Договоры аренды нежилых помещений
NON-RESIDENTIAL LEASE AGREEMENT № _______
This Non-Residential Lease Agreement (hereinafter the "Agreement") is concluded by and between:
Limited liability company "ССС", hereinafter referred to as "Landlord", represented by Mr. Ivanov I.I., its General Manager, by Mr. Petrov P.P., its Assistant General Manager, and Mr. Sidorov S.S., its Chief Accountant, acting pursuant to the Landlord's Charter, and Limited liability company "ААА", hereinafter referred to as "Tenant", represented by Mr. Alexandrov A.A., its General Director, acting pursuant to the Tenant's Charter.
The Landlord and the Tenant are hereinafter jointly referred to as the "Parties" and individually as a "Party".
In this Agreement, the Parties have agreed as follows:
1. SUBJECT OF THE AGREEMENT
1.1. The Premises
The Landlord does hereby lease to the Tenant, and the Tenant does hereby lease and take from the Landlord, and agrees to occupy, that certain non-residential space more fully described in Section 1.2 hereof (the "Premises") in the building located at the following address: 111111, the Russian Federation, City of Moscow, _________ Administrative District, _________ Str., 1 (the "Building"), more popularly known as the ________________ Trade Center (the "Trade Center").
The Premises shall be the Landlord's property what is by the Certificate on the State registration of the rights No. 77 АА 111111 dated ________20___, the registration have entered No. 77-11/22-333/444444 dated _______20___.
1.2. Description of the Premises; Tenant's Rentable Area
The Premises are determined in the Floor Layout and the Extract from the located on the 3-d floor of the Building (Attachment №1, №2 to the present Lease Agreement) and consist of ____ sq.m. (____ square meters). ("___ Rentable Areas"). Characteristics of the Premises are reflected also at the Technical Specification (Attachment №3 to the Lease Agreement).
For the purposes of determining the Rent amount (Section ____ of the present Agreement), the Premises are shall be measured and calculated according to the American National Standards for measuring the floor area within buildings (BOMA) and amounts to ___ sq.m. (___ square meters).
1.3. Permitted Use
The Premises shall be used for the retail sales activities of the Tenant in the area of ice cream and fresh juices (the "Retail Profile") and for storage and administrative purposes related to such retail sales activities (the "Permitted Use").
1.4. Use of Common Areas
The Tenant shall also have the right, during the Lease Term (as hereinafter defined), to use, jointly with all other tenants and visitors in or to the Building, all areas specifically designated by the Landlord from time to time for common use (the "Common Areas") at no additional charge.
1.5. Telecommunications Excluded
Telecommunications services are excluded from the scope of this Agreement. The Tenant shall contract directly with the firm "_________", which is the exclusive telecoms provider to the Building, with respect to the installation and operation of telephone lines in the Premises in accordance with the needs of the Tenant. The Tenant shall independently pay all charges and expenses related to the installation, use and operation of such telephone lines during the Lease Term hereunder.
2. THE LEASE TERM
2.1. The Lease Term
The term (the "Lease Term") of the non-residential lease which is the subject of this Agreement (the "Lease") shall ___ (_____) years ___ (____) month. The Lease Agreement comes into force __________20___ (the "Commencement Date"). Such Lease Term, as it may be extended, renewed or terminated prematurely pursuant to the terms of this Agreement, is hereinafter referred to as the "Lease Term".
2.2. Act of Transfer and Acceptance of Premises
Upon the fact of the State Registration of the present Lease Agreement the Landlord and the Tenant shall exclude an Act of Transfer and Acceptance of Premises if otherwise has not been established by the agreement of the Parties.
Upon the expiration of the Lease Term, and provided that the Tenant fulfills all of its duties and obligations hereunder, the Lease may be renewed for an additional period of such terms and conditions as may be mutually agreed by the Tenant and the Landlord. Notwithstanding the above, the Tenant shall not have a priority right to conclude a new lease for the Premises with the Landlord if the Landlord does not consent to the conclusion of a new lease on the terms offered by the Tenant. To effect the renewal of the Lease, the Tenant shall provide the Landlord with written notice of desire to renew not later than 3 (three) months prior to the expiration of the Lease Term hereunder.
