 67/100) Russian Roubles, as well as VAT accrued on such amount on the terms provided in Schedule 7 and shall from time to time make payments to restore and, if applicable, to increase the amount of the Guarantee Deposit in accordance with the provisions of this Lease (including Clause 6.2.3 and Schedule 7). The Guarantee Deposit paid by the Tenant to the Landlord under the Short-Term Lease shall be set off against the relevant amount of the Guarantee Deposit due from the Tenant to the Landlord under this Lease. The Guarantee Deposit shall secure due payment by the Tenant to the Landlord of the Rent and other sums due from the Tenant under and in connection with this Lease and shall be retained by the Landlord in case this Lease is terminated otherwise than through the fault of the Landlord as more fully described in Schedule 7. The payment of the Guarantee Deposit by the Tenant shall not prejudice any right of action the Landlord may have against the Tenant for any breach by it of any of its obligations under this Lease or entitle the Tenant to withhold any money or fail to perform any of its obligations under this Lease.
4.5 The Tenant shall pay the Base Rent, the Estimated Operating Costs, the Estimated Utility Payments and the Additional Rent by equal monthly payments in advance before the relevant Payment Date (with a pro-rated proportion thereof for any part of a calendar month during the Term), provided that the Tenant shall make the first such payment for the period from and including the Commencement Date to (but excluding) the next Payment Date on (or before) the Commencement Date. The amounts of the Base Rent, the Estimated Operating Costs, the Estimated Utility Payments and the Additional Rent paid by the Tenant to the Landlord in advance under the Short-Term Lease and relating to any period starting from the Commencement Date shall be set off in such part against the relevant parts of the amounts of the Base Rent, the Estimated Operating Costs, the Estimated Utility Payments and the Additional Rent (respectively) payable by the Tenant to the Landlord for the first month of the Term under this Lease.
4.6 For the period from the Access Date to the Commencement Date (excluding the Commencement Date) the Tenant shall pay to the Landlord the Utility Payments, Estimated Utility Payments, Operating Costs and Estimated Operating Costs at the rates defined in Clauses 4.1.2 and 4.1.3 of this Lease, provided that the procedure of calculation of the Operating Costs and Utility Payments established by the other provisions of this Lease shall also apply. Such payments shall be made to the Landlord by monthly advance instalments not later than the relevant Payment Date, and for the period starting from the Access Date (including) to the next Payment Date (excluding this day) – not later than the Access Date;
4.7 Non-provision or delays in provision by the Landlord of any of its invoices to the Tenant with respect to any payment due from the Tenant shall not be the ground for non-payment or delay in payment by the Tenant of any of the amounts due.
4.8 Unless the Landlord’s invoice specifies otherwise, the Tenant shall make all payments under this Lease by wire transfer to the bank account specified by the Landlord in this Lease, provided that the bank account may change during the Term.
4.9 Unless otherwise provided for by this Lease, all payments due from the Tenant to the Landlord under this Lease are exclusive of any VAT. If in accordance with the legislation of the Russian Federation such payments are subject to VAT, the amount of VAT (at the then-current rate) shall be specified in the respective invoice of the Landlord and shall be paid by the Tenant in the same manner as the underlying payment. If the Tenant claims that it is exempt from paying VAT or lease of the Premises by the Tenant is a non-taxable operation, the Tenant shall furnish the Landlord with any document required by the Landlord for the purposes of submitting it to the appropriate Authorities to substantiate the grounds for the Tenant’s entitlement for VAT exemption or that lease of the Premises by the Tenant is a non-taxable operation.
4.10 Where the Tenant has made a payment under this Lease and any further VAT becomes due in respect of that payment, the Tenant shall pay on the Landlord’s demand such additional VAT to the Landlord.
4.11 Where the Tenant is to reimburse the Landlord for costs incurred by the Landlord, it shall reimburse to the Landlord such costs including any VAT on such costs paid by the Landlord, which on the basis of the Russian legislation is not subject to deduction from the budget of the Russian Federation.
4.12 Any payment under this Lease shall be considered to be made by one Party and received by the other when such amount is credited to the payee’s bank correspondent account.
4.13 The Landlord shall be entitled to charge the Tenant a penalty for payments which are not received in accordance with the requirements of this Lease. In such case, the Tenant shall, upon Landlord’s demand, pay the Landlord the amount of zero point twenty five per cent (0.25%) for each day of delay on any amounts due from the Tenant which have not been so paid in accordance with this Lease. The Tenant shall pay such penalty to the Landlord within ten (10) days of the Landlord issuing a respective invoice therefor.
5 TENANT’S RIGHTS
5.1 The Tenant shall have the following rights throughout the Term (provided that such rights shall not be exclusive rights of the Tenant):
5.1.1 The right to use the Common Areas for access to and from the Premises in accordance with the Complex Rules and Regulations. For the avoidance of doubt, the Landlord is entitled to (a) exclude the Tenant from or limit its access to (on a temporary or permanent basis) the Common Areas (or any parts thereof) in order that the Landlord can develop further buildings or constructions of the Complex or for other purposes and/or (b) make other use of the Common Areas, in any case provided that the Landlord ensures that the Tenant has reasonable access to and from the Premises;
5.1.2 The right to use all existing and future Conduits in the Building which serve the Premises, in accordance with the Complex Rules and Regulations subject to the Landlord’s right to re-route the same;
5.1.3 The right to use such areas of the Building and/or the Complex as the Landlord from time to time designates for plant and equipment serving only the Premises, in accordance with the Complex Rules and Regulations;
5.1.4 Subject to timely payment of the Rent:
(i) the right to park light motor vehicles and trucks in the Car Parks in line with the Parking Permits and in accordance with the Complex Rules and Regulations. In accordance with this Lease, the Tenant is provided with 6 (six) Parking Permits for light motor vehicles and 3 (three) Parking Permits for trucks. The Tenant cannot simultaneously locate more light motor vehicles than the total number of its Parking Permits for light motor vehicles and cannot simultaneously locate more trucks than the total number of its Parking Permits for trucks;
(ii) the right to pass to and from the Loading Area, Car Parks and over the Common Areas by such route or routes as the Landlord may from time to time nominate;
(iii) the right to use the Loading Area for loading and unloading the Tenant’s goods and parking the Tenant’s light motor vehicles and trucks, all of the above in accordance with the Complex Rules and Regulations. The Tenant’s vehicles shall be parked in such a way so that they do not block the pass ways for other transport. The Tenant may park in the Loading Area not more than 3 (three) trucks at the same time.
5.1.5 The right to enter into direct contracts with any telecommunications provider for the provision of telecommunication services in the Building, provided that such telecommunications provider is approved by the Landlord in writing and provided that such provider shall access the Building and the Premises via routes and Conduits as approved by the Landlord in writing.
6 TENANT’S OBLIGATIONS
The Tenant shall comply with the following obligations:
6.1 Payments
The Tenant shall comply with its payment obligations under this Lease.
6.2 Security for Performance of Tenant’s Obligations
Tenant’s obligations under and in connection with this Lease shall be secured, throughout the Term, by the Guarantee Deposit and the Suretyship.
6.2.1 Guarantee Deposit
The Tenant shall comply with its obligations with regard to the Guarantee Deposit set out in this Lease including in Schedule 7.
6.2.2 Suretyship
The Suretyship shall secure the performance by the Tenant of its obligations under and in connection with each of the Leases. On the date of signing of the Leases, the Tenant shall provide the Landlord with:
(i) four originals of the Suretyship (two in Russian and two in English language) signed on behalf of the Suretyship Guarantor in the form set out in Schedule 18, provided that upon signing the same by the Landlord it shall return two originals of the Suretyship in each language to the Tenant or directly to the Suretyship Guarantor;
(ii) a notarised copy of a document confirming entry of the Suretyship Guarantor into the Unified State Register of Legal Entities and, in case the Suretyship Guarantor was established prior to 1 July 2002, of the certificate on state registration of the Suretyship Guarantor in accordance with then-applicable law of the Russian Federation;
(iii) the following documents with respect to the Suretyship Guarantor: (a) notarised copies of the tax registration certificate, latest version of the charter with all amendments thereto, (b) original or a notarised copy of an up-to-date extract from the Unified State Register of Legal Entities, and (c) a copy of the balance sheet as of the latest accounting date certified by the Suretyship Guarantor;
(iv) notarised copies of the documents evidencing the authorities of the signatories of the Suretyship on behalf of the Suretyship Guarantor, including documents on appointment of the General Director of the Suretyship Guarantor (minutes of the meeting of participants (shareholders) / the Board of Directors of the Suretyship Guarantor), order by the General Director on self-appointment and on appointment of the Chief Accountant, powers of attorney issued in the name of the signatories, if applicable; and
(v) originals or notarised copies of all required consents and approvals (including of the management bodies of the Suretyship Guarantor) required with respect to the Suretyship,
provided that where the relevant document is executed in a foreign jurisdiction, it shall be legalised by a Russian Federation consulate or apostilled, as the case may be, and where the relevant document is executed in a foreign language, it shall be provided to the Landlord together with the notarised Russian translation of such document.
The Suretyship shall come into force from the date of signing the Leases and shall remain in full force during the whole term of the Short-Term Lease and the Term and shall be valid until full performance of the obligations by the Tenant under and in connection with the Leases, and in any case until 31 March 2024.
The Suretyship shall remain in full force in case of a transfer by the Landlord of any rights and/or obligations under any of the Leases.
6.2.3 Consequences of the Breach of Tenant’s Obligations to provide the Suretyship
(a) Without prejudice to the other rights and remedies provided to the Landlord under this Lease or by legislation, the Landlord shall have the right to demand, and the Tenant shall be obliged to provide the Landlord with an additional amount of the Guarantee Deposit equal to 3 (three) months Base Rent (calculated at then-effective rates) within ten (10) business days from the date of the Landlord’s demand therefor in any of the following cases:
(i) if the Tenant does not provide the Landlord with the Suretyship or any of the documents listed in Clause 6.2.2 above within the terms specified in such Clause 6.2.2 and does not provide the Suretyship of the other suretyship guarantor; and/or
(ii) if the Tenant fails to fulfil its obligations under Clause 6.22 of this Lease and the relevant breach is not rectified by the Tenant within 15 business days from the date of the Landlord’s written demand; and/or
(iii) if on the basis of the review of financial documents of the Suretyship Guarantor, the Suretyship Guarantor’s solvency is not sufficient due to the fact that the Suretyship Guarantor’s net operational profit for the full calendar year is less than the annual Rent (calculated at then-effective rates) and the Tenant does not provide the Suretyship of the other suretyship guarantor.
Provisions of this Lease regarding the initial Guarantee Deposit shall equally apply to the above-referred additional Guarantee Deposit except that, should the Tenant remedy in full the breaches referred to in item (i) and item (ii) above, or, if item (iii) applies, then should, in the Landlord’s reasonable estimate, the solvency of the Suretyship Guarantor becomes sufficient to secure performance by the Tenant of its monetary obligations under and in connection with this Lease or the Tenant has provided the Suretyship of the other suretyship guarantor, then the Landlord shall return the additional Guarantee Deposit to the Tenant (less any withdrawals made therefrom in accordance with this Lease including (but not limited to) withdrawals in case of Tenant’s failure to perform or duly to perform its obligations under Clause 6.2.3(b)).
For the avoidance of doubt, provision by the Tenant to the Landlord of the additional Guarantee Deposit under this Clause 6.2.3(a) shall not release the Tenant from its obligations to provide the Suretyship in accordance with this Lease together with all related documents required under this Lease as well as to fulfil its obligations under Clause 6.22 of this Lease.
(b) If the Tenant does not provide the Landlord with the Suretyship or any of the documents listed in Clause 6.2.2 above within the terms specified in such Clause 6.2.2 and irrespective of the payment by the Tenant of the additional amount of the Guarantee Deposit as provided in paragraph (a) of this Clause 6.2.3, the Tenant shall pay to the Landlord a penalty in the amount of zero point twenty five per cent (0.25%) of the amount of the six (6) months Base Rent (calculated at then-effective rates) per each day of delay in providing the Suretyship or any of the documents listed in Clause 6.2.2 above, until the date when the relevant breach is remedied.
6.3 Permitted Use
The Tenant shall use the Warehouse Premises and the Mezzanine only for the warehousing purposes for storage of goods not requiring special storage conditions.
6.4 Complex Rules and Regulations
The Tenant shall observe all and not violate any requirements of the Complex Rules and Regulations from time to time made by the Landlord and notified to the Tenant in writing. For the avoidance of doubt, the Landlord may only amend the Complex Rules and Regulations to the extent that such changes are required to ensure proper operation of the Building and/or the Complex.
6.5 Not obstruct
The Tenant shall:
6.5.1 Not obstruct the Landlord in the exercise of any of the Landlord’s rights under this Lease;
6.5.2 Not obstruct access to the Common Areas, the Premises, the Loading Area and the Car Parks;
6.5.3 Not obstruct other tenants or other users of the Building or the Complex in using or occupying the Building or the Complex;
6.5.4 not obstruct the Landlord (or any third party specified by the Landlord) in the carrying out of the Landlord’s Works (if not completed prior to the Commencement Date) or intervene in the carrying out of such works. The Tenant shall give any assistance which may be required from the Tenant in connection with the carrying out of such works. The Parties have agreed that the Landlord (and its contractors and sub-contractors) shall have a 24-hour access to the Premises for the purposes of the performance of the Landlord’s Works.
6.6 Repair, Fit-out and Cleaning
The Tenant shall:
6.6.1 Solely maintain the Premises, including all mechanical and electrical parts as set out in the Act of Division of Operating Responsibility, as well as the Conduits, plant and equipment in or outside the Premises but in each case serving only the Premises (all within the limits of operating responsibility specified in the Act of Division of Operating Responsibility), in good repair and condition and carry out proper current repair of the Premises (damage by the Insured Risks excepted, save to the extent that insurance moneys are irrecoverable as a result of an act or default of the Tenant);
6.6.2 The Tenant shall paint, treat and generally redecorate all internal parts of the Premises on the third anniversary of the Commencement Date and in the last year of the Term or at such time as designated in the Complex Rules and Regulations or at the Landlord’s reasonable request. All such works shall be carried out:
(i) in a good and workmanlike manner to the Landlord’s reasonable satisfaction; and
(ii) in colours and with materials which (if different from the existing colour or material) are first approved in writing by the Landlord (approval not to be unreasonably withheld);
6.6.3 Allow the Landlord access the Premises for the purpose of making a snagging list of items needing repair in the reasonable opinion of the Landlord;
6.6.4 Make good any disrepair for which the Tenant is liable (including but not limited to those identified in the snagging list prepared pursuant to Clause 6.6.3 above) if the condition of the Premises is beyond normal wear and tear within thirty (30) days after the date of written notice from the Landlord (or sooner if the Landlord reasonably requires). If the Tenant fails to comply with any such notice the Landlord may carry out such repair work and the cost shall be reimbursed by the Tenant on the Landlord’s demand;
6.6.5 Enter into maintenance contracts with contractors, such contractors to have been approved in writing in advance by the Landlord, for the regular servicing of all plant, and equipment (including the Conduits) in or outside the Premises but in each case serving only the Premises;
6.6.6 While carrying out any Tenant’s Works, observe the provisions of Schedule 8 on carrying out of the Tenant’s Works and other provisions of the Lease;
6.6.7 Keep the Premises clean and free from rubbish, not keep, store or dump any rubbish or refuse anywhere in the Loading Area, the Car Parks, the Common Areas or the Land Plot, maintain overall order in the Premises, the Loading Area, the Car Parks, the Common Areas and on the Land Plot and otherwise maintain the same in accordance with the Complex Rules and Regulations; and
6.6.8 Clean the inside of windows and any washable surfaces at the Premises as often as reasonably necessary and in accordance with the Complex Rules and Regulations.
6.7 Conduits
The Tenant shall keep the Conduits in or serving the Premises clean and free from any noxious, harmful or deleterious substances, shall refrain from shutting off access to ventilation and air conditioning ducts or other Conduits and shall remove any obstruction and repair any damage to the Conduits as soon as reasonably practicable to the Landlord’s satisfaction.
6.8 Fire Fighting and Security
The Tenant shall comply with its responsibilities set out in the Act of Division of Operating Responsibility and any applicable legislation, regulations and directions of any Authority relating to fire fighting and security. The Tenant shall be responsible for provision of any security, including its own security service, alarms, apparatus and systems, in respect of the Premises. The Tenant shall ensure that the Premises fully comply with applicable fire protection rules at all times. The Tenant’s security system in the Premises shall not limit or hinder the Landlord’s right to access the Premises in accordance with this Lease nor shall it negatively affect security system in the Building or Complex.
6.9 Prohibited Use
6.9.1 The Tenant shall not use the Premises:
(i) for any purpose which contradicts the relevant Permitted Use;
(ii) in any way which substantially increases the noise level in the Premises, Building, Complex or in neighbouring area;
(iii) in any way which is offensive or may cause damage to the Landlord or any third party;
(iv) in any way or for any purpose which may be illegal and/or immoral;
(v) in any way which may disturb the Landlord or its other tenants or other users of the Building, the Complex or neighbouring property;
(vi) in any way which may compromise the security of the Building and/or the Complex;
(vii) in any way which involves any substance which may be harmful or polluting;
(viii) in any way which overloads the floors, ceilings or the structure of the Premises and/or of the Building or any plant, machinery or electric installations serving the Premises and/or the Building;
(ix) in any way which may interfere with the heating, air conditioning or ventilation systems of the Premises and/or the Building; or
(x) in any way which prejudices, vitiates, terminates, cancels or invalidates the Insurance Policies or the insurance policies and/or insurance agreements concluded by the Tenant pursuant to Schedule 4 of this Lease.
6.9.2 If any licence, permit, consent and/or approval of any Authority is required for the Tenant to occupy and use the Premises under this Lease or to conduct any of its activities in the Premises within the Permitted Use, the Tenant shall, at its own cost and by its own means, obtain such required licences, permits, consents and approvals in accordance with applicable law and shall maintain them in force throughout the Term.
