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EXHIBIT 10.47
LEASEHOLD CONTRACT
BETWEEN
THE LESSOR: BASLER KANTONALBANK
SPIEGELGASSE 2
CH-4002 BASEL
SWITZERLAND
AND
THE LESSEE: DISCOVERY TECHNOLOGIES AG
C/O BURECO AG
STADTWEG 4
CH-4310 RHEINFELDEN
SWITZERLAND
CONCERNING: OFFICE AND LABORATORY PREMISES IN THE
REAL-ESTATE PROPERTY AT
GEWERBESTRASSE 16
CH-4123 ALLSCHWIL
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1. Preamble
The parties agree on the rent for the office and laboratory premises in
the property at Gewerbestrasse 16 in Allschwil. The right of
codetermination for additional tenants, as well as intentions for the
innovation centre, will be set forth in a separate agreement. The basic
rent forms payment for the assignment of these premises in their (present)
"rough state" (gross rent). For her(1) requirements the Lessee needs the
installation of additional technical appointments (energy, ventilation,
laboratory installations etc.). The parties shall plan this extension work
jointly. The Lessor shall assume the task of obtaining the requisite
planning permission and the execution of the extension work for own
account. The Lessee shall reimburse this extra investment on the part of
the Lessor by means of additional rent (extension rent). The parties wish
to adhere to the following schedule(2):
20.06.1997 Signing of the leasehold contract Availability of layout
and initial description of extension work
23.07.1997 Submission of building application
01.09.1997 Granting of planning permission
01.02.1998 Completion of extension work on part of Lessor Handover
of leased property.
1.1 Suspensory condition
This leasehold contract is concluded on the suspensory condition that
planning permission is finally granted for the above-mentioned additional
extension work (subitem 2.4.b).
In the event of such planning permission not having been granted and made
available by 3 November 1997, this leasehold contract shall lapse unless
the Lessee declares her agreement in writing to a deferral of this time
limit to a later juncture. In this case, each party shall bear the costs
incurred by it to date. (In particular, the Lessor shall bear the planning
costs of completion by the Lessee.) No further mutual obligations shall
otherwise exist.
2. Leased property
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(1) Translator's note: The use of the feminine form here may indicate either a
female lessee or simply a corporate lessee in the form of a company.
(2) Translator's note: Please note that all figures in this text should be
checked, as the quality of the source document was not sufficiently clear to be
100% certain of certain digits!
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2.1. The Lessor shall assign to the Lessee the following premises in the
previously mentioned property for use on a leased basis:
Office and laboratory premises on the 4th floor, approx. 1,330 sq.m.
Archive rooms on the 2nd sub-basement floor, approx. 60 sq.m. 15
underground parking spaces
2.2 The Lessee is entitled in building no. 16 to joint use of the following
communal and collective parts, premises, rooms and appointments under the
terms of the house rules:
- Staircase
- Passenger lifts and goods lift
2.3 The rented premises according to subitem 2.1 are set out in the floor plan
enclosed.
The plan shall be signed by both parties and shall form part of this
contract.
2.4 The Lessor shall assign the property to the Lessee with extensions
specific to the Lessee. Currently, the building has not yet been extended.
The following three different stages of extension have been finalized:
a) Shell construction (gross rent)
supporting structure (floors, supports, ceilings) facade with
windows and sunbreakers staircase, lift, toilet facilities in the
core zone detailed description as per appendix
b) Lessee-specific extension provided by the Lessor (extension rent)
The description of the extension shall be detailed more precisely in the
mutual agreement on completion of the contract; the following shall be
used as a basis at the time of completion of contract:
Walls, doors: - Offices: partitions, panel component system
- Labs: plasterboard partition walls with PVC
wallpapers
Floors: - Offices: double floors, textile flooring, colour as
per collection
- Labs: double floors, PVC flooring, colour as per
collection
- antistatic, conductive
Ceilings: - Offices, reception, conference rooms, corridor area,
suspended ceiling cladding made of mineral fibre
panels, lattice system
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- Labs: rough concrete ceilings, painted
Ventilation: - Offices: mechanical ventilation across floors and
ceilings, incl. cooling
- Labs: mechanical ventilation, visibly mounted on
ceiling, chapel exhaust air removal(3) (as per
EKAS(4) guidelines), incl. cooling
Electrical plant: - Ducting from main distribution to subdistribution in
labs and to sockets in offices. Ceiling illumination
- Cable chutes in labs
- Doorbell system and interphone
- Fire alert system
Sanitary, media: - Hot and cold water connection, waste water connection
(WAS(5), labs), separate system to sub-basement
floors
Telephone: - Connections available on 4th floor at lift landing
place.