2.4. Tenancy for Undetermined Period upon Expiration
Should the Tenant remain in the Premises upon the expiration of the Lease Term without any objection on the part of the Landlord but also without concluding a written agreement between the Parties on the extension or renewal of the Lease, such retention of the Premises shall be regarded as a tenancy for an undetermined period on the terms and conditions hereof, except that:
a) each of the Base Rent and the Operating Expenses (as each is hereinafter defined) due hereunder shall be increased to amounts equal to 200% (two hundred percent) of their respective amounts in effect during the Lease Term hereunder,
b) all Rent Payments (as hereinafter defined) hereunder shall be due and payable on a monthly basis in advance on or prior to the 1st calendar day of each month of such tenancy for an undetermined period.
3. OBLIGATIONS OF THE LANDLORD
The Landlord shall fulfill the following obligations and perform the following duties hereunder:
3.1. Building and Common Areas Repairs
The Landlord, at its own cost and expense, shall make all current repairs and, if needed, all capital repairs to or of structural components and engineering systems of the Building and the Common Areas. The Landlord shall have no obligation to make any current or capital repairs to the Tenant's Fit-Out or any Additional Works, which shall be the sole responsibility of the Tenant.
3.2. Utilities and Services Provided by Landlord
The Landlord shall provide the following services in or to the Building and the Common Areas:
a) cleaning of the Common Areas;
b) elevator and escalator service;
c) electricity for lighting and running of ordinary office machines;
d) seasonable heating during normal business hours;
e) air ventilation (either directly into the Premises or through the Common Areas) and seasonable air conditioning during normal business hours;
f) security services for the Common Areas on a 24-hour, seven-days-a-week basis; and
g) lighting of the Trade Center's parking area during normal non-daylight business hours.
4. OBLIGATIONS OF THE TENANT
The Tenant shall fulfill the following obligations and perform the following duties hereunder:
4.1. Conditions to Tenant's Opening for Business
Prior to the Commencement Date, the Tenant shall submit to the Landlord the following documents (the "Required Documents):
a) copies of Tenant's foundation documents;
b) copies of Tenant's certificate(s) of registration with appropriate registration authorities;
c) copies of certificates evidencing Tenant's registration with the tax authorities;
d) copies of the insurance policies required by this Agreement; and
e) copies of payment orders evidencing the payment by Tenant of the Security Deposit and the Base Rent and Operating Expenses for the first month of the Lease Term.
4.2. Rent Payments
The Tenant shall timely make all Rent Payments and pay all other charges as provided in this Agreement.
4.3. Reports of Turnover to Landlord
Tenant agrees to submit to Landlord, not later than 7 (seven) week days after the last day of each calendar month which, fully or partially, falls within the Lease Term, a written report according to Attachment №5 showing the amount of daily Turnover derived from the business conducted within or in connection with the Premises during the preceding monthly period. Such reports shall contain such details and information as Landlord may reasonably request and shall be signed and certified by an authorized representative of the Tenant to be true and correct. In case the Tenant delays the submission of the report more than 4 times the Landlord has the right to terminate the Lease Agreement.
4.4. Use of Premises; No Illegal Use; Compliance with Applicable Legislation
The Tenant shall use the Premises only for the Permitted Use in accordance with the Retail Profile stipulated herein and shall not change the Retail Profile without the prior written consent of the Landlord. The Premises shall not be used for any illegal purposes or in violation of any applicable legislation or regulations of any governmental bodies. The Tenant shall strictly comply, and shall cause all other Tenant Users (as defined below) to strictly comply, with all applicable legislation (including but not limited to laws and regulations regarding the licensing and operation of the Tenant's business, health and sanitary rules and regulations, worker and customer safety rules, fire safety and ecological rules, and common rules of public order) applicable from time to time to the Trade Center, the Building, the Common Areas, the territory adjacent to the Building, the Premises, and the Tenant's business. Obtaining and maintaining any licenses or permits necessary to conduct the Tenant's business shall be the sole responsibility of the Tenant.-As used herein, the term "Tenant Users" shall mean, collectively, the Tenant; its owners, participants or shareholders; its directors, officers and employees; its representatives and agents; and its suppliers.