6.9.3 Should the Tenant choose to use the Premises for the purposes of storage of goods requiring special storage conditions, such activities in the Premises are only allowed once all of the following conditions have been met (all listed below shall be performed by the Tenant at its own expense and by its own means):
(i) the Tenant develops and agrees with the Landlord and implements the Premises’ equipment design pursuant to the requirements of the relevant Authorities and regulatory acts, establishing the conditions of storage of the relevant goods;
(ii) the Tenant obtains all required consents, permits, approvals and licenses from the relevant Authorities, which are required pursuant to the applicable legislation and/or the terms hereof in connection with the storage in the Premises of the relevant goods; and
(iii) the relevant amendments are made to the design of the Complex for the purposes of storage in the Complex of the relevant goods and the Tenant obtains all approvals (including Landlord’s approvals) and consents required in connection with such amendments and such activities.]
6.9.4 Any and all actions of the Tenant taken during the period of performance of any Tenant’s Works as well as during the Permitted Use of the Premises shall have no negative effect on (including limitation of) the rights of other tenants or other occupants of the Complex and shall not establish any additional limitations, encumbrances and/or requirements to occupancy or use with regard to any premises or areas of the Complex other than with regard to the Premises in accordance with this Lease.
6.10 Alterations
Without prior written consent of the Landlord, the Tenant shall not make any alterations or additions to the Premises which may:
(i) affect the structure of the Building and/or the Premises (including without limitation the roofs and foundations and the principal or load-bearing walls, floors, beams and columns);
(ii) divide the Building or merge the Building with any adjoining building;
(iii) affect the external appearance of the Building and/or the Premises;
(iv) change the Rentable Area of the Building and/or the Premises;
(v) affect the equipment and/or Conduits installed by the Landlord in the Building and/or the Premises; or
(vi) be treated as inseparable improvements.
6.11 Contaminants and Defects
The Tenant shall:
6.11.1 give the Landlord immediate written notice of the existence of any contaminant or harmful substance on or any defect in the Premises;
6.11.2 if so requested by the Landlord immediately remove from the Premises any such contaminant or harmful substance and remedy the defects.
6.12 Car Parks and Loading Area
6.12.1 The Tenant shall not use the Car Parks for any purpose other than the parking in it of light motor vehicles and, where applicable, trucks and shall not use the Car Parks otherwise than in accordance with the Complex Rules and Regulations.
6.12.2 The Tenant shall not use the Loading Area for any purposes other than the loading and unloading of the Tenant’s goods and the parking of the Tenant’s vehicles, and shall not use the Loading Area otherwise than in accordance with the Complex Rules and Regulations.
6.13 Entry by Landlord
The Tenant shall permit the Landlord at any time on a minimum of one (1) day’s prior notice (except in emergency when no such notice is required) to enter the Premises in order to:
(i) inspect the condition of the Premises or any other parts of the Building;
(ii) permit the inspection of the Premises by prospective tenants or purchasers of the Premises or purchasers of the Building or by proposed or actual lenders to the Landlord;
(iii) remedy any breach of the Tenant’s obligations under this Lease;
(iv) repair, maintain, clean, alter, install or connect up to any Conduits which serve the Building and/or the Premises;
(v) access the other premises in the Building;
(vi) repair, maintain, clean, alter or rebuild any part of the Building; or
(vii) comply with any of the Landlord’s obligations or exercise of any of the Landlord’s rights under this Lease,
provided that the Landlord shall, in the exercise of such rights, cause as little inconvenience as reasonably practicable to the permitted activity of the Tenant in the Premises under this Lease and shall make good all damage to the Premises directly caused by such entry. If the Landlord enters the Premises in order to verify the compliance by the Tenant with provisions of this Lease, then the Parties, upon completion of the inspection and irrespective of the results thereof, shall draw up an act which shall reflect the results of the inspection.
In addition to the above, the Tenant shall provide access to the Premises to the Landlord (and the Landlord’s contractors and sub-contractors) in order to allow the Landlord (and its contractors and sub-contractors) to carry out the Landlord’s Works (if not completed prior to the Commencement Date). Notwithstanding any other provisions of this Lease to the contrary, if the Landlord or its contactors or sub-contractors enter the Premises to perform the Landlord’s Works, a prior notification in this regard to the Tenant shall not be required.
If during any inspection of the Premises by the Landlord (or its representative(s)) the Landlord identifies a breach by the Tenant which in the Landlord’s view may cause harm to life or health of people, the Landlord shall be entitled to suspend the Tenant’s activities in the Premises until the remedy of all the relevant breaches. All payments due from the Tenant under this Lease for the period of suspension of the Tenant’s activities in the Premises (including without limitation the Rent) shall be payable by the Tenant on a regular basis in accordance with this Lease.
6.14 Signs
The Tenant shall not display or erect any sign, notice or advertisement outside the Premises or which is inside the Premises but is visible outside the Premises without the Landlord’s prior written consent.
6.15 Insurance
The Tenant shall comply with its obligations set out in Schedule 4 and pay the amounts due thereunder to the Landlord.
6.16 Legal Requirements
6.16.1 The Tenant has obtained and will continue to maintain all approvals, permits and other authorisations required of it in relation to its business in, occupation and use of, the Premises under this Lease.
6.16.2 The Tenant shall comply with all applicable law of the Russian Federation and the requirements of any competent Authority relating to the Premises, Tenant’s business in the Premises and Tenant’s use of the Premises and shall take and carry out any necessary actions and/or works to the Premises so that it throughout the Term complies with the requirements of any Authority and all applicable legislation of the Russian Federation.
6.17 Notices
The Tenant shall:
6.17.1 comply promptly with all notices, requirements and orders served by any competent Authority which affects the Premises, the Tenant’s business therein or the Tenant’s use thereof;
6.17.2 supply the Landlord with a copy of any notice, order or certificate or proposal for any notice, order or certificate affecting or capable of affecting the Premises as soon as it is received by or comes to the notice of the Tenant; and
6.17.3 at the request of the Landlord, make or join the Landlord in making such objections or representations against or in respect of any such notice, order or certificate as the Landlord may reasonably require.
6.18 Regulatory Approvals
The Tenant shall not make any application for any public or other regulatory consent from any Authority or other third parties in respect of the Premises or their use without the prior written consent of the Landlord.
6.19 Applications for Consent
On requesting any consent or approval of the Landlord, the Tenant shall disclose to the Landlord such information as the Landlord may reasonably require.
6.20 Landlord’s Costs
The Tenant shall pay to the Landlord on demand amounts equal to such costs as the Landlord may incur:
6.20.1 in connection with the receipt by the Landlord from the Tenant of any application for consent made necessary by this Lease (including where consent is refused or the application is withdrawn), or in connection with the Landlord’s collecting documents and information requested by the Tenant in accordance with Clause 6.23.1. The Parties have agreed that if the amount of possible costs as they described in this Clause 6.20.1 at the Landlord’s estimate under one application exceeds 10,000 (ten thousand) Russian Roubles, the Landlord shall notify the Tenant on possible excess and is not obliged to give a consent or review such application until receipt of the written approval from the Tenant of the relevant costs;
6.20.2 in connection with rectifying of any breaches of the Tenant under the Lease;
6.20.3 in connection with the enforcement of any court ruling on any breach of the Tenant’s obligations in this Lease.
6.21 Reletting and Sale Notices
The Tenant shall allow a letting and/or sale board to be displayed on the Building provided that it does not restrict or interfere with the light enjoyed by the Premises.
6.22 Financial Documents of the Tenant and the Suretyship Guarantor
The Tenant undertakes to provide to the Landlord (and shall procure that the Suretyship Guarantor undertakes to provide the same to the Tenant) under the Landlord’s request financial documents of the Tenant and of the Suretyship Guarantor in a content, within the terms and in the circumstances specified in this Clause 6.22:
6.22.1 at any time during the Term, but not more than once during the period of twelve consecutive months (notwithstanding request by the Landlord of the Tenant’s and/or the Suretyship Guarantor’s documents under Clause 6.22.2 of this Lease), the Tenant undertakes to provide to the Landlord under its written request the annual and/or quarter financial statements of the Tenant and of the Suretyship Guarantor (as their content is defined in the applicable laws) as of the date indicated in the Landlord’s request, and certified by an independent auditor.
6.22.2 in case of the Tenant’s delay in payment of the Rent or any other payments (or any parts thereof) due from the Tenant under this Lease and provided that any such delay continues for seven (7) days or more, the Tenant undertakes to provide to the Landlord under Landlord’s written request, statutory and management reports (including forecasts) about the Tenant’s and, if requested by the Landlord, the Suretyship Guarantor’s financial strength and condition as of the date of the Landlord’s request (or as of any other date specified in the Landlord’s request) including comparison with the information on Tenant’s or the Suretyship Guarantor’s (as applicable) financial strength and condition as of the same date of the year preceding the Tenant’s delay, including, without limitation:
(i) statutory annual financial reports under Russian GAAP including five forms with notes and audit opinion;
(ii) statutory quarterly financial reports under Russian GAAP including balance sheet and profit and losses statement;
(iii) management reporting data including Tenant’s and the Suretyship Guarantor’s (as applicable) cashflow projection until the end of the Term disclosing main cash movements in and out and payments to the Landlord. The accuracy and completeness of the provided managing reporting data shall be confirmed by independent auditor at the Tenant’s or the Suretyship Guarantor’s expense;
(iv) any other explanations and breakdowns of the reports specified in paragraphs (i) – (iii) of this Clause 6.22.2;
(v) list of Tenant’s or the Suretyship Guarantor’s (as applicable) bank accounts with the bank statements from these accounts;
(vi) any other documents and information that may be reasonably requested by the Landlord.
Documents and information specified in Clauses 6.22.1 and 6.22.2 of this Lease shall be provided by the Tenant to the Landlord within five (5) days of the relevant Landlord’s request. In case of delay in provision of the requested documents and/or information by the Tenant (irrespective of whether such documents and information are the documents and information of the Tenant or the Suretyship Guarantor), the Tenant shall pay to the Landlord a penalty in amount of 12,000 (twelve thousand) Russian Roubles per each day of delay until the date when the full set of documents requested by the Landlord with respect to the Tenant and/or the Suretyship Guarantor (as the case may be) is provided by the Tenant.
6.23 Compliance with Anti-Monopoly Law
6.23.1 If the acquisition of the lease rights to the Premises by the Tenant under this Lease requires in accordance with applicable law a prior approval of, or a post-notification to, the Russian anti-monopoly Authority, the Tenant shall obtain such approval or, if applicable, submit such notification in full compliance with the requirements of the applicable Russian legislation and shall upon the Landlord’s request provide to the Landlord documents evidencing compliance by the Tenant with this Clause 6.23. The Landlord shall within a reasonable time from the date of receipt of the Tenant’s request provide to the Tenant all information and documents required from the Landlord in accordance with applicable legislation and necessary for the Tenant to comply with its obligations under this Clause 6.23.
6.23.2 In case of the Tenant’s delay in obtaining the necessary approval of, or, if applicable, in submitting the necessary notification to, the Russian anti-monopoly Authority on acquisition of the lease rights to the Premises under this Lease, the Tenant shall pay to the Landlord upon its demand a penalty in the amount of 12,000 (twelve thousand) Russian Roubles per each day of such delay until the date when such violation is rectified by the Tenant.
6.24 Tenant’s Works
6.24.1 The Tenant shall perform the Tenant’s Works in the Premises during the period from the Access Date to the Commencement Date, subject to performance of its obligations under this Lease, including provisions of Schedule 8. The Tenant is entitled to perform the Tenant’s Works also during the Term, subject to performance of its obligations under this Lease, including provisions of Schedule 8.
6.24.2 The Tenant hereby confirms that:
(i) non-completion of the Tenant’s Works (or any part thereof) in the Premises shall not be regarded as a defect in the Premises fully or partially preventing the Tenant from using the Premises in accordance with the Permitted Use and otherwise in accordance with this Lease, and shall not be a ground for refusing to accept the Premises for lease hereunder or for delaying the Commencement Date; and
(ii) non-completion or delay in completion of the Tenant’s Works (or any part thereof) in the Premises shall not entitle the Tenant to delay the payment of any amounts due under or in connection with this Lease (including the Rent), or to demand abatement or decrease of any such payments.
6.25 Penalty for Breach of the Lease by the Tenant
Without prejudice to the other rights and remedies provided to the Landlord under this Lease or by legislation, if the Tenant breaches any of its obligations under this Lease (other than the breach of the payment obligations to which the penalty under Clause 4.13 shall apply) then the Landlord shall have the right, at its own discretion:
(a) to rectify the Tenant’s breach, where it is capable of remedy, and demand the Tenant to compensate the Landlord for the amount of the relevant Landlord’s costs and expenses, and/or
(b) to demand the payment of a punitive penalty, and the Tenant shall pay such penalty to the Landlord upon the Landlord’s request, in the amount of 15,000 (fifteen thousand) Russian Roubles for each breach of the Lease. If such breach (where it is capable of remedy) remains unremedied after the written demand to the Tenant for more than 5 (five) business days or for another period technically necessary for remedy the breach, then the Tenant shall pay to the Landlord as a punitive penalty 15,000 (fifteen thousand) Russian Roubles per breach per each day (including a part thereof) during which that breach remains unremedied.
6.26 Damage to the Landlord’s Property
6.26.1 In case of any damage caused by the Tenant or by any third party for whose actions and omissions the Tenant is liable under this Lease to any part of the Premises (excluding fair wear and tear in course of the Permitted Use), any part of the Building, the Complex or to any other Landlord’s property, the Landlord shall notify the Tenant of such damage as soon as reasonably practicable after the Landlord became aware of it and shall suggest the date and time when the Parties’ representatives shall meet in order to inspect the relevant damage and prepare an act summarising the results of such inspection (hereinafter, the “Landlord’s Property Damage Act”). The Landlord’s Property Damage Act shall, inter alia, describe the relevant damage to the Landlord’s property and reflect the actual facts and circumstances of such damage being caused, with a photo- and/or video report attached to such act. The relevant Landlord’s Property Damage Act shall be signed by the Tenant within three (3) days of its preparation by the Landlord. If the Tenant does not provide for its reasonable refusal to sign the Landlord’s Property Damage Act (regardless of whether or not the Tenant’s representative participated in the Landlord’s inspection of the damage), the Landlord shall be entitled unilaterally to sign the Landlord’s Property Damage Act. In this case, the Landlord’s Property Damage Act shall be deemed binding upon the Tenant as if it were signed by both Parties. The Landlord shall send to the Tenant a copy of such Landlord’s Property Damage Act executed on behalf of the Landlord within ten (10) business days after its signing. The Landlord is not obliged to commence the works on elimination of the relevant damage, and the Tenant shall not be entitled to require performance of any such actions by the Landlord (save for the cases of emergency when the damage requires immediate remedy), until the Landlord’s Property Damage Act has been signed by the Tenant and until the Tenant has compensated the Landlord for the costs of elimination of such damage.
6.26.2 The Tenant shall compensate the Landlord for the amount of any actual damages resulting from the damage caused to any part of the Premises (excluding fair wear and tear in course of the Permitted Use), the Building, the Complex or any other Landlord’s property by actions and/or omissions of the Tenant or any third party for whose actions and omissions the Tenant is liable under this Lease. The Tenant shall compensate the amount of any such damage within ten (10) business days of the Landlord’s written request accompanied by the calculation of the relevant amount due.
6.26.3 In case the Tenant disagrees with calculation of the amount of actual damages prepared by the Landlord, the Tenant shall within five (5) business days from the date of receipt thereof (i) provide the Landlord with its written reasonable objections thereto and, if applicable, with the Tenant’s calculation of the amount of the Landlord’s actual damages, and (ii) pay to the Landlord the amount of the actual damages to the extent not challenged by the Tenant. In this case, the final amount of the actual damages which shall be paid by the Tenant to the Landlord shall be determined by an independent expert appointed by the Landlord at the Tenant’s cost, whose calculations of the amount of actual damages shall be final and binding on the Parties.
6.26.4 For the avoidance of doubt, provisions of this Clause 6.26 above regarding Tenant’s obligations to compensate for the Landlord’s actual damages shall be without prejudice to the Landlord’s rights to require, and the Tenant’s obligation to pay to the Landlord, any other losses, costs and/or expenses which may be incurred by the Landlord as a result of, or in connection with, any damage incurred by the Landlord due to any action or omission of the Tenant or any third party for whom the Tenant is liable under this Lease nor without prejudice to any other remedies available to the Landlord under this Lease or applicable law as a result of or in connection with such damage.
6.27 Tenant’s liability for occupational safety and labour protection
6.27.1 The Tenant shall be solely responsible for compliance by its employees, subtenants, contractors, subcontractors, agents, service providers, representatives and visitors in the Complex with the requirements of fire safety, health and sanitary protection, as well as with occupational safety («техника безопасности») and labour protection («охрана труда») rules.
6.27.2 In case any accident has occurred in, or any damage has been made in or to, the Premises or the Complex due to the breach of any of the above rules or requirements by any of the Tenant’s employees, subtenants, contractors, subcontractors, agents, service providers, representatives or visitors, the Tenant shall: (a) carry out all necessary measures prescribed under applicable law to report on, document and investigate the accident, (b) carry out all reasonable measures to decrease the amount of damages occurred as a result of such accident or damage and (c) reimburse to the Landlord for all damages incurred by the Landlord as a result of such accident or damage.
6.27.3 By the Commencement Date under the Short-Term Lease, the Tenant shall appoint a person or persons with proper qualification (from amongst its employees or from amongst the employees of a specialised company hired by the Tenant to render such services) who shall be responsible for electrical facilities and fire safety in the Premises as well as for compliance with the requirements of occupational safety and labour protection on the territory of the Complex, and shall provide the Landlord with the full names and contact details of each such appointed person together with copy documents confirming their appointment. The Tenant shall authorise each such person to represent the Tenant with regard to all matters relating to the above matters (or any of them) and shall provide to the Landlord copies of the relevant authorisation documents. The Tenant shall notify the Landlord of any changes to the list of such persons and shall provide the relevant new appointment and authorisation documents no later than the first date on which any such person commences performance of its above-mentioned functions.
6.28 Other Obligations
The Tenant shall comply with other obligations provided for in other Clauses and Schedules of this Lease.