Immediately after signing this leasehold contract the parties shall
expedite detailed planning together with the planning company commissioned
and submit the building application in due course. The Lessor shall assume
the costs of these additional extensions up to a maximum amount of
1,800,000 Swiss francs (planning, costing, planning permission procedure,
execution). Works and appointments exceeding this limit shall be borne by
the Lessee and are subject to prior acceptance by him in writing.
c) In particular, items not included in the extension and additional
building by the Lessor, and hence to be assumed by the Lessee, are:
- Electrical installations in the labs from the subdistribution
system
- Telephone switchboards with internal cabling
- Computer installation and internal cabling/trunking as well as
installations for additional means of communications
- Miscellaneous lessee-specific, special-purpose extensions such
as chapels, lab furniture, cold-storage cells, clean rooms,
washing benches in labs, gas installations, compressed air,
built-in cupboards corridor area
- Pretreatment or disposal of contaminated waste water (WAS
connection available)
- mobile fire extinguishing gear.
The Lessee shall submit the plans to the Lessor for written permission.
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(3) Translator's note: Technical term not found. This is merely a literal
translation.
(4) Translator's note: EKAS stands for the "(Swiss) Confederate Coordination
Commission for Occupational Safety", under SUVA (the "Swiss Workmen's
Compensation Institute").
(5) WAS stands for the Water Delivery Regulations.
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Any permits, authorization and consent needed apart from building
permission for structural additions (operating authorization, work permits
etc.) shall be the concern of the Lessee and shall be submitted with the
building application. They have no influence on the continuance of the
present leasehold contract.
2.5 Until 30 June 2000 the Lessee shall have a leasing option on the remaining
premises on the 4th floor of building 14 measuring in the region of 650
sq.m. Gross rent conditions as per graduated rent in item 4.1.
3. Term of tenancy
3.11 Start of tenancy
Tenancy shall commence five months after final and effective building
authorization has been granted, foreseeably on 1 February 1998 and no
later than 1 June 1998.
3.12 Term of tenancy, extension of contract
The tenancy shall be concluded for an initial fixed contractual duration
of 10 years until 31 January 2008.
On expiry of the first contractual period the contract shall be extended
by an additional fixed contractual term of five years each time, unless
terminated by registered letter at least 12 months prior to expiry.
3.13 Notice
On expiry of a fixed contractual period the tenancy can be terminated at
12 months' notice to the end of January, the first time being end-January
2008.
3.2 End of lease
3.21 Termination shall be deemed to have taken place promptly if deposited with
the recipient or in his sphere of control (notice of collection in
letterbox or post-office box) no later than the last day prior to the
beginning of the period of notice.
The Lessor shall use the official form to serve notice.
3.22 The rent may be adjusted to prevailing market conditions with a
notification period of 15 months to the end of the fixed contractual
period or above-mentioned extension period.
3.3 Unscheduled termination of the leasehold contract
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3.31 If the Lessee wishes to end the leasehold contract without observing the
agreed time limits or deadlines, he shall advise the Lessor of this by
registered letter.
3.32 The Lessee is at liberty to propose to the Lessor a reasonable and solvent
substitute tenant to enter into the contractual relationship.
3.33 Unless otherwise agreed, the Lessor shall also take whatever measures are
necessary and appropriate to enable him to re-let the rented premises as
soon as possible.
3.34 The Lessee shall be liable for the rent as well as incidental and
subsidiary costs and for any other duties incumbent upon him as Lessee
until such time as the rented premises have been re-let, and at longest
until the next contractual term of notice, and for this purpose shall
furnish sureties in addition to those in subitem 14.1. below.
4. Rent
The rent is made up of a basic rent (gross rent) (with graduation for the
office and laboratory premises) and an extra rent for the total duration
of the lease for the additional building work by the Lessor (extension
rent).
4.1 The rent is agreed as follows:
Gross rent (shell) in accordance with subitem 2.4 a) for the bare premises
(without lessee-specific extensions), graduated:
<TABLE>
<CAPTION>
<S> <C> <C>
|X| During 1st and 2nd lease years CHF/m(2)/yr 75.00
|X| During 3rd lease year CHF/m(2)/yr 85.00
|X| During 4th lease year CHF/m(2)/yr 100.00
|X| During 5th to 10th lease years CHF/m(2)/yr 125.00
</TABLE>
Extension rent for lessee-specific extensions provided by the Lessor in
accordance with subitem 2.4 b) throughout the duration of the lease:
<TABLE>
<CAPTION>
<S> <C> <C>
|X| Estimate CHF/m(2)/yr approx. 125.00
</TABLE>
The extension rent shall be finalized once work measurement and billing
become available. Amortization of the extension costs shall be fixed at 15
years. The calculated estimate comprises 6.5% for amortization and 2% for
the average rate of interest, or 8.5% in total.