4.5. Operation of Business
Tenant agrees continuously and without interruption:
a) to occupy and use the entire Premises for the Permitted Use;
b) to conduct Tenant's business in a reputable manner;
c) to staff the Premises with sufficient employees to handle a maximum of business and to avoid queues of customers;
d) to keep the interior of the Premises, as well as all signs relating to the Premises, well lit during regular business hours, and
e) to keep and maintain the Premises, all signs relating to the Premises, and the retail goods, furnishings, sales equipment and other property located in the Premises in a neat, clean, sanitary and safe condition.
4.6. Premises Layout and Appearance
Tenant shall coordinate the layout and appearance of both the interior and the exterior of the Premises with the Landlord and shall obtain the written approval of the Landlord for such layout and appearance. Tenant shall not materially change such layout or appearance without the prior written consent of the Landlord, which shall not be withheld unreasonably.
The Tenant shall, at its own cost and expense, erect, maintain in good repair and illuminate suitable identification signs of such size, design, character and location as Landlord shall approve in writing. Tenant shall not be permitted to display or maintain any canopy, flag, pole, antenna or similar device outside of the Premises without the prior written consent of the Landlord.
4.8. Operating Hours
The Tenant shall keep the Premises open for business during the hours set by the Landlord from time to time in the Trade Center Rules and Regulations (as defined below).
4.9. Access to and Supplying of the Premises
The Tenant agrees strictly to comply, and to cause each other Tenant User strictly to comply, with the rules instituted from time to time by the Landlord regarding general access to the Trade Center and access to and supplying of the Premises, including but not limited to hours of access and routes of access designated for the Tenant from time to time by the Landlord.
4.10. No Undesirable Effects or Interference
Tenant agrees not to permit any unreasonable waste, odors, vapors, steam, water, vibrations, noises or other undesirable effects to emanate from the Premises or any equipment therein into other portions of the Trade Center or otherwise to permit the Premises unreasonably to interfere with the safety, comfort or enjoyment of the Trade Center by the Landlord, any other tenants, employees, customers or visitors of the Trade Center. Tenant further agrees to dispose of waste and trash generated on the Premises at the locations and during the hours specified by the Landlord in the Trade Center Rules and Regulations.
4.11. No Hazardous Materials
Whether or not permitted under applicable legislation, the Tenant shall not introduce into the Premises or store therein any weapons, ammunition, explosives, radioactive or hazardous materials, or any other objects or materials which can be dangerous to human health or the environment.
4.12. Compliance with Trade Center Rules and Regulations
The Tenant shall at all times comply, and shall cause each other Tenant User to comply, with the Common Rules and Regulations for the _______________ Trade Center Tenants attached hereto as Attachment №4 (as they may be changed by the Landlord from to time, the "Trade Center Rules and Regulations"), which is an integral part hereof. The Trade Center Rules and Regulations govern, among other things, operation of the Trade Center and the use of the Building, the Common Areas, and other territories adjacent to the Building.
4.13. No Competing Stores
The Tenant agrees that neither Tenant nor any legal entity controlling, under the control of, or under common control with, the Tenant shall operate, manage or have any interest in any other store with the same or similar Retail Profile within 2 km (Two kilometers) of the Trade Center.
4.14. Maintenance and Repairs of Premises: Replacement of Broken Glass
With the exception of any structural components, the Tenant, at its own cost and expense, shall provide all necessary maintenance and current repairs of the Premises, the Fit-Out, any Additional Works, any fixtures therein, and any signs relating thereto, and shall keep the Premises in a first-class and attractive condition throughout the Lease Term. The Tenant shall replace all damaged or broken glass with new glass of equal quality.
4.15. No Structural/Non-Removable. Modifications
All removable and nonremovable structural components located within the Premises, except for the Tenant's equipment, shall be the Landlord's property. Without the prior written consent of the Landlord, the Tenant shall not make:
a) any alterations or modifications to the structural components of the Premises,
b) any non-removable additions or improvements in or upon the Premises. Notwithstanding the receipt of Landlord's permission for making any structural or nonremovable additions or improvements, the Tenant shall not become the owner of any such additions or improvements, which shall become and remain the sole property of the Landlord immediately upon their installation or addition.