7 LANDLORD’S OBLIGATIONS
The Landlord shall throughout the Term comply with the following obligations:
7.1 Quiet Enjoyment
For so long as the Tenant pays the Rent and other sums due under this Lease and performs its other obligations under this Lease, the Landlord shall allow the Tenant to enjoy the Premises without any interruption by the Landlord, provided that the Tenant agrees that at any time there could be certain fit-out works in the Lettable Units of the Building for other tenants, construction of other buildings in the Complex, all of which shall not be a breach of Landlord’s obligations under this Clause, provided that the Landlord shall procure the possibility to use the Premises in accordance with the Permitted Use.
7.2 Transfer of the Premises
7.2.1 On the Commencement Date, the Landlord shall transfer the Premises to the Tenant in as-is condition and shall grant to the Tenant access to the Common Areas on the terms set out in this Lease. Performance of the Landlord’s obligation to transfer the Premises to the Tenant shall be evidenced by the Landlord to Tenant Act of Transfer and Acceptance which shall be signed between the Landlord and the Tenant on the Commencement Date.
7.2.2 If the Tenant does not provide for its reasonable refusal to sign the Landlord to Tenant Act of Transfer and Acceptance, the Landlord shall be entitled unilaterally to sign the Landlord to Tenant Act of Transfer and Acceptance recording transfer of the Premises to the Tenant on the Commencement Date. In this case, the Landlord to Tenant Act of Transfer and Acceptance shall be deemed executed and binding upon the Tenant as if it was signed by both Parties. The Landlord shall send to the Tenant a copy of such Landlord to Tenant Act of Transfer and Acceptance executed on behalf of the Landlord within ten (10) business days after its signing.
7.2.3 Herewith, the Landlord shall provide to the Tenant, subject to performance by the Tenant of the obligations set out in Clause 4.6 and Schedule 8, access to the Premises from the Access Date for carrying out the Tenant’s Works in the Premises. The Tenant’s Works carried out in accordance with this Clause 7.2.3, as well as the Tenant’s access to the Premises for the period before the relevant Commencement Date shall be made in compliance with the provisions of this Lease on the Tenant’s Works (including Schedule 8) as well as provisions of Clauses 6.4-6.28 as if such Tenant’s Works and such Tenant’s access were made during the Term. Herewith, the Landlord shall be entitled to limit or stop the Tenant’s and/or any of its (sub-) contractors’ access under this Clause 7.2.3 in case of violation by the Tenant of any of the above-mentioned provision of this Lease until the date of rectification of such violation. Such limitation/stop of the Tenant’s access shall not lead to termination or change of any Tenant’s obligations under this Lease. Herewith the Parties agree that moving the Tenant’s goods to the Premises within the period before the relevant Commencement Date as long as the Tenant complies with the provisions hereof shall not be regarded as the Tenant’s breach under the present Clause 7.2.3.
7.2.4 The Landlord shall be entitled to limit or stop the Tenant’s access to the Premises, if the payment of the Rent or other sums (or their parts) due under or in connection with this Lease is in arrears in full or in part, and such breach is not remedied by the Tenant within fifteen (15) days from the date of the relevant notice of the Landlord to the Tenant on its remedy. Such limitation/stop of the Tenant’s access shall not lead to termination or change of any Tenant’s obligations under this Lease and shall not grant to the Tenant of the right to delay the payment of any sums due under or in connection with this Lease (including the Rent), or to demand abatement or decrease of any such payments.
7.3 Carrying out of Operating Actions
7.3.1 Subject to the Tenant paying the Rent and other sums due under this Lease at the times and in the manner specified in this Lease, the Landlord shall use its reasonable endeavours to carry out the Operating Actions, provided that the Landlord:
(i) may add to, vary the scope, suspend or discontinue any of the Operating Actions, where it is reasonable to do so having regard to the needs for the proper and effective operation, management, maintenance, inspection or repair of the Building and/or the Complex; and
(ii) shall not be in breach of this Clause 7.3.1 in case of any failure or interruption of any of the Operating Actions, resulting from circumstances beyond the Landlord’s reasonable control, so long as the Landlord uses its reasonable endeavours to remedy the same as soon as reasonably practicable after becoming aware of such circumstances.
7.3.2 The Landlord shall perform its obligations relating to the management of the Complex, Building and/or Premises under this Lease either by itself or by appointing a third party or third parties to provide such services.
7.4 Insurance
The Landlord shall comply with its obligations set out in Schedule 4.
7.5 Operating Costs
The Landlord shall comply with its obligations set out in Schedule 5.
7.6 Landlord’s Works
7.6.1 The Landlord is obliged to carry out and complete the Landlord’s Works in the Premises by the deadlines set out in Schedule 14. Where such Landlord’s Works have not been completed prior to the Commencement Date due to non-performance by the Tenant of its obligations stipulated in Clauses 4.1.1 – 4.1.3, 4.6, 6.2, 6.5 and 6.13 of this Lease, then in this case the time-lines specified in the Lease for the performance of the Landlord’s Works shall be automatically extended by the time-period of non-performance of such obligations by the Tenant. The Tenant hereby agrees and confirms that the only remedies available to the Tenant in case of the Landlord’s failure to complete the Landlord’s Works within the time-lines indicated in, or otherwise in accordance with, this Lease are as set out in this Lease and the Landlord shall not incur any additional liability to the Tenant for any such failure under this Lease.
7.6.2 The Tenant hereby confirms that:
(i) non-completion of the Landlord’s Works (or any part thereof) in the Premises shall not be regarded as a defect in the Premises fully or partially preventing the Tenant from using the Premises in accordance with the Permitted Use and otherwise in accordance with this Lease, and shall not be a ground for refusing to accept the Premises for lease hereunder or for delaying the Commencement Date;
(ii) non-completion or delay in completion of the Landlord’s Works (or any part thereof) in the Premises shall not entitle the Tenant to delay the payment of any amounts due under or in connection with this Lease (including the Rent), or to demand abatement or decrease of any such payments; and
(iii) carrying out of the Landlord’s Works by the Landlord and/or its contractors or sub-contractors shall not be considered as creation of obstacles by the Landlord to the Tenant’s use of the Premises in accordance with the Permitted Use and otherwise in accordance with this Lease.
7.6.3 If required by law, upon completion of the Landlord’s Works, the Landlord shall register the results of the Landlord’s Works with the BTI and obtain the new BTI plans and explications of the Premises or the Building, provided that the Tenant shall reimburse the Landlord for all the Landlord’s costs and expenses associated with such registration and obtainment of the new BTI plans and explications.]
7.6.4 Upon completion of the Landlord’s Works, the Parties shall sign Landlord’s Works Completion Act in the form to be prepared by the Landlord with indication of the list of the minor items (if any) and the term for removal thereof by the Landlord, as well as sign or make the relevant amendments to the Inventory (as form of Inventory is attached to the Lease) for the purpose of inclusion of the equipment and utilities, installed in the Premises within the Landlord’s Works. If the Landlord’s Works have been completed in relation to any part of the Premises, the Tenant shall sign the Landlord’s Works completion act on the terms set out in this Clause 7.6.4 in relation to the relevant part of the Premises and the date of signing of such Landlord’s Works Completion Act shall be the Landlord’s Works Completion Date in relation to the relevant part of the Premises. Minor items mean minor items which are not defects of the Premises, preventing in full or in part the use of the Premises by the Tenant in accordance with the Permitted Use and otherwise in accordance with this Lease. The Parties agree that the Landlord’s Works in respect of any part of the Premises shall be considered as completed and the Tenant shall sign the Landlord’s Works Completion Act in respect of such part of the Premises, if the specifications of the Premises are complied with the requirements set out in Schedule 14.
7.6.5 The Landlord shall notify the Tenant on the anticipated date (-s) of the Landlord’s Works completion at least 5 business days prior to such date and the Tenant shall procure the presence of the duly empowered Tenant’s representatives (with the documents confirming the power to act on the Tenant’s behalf including the right of Landlord’s Works Completion Act signing) on the anticipated date of the Landlord’s Works Completion Date. In case the Landlord’s notice was given pursuant the present Clause 7.6.5, the absence of the Tenant’s empowered representatives in the Premises on the Landlord’s Works Completion Date and non-provision of the reasonable refusal to sign the Landlord’s Works Completion Act shall not be a ground for such date delay and shall not prevent the Landlord from unilateral signing of the Landlord’s Works’ Completion Act.
7.6.6 In case of non-provision by he Tenant of the reasonable refusal to sign any Landlord’s Works Completion Act pursuant to Clause 7.6.4 of this Lease, the Landlord is entitled to sign unilaterally the Landlord’s Works Completion Act, specifying the relevant Landlord’s Works Completion Date and the list of minor items (if any), together with the Inventory. In such case the relevant Landlord’s Works Completion Date shall be the date of unilateral signing by the Landlord of the Landlord’s Works Completion Act and the Landlord shall provide the Tenant with a copy of such Landlord’s Works Completion Act, signed and dated by the Landlord within fifteen (15) business days from signing thereof.
7.6.7 From the Landlord’s Works Completion Date the responsibility for maintenance, repairs and operation of any equipment, utilities and other improvements of the Premises, created as a result of the Landlord’s Works shall be transferred to the Tenant.
7.6.8 If the performance of the Landlord’s Works requires the Landlord to obtain any approval from the Tenant (including approval of the design of the Landlord’s Works) and/or any Tenant’s documents, the Tenant shall provide to the Landlord the relevant approval (or a reasoned refusal to give an approval) and/or the documents within three (3) business days from the date of receipt of the relevant request of the Landlord. If the Tenant fails to comply with this obligation, the time-lines specified in Schedule 14 for the performance of the Landlord’s Works shall be automatically extended by the time-period of non-performance by the Tenant of the relevant obligation.
8 ASSIGNMENT AND SUB-LEASING
8.1 The Tenant is not entitled without the Landlord’s prior written consent to:
8.1.1 assign or transfer any of its rights or obligations under this Lease;
8.1.2 mortgage, charge, encumber or otherwise dispose of any of its rights under this Lease, including for the avoidance of doubt any contribution of its rights under this Lease to the charter capital of any entity;
8.1.3 provide any third party with any of its rights hereunder with regard to the Car Parks and the Loading Area, or
8.1.4 agree to do anything under Clause 8.1.1, 8.1.2 or 8.1.3 above.
8.2 The Tenant is not entitled to sub-lease or share possession or occupation of any part of the Premises or the entire Premises without the Landlord’s prior written consent, with exception to the cases, specifically provided in this Lease.
The Landlord hereby grants the Tenant a consent to sublease the part of the Premises, for a term not exceeding 360 days, to the Limited Liability Company “________”, established under the laws of the Russian Federation, OGRN ________, and the Limited Liability Company “________”, established under the laws of the Russian Federation, OGRN ________ (referred to as the "Permitted Subtenant"), subject to all the other requirements in respect to the sublease according to Clause 8.5 shall be fulfilled, as well as the draft of the sublease agreement shall be provided to the Landlord and the sublease agreement may not be executed on the conditions, other than in the sublease agreement draft that has been provided by the Tenant to the Landlord.
The Landlord may from time to time request from the Tenant the confirmation that the Permitted Subtenant occupies the Subleased Area and the location of the Subleased Area on the plan of the Premises, and the Tenant shall, within 10 business days from receipt of the Landlord’s request, provide the latter with the information requested. Without prejudice to any other rights of the Landlord hereunder, in any of the following cases:
(i) if the Tenant does not comply with any provision of this Clause 8.2; or
(ii) if the Tenant has not provided the documents requested by the Landlord, as specified above in this Clause 8.2; or
(iii) if the Permitted Subtenant uses the Premises with material breaches of the conditions of the present Lease, then all sublease agreements should be immediately terminated by the Tenant upon the Landlord’s request, and documents evidencing such termination should be sent to the Landlord within 10 business days from the Tenant’s receipt of the respective Landlord’s request.
8.3 The application for a prior written consent of the Landlord stipulated in Clauses 8.1 and 8.2 shall be submitted to the Landlord not later than thirty (30) days prior to the proposed date of the relevant transaction. A draft of the relevant agreement shall be attached to the application. The Landlord’s consent shall, if provided, be in writing and shall (i) be regarded solely and exclusively as the consent to conclude a particular transaction a draft agreement of which was attached to the Tenant’s application [and (ii) be conditional upon provision by the Tenant to the Landlord prior to execution of the relevant agreement of new securities (guarantee, suretyship, bank guarantee and/or otherwise) of performance of the Tenant’s obligations under or in connection with the Leases or (as required by the Landlord) amendments to the Suretyship, in any event to be prepared, executed and issued on the terms and conditions and by a person or entity satisfactory to the Landlord (acting in its sole discretion).
If the Landlord consents to any such transaction, the Tenant is not entitled to conclude any such transaction on the conditions different from the ones in the draft presented to and approved by the Landlord.
8.4 The Tenant shall supply to the Landlord a notarised copy of any assignment, transfer, mortgage, encumbrance or sublease agreement entered into pursuant to this Lease according to the Landlord’s consent within seven (7) days of its entry into by the Tenant.
8.5 Unless the Landlord agrees otherwise in writing prior to the entry into any sublease, any sublease between the Tenant and a sub-tenant with regard to any part of the Premises shall:
8.5.1 be entered into for a term not exceeding 360 days;
8.5.2 be of an area which has direct access to the Common Areas;
8.5.3 prohibit any further sub-subleasing by the sub-tenant;
8.5.4 prohibit any assignment by the sub-tenant of its rights and/or obligations under the sublease to any third party without prior written consent of the Landlord (such consent to be given or withheld at the Landlord’s sole discretion);
8.5.5 provide for automatic termination of the sublease and the surrender of the subleased area of the Premises by the sub-tenant to the Tenant at least one day prior to termination (including early termination) of this Lease;
8.5.6 provide for the Tenant’s right unilaterally to refuse to perform and unilaterally to terminate the sublease, if the Landlord notifies the Tenant on unilateral refusal to perform and unilateral termination of this Lease in accordance with Clause 9.1;
8.5.7 contain a provision confirming that the sub-tenant reviewed this Lease and understands its provisions in full; and
8.5.8 otherwise be in form and substance satisfactory to the Landlord acting at its sole discretion.
8.6 Notwithstanding any sub-leasing of the Premises under this Lease the Tenant shall remain liable to perform the Tenant’s obligations contained in this Lease and shall be liable for violation of this Lease by any sub-tenant. The Tenant shall immediately remedy any breach by any sub-tenant of any of the Tenant’s obligations in this Lease.
8.7 The Landlord shall be entitled freely to sell, mortgage or otherwise to dispose of or to encumber any part of the Premises and the Land Plot. The Landlord shall also be entitled to assign any of its rights and/or to transfer any of its obligations under this Lease and the Tenant hereby consents to any such assignment and/or transfer and confirms that no additional consent from the Tenant is required to any such assignment and/or transfer. The Landlord shall notify the Tenant on such assignment and/or transfer of obligations within 10 (ten) business days from the date of assignment and/or transfer of obligations.
9 TERMINATION
9.1 The Landlord shall be entitled to refuse to perform and unilaterally to terminate this Lease by serving a written notice to the Tenant at least ten (10) business days prior to the date of intended termination in any of the following cases:
9.1.1 if the Rent or any other sum (or any parts thereof) due from the Tenant under or in connection with this Lease is in arrears, in part or in full, and such violation is not rectified within ten (10) business days from the date of the relevant Landlord’s notice to the Tenant on its rectification; and/or
9.1.2 if the Tenant delays providing to the Landlord or restoring or increasing the Guarantee Deposit as required under this Lease or delays the additional amount of the Guarantee Deposit as detailed in Clause 6.2.3 of the Lease, or delays providing to the Landlord the Suretyship, and any such delay is for more than ten (10) business days from the date of the Landlord’s notice to the Tenant of such delay; and/or
9.1.3 if the Suretyship fails to be in full legal force in accordance with this Lease and such failure has not been cured by the Tenant within ten (10) business days from the date of the Landlord’s notice to the Tenant of such failure; and/or
9.1.4 if the Suretyship Guarantor fails to comply with any of its obligations under the Suretyship and any such failure has not been cured within ten (10) business days from the date of the Landlord’s notice to the Tenant of such failure; and/or
9.1.5 if any part of the Premises, Building or Complex has incurred any damage beyond normal wear and tear as a result of the Tenant's occupancy or use thereof or as a result of, or in connection with, any Tenant’s Works or otherwise due to any fault, action or omission of the Tenant or any entity or person for whom the Tenant is responsible under this Lease, and such damage has not been remedied within ten (10) business days from the date of the Landlord’s written notice to the Tenant on such Tenant’s failure or within another period technically necessary for remedy of the breach; and/or
9.1.6 if any part of the Premises is used in violation of the Permitted Use and such failure has not been cured within ten (10) business days from the date of the Landlord’s written notice to the Tenant on such Tenant’s failure; and/or
9.1.7 if the Tenant materially or repeatedly fails to observe or perform any of the Tenant’s obligations under this Lease, provided that where it is capable of remedy the Landlord shall serve written notice to the Tenant of the failure on the part of the Tenant to observe or perform its obligations under this Lease and shall allow the Tenant fifteen (15) business days from the date of that notice in which to remedy the same before the Landlord shall be entitled to exercise its right of termination on the grounds of the failure of the Tenant as specified in this Clause 9.1.7; and/or
9.1.8 if a circumstance described in paragraph 1.2.2 of Schedule 4 occurs; and/or
9.1.9 if an existing or former sub-tenant of all or part of the Premises becomes the Tenant of all or part of the Premises in accordance with automatic mandatory provisions of applicable law (including in accordance with Clause 1 of Article 618 of the Civil Code of the Russian Federation); and/or
9.1.10 if the Tenant’s or the Suretyship Guarantor’s competent management body adopts a decision on the Tenant’s or the Suretyship Guarantor’s bankruptcy or liquidation in accordance with applicable law or if a third party files a claim on the Tenant’s or the Suretyship Guarantor’s bankruptcy or liquidation.
The Parties agree and confirm that termination by the Landlord of this Lease on any of the grounds listed in this Clause 9.1 shall be considered as termination due to Tenant’s fault.