Extension costs: 1,800,000 million francs: 1,250 sq.m. = CHF 1,440/sq.m.,
8.5% of which = CHF 125/m(2)/yr.
The amount of CHF 125/m(2)/yr shall apply as a ceiling for the extension
rent.
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4.2 Accordingly, upon commencement of the lease, the annual rent for the first
two years will foreseeably total: CHF 270,400.00 made up as follows:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
|X| Offices and labs: 1,330 sq.m. @ CHF/m(2)/yr 75.00 CHF 99,750.00
|X| Extensions by Lessor 1,250 sq.m. @ CHF/m(2)/yr 125.00 CHF 156,250.00
|X| 15 parking spaces @ CHF 80/month CHF 14,400.00
|X| Total CHF 270,400.00
payable in quarterly instalments of CHF 67,600.00
excluding: subsidiary costs, quarterly
(1,330 sq.m. x CHF 6/m(2)/yr), on account CHF 1,995.00
Total payable in advance quarterly CHF 69,595.00
</TABLE>
4.3 The rent is payable in advance, no later than the first day of the rental
quarter (as due date).
5. Rent adjustments
5.1 The gross rent for offices and laboratories (in accordance with subitem
4.1) and parking spaces is based on the [Swiss] national consumer price
index. As of April 1997 this stood at 104.1 points. If the national
consumer price index is subject to any change after the commencement of
the lease or since the last adjustment, then irrespective of the fixed
contractual duration the gross rent can be adjusted to the change in this
index once a year on 1 February, the first time being in the fifth year of
the lease. However, the amount may not fall short of the gross rent in
subitem 4.1.
The Lessee shall be notified of the change in rent in writing and on the
official form, giving one month's notice.
5.2 Where value-enhancing applications or investments are undertaken during
the fixed contractual period, these shall be added to the basic rent in
accordance with subitem 4 in keeping with trade custom. Notification of
rent adjustments effected on the grounds of value-enhancing applications
shall be given on the official form, giving one month's notice.
6. Heating and subsidiary costs
6.1 The Lessee shall be charged the following heating and subsidiary costs on
top of the rent:
|X| Heating and hot water
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|X| Operation and maintenance of ventilation plant
|X| Water consumption, charges and wastewater treatment systems
|X| Operating and maintenance costs incl. service subscription for
passenger and goods lifts
|X| General lighting
|X| Caretaker's services (salary, social security payments, janitorial
materials)
|X| Refuse disposal/refuse container
|X| Any security and surveillance services or alarm system operations
|X| 3% of the total subsidiary costs by way of administration fee.
6.2 The heating and subsidiary costs are broken down as follows (unoccupancies
shall be chargeable to the Lessor):
6.21 Energy processing costs (especially heating and hot water costs):
|X| Basic and hot water costs to be divided up according to the size of
the business premises (square metres).
|X| Heating costs, conversely, to be allocated according to individual
meters.
6.22 Neutral costs (such as caretaker, general power, security services, alarm
systems etc.) are to be divided up according to the size of the premises
rented (square metres).
6.23 Costs dependent on consumption (e.g. water rate, wastewater and refuse
charges, lift operation costs etc.) are to be allocated according to the
size of the rented premises (square metres).
6.3 The Lessee shall remit half-yearly on-account payments towards the
above-mentioned subsidiary costs, with the Lessor drawing up and providing
the Lessee with a subsidiary cost sheet on 30 June of every year. The
subsidiary cost sheet shall be deemed to have been approved if not queried
in writing within 30 days of delivery (as postmarked). Upon expiry of the
above 30-day deadline for queries all subsequent claims or repayments
shall fall due.
If the tenancy is ended during the accounting period, the Lessee shall
have no claim to a subsidiary cost sheet ahead of the scheduled time.
6.4 The total power consumption for the leased property shall be chargeable to
the Lessee. Charges and dues generated exclusively by the Lessee's
business operations shall be borne by the Lessee even if levied from the
Lessor.
7. Handing-over of the leased property
7.1 The Lessor shall hand over the leased property in a clean state as
contractually stipulated, issuing the necessary keys no later than the
date mentioned in subitem 3 in accordance with local practice. Where the
aforementioned date falls on a
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Saturday, Sunday or bank holiday, hand-over shall take place on the
following working day at the latest.