The Tenant, at its sole cost and expense, shall obtain and keep in force throughout the Lease Term:
a) a comprehensive general liability insurance policy with respect to injuries or damage caused through the negligence or fault of the Tenant, with a minimum limit of liability in the amount of USD _____ (______ United States dollars) or the Rouble Equivalent (as defined below) thereof per claim or occurrence,
b) an insurance policy covering the full value of the retail goods and/or other property of the Tenant located in the Premises against theft, fire, water damage, other damage and/or other loss (collectively the “Insurance Policies"). The Tenant shall provide to the Landlord evidence of effectiveness of such Insurance Policies prior to the Commencement Date hereunder and, after the Commencement Date, shall provide evidence of maintenance of such Insurance Policies upon the written request of the Landlord therefor.
4.17. Security of the Premises
Notwithstanding any insurance policy obtained by the Tenant pursuant to the terms of this Agreement, the Tenant shall take all reasonable steps to assure the security of the Premises and of the persons and property at any time located in the Premises.
4.18. No Use by Others; No Sublease or Assignment; No Encumbrances
The Tenant shall not permit the use of the Premises by any third party. The Tenant shall not sublease or assign the Premises or any of its rights in the Premises to any third party (including, but not limited to, by way of cooperation agreements, joint activity agreements, and/or partnership agreements), and shall not transfer, assign, pledge or encumber any of its rights to the Premises, to the Security Deposit (as defined below), to this Agreement, or to the Lease hereunder, to any party without the prior written consent of the Landlord.
4.19. Vacating the Premises; Removal of Property
Upon the expiration of the Lease Term, the Tenant and each other Tenant User shall:
a) vacate and surrender the Premises to the Landlord in the same state and condition as the [Tenant originally accepted the Premises, ordinary wear and tear excepted,
b) remove all of its goods, property and removable improvements or modifications from the Remises.
5. RIGHTS OF LANDLORD
The Landlord shall have the following rights hereunder:
5.1. Tenant's Failure to Submit Required Documents
If Tenant fails to submit the Required Documents to the Landlord by the Commencement Date as required by this Agreement, the Landlord shall have the right to prevent the Tenant from opening for business until the Required Documents are submitted to the Landlord. In addition, for every day of such delay in opening of business, Tenant shall pay to the Landlord the penalties set forth in this Agreement.
5.2. Tenant's Breach
If the Tenant breaches any of the provisions of this Agreement, including, without limitation, by permitting persistent delays in the payment of any amounts owed hereunder, the Landlord shall have the right to terminate this Lease before the expiration of the Lease Term, to remove the Tenant and its property from the Premises, and to exercise any other rights provided to Landlord in this Agreement or under applicable legislation. As used herein, the term "persistent delays" shall mean any one delay of more than 15 (fifteen) calendar days or 2 (two) or more delays of more than 10 (ten) calendar days within any one-year period. In case of such early termination, the Security Deposit, all Rent Payments paid but not accrued hereunder, and any movable property of the Tenant remaining in the Premises, shall be withheld by the Landlord in full as a penalty and shall become the property of the Landlord. Any legal or other costs incurred by the Landlord in enforcing the performance by the Tenant of its obligations hereunder shall be at the sole cost and expense of the Tenant.
5.3. Persistent Delays in Rent Payments
In case of persistent delays by the Tenant in making any payments hereunder, the Landlord shall have, in addition to other rights provided herein or by applicable legislation, the right to:
a) deny to the Tenant entry into the Premises?
b) cease supplying the Premises with electricity and/or other utilities until all overdue Rent Payments, all penalties and late charges provided for herein, and all other applicable charges payable by the Tenant pursuant to this Agreement shall have been paid in full.
5.4. Tenant's Failure To Do Business
In the event that tenant:
a) fails to open the Premises for business, fully stocked and staffed, on the Commencement Date,
b) ceases to operate or conduct the Tenant's business in the Premises during the Lease Term,
c) fails or refuses to maintain the operating hours set by the Landlord from time to time in the Trade Center Rules and Regulations, the Landlord shall be entitled to a penalty, in addition to regular Rent Pavements, of ___ USD per each day of such failure, stoppage or cessation of business, doubling for every seven days of such within one calendar year.