9.2 Without prejudice to the other rights and remedies provided to the Landlord under this Lease or by legislation, if this Lease terminates prior to expiry of the Term due to the Tenant’s fault (including in case the Landlord refuses to perform and terminates this Lease pursuant to Clause 9.1), the Tenant shall pay to the Landlord upon its demand:
(i) a punitive penalty in a cumulative amount of the followings sums:(A) the Base Rent, the Estimated Operating Costs, the Estimated Utility Payments payable for 6 (six) months of the Term provided that, for the purpose of this paragraph (i), the amount of each of the Base Rent the Estimated Operating Costs and the Estimated Utility Payments shall each be determined at the rates applicable immediately prior to termination of this Lease, and (B) the sum equal to the whole amount of the Guarantee Deposit;
(ii) losses incurred by the Landlord as a result of bearing by the Landlord of the costs and expenses associated with performance of the Landlord’s Works in accordance with provisions of this Lease in the aggregate amount calculated, depending on the date of termination of this Lease, pursuant to Schedule 16;
(iii) any other costs and expenses incurred by the Landlord as a result of the termination of this Lease and re-leasing the Premises to a subsequent tenant.
All amounts detailed in paragraphs (ii) – (iii) (inclusive) of this Clause 9.2 shall be paid in full in addition to the punitive penalty specified in paragraph (i) of this Clause 9.2.
9.3 The Parties hereby specifically agree that if this Lease terminates prior to expiry of the Term due to any reason apart from the fault of either Party (i.e. based on the grounds stipulated in this Lease or in applicable law which appeared as a result of circumstances beyond the reasonable control of the Parties), the Tenant undertakes to compensate to the Landlord the sum of the Landlord’s costs and expenses associated with performance of the Landlord’s Works in accordance with provisions of this Lease in the aggregate amount calculated, depending on the date of termination of this Lease, pursuant to Schedule 16.
9.4 Any termination of this Lease shall be without prejudice to any right of action of the Landlord in respect of any previous breach of this Lease by the Tenant (including but not limited to the breach which entitled the Landlord to terminate this Lease in accordance with Clause 9.1).
9.5 Early termination of the Short-Term Lease due to the fault of one of the Parties shall be the ground for unilateral refusal from performance and termination of this Lease by the Party which initiated the termination of the Short-Term Lease, provided, however, that such terminating Party would be entitled to apply against the other Party only those remedies available to such terminating Party in connection with early termination of the Short-Term Lease as are contemplated in the Short-Term Lease and applicable law and would not be entitled to apply in addition the remedies contemplated in this Lease in connection with early termination of this Lease (no double-recovery).
9.6 If the Tenant decides for any reason to terminate this Lease, the Tenant shall be entitled to refuse to perform and terminate this Lease unilaterally out-of-court on 1 October ________ or 1 October ________ by way of sending a written notification to the Landlord, provided that all of the following conditions are satisfied:
9.6.1 The notification of the Tenant on termination of this Lease pursuant to this Clause 9.6 shall be sent by the Tenant to the Landlord not later than 6 (six) months before the intended date of termination;
9.6.2 The date of termination of this Lease specified in the notification sent by the Tenant to the Landlord under Clause 9.6 may be only 1 October ________or 1 October ________accordingly;
9.6.3 As at the date of the intended termination, there are no outstanding or continuous violations of this Lease by the Tenant;
9.6.4 The Tenant shall procure that all subleases entered into by the Tenant in relation to the Premises are terminated prior to the date of termination of this Lease;
9.6.5 Prior to the date of the intended termination, the Tenant shall provide all necessary documents for removing records on this Lease from the state register of immovable property, requested by the Landlord;
9.6.6 All not rectified or continuing Tenant’s breaches shall be rectified before the termination date;
9.6.7 The Tenant shall, prior to the termination date, pay in full all the outstanding sums to the Landlord in respect of any payments. The return of the Premises shall be carried in accordance with clause 10 of this Lease.
The Tenant’s right to refuse to perform and terminate the Lease unilaterally in accordance with this Clause 9.6 can be exercised by the Tenant only provided that all conditions, listed in this Clause 9.6, are complied with.
If any of the provisions specified in Clause 9.6 above has not been complied with then the Tenant’s right to terminate this Lease in accordance with Clause 9.6 shall lapse and the written notice sent in accordance with Clause 9.6 shall have no legal force.
9.7 If the Landlord decides for any reason to terminate this Lease, the Landlord shall be entitled to unilaterally out-of-court refuse to perform and terminate this Lease on 1 October 2019 or 1 October 2021, by way of sending a written notification to the Tenant, provided that all of the following conditions are satisfied:
9.7.1 The notification of the Landlord on termination of this Lease pursuant to this Clause 9.7 will be sent by the Landlord to the Tenant not later than 6 (six) months before the date of termination;
9.7.2 The date of termination of this Lease specified in the notification sent by the Landlord to the Tenant under Clause 9.7 may be only 1 October 2019 or 1 October 2021 accordingly.
The right of the Landlord to unilaterally refuse to perform this Lease contemplated in this Clause 9.7 can be exercised by the Landlord only provided that all conditions, listed in this Clause 9.7 are complied with.
If any of the provisions specified in Clause 9.7 above has not been complied with then the Landlord’s right to terminate this Lease in accordance with Clause 9.7 shall lapse and the written notice sent in accordance with Clause 9.7 shall have no legal force.
10 RETURN OF THE PREMISES
10.1 The Tenant shall, on the date of the expiry or, if relevant, early termination of this Lease (notwithstanding the reason for such early termination):
10.1.1 return to the Landlord the Premises (with all fixed mechanical and electrical equipment and Conduits and all items set out in the Inventory) clean, repaired and decorated (subject to fair wear and tear in course of the Permitted Use hereunder) and otherwise in accordance with the Tenant’s obligations under this Lease;
10.1.2 unless otherwise agreed by the Parties in writing, remove all Tenant’s Works and any other alterations and improvements made during the Term or any preceding period of occupation of or access to the Premises by the Tenant and reinstate the Premises to their condition as of the Access Date and to the Landlord’s reasonable satisfaction, except that the Tenant shall not be required to and shall not remove any of the Landlord’s Works;
10.1.3 remove all Tenant’s property, signs, furniture and other goods from the Premises, the Car Parks and the Loading Area and make good any damage caused thereby to the Landlord’s satisfaction; and
10.1.4 replace any damaged or missing Landlord’s fixtures with ones of no less quality.
10.2 If the Tenant fails to comply with Clause 10.1, the Tenant shall pay to the Landlord on demand:
10.2.1 any costs and expenses necessary for remedying such breach, and
10.2.2 as a punitive penalty, a sum equivalent to 50% within the first fourteen days and upon expiry of such period a sum equivalent to 100% of the sum of the daily Rent (calculated at the relevant rates applicable immediately before the end of the Term or early termination of the Lease, as the case may be) per each day of delay in complying with provisions of Clause 10.1.
For the avoidance of doubt, should the Landlord permit Tenant’s access to the Premises after the Term termination so that Tenant could remedy its breaches of Clause 10.1 (if any), this shall not be considered as absence of objections by the Landlord to the Tenant’s use of the Premises after termination of the Term.
10.3 Due performance of the Tenant’s obligations under Clause 10.1 shall be evidenced by the Tenant to Landlord Act of Transfer and Acceptance signed between the Landlord and the Tenant.
10.4 The Tenant shall not have the right to claim compensation from the Landlord in respect of any alterations or improvements made by the Tenant in the Premises at the expiry of the Term or early termination of this Lease on vacating the Premises or otherwise. In particular, the Tenant shall not have the right to the compensation of the value of inseparable improvements pursuant to Clause 2 of Article 623 of the Civil Code of the Russian Federation.
10.5 The Parties hereby also agree that if on the date of termination or expiry of this Lease the Tenant has not removed from the Premises its property, the Landlord is entitled to move out such Tenant’s property by any way comfortable to the Landlord, provided that the Landlord is not liable before the Tenant for safety of such Tenant’s property, and the Tenant shall compensate to the Landlord all its costs connected with such removal and storage of such property.
11 FORCE MAJEURE
11.1 Any Party shall be relieved of liability for partial or complete failure to perform its obligations under this Lease if such failure was due to Force Majeure Circumstances arising after the execution of this Lease. Such relief of liability shall only relate to those obligations directly affected by such Force Majeure Circumstances and such relief shall only subsist for as long as such Force Majeure Circumstances exist.
11.2 The Party relying on Force Majeure Circumstances shall immediately upon occurrence of such circumstances notify the other Party in writing of such circumstances.
11.3 If either Force Majeure Circumstances continue for more than 3 months or it is reasonably anticipated that Force Majeure Circumstances will continue for more than 3 months or if the Force Majeure Circumstances have been caused by legislation the Parties shall forthwith enter into negotiations and agree such modifications to this Lease as are necessary to enable the Parties to continue performance of their obligations under this Lease in a manner as close as possible to that originally intended.
12 NOTICES
12.1 A notice, approval, consent, permission or other communication in connection with this Lease must be in writing and must be delivered by registered mail with acknowledged receipt or by courier service or by personal delivery to the address of the addressee which is specified in this Clause 12.
12.2 The correspondence address of each Party is:
Landlord Tenant
12.3 If a Party wants to change its correspondence address (as provided in Clause 12.2 or as previously changed by the operation of this Clause 12.3), it shall notify the other Party of the change together with a note of the new correspondence address. The other Party shall use the new correspondence address of that Party from the date of receipt of such notice. All correspondence addresses shall be an address in Moscow and Moscow Region, Russia.
12.4 If at the time of any notice delivery during business days the addressee is absent at the specified correspondence address or refuses to acknowledge the receipt of the delivered notice, and, as a result, it is not possible to acknowledge receipt of the notice by the addressee, such notice shall nonetheless be deemed properly delivered in the absence of such acknowledgement of receipt.
12.5 A notice takes effect on the date of its delivery at the relevant correspondence address.
13 LIMITATION OF LANDLORD’S LIABILITY
13.1 The Landlord shall not be liable to the Tenant in respect of any loss, damage, interference or annoyance suffered by the Tenant during the carrying out by the Landlord (or any party acting on its behalf or according to its instructions) of any repairs, decorations, additions, alterations or other works whether structural or otherwise which the Landlord (or any party acting on its behalf or according to its instructions) carries out to the Building or any part of the Complex (including the Common Areas) provided that such repairs, decorations, additions, alterations or other works are necessary for the proper operation of the Building and/or the Complex and that the Landlord shall use all reasonable endeavours to secure provision of utilities to the Tenant in the amount required in accordance with this Lease.
13.2 The Landlord shall not be liable for any loss, damage, interference or annoyance suffered by the Tenant during the carrying out by any utility company (or any party acting on its behalf or according to its instructions) of any repairs, decorations, additions, alterations or other works to any Conduits or during the cut-off by any utility company of any utility supply (save for where such cut-off resulted from the Landlord’s fault).
13.3 The Landlord shall not be liable for any loss or damage to vehicles, goods or property or injury (whether fatal or not) to persons in the Building or any part of the Complex (including the Common Areas) in any way arising out of the use of the Car Parks or the Loading Area by the Tenant (or any persons permitted by the Tenant to use it) and the Tenant shall pay to the Landlord an amount equal to all losses which the Landlord incurs in respect of such matters.
13.4 The Landlord shall (subject as follows) only be liable to the Tenant in respect of any failure of the Landlord to carry out any of the Operating Actions where it has failed to use its reasonable endeavours to carry them out. The Landlord shall not be liable to the Tenant in respect of any failure or interruption or delay in the carrying out of the Operating Actions caused in any case by Force Majeure Circumstances or arising as a result of repair or other works being carried out in the Building or any part of the Complex (including the Common Areas) or by the act or omission of any third party. Further, the Landlord shall not be liable for non-performance of the Operating Actions in the Loading Area if the Tenant’s vehicles located in the Loading Area hinder such performance.
13.5 Notwithstanding anything to the contrary contained in other provisions of this Lease, the Landlord’s liability to the Tenant for all of the Landlord’s breaches under and in connection with this Lease shall be limited to cases when a breach was caused by the Landlord’s fault. The Landlord’s aggregate liability for all of its breaches under and in connection with this Lease (including liability for any losses, damage, obligation to pay any penalties, fines, costs, expenses and any other amounts) shall be further limited to the amount of three (3) months’ Base Rent (calculated at the rate applicable as at the Commencement Date under the Short-Term Lease) which amount shall be decreased by the amount(s) paid or payable by the Landlord to the Tenant as a result of any breaches (if any) by the Landlord under the Short-Term Lease. The Landlord shall not be liable to the Tenant for the Tenant’s loss of profit, indirect damages or for any unreasonable costs or expenses of the Tenant. In case of any discrepancies between the provisions of this Clause 13.5 and any other provisions of this Lease, the provisions of this Clause 13.5 shall prevail.
14 REGISTRATION
14.1 The Tenant shall provide to the Landlord by the time of signing of this Lease all Tenant’s documents and information necessary for state registration of this Lease with the Registration Authority. The Tenant hereby appoints the Landlord to submit this Lease to the Registration Authority for registration in accordance with the provisions of the legislation of the Russian Federation as soon as reasonably practicable upon obtaining by the Landlord of all necessary documents required for such registration, and the Landlord accepts such appointment. The Tenant shall reimburse the Landlord for all the Landlord’s costs (including legal fees and costs associated with cadastral registration of the Premises) in connection with the registration of this Lease. If in the process of state registration of this Lease, the law or any competent Authority requires any additional documents or information or requires additions and/or amendments to be made to this Lease for the purposes of its state registration, the Tenant shall promptly supply the Landlord with such additional documents and information and the Parties shall promptly enter into any such required amendments to this Lease, save that such amendments shall not affect the agreed commercial terms of this Lease.
14.2 In the event any amendments to this Lease are entered into at the initiative of the Tenant or this Lease is terminated due to an act or default of the Tenant, the Tenant shall reimburse to the Landlord all Landlord’s costs connected with registration of such amendments or termination agreement, including, in case of termination, removal of records on this Lease from the state real estate register.
14.3 In the event of expiry of the Term the Tenant shall provide the Landlord with all documents and information necessary for registration of the expiry of the Term by the Registration Authority and shall reimburse to the Landlord all the Landlord’s costs in connection with such registration (including removal of records on this Lease from the state real estate register).
14.4 In the event of expiry or early termination of this Lease, should the Registration Authority require an agreement between the Parties on expiry or termination of this Lease in order to remove records on this Lease from the state register of immovable property, the Parties shall promptly sign such an agreement in the form satisfactory to the Registration Authority.
15 CONFIDENTIALITY
15.1 Each Party agrees not to use for any purposes which are not connected with the performance of this Lease and not to disclose to any third party (except as permitted by Clause 15.2) the terms or existence of this Lease or any other associated document, nor any information which is or could be treated as commercial information in accordance with the Commercial Secrets Law, without in all cases the prior written consent of the other Party. Commercial information shall mean any information which a Party may treat and protect as confidential in accordance with the Commercial Secrets Law.
15.2 The restrictions in Clause 15.1 shall not apply to the extent disclosure is:
15.2.1 required by any applicable legislation;
15.2.2 required by any Authority, to the extent required by applicable legislation;
15.2.3 required to comply with any regulatory or filing requirement (including of a stock exchange or other regulatory or official body);
15.2.4 to a Party’s professional adviser or auditors; or
15.2.5 (in the case of the Landlord only) to evidence the Landlord’s title to or encumbrances and/or rights in respect of any part of the Land Plot and/or the Building and/or the Premises or other buildings on the Land Plot (whether to purchasers, lenders, any Authority or otherwise).
16 MISCELLANEOUS PROVISIONS
16.1 The Landlord hereby notifies the Tenant that, as of the date of this Lease, the following third party rights exist with respect to the Premises: ________.
16.2 The Tenant hereby acknowledges that it is fully aware of the condition of the Premises and agrees to take the same as is.
16.3 The Tenant acknowledges that the Landlord has furnished to the Tenant documents relating to the Landlord’s title to the Building and to the Land Plot, and that the Tenant has examined such documents as well as performed such due diligence review of the Landlord’s rights to the Building and the Land Plot as it desires and that the Tenant is satisfied with the result of such due diligence.
16.4 The Tenant acknowledges that the Landlord may apply any payments received from the Tenant in the following priority unless the Landlord determines otherwise:
16.4.1 Firstly, towards the payment of any penalties or fines imposed in accordance with this Lease;
16.4.2 Secondly, towards recharging any sums necessary to restore the Security Deposit to its required amount under the terms of Schedule 7;
16.4.3 Thirdly, towards payment of outstanding amounts (including outstanding Rent) due and payable under this Lease; and
16.4.4 Lastly, towards the Rent and other payments due in respect of the relevant period at the point when such payment is received by the Landlord.
16.5 While interpreting this Lease it is necessary to take into account that:
16.5.1 the approval or consent of the Landlord shall not have effect unless given in writing;
16.5.2 references to the fault, default, actions, omissions or negligence of the Tenant include the fault, default, actions, omissions or negligence any of its sub-tenants, any of its (or its sub-tenants’) employees, personnel, representatives, agents, contractors, sub-contractors, designers, suppliers, services providers, visitors, logistics operators, persons storing their goods in the Premises under storage agreement with the Tenant or sub-tenant, or any other third party at the Premises or the Complex with the Tenant’s or any sub-tenant’s permission;
16.5.3 references to days are to calendar days;
16.5.4 references to business days are to ordinary business days in the Russian Federation based on a 5-day business week;
16.5.5 references to months are to calendar months;
16.5.6 references to quarters are to calendar quarters;
16.5.7 references to “include” or “including” shall be construed without any limiting effect;
16.5.8 the headings of Clauses and Schedules to this Lease are given for convenience only and shall not be used for interpretation of this Lease;
16.5.9 unless the context requires otherwise, any reference to Clause, paragraph or Schedule shall mean reference to the respective Clause, paragraph or Schedule of this Lease;
16.5.10 references to any right of the Landlord to have access to or entry upon the Premises shall be construed as extending to all persons authorised by the Landlord; and
16.5.11 references to Russian Roubles are to the lawful currency from time to time of the Russian Federation and references to USD or US Dollars are references to the lawful currency from time to time of the United States of America.
16.6 Unless otherwise directly provided in this Lease, each Party shall perform its obligations at its own expense.
16.7 Should any provision of this Lease be deemed, found or declared invalid, illegal or unenforceable for any reason by court decree or otherwise, such invalidity, illegality or unenforceability shall not affect or impair the validity, legality and enforceability of the remaining provisions hereof and the Parties hereby agree that they would have entered into this Lease without such invalid, illegal or unenforceable provisions, and the Parties undertake to amend, supplement or substitute all and any such invalid, illegal or unenforceable provisions with the enforceable, legal and valid provisions which would produce as near as may be possible the economic result previously intended by the Parties without renegotiation of any commercial terms of this Lease.