5.5. Entry, Inspection, Emergencies
Landlord shall have the right to enter the Premises upon prior notice to the Tenant in order to verify compliance of the Tenant with the Permitted Use of the Premises, to conduct technical inspections of the Premises, to make necessary repairs, or to exhibit the Premises to third parties. The Landlord shall also have the right to enter the Premises in case of emergency (including but not limited to fire, inundation, failure or break-down of engineering systems, or commitment of illegal acts) without any prior notice to the Tenant in order to prevent or cure such emergency situations or their consequences.
5.6. Tenant's Failure to Repair or Maintain in Good Order
In the event that the Tenant fails to effect any repairs to the Premises required by this Agreement within a reasonable speriod of time (which in any event may not exceed 21 (twenty one) calendar days after the Tenant learns of the need for such repairs), or fails to maintain the Premises in good order as Required hereunder, the Landlord shall be entitled to effect such repairs and/or maintenance St the sole cost and expense of the Tenant.
5.7. Changes in the Trade Center; Use and Decoration of Interior Walls
The Landlord shall have the right to increase, reduce or change the size height, number of floors, layout and decoration of the Building, the Common Areas, or any other areas or facilities now or at any time hereafter forming a part of the Trade Center. In particular, the Landlord shall have the right to use or decorate any blank walls of the Trade Center facing Common Areas, whether or not such walls enclose the Premises.
5.8. Amending Trade Center Rules and peculations
The Landlord may from time to time amend the Trade Center Rules and Regulations by providing prior written notice of such amendments to the Tenant, and the Tenant shall comply with such amended Trade Center Rules and Regulations.
5.9. Use of Tenant's Name
The Landlord shall have the right to use the Tenant's trade names and legal names in the Landlord's advertising, information brochures and marketing materials.
5.10. Abandoned Property and Removable Improvements
The Landlord shall have the right, with respect to any goods or other property of the Tenant and/or any removable or separable Additional Works which are not removed by the Tenant upon the expiration of the Lease Term, at the option of the Landlord, either:
a) to deem such property to be abandoned, in which case such property shall become the exclusive property of the Landlord,
b) to remove all or part of such goods, property, or Additional Works in any manner the Landlord may choose and store the same, without liability to the Tenant for any loss thereof. The Tenant shall be liable for all expenses incurred in such removal and storage.
5.11. Ownership of Non-Removable Improvements
Upon the installation or addition by the Tenant of any non-removable or inseparable Additional Works to the Premises, whether or not installed or added with the consent of the Landlord, the Landlord shall immediately become and remain the sole owner of such Additional Works, and the Tenant shall not retain any ownership or compensation rights respect thereto.
6. RIGHTS OF TENANT
6.1. Quiet Enjoyment
So long as the Tenant timely pays the Rent payments and all other amounts as required under this Agreement, and performs and observes all agreements and conditions to be performed and observed on its part under this Agreement, the Tenant shall and may peaceably and quietly have, hold and enjoy the Premises and all other rights of Tenant hereunder during the Lease Term without any hindrance or molestation by the Landlord.
6.2. Early Termination
The Tenant shall have the right to terminate the Lease before the expiration of the Lease Term in the event of Landlord's default which renders the Premises untenantable for Tenant's use and occupancy. In case of such early termination, the Rent Payments shall be due and payable until the date of actual vacation and surrender of the Premises by the Tenant to the Landlord under an act of surrender of premises in the form customarily used by the Landlord, which act shall confirm the date of such surrender of Premises and their condition on such date and shall be signed by each of the Landlord and the Tenant. The Security Deposit and the Rent paid but not accrued hereunder shall be refunded to the Tenant to the extent not due or owed to the Landlord.
7.1. Base Rent
Within the period starting from ________20___ till _______20___ the Tenant shall pay to the Landlord a base rent hereunder (the "Base Rent") in the amount of the Rouble Equivalent of USD _____ (____________ United States dollars), plus VAT and any other applicable taxes, per one sq. m. of the Tenant's Rentable Area. Starting from _________20__ the Tenant shall pay to the Landlord a base rent hereunder (the "Base Rent") in the amount of the Rouble Equivalent of USD ____ (__________ United States dollars), plus VAT and other applicable taxes, per one sq. m. of the Tenant's Rentable Area of ___ (_______) sq.m. Thus, the annual total Base Rent for the Lease of the entire Premises shall be the Rouble Equivalent of USD _____ (_________ United States dollars), and the monthly total Base Rent shall be the Rouble Equivalent of USD ______ (_________ United States dollars 83 cents). For the purposes of this Agreement, the term "Rouble Equivalent" of an amount of United States dollars shall mean the amount of Russian Roubles which equals such amount of United States dollars at the rate of exchange United States dollars to Russian roubles established on such date by the TSB RF. The Landlord shall have the right, upon the expiration of each calendar year of the Lease Term, to increase the Base Rent for next subsequent year of the Lease Term by not more than ten percent (10 %) of its amount (expressed in United State dollars) last in effect hereunder by providing written notice hereof to the Tenant within 30 calendar days of the expiration of such calendar year.
7.2. Operating Expenses
In addition to and in excess of the Base Rent, the Tenant shall pay either directly to the Landlord, or to the Landlord's appointed property management company, the operating expenses and certain utility charges related to the Trade Center (such expenses and charges are collectively referred to as “Operating Expenses") in the amount equal to the Rouble Equivalent of USD ___ (__________) plus VAT and any other applicable taxes, per one sq.m. of the Tenant's Rentable Area per year. The Operating Expenses shall cover the cost of the Tenant's pro-rata share in common expenses related to the operation, cleaning, security, maintenance and insurance of the Trade Center. The Landlord may increase the Operating Expenses in case of any increase in utility charges or other tariffs related to the operation, maintenance and services of the Trade Center by providing written notice of such increase to the Tenant. For the Food Court Tenants there's an additional charge equal to ____ USD + VAT per sq. m per year for the expenses related to maintenance of seating area.
7.3. Metered Utilities
The electricity and hot and cold water consumed in the Premises shall be additionally metered. Tenant shall pay such utility costs (the "Additional Operational Expenses") to the Landlord on a monthly basis in the amounts corresponding to the metered usage of such utilities at the cost payable by the Landlord to the city authorities for such utilities.
7.4. Taxes; No Set-Off
Amounts due and payable hereunder shall be net of VAT and similar taxes, or any other current or future taxes, duties, tariffs or public charges (collectively “Taxes”). Such Taxes shall be paid by the Tenant to addition to other amounts payable hereunder. Tenant may not reduce the amount of any payment due hereunder by set-off of any counterclaim.
7.5. Rent Payments
Each of the Base Rent, Operating Expenses, Additional Operational Expenses, Taxes, and any other charges from time to time payable hereunder (collectively the “Rent Payments") shall be considered to be "rent" hereunder. Upon Tenant's failure to pay any of such Rent Payments hereunder, Landlord shall have the same rights as upon failure to pay Base Rent. The Tenant shall pay Rent Payments hereunder notwithstanding whether or not the state registration of this Agreement, and the rights and obligations hereunder, is completed.
7.6. Procedure for Rent Payments
The Rent Payments other than the Additional Operational Expenses shall be payable to the bank account of the Landlord quarterly in advance not later than the first (1) calendar day of each month. Additional Operational Expenses shall be payable monthly not later than 7 (seven) calendar days after the receipt by Tenant of any invoice therefor from the Landlord. Notwithstanding the above, a pro-rated portion of the Base Rent and the Operating Expenses for the first incomplete calendar month of the Lease Term hereunder shall be due and payable not later than 7 (seven) calendar days after the | Commencement Date. The Rent Payments for the last incomplete calendar month of the Lease Term hereunder shall likewise be pro-rated in accordance with the number of days in such incomplete month.
7.7. Miscellaneous Payment Provisions
All payments due hereunder shall be made in Roubles by bank transfer into the rouble account specified by Landlord in an amount equal to the Rouble Equivalent of the amount of United States dollars due as of the date of transfer. The Tenant shall make Rent Payments on or prior to the dates specified in this Agreement whether or not the Tenant actually receives any such invoices. The date of payment shall be the date when the whole amount of payment due hereunder is received in the bank account of the payee. Each Party hereto shall be responsible for paying its own banking charges.