16.8 A substantial change of circumstances from which the Parties proceeded in the conclusion of this Lease (as defined in Clause 451 of the Civil Code of the Russian Federation) shall not create a basis for amendment or termination of this Lease by any Party to it.
16.9 Compensation by the Tenant of losses in case of non-performance of the obligations under this Lease and/or payment of penalty for such non-performance shall not relieve the Tenant from specific performance of the relevant obligations.
16.10 Upon signing of this Lease all previous correspondence and understandings between the Parties in respect of the subject of this Lease shall be of no force or effect, except for the Short-Term Lease.
16.11 This Lease has been executed in 5 originals (3 originals in Russian and 2 in English), one original in Russian for each of the Parties and for the Registration Authority and one original in English for each of the Parties. In the event of any discrepancy between the Russian and English texts of this Lease the Russian text of this Lease shall prevail. Schedule No. 14 to this Lease are made in Russian language only.
16.12 This Lease contains the following schedules which shall be an integral part hereof:
SCHEDULE 1 COMPLEX, BUILDING AND LAND PLOT PLAN
SCHEDULE 2 PREMISES PLAN
SCHEDULE 3 PREMISES AND BUILDING AREA DEFINITIONS
SCHEDULE 4 INSURANCE
SCHEDULE 5 OPERATING COSTS
SCHEDULE 6 UTILITY PAYMENTS
SCHEDULE 7 GUARANTEE DEPOSIT
SCHEDULE 8 TENANT’S WORKS
SCHEDULE 9 FORM OF LANDLORD TO TENANT ACT OF TRANSFER AND ACCEPTANCE
SCHEDULE 10 FORM OF TENANT TO LANDLORD ACT OF TRANSFER AND ACCEPTANCE
SCHEDULE 11 FORM OF INVENTORY
SCHEDULE 12 FORM OF ACT OF DIVISION OF RESPONSIBILITY
SCHEDULE 13 FORM OF ACCESS ACT
SCHEDULE 14 THE LANDLORD’S WORKS
SCHEDULE 15 FORM OF LANDLORD’S WORKS COMPLETION ACT
SCHEDULE 16 CALCULATION UNDER CLAUSES 9.2 (ii) and 9.3
SCHEDULE 17 CONDITION OF THE PREMISES UNDER CLAUSE 10.1
SCHEDULE 18 FORM OF SURETYSHIP
16.13 Each Party declares that (a) the Lease provisions are economically profitable, fair, not burdensome for neither Party and don’t deprive its interests, (b) the terms of this Lease have been agreed by the Parties jointly, were not dictated by one party to the other and were not accepted by a Party as an adhesion to the proposed draft agreement by the other Party as a whole (c) neither Party was forced to conclude the Lease with the another Party as a result of fraud, violence, threat, adverse circumstances, as well as none of the Parties has entered into the Lease under the influence of delusions.
16.14 Anti-Corruption Clause
The Tenant, including any person for actions of which the Tenant is liable under this Lease, does not offer and promise to make and intend to make, offer or promise to make any payments or other transfer of tangible assets to any employee, officer, director, owner, agent , representative, shareholder, investor, affiliate, affecting the relations of the Parties under this Lease and the obligations arising between the Parties under the Lease.
The Tenant, including any person for actions of which the Tenant is liable under this Lease, does not offer and promise to make and intend to make, offer or promise to make any payments or other transfer of tangible assets to any representative of a state authority for receipt or influence to the decision or action of a representative of a state authority in respect of the Parties or receipt of any unreasonable or illegal benefit in connection with the Lease or otherwise to participate in any actions or transactions in violation of the anti-corruption law of the Russian Federation.
17 APPLICABLE LAW AND DISPUTE RESOLUTION
17.1 This Lease is governed by the laws of the Russian Federation.
17.2 In the event of any dispute between the Parties, controversy or claim arising out of or in connection with this Lease (including, without limitation, in relation to its execution, performance, breach, termination, prolongation, conclusion of a new agreement for a new term, invalidity or non-conclusion) authorised representatives of the Parties shall within fifteen (15) days of a written request from any Party to the other meet in good faith to seek to resolve the dispute without recourse to legal proceedings.
17.3 If any dispute, including any dispute, controversy or claim arising out of or in connection with this Lease, including in relation to its entrance into force, amendments to it, execution, performance, breach, termination, prolongation, conclusion of a new agreement for a new term, invalidity and/or non-conclusion, is not resolved under Clause 17.2 within fifteen (15) days of the relevant written request then such dispute shall be brought, heard and settled, without first applying to the state courts, by the International Commercial Arbitration Court (“ICAC”) at the Russian Federation Chamber of Commerce and Industry which is situated in Moscow in accordance with its rules and procedures. The award of the arbitrator(s) shall be final and binding on the Parties. Application to the state court on decision on absence of the competence of the arbitration tribunal in connection with the resolution of the arbitration tribunal on competence as a preliminary matter shall be excluded. Hearing by the state court of the matter on disqualification of arbitrators or discharge them otherwise shall be excluded. The Parties agree that the application for the execution writ obtainment which enforces the decision of ICAC shall be considered by the arbitration court on the territory of the location of the Party in favour of which the decision of ICAC is made.
17.4 Notwithstanding provisions of this Clause 17 above, if for any reason whatsoever the preceding Clause 17.3 shall be found to be invalid with regard to any dispute arising between the Parties out of or in connection with this Lease, the Parties agree that such particular dispute shall be brought, heard and resolved only by the state Arbitrazh Courts of the Russian Federation and in such event the Parties irrevocably submit to the jurisdiction of the state Arbitrazh Courts of the Russian Federation.
17.5 Notwithstanding provisions of this Clause 17 above, if the Premises turn out to be in a condition unfit for their use in accordance with this Lease due to the circumstances for which the Tenant is not liable, then, if the Tenant has mandatory right under applicable law to require on this ground early termination of this Lease in court and the Tenant elects to exercise such termination right, the Tenant shall first provide a written demand to the Landlord to reinstate the Premises in a condition fit for their use in accordance with this Lease. The said written demand shall indicate the reason for the inability to use the Premises by the Tenant and the date from which the Premises became unfit for their use. The Tenant shall be entitled to require termination of this Lease in court if the Landlord fails substantially to reinstate the Premises in a condition fit for their use by the Tenant within a reasonable time-period after receiving the Tenant’s written demand for reinstatement (which reasonable time-period shall, if the Premises became unfit for their use by the Tenant as a result of damage or destruction of the Building, be 12 months after that destruction or damage occurred). The Parties agree that the procedure set out in this Clause 17.5 is a pre-trial dispute resolution procedure (in Russian “досудебный порядок урегулирования”) envisaged in part 5 of Article 4 of the Arbitrazh Procedural Code of the Russian Federation.
18 LEGAL ADDRESSES AND BANK DETAILS OF THE PARTIES
Landlord: Tenant:
19 SIGNATURES OF THE PARTIES
___________
General Director ________________________________
on behalf of the Landlord (Corporate Seal)
___________
General Director ________________________________
on behalf of the Tenant (Corporate Seal)
SCHEDULE 1
COMPLEX, BUILDING AND LAND PLOT PLAN
SCHEDULE 2
PREMISES PLAN
1st floor
3rd floor
SCHEDULE 3
PREMISES AND BUILDING AREA DEFINITIONS
1 BOMA Standard: Area of the Building and the Premises
For the purposes of calculating the Base Rent, Estimated Operating Costs, Operating Costs, Estimated Utility Payments and Utility Payments, the following definitions conform to the BOMA Standard:
Gross Measured Area: Total enclosed area of the Building with perimeter limits defined by the dominant portion of permanent outer Building walls finished surface: ______ sq.m.
Major Vertical Penetrations: Areas in the Building including stairs, elevator shafts, flues, pipe shafts, vertical ducts, and their enclosing walls. Stairs, dumbwaiters, lifts, and the like built for the private use of a tenant occupying areas on more than one floor are not included: ______sq.m.
Rentable Area of the Building: Gross Measured Area less Major Vertical Penetrations: ______ sq.m.
Rentable Area of the Complex: ______ sq.m.
Usable Area: The Usable Area of the Premises shall be computed by measuring the area enclosed by: the finished surface of the office side of the corridor and other permanent walls; the dominant portion or a major vertical penetration; and the centre of partitions that separate the area being measured from the adjoining usable areas. No deductions shall be made for columns and projections necessary to the Building. The Usable Area of a floor shall be equal to the sum of all Usable Areas on that floor. Usable Area for the Building: 18,349.1 sq.m.
R/U Ratio: ______
Rentable Area of the Premises: ______sq.m.
Rentable Area of the Warehouse Premises: ______sq.m.
Rentable Area of the Mezzanine: ______ sq.m.
2 BTI measurements: Area of the Building and the Premises
For the purposes of state registration of this Lease only and in accordance with the BTI explications of the Building prepared as of 4 July ______:
2.1 The BTI square meterage of the Premises comprises:
Area Square Meterage
Warehouse Premises
Mezzanine
Total
2.2 The BTI square meterage of the Warehouse Premises comprises:
______ sq.m. on the 1st floor of the Building (premises No. 1, number on the plan No. 6 (part));
2.3 The BTI square meterage of the Mezzanine comprises:
______sq.m. on the 3rd floor of the Building (premises No. 1 number on the plan No. 51 (part), 52, 53);
3 The Parties hereby agree that, subject to provisions of paragraphs 3 and 4 of each Schedule 5 and 6, the Tenant’s Share and the Complex Percentage at the date of this Lease are 14.96% and 1.76% respectively. Notwithstanding any other provisions of this Lease to the contrary, if the Landlord determines that the Tenant’s Share and/or the Complex Percentage is(are) inaccurate the Landlord may amend such Tenant’s Share and/or the Complex Percentage and shall promptly supply notice to the Tenant of the new Tenant’s Share and/or the Complex Percentage (accordingly) and the basis of its/their calculation.
4 The Parties also agree that, notwithstanding any other provisions of this Lease to the contrary, the Tenant’s Share may change from time to time during the Term if the Rentable Area of the Building changes and the Complex Percentage may change from time to time during the Term if the Rentable Area of the Complex changes, and if this is the case the Landlord shall amend the Tenant’s Share and the Complex Percentage accordingly and shall promptly supply notice to the Tenant of the new Tenant’s Share and, if applicable, of the new Complex Percentage and the basis of its/their calculation.
5 For the purposes of this Lease the Premises include (for the avoidance of doubt, operating responsibility in respect of the Conduits as well as in respect of the facilities and equipment in the Premises shall be determined in accordance with the Act of Division of Operating Responsibility and the Inventory):
(i) if any, the floor covering, screed plaster and other finishes on the floors, walls, columns and ceilings and all carpets;
(ii) if any, the raised floors and false ceilings and the voids between the ceilings and false ceilings and the floor slab and the raised floors;
(iii) non-load-bearing walls and, if any, columns in the Premises and one half of the thickness of such walls dividing the Premises from other parts of the Building;
(iv) all doors and internal and external windows (subject to Landlord’s obligation to clean external windows) and their frames, glass and fitments;
(v) all Conduits, plant and machinery, fixtures and fittings within and solely serving the Premises;
(vi) if any, all alterations and additions in the Premises;
but exclude:
(vii) all structural and external parts of the Building;
(viii) all Conduits, plant and machinery serving other parts of the Building.
SCHEDULE 4
INSURANCE
1 Landlord’s Insurance Obligations
1.1 To insure
1.1.1 The Landlord shall insure the Complex (other than the Tenant’s Works, the Tenant’s or other occupiers’ possessions or improvements or alterations or the Tenant’s or other occupiers’ trade fixtures and fittings) unless the insurance is invalidated in whole or in part by an act or default of the Tenant or of any other tenant or occupier of the Complex, to the extent such insurance is available in the market at reasonable and competitive rates:
(i) against loss or damage by the Insured Risks; and
(ii) in an amount which is the Landlord’s reasonable estimate of the Full Cost of Reinstatement;
subject to such excesses, exclusions and limitations as may be imposed by the insurers.
1.1.2 The Landlord shall maintain employer’s and third party liability insurance in relation to the Building.
1.1.3 The Landlord may (but shall not be obliged to) insure against Loss of Rent.
1.2 To rebuild
1.2.1 If any part of the Building is destroyed or damaged by any Insured Risk then except to the extent that payment of the insurance monies is refused in whole or part because of the vitiation of the Insurance Policy in whole or part by an act or default of the Tenant or of any other tenant or occupier of the Complex, and subject to obtaining all necessary consents or permissions of the competent Authorities, the Landlord shall as quickly as reasonably practicable lay out all insurance monies received (except those relating to the Loss of Rent and other payments hereunder) in rebuilding or reinstating the same (other than Tenant’s Works, Tenant’s or other Building’s tenants’ or occupiers’ possessions or improvements or alterations or the Tenant’s or other tenants’ or occupiers’ trade fixtures and fittings) in substantially the same form as it was before the destruction or damage, with such variations as the Landlord may reasonably require.
1.2.2 If the cost of rebuilding or reinstating the Building exceeds the insurance monies received (other than for Loss of Rent and other payments hereunder) on account of such destruction or damage by more than US Dollars 1,000,000 (one million) the Landlord shall notify the Tenant on such excess within 10 (ten) business days from the date when the Landlord becomes aware of such excess and the Landlord shall have the right to refuse to perform and unilaterally to terminate this Lease in accordance with Clause 9.1.8.
1.3 To provide information
At the request and cost of the Tenant the Landlord shall produce to the Tenant copies or, at Landlord’s choice, details of the Insurance Policies.
2 Tenant’s Insurance Obligations
2.1 In relation to the Landlord’s insurance obligations
2.1.1 The Tenant shall not cause any of the Insurance Policies to be void or voidable.
2.1.2 The Tenant shall not do anything at the Building which would or might prejudice or invalidate the insurance maintained by the Landlord pursuant to paragraph 1.1 of this Schedule 4 or cause any premium for such insurance to be increased.
2.1.3 The Tenant shall notify the Landlord of the incidence of any Insured Risk or any other matter which ought reasonably to be notified to the Landlord’s insurers as soon as it becomes aware of the same.
2.1.4 The Tenant shall pay on written demand the whole of any increase in any premium arising from an act or default of the Tenant.
2.1.5 The Tenant shall comply with all the conditions of the Insurance Policies and all requirements and recommendations of the Landlord’s insurers.
2.1.6 The Tenant shall notify the Landlord in writing of the value of any alterations, additions or improvements which the Tenant or any sub-tenant proposes to make before those works are commenced.
2.2 To insure
The Tenant shall effect and maintain insurance with a properly licensed insurance company having good reputation in respect of:
2.2.1 all risks insurance of all Tenant's Works for their full cost of reinstatement and otherwise in accordance with paragraph 8 of Schedule 8;
2.2.2 all risks insurance of the Premises’ contents, property, goods and equipment of the Tenant, in each case for their full cost of reinstatement (without applicable deductibles);
2.2.3 third party liability with the overall minimum coverage of ______ Russian Roubles (without applicable deductibles);
2.2.4 all risks insurance of all Tenants’ or third party stocks of goods to be stored or otherwise located by the Tenant or under the Tenant’s consent or instructions in the Premises for the full cost of reinstatement of such stocks of goods (without applicable deductibles).
Each of the insurances required under this paragraph 2.2 above shall provide for exclusion of liability of the Landlord to an insurance company by way of subrogation.
The Tenant shall provide to the Landlord copies or, at Landlord’s choice, full details of the insurance required from the Tenant under this Lease together with the evidence that it is in force and that all due insurance premiums have been properly paid and the Tenant shall notify the Landlord in writing of any change in such insurance policies / insurance agreements. The insurance effected by the Tenant pursuant to paragraphs 2.2.1, 2.2.2 and 2.2.4 of this Schedule 4 shall be against damage or destruction by the same risks as the Insured Risks. All insurance required from the Tenant shall otherwise be on such terms and with such insurance companies approved by the Landlord in writing in advance.
In the event of damage to the Tenant’s Works the Tenant shall as quickly as practicable reinstate the same (with such variations as may reasonably be required subject to Landlord’s consent in accordance with Schedule 8) applying for these purposes all insurance proceeds received and otherwise making up any shortfall out of its own money.
3 Invalidation of Insurance
If insurance money under any of the Insurance Policies is wholly or partly irrecoverable by reason of any act or default of the Tenant or any employee, agent, contractor, service provider or invitee of the Tenant or of any other person or entity for whose actions or omissions the Tenant is liable hereunder or where the sum insured is inadequate as a result of a breach by the Tenant of any of its obligations in this Lease then the Tenant shall forthwith pay to the Landlord upon written demand the irrecoverable amount or the amount of such shortfall as the case may be.
4 Suspension of Base Rent
If the Building is damaged or destroyed by any of the Insured Risks so that the whole of the Premises are unfit for occupation and the Permitted Use in accordance with this Lease and are not occupied and used by the Tenant then (save to the extent that (a) money otherwise payable under any Insurance Policy shall be irrecoverable by reason solely or in part of any act or default of the Tenant or (b) the relevant insured event occurs as a result of the act or default of any person specified in item (a) above) the Base Rent or its fair proportion (as determined by the Landlord acting reasonably) according to the nature and extent of the damage shall be suspended from the date upon which the Tenant stopped occupying and using the Premises in accordance with their Permitted Use as a result of their unusability till the earlier of:
(i) the date upon which the Building was sufficiently reinstated so that the Tenant could carry out the earlier of (a) replacement of the Tenant’s Works or (b) re-occupation of the Premises for the Permitted Use; and
(ii) the expiry of any Loss of Rent insurance period, if relevant.
5 Termination
If the Building is damaged or destroyed by any of the Insured Risks so that the Premises are unfit for occupation and the Permitted Use in accordance with this Lease and are not occupied and used by the Tenant and if the Building has not been sufficiently reinstated within twelve (12) months after that destruction or damage occurs so that the Tenant may carry out the earlier of: (i) replacement of the Tenant’s Works and (ii) re-occupation of the Premises for the Permitted Use, then either the Landlord or the Tenant may by written notice to the other Party served at any time after expiration of the above-mentioned reinstatement period (but in any case before such reinstatement of the Building has been made) refuse to perform and unilaterally terminate this Lease and if such notice is served this Lease shall be terminated at the date of delivery of such notice to the other Party but the termination shall be without prejudice to any right of action of any Party in respect of any previous breach of this Lease by the other Party.