7.8. Late Payment Penalty
Should any payment hereunder be delayed, the Tenant shall pay to the Landlord, in addition to the amount overdue, late charges in the amount of 0,5 % (zero point five percent) of the amount, stated in United States dollars, overdue for each calendar day of delay of the applicable payment.
7.9. Security Deposit
Within 7 (seven) calendar days from the date of conclusion of this Agreement, the Tenant shall pay to the Landlord the amount equal to the Rouble equivalent of USD ____ (________ United States dollars) net of VAT (such amount is hereinafter referred to as the "Security Deposit"). The Security Deposit shall be held by the Landlord during the Lease Term without interest as a guarantee for the good performance of the Tenant's obligations hereunder. Should the Tenant delay any of the payments due hereunder or cause damage to the Premises, the Building (including, but not limited to, the Common Areas) or the territory adjacent thereto, or otherwise cause damage or losses to the Landlord, the Landlord shall have the right to withhold from the Security Deposit any amounts so due or overdue from the Tenant. Written notice of such withholding shall be given to the Tenant after such withholding, attaching a calculation of the amounts withheld. In each case of such withholding, the Tenant shall be obligated to restore the Security Deposit to the Rouble Equivalent, at the time of such restoration, of its original U.S. dollar amount within 10 (ten) calendar days of receipt of notice of withholding from the Landlord. The Tenant shall not have the right to pledge, assign or otherwise encumber the Security Deposit, and any such encumbrance shall be null and void. Should the Tenant terminate the Lease prior to the expiration of the Lease Term hereunder for any reason not directly provided for herein, or should the Tenant attempt to terminate or disavow this Agreement prior to the Commencement Date hereunder, the Security Deposit and any Rent Payments paid but not occurred hereunder shall be withheld by the landlord in full as a penalty. Provided the enant is not in default hereunder, the Security Deposit shall be returned to the Tenant after the enant vacates the Premises and removes all of effects therefrom.
7.10. Order of Appliction of Payments
If at time the amount of payments received by the Landlord from the Tenant hereunder is insufficient to cover all of the Tenant's financial obligations hereunder, such payments shall be applied to the Tenant's obligations in the following order:
a) compensation for any losses or damages to the Trade Center caused by the Tenant;
b) compensation to Landlord for any expenses incurred in enforcing its rights hereunder;
c) compensation to Landlord for any expenses incurred in repairing or maintaining the Premises on behalf of the Tenant or for removing the Tenant's property from the Premises;
d) any penalties or late charges;
e) overdue Additional Utilities Expenses;
f) overdue Operational Expenses;
g) overdue Base Rent; and
h) restoration of the Security Deposit.
With respect to any Taxes due, any payments received hereunder shall be apportioned as required by applicable legislation.
8. LIABILITY OF THE PARTIES
8.1. Force Majeure
The Parties shall be released from liability for non-fulfillment or improper fulfillment of the terms of this Agreement in the event of Force Majeure which is beyond the reasonable control of the Parties and directly affects the Parties hereunder. Events of Force Majeure include, but are not limited to, acts of God, wars, armed conflicts, mass civil unrest, epidemics, etc. The Party affected by the force Majeure event shall, at first opportunity, inform the other Party in writing of the commencement and termination of such event. The party affected by the Force Majeure event shall prove the effects of such event in accordance with applicable legislation. In the event of Force Majeure, this Agreement may be suspended in full or in part for the duration of such event. Should the Force Majeure event last more than 60 (sixty) calendar days, each Party shall have the right to terminate this Lease upon written notice not less than 15 (fifteen) calendar Jays prior to the anticipated date of early termination. In case of such early termination, the Rent and the Operation Expenses due hereunder shall be due and payable until the date of actual vacation and surrender of the Premises by the Tenant to the Landlord under the act of surrender of premises. To the extent not due or owed to the Landlord, the Security Deposit and any Rent Payments paid but not accrued shall be refunded to the Tenant after the Tenant vacates the Premises and all of the Tenant's property is removed therefrom.
8.2. Limited Liability of the Landlord
Notwithstanding anything to the contrary in this Agreement, the Landlord shall not be liable for any losses or claims of the Tenant in connection with:
a) the provision of any telecommunications services,
b) any damage to or theft of automobiles or other property located in the Trade Center's parking area,
c) any interruptions in the utilities and services, as stated in Article 3.2 beyond the reasonable control of the Landlord,
d) any loss of profits or other indirect losses of the Tenant due to whatever causes. Furthermore, Landlord and Tenant agree that Landlord's total liability hereunder shall not exceed the Rouble Equivalent of USD ____ (________ United States dollars).
8.3. Other Liability
To the extent not directly provided for in this Agreement, the Parties shall be liable for the non-fulfillment or improper fulfillment of the terms and conditions hereof in accordance with the legislation of the Russian Federation.
8.4. Penalties and Other Damages
In the event of default by the Tenant, the withholding by the Landlord as a penalty hereunder of the Security Deposit or the Rent Payments paid but not accrued shall not constitute any waiver of the Landlord's right to claim for compensation of its losses in full.
9. DISPUTE RESOLUTION
9.1. Settlement of Disputes
The Parties shall attempt to settle all disputes arising from the execution or interpretation hereof through direct negotiation. Should the Parties fail to settle their dispute through their direct negotiations within 1 (one) calendar month from the commencement of such negotiations, the Parties shall submit their dispute to the Arbitration Court for the City of Moscow.
9.2. Governing Law
This Agreement shall be governed by the legislation of the Russian Federation.
Any information regarding the financial status of the Parties and the terms of this Agreement shall be deemed confidential and shall not be disclosed to any third parties. Other conditions of confidentiality may be established at the request of either Party hereto.
10.2. Appointment of Representatives
Within 30 (thirty) calendar days of the Conclusion of this Agreement, the Parties hereto shall appoint their authorized representatives for the receipt of all notices and the execution of all Acts hereunder. Each Party shall provide to the other Party copies of the respective powers of attorney in connection with such appointment.
10.3. Changes in Addresses, Bank Accounts; Notices
The Parties shall promptly notify each other of any changes in their contact Addresses and numbers of bank accounts. The Performance of the Patries' obligations made at old addresses and bank accounts prior to notification of changes therein shall be accepted is good and proper performance. Except as therwise expressly provided herein, all notices and other communications provided for hereunder shall be in writing to the addresses below (or to such other addresses as the parties may notify in writing) via:
a) facsimile communication,
b) delivery by personal courier or express courier service.
All notices and communications sent by facsimile communication or delivered via personal courier or express courier service, if received within regular business hours on a business day, shall be effective on the date of transmission or delivery, as the case may be, and otherwise on the next business day.
10.4. Successors and Assigns
This Agreement shall be binding upon the respective successors and assigns of the Parties hereto, provided that the Tenant may not assign or transfer any of its rights or obligations hereunder without the prior written consent of the Landlord. The Landlord may at any time transfer or assign any of its rights hereunder.
10.5. Amendments and Waivers
Except as provided herein, this Agreement may be amended or supplemented only by a writing signed by both Parties hereto.
10.6. Invalidity of Particular Provisions
If any provision of this Agreement is deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions contained herein shall not be affected or impaired. The invalid, illegal or unenforceable provision shall be reformed, amended interpreted or applied so as to produce as nearly as may be possible the economic result intended by the Parties.
10.7. Headings Descriptive
The headings of the several articles and sections of this Agreement are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Agreement.
10.8. Lease Registration
The Tenant and the Landlord shall cooperate and bear equal responsibility in submitting this Agreement and she rights and obligations arising hereunder to state registration in accordance with applicable Russian legislation. Notwithstanding the above, however, the obligation of the Tenant to make Rent Payments hereunder shall be independent of whether or not state registration of this Agreement and the rights and obligations hereunder has been completed.
This Agreement shall be made in three originals, one for each Party hereto, and one for submission to the state registration authorities. All copies shall have the same legal force and effect. In case of differences between the English and the Russian versions hereof, the Russian version shall prevail.
11. ADDRESSES AND BANK ACCOUNTS OF THE PARTIES
BTI's Documents: BTI floor Plan; Explication to the floor plan; Extract from the Technical Passport for the Building (la Form).
Floor Layout with the mark of the Premises location.
Trade Center Rules and Regulations
Form of the Turnover Report
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