SCHEDULE 5
OPERATING COSTS
Part I - Calculation and payment of the Operating Costs
1 The Operating Costs form a variable part of the Rent and shall represent the Tenant’s Share and, where relevant, the Complex Percentage of the Costs in respect of each Accounting Year, and if only part of an Accounting Year falls within the Term the Operating Costs shall be the Tenant’s Share or, where relevant, the Complex Percentage of the Costs in respect of relevant Accounting Year divided by 365 and multiplied by the number of days of the Accounting Year within the Term.
2 The Landlord shall have the right to adjust the Tenant’s Share and/or the Complex Percentage (for the purposes of determining the Operating Costs due from the Tenant including expenses detailed in the paragraph 1.1.7 of Clause 1 of the Part II (B) of the present Schedule 5) to make reasonable and proper allowances for differences in the services provided to or enjoyable by other Lettable Units in the Building and/or within the Complex.
3 The Tenant shall pay the Estimated Operating Costs for each Accounting Year to the Landlord in advance by equal monthly instalments before the relevant Payment Date, the first payment for the period from the Commencement Date (inclusive) to (but excluding) the next Payment Date to be made on or before the Commencement Date.
4 If the Landlord or the Landlord’s Surveyor does not notify the Tenant of an estimate of the Operating Costs for any Accounting Year, the Estimated Operating Costs for the preceding Accounting Year shall apply and any adjustment to the Estimated Operating Costs after the start of an Accounting Year shall adjust the payments on the following Payment Dates equally.
5 As soon as practicable after the end of each Accounting Year the Landlord shall serve on the Tenant a summary of the Costs and a statement of the actual amount of the Operating Costs certified by the Landlord’s Surveyor or, if the Landlord’s Surveyor is not appointed, by the Landlord (which shall be conclusive, save in the case of manifest error).
5.1 If the actual amount of the Operating Costs specified in the statement provided by the Landlord in accordance with the first subparagraph of paragraph 5 of this Schedule 5 exceeds the amount of the Estimated Operating Costs for the relevant Accounting Year, then the Rent for the last month of the relevant Accounting Year shall be increased by the difference between the actual amount of the Operating Costs and the amount of the Estimated Operating Costs for such period. The amount of the relevant increase of the Rent for the last month of the Accounting Year shall be paid by the Tenant to the Landlord within ten (10) days of the date of service to the Tenant of the statement for the Accounting Year pursuant to the first subparagraph of paragraph 5 of this Schedule 5 and an invoice from the Landlord for such amount.
5.2 If the amount of the Estimated Operating Costs for the relevant Accounting Year exceeds the actual amount of the Operating Costs specified in the statement provided by the Landlord in accordance with the first subparagraph of paragraph 5 of this Schedule 5, then the Rent for the last month of the relevant Accounting Year shall be decreased by the difference between the actual amount of the Operating Costs and the amount of the Estimated Operating Costs for such period. The overpayment shall be allowed against the next Estimated Operating Costs payment, or if there is none due, refunded to the Tenant within ten (10) days from the date of execution of the Tenant to Landlord Act of Transfer and Acceptance.
6 At the Landlord’s discretion, a brief report on Expenses and a statement of the actual Operating Costs may be provided at any time and for any periods (including monthly or quarterly) during the Accounting Year and shall indicate the actual Operating Costs to be reflected in the accounting statements of the Parties. At the Landlord’s request the Tenant shall pay to the Landlord a difference between the Estimated Operating Costs paid by the Tenant for the relevant period and the actual amount of the Operating Costs specified in the documentation received from the Landlord, within ten (10) days from the date of receipt of the documentation specified herein. If the Landlord used its right to claim from the Tenant for payment of the difference between the amount of the actual Operating Costs and the Estimated Operating Costs in the manner described in this paragraph 6, then provisions of the paragraph 5.1 of this Schedule 5 shall not apply.
7 In case of a failure by the Tenant to pay the actual Operating Costs within the term specified in paragraph 6 of this Schedule 5, or in case of a failure by the Tenant to pay the amount of increase of the Rent for the last month of the relevant Accounting Year within the term specified in paragraph 5.1 of this Schedule 5, the Tenant shall be liable for the relevant delay in accordance with this Lease. If the Estimated Operating Costs paid by the Tenant for any Accounting Year (or its part) exceed the actual Operating Costs to be paid by the Tenant for such Accounting Year (or its part), there shall be no interest in favour of the Tenant on the amount of such excess.
8 The Tenant shall be entitled by appointment, but no more than once in any six month period, to inspect the accounts relating to the Costs and supporting vouchers and receipts at such location as the Landlord reasonably directs.
PART II (A) - OPERATING ACTIONS
1 Maintenance of the Building
Current and capital repair of the Building (save for current repair of the Premises performance of which is an obligation of the Tenant under this Lease), decoration, cleaning and maintenance of:
1.1 the foundations, roof, exterior and structure of the Building;
1.2 Conduits, plant and equipment of the Building (which are not the responsibility of any tenants of the Building);
1.3 the Car Parks.
2 Maintenance of the Common Areas
2.1 Current and capital repair, decoration, cleaning, other maintenance of the Common Areas of the Building and the Complex and other parts of the Building not comprising the Lettable Units as well as the Land Plot (and other land plots required for the operation of the Complex), Car Parks and Conduits;
2.2 Furnishing and equipping the Common Areas of the Building and the Complex;
2.3 Cleaning the outside of all external windows;
2.4 Providing and maintaining any plants or landscaping in the Common Areas;
2.5 Providing refuse containers and operating a refuse storage and collection service for the Building and the Complex; collection, removal and dumping of garbage and waste from the Common Areas;
2.6 Providing signs, nameboards and other notices within the Common Areas;
2.7 Removal and utilisation of snow and ice clearance from the Building and from the Common Areas; and
2.8 Lighting of the Common Areas (power consumption changes to be paid separately as part of the Utility Payments in accordance with this Lease) and replacement of bulbs in the Common Areas.
3 Provision of the utilities
3.1 Procuring heating to the Building not below 12°C in winter provided that check measurements of the average temperature shall be made in the Premises which have been closed for not less than 12 hours at 3 points located on 1,5 m from the floor (herewith, the cost of the heating supply service itself shall not be included in the Operating Costs and shall be included in the Utility Payments in accordance with this Lease);
3.2 Procuring electricity supply to and water and sewage services in the Building and the Complex (herewith, the cost of the electricity supply, water and sewage services themselves shall not be included in the Operating Costs and shall be included in the Utility Payments in accordance with this Lease).
4 Security
4.1 Secure the perimeter security of the Complex, provision of personnel to secure the Complex to the extent the Landlord shall deem appropriate and sufficient.
4.2 Organisation and maintenance of check points operation for vehicles and people according to the Complex Rules and Regulations;
4.3 Provision, operation, repair, renewal, other maintenance of security alarms, security and special equipment, apparatus and systems in the Common Areas and for the perimeter of the Complex as the Landlord considers appropriate.
5 Technical Maintenance
Servicing and exploitation, repairs, replacement and maintenance of basic heating, ventilation, sprinkler systems, fire alarm, fire prevention and fire fighting equipment, electric power and lighting systems, automatic control and management systems, water and sewage network, disposal systems, respective engineering equipment, apparatus, units and devices of the Complex in accordance with the Act of Division of Operating Responsibility.
6 Repairs to the Land Plot
Capital and current repair, maintenance, replacement or reconstruction of asphalt and concrete coating of all roads on the Land Plot (and other land plots required for the operation of the Complex and the Conduits), access roads, maintenance of road markings and traffic signs.
7 Rendering of Management and Administrative Services
7.1 Organisation and maintenance of relations with tenants in the Complex, control over observance of term and conditions of lease agreements;
7.2 Maintenance and control of the performance of agreements for provision of utilities, other agreements necessary in order to provide servicing of the Complex;
7.3 Organisation of insurance and keeping in force of the Insurance Policies;
7.4 Administration of the Operating Actions, choice of suppliers of goods and services, planning, organisation and rendering of all works necessary to service the Conduits and the Complex, legal support within the framework of this paragraph;
7.5 Maintenance of accounting according to the applicable law;
7.6 Interaction with control and surveillance authorities, organisation and control for execution of their instructions;
7.7 Reporting to the Tenant according to the terms hereof;
7.8 Dispatching control of the traffic flow with regard to entrance and departure of vehicles to / from the Complex.
PART II (B) - EXPENSES
1 Insurances
1.1 Insurance premiums and other costs for the following:
1.1.1 the cost of insuring against the Insured Risks of the Building, the Complex and the cost of insurance of any plant, machinery, building or structures owned by the Landlord or located in the Complex and forming its part;
1.1.2 the cost of insuring by the Landlord against employers’ and third party liability;
1.1.3 professional valuations for insurance purposes (but not more than once in any two year period);
1.1.4 any uninsured excesses or deductible to which the Landlord’s insurance may be subject;
1.1.5 cost of preparing, filing and settling any claims on insurance payments relating to the Building and/or the Complex;
1.1.6 the cost of any valuation required by the insurance company in respect of any of the insurance specified above;
1.1.7 the cost associated with insurance or extended insurance cover under the Insurance Policies of the Landlord in connection with the Tenant’s activity in the Premises and/or with the Premises use by the Tenant in accordance with the Permitted Use;
1.1.8 the cost of insurance against the Loss of Rent.
2 Statutory Requirements
2.1 All existing and future taxes (including the property tax (налог на имущество) on the Building and the Complex as well as the land tax (земельный налог) in respect of the Land Plot and other land plots required for the operation of the Complex and the Conduits), rent payments for the Land Plot and other land plots required for the operation of the Complex and the Conduits, other rates, charges (both existing and those which may arise in the future, including, if adopted, the real estate tax) payable to any Authority or in connection with utilities, all the above mentioned taxes, rates, charges and other payments imposed on the owner, the tenant or the occupier in respect of the Building, Complex, Land Plot and / or property used to carry out any Operating Actions except only any tax arising on any sale or other disposal by the Landlord of its interest in the Building or any income or profits tax on the Rent;
2.2 The cost of complying with, making representations against or otherwise contesting any obligations from time to time created by any Authority which will or may affect the Premises, the Building and/or the Complex.
3 Payment for the Operating Actions
All expenses of the Landlord incurred during performance or procurement of the Operating Actions provided in paragraphs 1-6 of Part II (A) of this Schedule 5.
4 Fees and Management Charges
4.1 Management fees (paragraph 7 of Part II (A) of this Schedule 5) in the amount per annum being 3% of the aggregate of the annual Base Rent due to the Landlord according to Clause 4.1 of this Lease; and
4.2 Fees and disbursements of technical and legal advisers and others in connection with the carrying out of the Operating Actions and the administration of the Operating Costs (including any audit thereof).
5 Additional Expenses
The Rent shall be increased by any VAT incurred by the Landlord on any of the Costs, to the extent the Landlord does not recover such VAT.
6 Staff
Providing staff in connection with the Operating Actions and the general management, operation and security of the Building and the Complex and all other incidental expenditure including but not limited to:
6.1 salaries, insurance contributions to the state extra-budgetary funds, social payments and benefits;
6.2 uniforms, special clothing, tools and other materials for the proper performance of the duties of any such staff;
6.3 providing premises and accommodation and other facilities for staff.
7 Conduits
All expenses and costs of the Landlord incurred in connection with use of the Conduits including, but not limited to, payments made by the Landlord to the owners or holders of the relevant Conduits for such use and / or for the right to conduct the relevant substance or energy through or with the help of any such Conduits.
8 Miscellaneous items
8.1 Leasing or hiring and when necessary purchasing any machinery and equipment used in connection with the provision of the Operating Actions;
8.2 Establishing and maintaining reserves to meet the future costs (as from time to time estimated by the Landlord or the Landlord’s Surveyor) of providing the Operating Actions.
SCHEDULE 6
UTILITY PAYMENTS
1 The Utility Payments form a variable part of the Rent and shall be calculated in respect of each Accounting Year during the Term. If the Term covers only the part of the Accounting Year the Utility Payments shall be calculated as Utility Payments in relation of a respective Accounting Year divided by 365 and multiplied by the number of days of the Term in the Accounting Year.
2 The Landlord shall have the right to adjust the Tenant’s Share and/or the Complex Percentage (for the purposes of determining the Utility Payments due from the Tenant) from time to time to make reasonable allowances for differences in the utilities provided to or enjoyable by various Lettable Units in the Building and/or in the Complex.
3 The Tenant shall pay the Estimated Utility Payments for each Accounting Year to the Landlord in advance by equal monthly instalments before the relevant Payment Date, the first payment for the period from the Commencement Date (inclusive) to (but excluding) the next Payment Date to be made on or before the Commencement Date.
4 If the Landlord or the Landlord’s Surveyor does not notify an estimate of the Utility Payments for any Accounting Year, the Estimated Utility Payments for the preceding Accounting Year shall apply and any adjustment to the Estimated Utility Payments after the start of an Accounting Year shall adjust the payments on the following Payment Dates equally.
5 As soon as practicable after the end of each Accounting Year the Landlord shall serve on the Tenant a summary of the actual Utility Payments certified by the Landlord’s Surveyor or, if the Landlord’s Surveyor is not appointed, by the Landlord (and such summary shall be conclusive and final).
5.1 If the actual amount of the Utility Payments specified in the statement provided by the Landlord in accordance with the first subparagraph of paragraph 5 of this Schedule 6 exceeds the amount of the Estimated Utility Payments for the relevant Accounting Year, then the Rent for the last month of the relevant Accounting Year shall be increased by the difference between the actual amount of the Utility Payments and the amount of the Estimated Utility Payments for such period. The amount of the relevant increase of the Rent for the last month of the Accounting Year shall be paid by the Tenant within ten (10) days of the date of service to the Tenant of the statement for the Accounting Year pursuant to the first subparagraph of paragraph 5 of this Schedule 6 and an invoice from the Landlord for such amount.
5.2 If the amount of the Estimated Utility Payments for the relevant Accounting Year exceeds the actual amount of the Utility Payments specified in the statement provided by the Landlord in accordance with the first subparagraph of paragraph 5 of this Schedule 6, then the Rent for the last month of the relevant Accounting Year shall be decreased by the difference between the actual amount of the Utility Payments and the amount of the Estimated Utility Payments for such period. The overpayment shall be allowed against the next Estimated Utility Payments payment, or if there is none due, refunded to the Tenant within ten (10) days from the date of execution of the Tenant to Landlord Act of Transfer and Acceptance.
6 At the Landlord’s discretion a statement of the actual Utility Payments may be provided at any time and for any periods (including monthly or quarterly) during the Accounting Year and shall indicate the actual Utility Payments to be reflected in the accounting statements of the Parties. At the Landlord’s request the Tenant shall pay to the Landlord a difference between the Estimated Utility Payments paid by the Tenant for the relevant period and the actual amount of the Utility Payments specified in the documentation received from the Landlord, within ten (10) days from the date of receipt of the documentation specified herein. If the Landlord used its right to claim from the Tenant for payment of the difference between the amount of the actual Utility Payments and the Estimated Utility Payments in the manner described in this paragraph 6, then provisions of the paragraph 5.1 of this Schedule 6 shall not apply.
7 In case of a failure by the Tenant to pay the actual Utility Payments within the term specified in paragraph 6 of this Schedule 6, or in case of a failure by the Tenant to pay the amount of increase of the Rent for the fourth quarter of the relevant Accounting Year within the term specified in paragraph 5.1 of this Schedule 6, the Tenant shall be liable for the relevant delay in accordance with this Lease. If the Estimated Utility Payments paid by the Tenant for any Accounting Year (or its part) exceed the actual Utility Payments to be paid by the Tenant for such Accounting Year (or its part), there shall be no interest in favour of the Tenant on the amount of such excess.
8 The Tenant shall be entitled by appointment, but no more than once in any six month period, to inspect the accounts relating to the Utility Payments and supporting invoices of the relevant utility suppliers at such location as the Landlord reasonably directs.
SCHEDULE 7
GUARANTEE DEPOSIT
1 In the event of any increase in the amount of the Base Rent, the Tenant shall within five (5) business days from the date of such increase (on the basis of the respective invoice from the Landlord) pay to the Landlord the additional amount of the Guarantee Deposit which corresponds to the amount of such increase, so that the Guarantee Deposit at any time is not less than then-current amount of the Base Rent under the Lease payable for 1 (one) month of the Term, plus VAT on such amount.
2 The Guarantee Deposit shall be held (as provided in this Schedule 7) and used by the Landlord until the return of the amount of the Guarantee Deposit to the Tenant in case of termination of this Lease subject to provisions of paragraphs 3 and 7 of this Schedule 7, provided that there shall be no interest payable to the Tenant for the period of holding and usage of the Guarantee Deposit by the Landlord and the Landlord shall be entitled to commingle the Guarantee Deposit’s amount with other funds of the Landlord. The Landlord and the Tenant agree that the Guarantee Deposit is a defined means of security of performance by the Tenant of its obligations under this Lease. The Guarantee Deposit shall not be construed as an earnest money (zadatok) nor an advance (avans).
3 The Tenant and the Landlord hereby agree that, without prejudice to any right or remedy which the Landlord may have, the Landlord shall be entitled to withdraw from the Guarantee Deposit from time to time the sums specified below:
(a) the amount of sums due to the Landlord under or in connection with this Lease which have not been received by the Landlord (or, if applicable, such other person which was specified by the Landlord as a receiver of the relevant payment) at the relevant due date;
(b) the amount of any losses suffered and/or the amount of damages, costs and/or expenses incurred by the Landlord (A) as a result of damage to the Premises, the Building or the Complex or to any other Landlord’s property, which occurred due to the Tenant’s fault, actions or omissions, (B) as a result of any breach of any of the Tenant’s obligations under this Lease or the Short-Term Lease and/or (C) otherwise as a result of any circumstances for which the Tenant is liable to the Landlord under applicable law;
(c) the whole amount of the Guarantee Deposit (as a part of the punitive penalty) in the event, stipulated in Clause 9.2(i) ;
4 The Landlord shall notify the Tenant on any withdrawal of any sum from the Guarantee Deposit. Such notice (and the respective invoice) shall be sent to the Tenant within 14 days from the date the Landlord making a withdrawal and should contain the calculation of the withdrawal amount, information explaining the reason for the withdrawal and the date of withdrawal.
5 The Tenant shall within ten (10) days of receiving a notice and invoice of the Landlord specified in paragraph 4 of this Schedule 7 pay to the Landlord the sum necessary to restore the Guarantee Deposit to its original amount.
6 It is hereby agreed between the Parties that the payment of the Guarantee Deposit by the Tenant shall not prejudice any right of action the Landlord has against the Tenant for any breach of any of its obligations in this Lease or entitle the Tenant to withhold any money or fail to perform any of its obligations in this Lease.
7 Subject to provisions of paragraph 3 of this Schedule 7, the Guarantee Deposit or any balance due and remaining shall be repaid to the Tenant (less any tax due thereon) within ten (10) business days from the date of the later of: (a) termination of this Lease and (b) full satisfaction by the Tenant of all of its obligations to the Landlord under and in connection with this Lease.
SCHEDULE 8
TENANT’S WORKS
1 The Tenant shall:
1.1 Not make any Tenant’s Works, without prior written consent of the Landlord, which:
(a) affect the structure of the Building (including without limitation the roofs, foundations and the principal or load-bearing walls, floors, beams and columns);
(b) divide the Premises or merge the Premises with any adjoining premises;
(c) affect the external appearance of the Premises or the Building;
(d) [affect any of the Landlord’s Works;]
(e) change the Rentable Area of the Building and/or the Premises; or
(f) affect any heating, air conditioning, ventilation or other systems in the Building.
1.2 Not make any other Tenant’s Works in the Premises or in respect of any Conduits, plant or equipment serving only the Premises without the Landlord’s consent.
2 The Tenant shall before commencing the Tenant’s Works submit for approval of the Landlord and agree with the Landlord:
(a) fully completed design of the Tenant’s Works (including, inter alia, architectural and mechanical and electrical design of the Tenant’s Works in the Premises);
(b) specifications of the Tenant’s Works and the timetable for the Tenant’s Works;
(c) quality certificates for all materials and equipment to be used in the Tenant’s Works and list of suppliers of such materials and equipment;
(d) the list of Tenant’s Works’ contractors, sub-contractors and designers (together with copies of their licences or, if applicable, certificates on admission to the relevant types of works, issued by the self-regulatory organisation which such (sub-)contractors and designers are the members of);
(e) documents confirming approval of the design and specifications of the Tenant’s Works with all competent Authorities and organisations; and
(f) all other documents relating to the Tenant’s Works which may be reasonably required by the Landlord.
3 Any information and documents including certificates, licences, specifications of equipment which require Landlord’s review and approval under this Lease shall be submitted by the Tenant to the Landlord both in Russian and in English languages.
4 The Tenant shall procure carrying out and completion of the Tenant’s Works in a good and workmanlike manner to the satisfaction of the Landlord using only suitable good quality materials and in accordance with:
(a) applicable requirements of Russian law and of construction norms and rules;
(b) approvals of the Landlord of all documents submitted to it in accordance with paragraph 2 of this Schedule 8;
(c) timetable for the Tenant’s Works, as agreed between the Parties;
(d) specifications of the Tenant’s Works;
(e) regulatory and other consents and approvals required by legislation for the Tenant’s Works;
(f) the provisions of this Lease; and
(g) guidance notes and regulations for Tenant’s Works as may be issued and amended by the Landlord from time to time.
5 In relation to the Tenant’s Works in the Premises the Tenant shall:
(a) take such precautions at all times and at its own cost as the Landlord and/or its insurers may reasonably require for the protection of the Building and the Complex;
(b) comply with such regulations and Complex Rules and Regulations as the Landlord shall from time to time make as to means of access and times of access (whether for persons or vehicles), hours of business, parking vehicles and security;
(c) if reasonably required by the Landlord provide and maintain temporary hoardings of a type and appearance designated by the Landlord in order to separate the Premises from adjacent premises or the Common Areas;
(d) not make considerable noise or cause any damage, annoyance or inconvenience to the Landlord or the owners, tenants or occupiers of the Building or the Complex;
(e) permit the Landlord or its authorised representatives to access to the Premises at any time to inspect the Tenant’s Works or for the purposes of the Landlord’s contractors or sub-contractors to carry out any works in the Building or the Premises which may be done by the Landlord, including for the purposes of testing the Building’s mechanical and electrical systems – in accordance with the procedure set out in Clause 6.13 of the Lease;
(f) indemnify the Landlord against any costs, damages and losses arising from any damage to the Building or any other property and/or to any other Landlord’s belongings occurring as a result of the carrying out of the Tenant’s Works;
(g) indemnify the Landlord against any costs, damages and losses arising from claims against the Landlord in connection with death of, or injury to any person occurring as a result of the carrying out of the Tenant’s Works;
(h) pay all the project management costs of the coordinator of fit-out works and all surveyor’s, legal and other costs and expenses incurred by the Landlord in connection with the review and approval of the documents and the inspection of the Tenant’s Works together, in all cases, with VAT applicable to such amounts. The Parties have agreed that if the amount of possible costs as they described in this paragraph (h) at the Landlord’s estimate under one application exceeds 10,000 (ten thousand) Russian Roubles, the Landlord shall notify the Tenant on possible excess and is not obliged to give a consent or review such application until receipt of the written approval from the Tenant of the relevant costs.
6 Upon completion of the Tenant’s Works the Tenant shall submit to the Landlord as-built specifications and drawings of the Tenant’s Works in the Premises in paper and electronic form. Moreover upon completion of the Tenant’s Works the Tenant shall provide to the Landlord, as soon as it is reasonably possible, as-built documentation in respect of the Tenant’s Works as well as confirmation of obtaining by the Tenant of all approvals and permits in respect of the Tenant’s Works required in accordance with applicable Russian legislation.
7 At the request of the Landlord, upon completion of any Tenant’s Works the Tenant shall either carry out the BTI measurements of the Premises and obtain BTI plans and explication of the Premises at its own cost or compensate Landlord’s costs on BTI measurements of the Premises (if such measurements are undertaken by the Landlord).
8 The Tenant shall maintain during the carrying out of the Tenant’s Works and within six (6) months after the completion of the Tenant’s Works comprehensive insurance of installation and construction works, including:
(a) insurance against all risks of all the Tenant’s Works for their full cost of reinstatement (without applicable deductibles); and
(b) third party liability insurance (with the limit of liability in the amount not less than ______ Russian Roubles for each insured event (without applicable deductibles)) insuring, inter alia, liability of the contractors and sub-contractors carrying out the Tenant’s Works.
The relevant insurance agreements (i) shall be concluded by the Tenant with a properly licensed insurance company having a good reputation, and (ii) shall stipulate exclusion of liability of the Landlord to the insurance company by way of subrogation, except when the relevant insured event occurs as a result of Landlord’s wilful misconduct. The Tenant shall provide the Landlord upon demand with copies of any relevant insurance policy / insurance agreement and evidence that it is in force and that all the insurance premiums due for payment thereunder have been paid.
SCHEDULE 9
FORM OF LANDLORD TO TENANT ACT OF TRANSFER AND ACCEPTANCE
City of [ ] [Date]
[ ] (the “Tenant”) hereby confirms its acceptance of the Premises leased to it pursuant to the Long-Term Lease No. ___ made between [ ] (the “Landlord”) and the Tenant and dated [ ] (the “Lease”).
The Tenant confirms that the Premises have been transferred to the Tenant in a condition compliant with the provisions of the Lease and that the Tenant has no claims against the Landlord in respect to the Premises.
Definitions used in this Act have the same meaning as in the Lease.
Signed by the Tenant Countersigned by the Landlord
[ ] [ ]
[ ] [ ]
SCHEDULE 10
FORM OF TENANT TO LANDLORD ACT OF TRANSFER AND ACCEPTANCE
City of [ ] [Date]
[ ] (the “Landlord”) hereby confirms that [ ] (the “Tenant”) has returned to us as of the date of this Act the Premises which were leased to the Tenant pursuant to the Long-Term Lease No. ____ made between the Landlord and the Tenant and dated [ ] (the “Lease”).
The Premises have been transferred to the Landlord in a condition compliant with the provisions of the Lease [other than [list incompliances with requirements of Clause 10.1 of the Lease]].
The definitions used in this Act have the same meaning as in the Lease.
Signed by the Landlord Countersigned by the Tenant
[ ] [ ]
[ ] [ ]
SCHEDULE 11
FORM OF INVENTORY
1 Warehouse Premises and Mezzanine
Item No. Type/name of utilities, engineering equipment, facility or unit Brand/ Model Size/ Length
of Utilities Number of Pieces / Sets Notes
1
2
3
4
5
6
7
8
9
10
SCHEDULE 12
FORM OF ACT OF DIVISION OF RESPONSIBILITY
_________________, 20____
This Act of Division of Operating Responsibility (the “Act”) is executed between:
(1) [full name of the Landlord], [the company] incorporated under the laws of [ ], [main state registration number [ ]], located at: [full legal address, including the postal index], represented by [position] [full name] acting on the grounds of the [charter/power of attorney] (the “Landlord”), and
(2) [full name of the Tenant] [the company] incorporated under the laws of [ ], [main state registration number [ ]], located at: [full legal address, including the postal index], represented by [position] [full name] acting on the grounds of the [charter/power of attorney] (the “Tenant”);
and establishes the procedure for division of operating responsibility in relation to the scheduled and preventive maintenance and repairs of utilities, engineering equipment, facilities and units.
From the moment of execution hereof the following engineering systems located at the Premises and included into the scope of the Tenant’s operating responsibility are considered transferred by the Landlord and accepted by the Tenant for the scheduled and preventive maintenance and repairs:
1 Power Supply System:
1.1 Power supply of the Premises is performed via the cable lines to distribution boards: SchS (ЩС) and corresponds to the third category of reliability.
1.2 The division of responsibility for operation of power units between the Landlord and the Tenant is as follows: [ ].
2 (Cold and Hot) Water Supply System:
The scope of the Tenant’s responsibilities includes equipment (including sanitation equipment) and pipelines for cold and hot water supply from the output fittings located in the specific heating unit (ИТП) and to the input valves in the specific heating unit.
3 Sewage Systems:
The scope of the Tenant’s responsibilities includes: [ ]
4 Air Curtains:
The scope of the Tenant’s responsibilities includes: [ ]
5 Ventilation System:
The scope of the Tenant’s responsibilities includes: [ ]
6 Loading and Unloading Machines, Dockage Facilities (Including Elements Located Outside of the Building):
The scope of the Tenant’s responsibilities includes: [ ]
7 Vertical-Lift Gate, Doors and Windows (Including Elements Located Outside of the Building):
The scope of the Tenant’s responsibilities includes: [ ]
8 Fire Extinguishing System (as of the Moment of the Complex’s Commissioning):
The scope of the Landlord’s responsibilities includes: [ ]
9 Automatic Fire Alarm and Automatic Systems:
The scope of the Landlord’s responsibilities includes: [ ]
10 Heating System:
The scope of the Landlord’s responsibilities includes: [ ]
11 Other (central) installations situated in the Complex’s area before the above boundaries are within the scope of the Landlord’s operational responsibilities.
12 The Tenant agrees independently and at its own expense to organize and to perform by means of engaging a specialized entity the works in relation to the scheduled and preventive maintenance and repair of systems and equipment transferred under this Act in accordance with applicable construction standards (SNiP), requirements of regulatory bodies, rules and regulations for operation and Landlord’s requirements.
13 During the guarantee period the Landlord is responsible for coordination of repairs and replacement of utilities, engineering equipment, facilities and units which became unserviceable not through the Tenant’s fault.
Signed by the Landlord Countersigned by the Tenant
[ ] [ ]
[ ] [ ]
SCHEDULE 13
FORM OF ACCESS ACT
city of ____________ «___» _____________ 20___
Hereby [ ] (the “Landlord”) and [ ] (the “Tenant”) confirm that:
(i) The Landlord has provided the Tenant with the opportunity to fulfil the Tenant’s Works in the Premises under the Long-Term Lease No. [number] dated [date] (the “Lease”);
(ii) The Access Date shall be the date hereof.
Terms used in this Act shall have the same meaning as in the Lease.
Signed [ ],
[ ]
on behalf of the Landlord (Signature)
Signed [ ],
[ ]
on behalf of the Tenant (Signature)
SCHEDULE 14
THE LANDLORD’S WORKS
№ Наименование Описание Работ Арендодателя Срок производства Работ Арендодателя
1 Устройство помещения зарядно ориентировочной площадью 36м2 Арендодатель выполняет комплекс работ по устройству металлокаркаса помещения зарядной, площадью около 36м2, с огнезащитой металлоконструкций. Осуществляет монтаж перегородок и перекрытий из сэндвич-панелей с минераловатным заполнением, монтаж огнестойких противопожарных откатных ворот 2500х5000мм;
Арендодатель выполняет работы по организации отдельного выход из помещения зарядной на улицу с устройством проема, монтажом двери и металлической лестницы;
Инженерные системы:
Предусмотреть устройство освещения мощностью 250 люкс с помощью взрывозащищенных светильников;
В зарядной необходимо предусмотреть 6 трехфазных розеток, рассчитанных на силу тока не менее16 А;
Обеспечить помещение зарядной системой общеобменной вентиляции.
В зарядной необходимо предусмотреть раковину с краном с подключением к водснабжению и канализации здания В течение 3 (трех) месяцев с даты подписания Договора Аренды
2 Устройство дополнительной входной группы Арендодатель выполняет работы по устройству дополнительной входной группы в арендуемое помещение.
Дополнительная входная группа размещается в осях 25-26.
Арендодатель выполняет работы по устройству металлического крыльца с навесом, устанавливает пластиковую входную дверь с остеклением В течение 3
(трех) месяцев
с Даты Доступа
3 Возведение разделительной перегородки из профлиста по границе арендованной зоны Складских Помещений Арендодатель монтирует разделительную перегородку из оцинкованного профлиста по границе арендованной площади с установкой металлического каркаса. Стойки каркаса устанавливаются через каждые 6 метров. Профлист доходит до низа ферм покрытия. В течение 3 (трех) месяцев с даты подписания Договора Аренды
4 Устройство лестницы на мезонин Арендодатель выполняет работы по устройству металлической лестницы из складской зоны на мезонин (отм. +6,000). В течение 3 (трех) месяцев с даты подписания Договора Аренды
Схема устройства разделительной перегородки, входной группы и лестницы на Мезонин
SCHEDULE 15
FORM OF LANDLORD’S WORKS COMPLETION ACT
city of _____ “___” _____________ 20__
[ ] (the “Landlord”) and [ ] (the “Tenant”) hereby confirm that in accordance with Long-Term Lease No. [number] dated [date] (the “Lease”):
(i) The Landlord has completed the Landlord’s Works in the following premises [description of this premises] with a total Rentable Area of [total rentable area of this premises] on the basis of the Lease;
(ii) The Landlord’s Works in the premises, specified in paragraph (i) of this Act, have been completed [without any outstanding items]/[ with minor items, the list of which is provided in the schedule to this Act and which the Landlord shall remedy within [ ] days;] and
(iii) The list of the equipment and other additions of the premises specified in paragraph (i) of this Act and to be included into the Inventory, is attached to this Act.
The Landlord’s Works Completion Date in the premises specified in paragraph (i) of this Act shall be the date of this Act.
The terms used in this Act shall have the same meaning as in the Lease.
Signed [ ],
[ ]
On behalf of the Tenant (Signature)
Signed [ ],
[ ]
on behalf of the Landlord (Signature)
SCHEDULE 16
CALCULATION UNDER CLAUSES 9.2 (ii) and 9.3
The Parties hereby agree that the amount of the Landlord’s costs and expenses connected with the Landlord’s Works which shall be compensated by the Tenant in accordance with paragraph (ii) of Clause 9.2 or Clause 9.3 of the Lease, shall be calculated on the basis of the below table. The actual amount payable by the Tenant to the Landlord in accordance with paragraph (ii) of Clause 9.2 or Clause 9.3 of the Lease (as the case may be) shall be determined depending on the actual time-period on which the Lease termination/expiry date falls and is indicated in the relevant cell of the column “The amount of the Landlord’s costs and expenses (in Russian Roubles, VAT exclusive)” in the same row as the time-period on which the Lease termination/expiry date falls.
No. Time-period on which the Lease termination/expiry date falls (last day of each relevant month inclusive) The amount of the Landlord’s costs and expenses (in Russian Roubles, VAT exclusive)
1. First month from the Commencement Date
2. Second month from the Commencement Date
3. Third month from the Commencement Date
4. Fourth month from the Commencement Date
5. Fifth month from the Commencement Date
6. Sixth month from the Commencement Date
7. Seventh month from the Commencement Date
8. Eighth month from the Commencement Date
9. Ninth month from the Commencement Date
10. Tenth month from the Commencement Date
11. Eleventh month from the Commencement Date
12. Twelfth month from the Commencement Date
13. Thirteenth month from the Commencement Date
14. Fourteenth month from the Commencement Date
15. Fifteenth month from the Commencement Date
16. Sixteenth month from the Commencement Date
17. Seventeenth month from the Commencement Date
18. Eighteenth month from the Commencement Date
19. Nineteenth month from the Commencement Date
20. Twentieth month from the Commencement Date
21. Twenty first month from the Commencement Date
22. Twenty second month from the Commencement Date
23. Twenty third month from the Commencement Date
24. Twenty fourth month from the Commencement Date
25. Twenty fifth month from the Commencement Date
26. Twenty sixth month from the Commencement Date
27. Twenty seventh month from the Commencement Date
28. Twenty eighth month from the Commencement Date
29. Twenty ninth month from the Commencement Date
30. Thirtieth month from the Commencement Date
31. Thirty first month from the Commencement Date
32. Thirty second month from the Commencement Date
33. Thirty third month from the Commencement Date
34. Thirty fourth month from the Commencement Date
35. Thirty fifth month from the Commencement Date
36. Thirty sixth month from the Commencement Date
37. Thirty seventh month from the Commencement Date
38. Thirty eighth month from the Commencement Date
39. Thirty ninth month from the Commencement Date
40. Fortieth month from the Commencement Date
41. Forty first month from the Commencement Date
42. Forty second month from the Commencement Date
43. Forty third month from the Commencement Date
44. Forty fourth month from the Commencement Date
45. Forty fifth month from the Commencement Date
46. Forty sixth month from the Commencement Date
47. Forty seventh month from the Commencement Date
48. Forty eighth month from the Commencement Date
49. Forty ninth month from the Commencement Date
50. Fiftieth month from the Commencement Date
51. Fifty first month from the Commencement Date
52. Fifty second month from the Commencement Date
53. Fifty third month from the Commencement Date
54. Fifty fourth month from the Commencement Date
55. Fifty fifth month from the Commencement Date
56. Fifty sixth month from the Commencement Date
57. Fifty seventh month from the Commencement Date
58. Fifty eighth month from the Commencement Date
59. Fifty ninth month from the Commencement Date
60. Sixtieth month from the Commencement Date
SCHEDULE 17
CONDITION OF THE PREMISES UNDER CLAUSE 10.1
1. Mezzanine:
1.1. Condition of the Mezzanine:
The Mezzanine shall be transferred to the Landlord in clean and repaired condition. Walls, floor, ceiling, stairs, structural parts and enclosures shall be without defects, windows and doors shall be without defects, clean and with all necessary fittings.
Defects of the floor of the Mezzanine such as chips, breaks, damage of the anti dust covering shall be restored. Temperature and expansion joints shall be filled out along the whole length. Results of fixing of metal bumpers, racks, other equipment to the floor and other supporting and fencing structures shall be removed. Marking made by the Tenant shall be removed.
Fire-proof coverage of the structural and enclosing structures shall be reinstated subject to compliance with fire resistance rules of the relevant structure. Works and contractor shall be approved by the Landlord as provided for in the Lease.
1.2. Property and equipment:
All fixed mechanical and electrical equipment, including Conduits, and all items set out in the Inventory shall be transferred fully completed in good operational condition without any mechanic or other impact (defects), including exterior of the gates opening.
All Tenant’s property, including signs, furniture and other goods shall be removed from the Mezzanine, all fitting shall be removed as well and places of such fittings shall be restored.
In particular, racks, fences, motion detectors, video control system installed by the Tenant shall be removed.
Any damaged or missing Landlord’s fixtures shall be replaced with ones of the same quality and designation.
1.3. The Tenant’s Works:
If not otherwise agreed b the Parties in writing, the Tenant shall remove all the results of all Tenant’s Works and any other alterations and improvements made by it and reinstate the Mezzanine to their condition specified in this Schedule. In particular, delete all magnetic locks and other fixtures of the control access system. Dismantle the video observation system, including equipment installed within the territory of the Complex and places of system’s fittings shall be repaired. Fireproof and other doors with open-end and other holes shall be replaced with the new ones.
Low-voltage, electric and other cables shall be removed, embrasures shall be covered over, all fittings shall be removed.
Results of the Tenant’s redesign of the premises shall be removed and the cost of technical BTI measurements shall be compensated to the Landlord.
2. Warehouse Premises:
2.1. Condition of the Warehouse Premises:
The Warehouse Premises shall be transferred to the Landlord in clean and repaired condition. Walls, floor, ceiling, stairs, structural parts and enclosures shall be without defects, windows and doors shall be without defects, clean and with all necessary fittings.
Defects of the floor of the Warehouse Premises such as chips, breaks, damage of the anti dust covering shall be restored. Temperature and expansion joints shall be filled out along the whole length. Results of fixing of metal bumpers, racks, other equipment to the floor and other supporting and fencing structures shall be removed. Marking made by the Tenant shall be removed.
Fire-proof coverage of the structural and enclosing structures shall be reinstated subject to compliance with fire resistance rules of the relevant structure. Works and contractor shall be approved by the Landlord as provided for in the Lease.
2.2. Property and equipment:
All fixed mechanical and electrical equipment, including Conduits, and all items set out in the Inventory shall be transferred fully completed in good operational condition without any mechanic or other impact (defects), including exterior of the gates opening.
All Tenant’s property, including signs, furniture and other goods shall be removed from the Warehouse Premises, all fitting shall be removed as well and places of such fittings shall be restored.
In particular, racks, fences, motion detectors, video control system installed by the Tenant shall be removed.
Any damaged or missing Landlord’s fixtures shall be replaced with ones of the same quality.
2.3. The Tenant’s Works:
The Tenant shall remove all the results of all Tenant’s works and any other alterations and improvements and reinstate the Warehouse Premises to their condition specified in this Schedule. In particular, delete all magnetic locks and other fixtures of the control access system. Dismantle the video observation system, including equipment installed within the territory of the Complex and places of system’s fittings shall be repaired. Fireproof and other doors with open-end and other holes shall be replaced with the new ones.
Low-voltage, electric and other cables shall be removed, embrasures shall be covered over, all fittings shall be removed.
Results of the Tenant’s redesign of the premises shall be removed and the cost of technical BTI measurements shall be compensated to the Landlord.
3. General requirements:
- the Tenant’s works on preparation of the Premises to the return after the lease shall be planned so that on the last day of the Term of the Lease all Premises shall be in a proper condition.
- the works shall be performed in order set out in the Lease, in particular, manner, choice of material, contractor and time-periods of works shall be agreed with the Landlord.
- hidden works shall be present to the Landlord’s representative in time.
- works shall be performed in accurate manner, without damage to exterior and condition of other parts of the Premises.
- during reinstatement of the damaged equipment of the Premises and Building the Tenant shall use certified repair parts, components and assemblies, the relevant models of the damaged equipment and follow the recommendations of the manufacturer. If the reinstatement is impossible due to absence of the components of the equipment (phasing out, etc.), the Tenant shall make an equal replacement in accordance with the Landlord’s instructions.
- the Tenant shall make reinstatement of fit out elements of the Premises and the Building in the same color style and materials.
- waste and machining attachments created and used during the works shall be removed from the Premises in the manner set out in the Lease and Complex Rules and Regulations.
3. Temporary openings in the floor upon dismantle of racks and other fixtures and equipment shall be blocked as follows:
a) anchorage shall be removed from the floor or lowered at 3 cm below the floor level;
b) holes shall be de-dusted and padded by construction resin with glass sand, color of composition shall be close d to color of the floor;
c) prefilled parts shall be polished up to the floor level, provided that if the area of a prefilled part is more than 100 sq.cm than such part shall have smooth ends and regular geometric shape.
SCHEDULE 18
FORM OF SURETYSHIP
SURETYSHIP
Moscow 23 of May _____
Limited liability company “_____”, a company incorporated under the laws of the Russian Federation, with principal state registration number (OGRN) _____, registered by Interdistrict Inspectorate of the Federal Tax Service No. 46 in Moscow on 22 April _____, with its address at: _____, hereinafter referred to as the “Creditor”, represented by its General Director _____, acting on the basis of the Charter;
and
Limited Liability Company “_____”, incorporated under the laws of the Russian Federation, principal state registration number (OGRN) _____, INN _____, KPP _____, with its registered address at: _____, hereinafter referred to as the “Guarantor”, represented by the General Director _____, acting on the basis of the Charter.
The Creditor and the Guarantor hereinafter together named as the “Parties” and each of them - a “Party”,
whereas the Creditor and Limited liability company “_____”, a company incorporated under the laws of the Russian Federation, principal state registration number _____, with its address at room _____, (hereinafter referred to as the “Debtor”) executed the Short-Term Lease on 23 of May _____and signed the Long-Term Lease on 23 of May _____ (the “Lease”) of non-residential premises with the total area of _____ square meters according to the BTI measurements (the “Premises”) located _____, Russia, cadastral No. _____,
entered into this agreement (the “Agreement”) in respect of the following:
1. SUBJECT OF THE AGREEMENT
1.1. The Guarantor undertakes to be solidary liable to the Creditor for the performance of all the Debtor’s existing, future and potential monetary obligations to the Creditor in connection with or in respect of the Lease (hereinafter such obligations together named as “Secured Obligations” and each of them – “Secured Obligation”), including:
1.1.1. Obligations of the Debtor to the Creditor to pay and reinstate the sum of the Guarantee Deposit in the amount and in the manner specified in the Lease accordingly;
1.1.2. Obligations of the Debtor to the Creditor to pay the Rent in the amount and in the manner specified in the Lease, subject to indexation of the Rent in accordance with the Lease;
1.1.3. Obligations of the Debtor to the Creditor to pay the Creditor’s costs specified in Clause 6.20 of the Lease;
1.1.4. Obligations of the Debtor to the Creditor to pay any of (a) punitive penalty in the amount specified in Clause 9.2 of the Lease, (b) the Creditor’s costs in the amount specified in Clause 9.3 of the Lease;
1.1.5. Obligations of the Debtor to the Creditor to compensate the actual damage of the Creditor and to pay the punitive penalty in the amount specified in Clauses 10.1, 10.2 of the Lease;
1.1.6. Obligations of the Debtor to compensate the Creditor in full amount all the Creditor’s expenses and losses incurred in connection with the damage caused by the Debtor (as well as its employees, representatives, agents, (sub-)contractors, services providers and other persons permitted by the Debtor to reside in the Premises or in the Complex) to the Building, to the Premises or to the Complex or death of, or injury to, any person as a result of the Tenant’s Works under the Lease.
1.1.7. Any other monetary obligations of the Debtor to the Creditor under or in connection with the Lease, including, but not limited to, obligations to pay any payments, penalties, sums, compensations of any expenses and losses of the Creditor.
1.2. The Guarantor confirms that it is aware of all the provisions of the Lease and the amendment agreements to the Lease dated 23 of May _____.
2. RIGHTS AND OBLIGATIONS OF THE PARTIES
2.1. In case of non-performance and/or improper performance by the Debtor of any of the Secured Obligations, the Guarantor shall be liable to the Creditor for performance by the Debtor of such Secured Obligations in the same amount as the Debtor, including, but not limited to, payment of interest, penalties, compensation of court and/or arbitration fees and other losses of the Creditor which it may incur in connection with non-performance and/or improper performance by the Debtor of any of the Secured Obligation.
2.2 The Guarantor shall within 10 (ten) business days from the date of receipt of the Creditor’s written notice on non-performance or improper performance by the Debtor of any of the Secured Obligations, fulfil such non-performed or improperly performed Secured Obligation in full for the Debtor.
2.3. Upon performance by the Guarantor of its obligations to the Creditor the Creditor’s rights shall be transferred to the Guarantor in the amount in which it has satisfied the claim of the Creditor. Copies of the documents evidencing the claim to the Debtor shall be provided by the Creditor to the Guarantor within 10 (ten) business days from the later of: (a) the date of performance by the Guarantor of the obligation specified in Clause 2.2 of this Agreement, and (b) the date of receipt by the Creditor of the written request of the Guarantor to provide such documents to the Guarantor.
2.4. Intentionally left blank.
2.5. The Guarantor hereby directly and unconditionally agrees with any change in the scope of the Secured Obligations including changes which increase or may increase the responsibility of the Guarantor or which result or may result in any other negative impact on the Guarantor. The Guarantor hereby directly acknowledge its consent for increase of the Base Rent in accordance with Clause 4.3 of the Lease.
2.6. Before the exercise of any of its rights, powers or legal remedies in respect of the Guarantor under this Agreement the Creditor shall not be obliged to: (a) submit a claim to the Debtor (b) bring an action or obtain any court decision in any court or arbitration in respect of the Debtor, or (c) enforce recovery or achieve the enforcement on any other security (if any) agreed in connection with any of the Secured Obligations.
2.7. The Guarantor shall make the payments under this Agreement by wire transfer to the Creditor’s bank account specified in this Agreement provided that the Creditor may unilaterally change its banking details during the term of this Agreement by notifying the Guarantor on its new banking details.
2.8. All sums due from the Guarantor in favour of the Creditor in connection with this Agreement (including any costs and/or expenses) shall be paid without any set-off, retention or deduction save for the cases when such retention or deduction is required under the laws or court decision. If the Guarantor or the Creditor needs to make any retention or deduction the Guarantor shall increase the sum due to be paid to the Creditor by the relevant amount so that the net sum received by the Creditor comprises the full sum which the Creditor would have received in the absence of such retention or deduction. The provisions of this Clause shall be also applicable to the retentions or deductions in respect of taxes, fees or any other obligatory payments.
3. RESPONSIBILITY OF THE PARTIES
In case of delay by the Guarantor in performance of its obligation specified in Clause 2.2 of this Agreement, the Creditor shall be entitled for the penalty in amount of 0.1% (zero point one per cent) of the sum due per each day of delay and the Guarantor shall pay such penalty to the Creditor within 10 (ten) business days from the date of receipt of such request from the Creditor.
4. TERM OF THE SURETYSHIP
4.1. This Agreement shall enter into the force from the date of its signing by the Parties.
4.2 The suretyship under this Agreement shall expire on 31 March _____.
5. ASSIGNMENT OF RIGHTS AND DELEGATION OF DEBT
5.1. The Guarantor is not entitled to assign or transfer any of its rights and obligations under this Agreement without prior written consent of the Creditor.
5.2. The Guarantor hereby directly and unconditionally agrees that (a) if the Debtor assigns and/or transfers any of Secured Obligations to any other person or persons, as the case may be, in full or in part (as a result of legal succession, transfer or assignment or otherwise), the Guarantor shall be liable for performance of the relevant obligations by such a person or persons as a new debtor or debtors, as applicable, in accordance with this Agreement; and (b) this Agreement shall remain effective in case of any such transfer or assignment.
5.3. The Creditor shall have the right to assign and/or transfer all of its rights and/or obligations under this Agreement at any time to any person, which it assigns its rights under the relevant Secured Obligation to, and the Guarantor hereby directly and unconditionally agrees with any such assignment and/or transfer of the Creditor’s rights under this Agreement, as well as directly and unconditionally agrees with that any such assignment or transfer shall not be considered the ground for termination or limitation of the guarantee specified in this Agreement.
6. APPLICABLE LAW AND DISPUTE RESOLUTION
6.1. This Agreement is governed by and subject to interpretation under the laws of the Russian Federation.
6.2. In the event of any dispute arising between the Parties out of or in connection with this Agreement authorized representatives of the Parties shall within fifteen (15) days from the date of such written request of one Party to the other Party meet in order to resolve the dispute without recourse to legal proceedings.
6.3. If any dispute is not resolved under Clause 6.2 of this Agreement within fifteen (15) days of such written request then such dispute shall be brought, heard and resolved without prior petition to the state court by the International Commercial Arbitration Court at the Russian Federation Chamber of Commerce and Industry (“ICAC”) which is situated in Moscow in accordance with its rules and procedures with the ICAC as appointing authority. The award of the arbitrator(s) shall be final and binding on the Parties. All fees and expenses charged by the ICAC including the fees and expenses of the arbitrators shall be at the discretion of the arbitrator(s) and if no direction is made shall be paid by the Party which has lost the dispute. Application to the state court on decision on absence of the competence of the arbitration tribunal in connection with the resolution of the arbitration tribunal on competence as a preliminary matter shall be excluded. Hearing by the state court of the matter on disqualification of arbitrators or discharge them otherwise shall be excluded. The Parties agree that the application for the execution writ obtainment which enforces the decision of ICAC shall be considered by the arbitration court on the territory of the location of the Party in favour of which the decision of ICAC is made.
6.4 Notwithstanding the above provisions of Clause 6, if for any reason whatsoever the preceding Clause shall be found to be invalid or not applicable with regard to any dispute arising out of or in connection with this Agreement, the Parties agree that such dispute shall be brought, heard and resolved only in the Arbitration Courts of the Russian Federation and in such event the Parties irrevocably submit to the jurisdiction of the Arbitration Courts of the Russian Federation.
7. CONFIDENTIALITY
7.1. Each Party shall not without prior written consent of the other Party disclose to any persons (save for the cases specified in Clause 7.2 hereof) provisions or existence of this Agreement.
7.2 The restrictions in Clause 7.1 shall not apply to the extent disclosure is required:
7.2.1 in accordance with the laws of the Russian Federation;
7.2.2. by any Authority, to the extent required by the laws of the Russian Federation;
7.2.3. to comply with any regulatory or filing requirement (including of a stock exchange or other regulatory or official body);
7.2.4 to the Party’s professional adviser or auditors; or
7.2.5. in the case of the Creditor only, (a) to any of its actual or potential assignee or legal successor under this Agreement, and (b) to evidence the Creditor’s title or encumbrances and/or other rights to the Premises (whether to purchasers, creditors, any Authority or otherwise).
8. OTHER PROVISIONS
8.1. This Agreement expiries upon expiry of all Secured Obligations.
8.2. The Suretyship expiries if the Creditor refused to accept due performance by the Debtor or by the Guarantor.
8.3. Unless otherwise provided herein, amendments and additions to this Agreement shall be valid only if such amendments and additions are made in writing and signed by the authorized representatives of the Parties.
8.4. If any provision of this Agreement is declared invalid, illegal or unenforceable for any reason by court decree or otherwise, such invalidity, illegality or unenforceability shall not affect or impair the validity, legality and enforceability of the remaining provisions hereof.
8.5. Any notice and other information sent by one Party to another under this Agreement shall be made in writing, signed by the authorized representative and delivered by courier services to the address, specified in this Agreement. If any of the Parties decides to change its address for the correspondence, it shall notify the other Party specifying the new correspondence address. The other Party shall use this new correspondence address from the date of receipt of such notice provided that such correspondence address shall be only the address in Moscow, Russian Federation.
8.6. This Agreement is executed in two originals of equal legal force, one original for each of the Parties.
8.7. Substantial change of circumstances from which the Parties proceeded concluding this Agreement shall not create a basis for amendment or termination of this Agreement by any Party for the purposes of Article 451 of the Civil Code of the Russian Federation.
8.8. While interpreting this Agreement it is necessary to take into account that:
8.8.1. references to business days are to ordinary working days in the Russian Federation based on a 5-day working week;
8.8.2. any reference to any Party and any other person (including the Debtor) includes its successors and the relevant assignees or transferees;
8.8.3. any term not defined herein shall have the same meaning as defined in the Lease.
9. ADDRESSES AND PAYMENT DETAILS OF THE PARTIES
THE CREDITOR THE GUARANTOR
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