7.2 The Lessee shall report all defects ascertained to the Lessor within 30
days of commencement of the lease by registered letter. If he fails to do
so, the leased property shall be assumed to have been transferred to him
in the contractual state.
8. Utilization of the leased property / duty of care
8.1 The rented space is at the Lessee's disposal for use as offices and a
laboratory.
8.2 The Lessee undertakes not to use the leased property for any purpose other
than that contractually provided for. Any change in ordinary use shall
require the prior consent of the Lessor in writing.
8.3 Where machinery and heavy furniture are installed, the static data of the
building shall be taken into consideration. The Lessee shall satisfy
himself in advance of the permissible floor load.
8.4 The operating instructions stipulated by the manufacturers shall be
observed when using the lift.
8.5 The Lessee may have extra keys made only with the written consent of the
Lessor.
In the event of keys being lost, the Lessee shall bear the costs of
replacing them and any closure systems that require replacing.
8.6 In making use of the leased property the Lessee undertakes to employ care
and consideration, particularly with regard to neighbours. The house rules
shall form an integral part of this contract.
8.7 In very general terms the Lessee is obliged to take all appropriate
measures to avoid or reduce noise, vibrations, smells and other
immissions. The Lessee is liable to the Lessor for any damage (incl.
claims by third parties) incurred by him from immissions exceeding
customary and authorized use.
8.8 The Lessee shall be fully liable to pay damages for violating his duty of
care. If, despite written admonition on the part of the Lessor, the Lessee
continues to violate his duty of care or consideration, the Lessor is
further at liberty to annul the present leasehold contract in accordance
with Art. 257f of OR(6).
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(6) OR stands for the Swiss Code of Obligations, the 5th Part of the Act of 30
March 1911 to Amend the Swiss Statute Book.
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9. Upkeep
9.1 Lessor's duty of upkeep / improvements
9.11 Maintenance work on the leased property shall be incumbent on the Lessor.
9.12 Bearing in mind the interests of the Lessee, the Lessor shall at all
times, unimpeded, be entitled to carry out repairs and renovations to the
leased property and appurtenant appointments in accordance with Art.
2.4a+b, provided that notice on the tenancy has not been given. The Lessee
shall be given prompt notification in writing of major rebuilding work and
new installations. Any claims on the part of the Lessee shall conform to
Art. 260 of OR.
9.2 Lessee's duty of upkeep
9.21 Any improvement and repair work made necessary by normal use and not
exceeding CHF 500 in any one instance shall be chargeable to the Lessee.
In particular, this shall include the replacement of electrical fuses as
well as shattered panes of glass, maintenance of electrical switches and
sockets, gas and water taps, drains and door locks etc.
9.22 The Lessee shall be responsible for the upkeep of all structural
modifications effected by him in accordance with Art. 2.4 c and
appliances.
9.23 Defects which the Lessee is not responsible for remedying shall be
notified to the Lessor immediately. Failure to notify these shall render
the Lessee liable for any damage arising therefrom.
10. Structural modifications
10.1 Modifications and renovations to and in the rented premises, the mounting
of shutters, company signs or advertising devices etc. are permitted only
with the Lessor's prior consent in writing. The Lessee is obliged to
execute such work professionally. The fitting of devices to the facade
(advertising signs and hoardings, shutters, display cases, aerials etc.)
shall be in keeping with the leased property and the surroundings.
10.2. The Lessee's appointments (Art. 2.4c) shall remain his property. The plans
and designs as well as the costing estimates shall be presented to the
Lessor for his written permission.
10.3. It shall be incumbent on the Lessee to secure any official authorizations
needed. The Lessee further undertakes to take out the customary building
insurance policies and to bear the costs thereof and defray any extra
premium on property and non-life insurance.
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10.4. The Lessor is entitled to demand from the Lessee security or a financing
statement for the foreseeable structural costs entered into by the Lessee,
particularly with a view to promptly averting any builders' and
tradesmen's right of lien.
If third-party claims are made on the Lessor for immissions arising as a
result of the Lessee's structural modifications or appointments, the
Lessee shall be liable to compensate the Lessor for the damage sustained.
10.5 Upon conclusion of the lease the Lessee shall restore the premises to
their original condition at his own cost or by mutual arrangement assign
his appointments to the Lessor free of charge in accordance with subitem
2.4c.
11. Subletting / cession of the leasehold contract.
Partial or full subletting of the rented premises (or cession of the
leasehold contract) shall require the consent of the Lessor in writing.
12. Lessor's right of access
12.1 The Lessor or his representative shall be entitled to enter the leased
property with a view to protecting his rights (re-letting, sale, repairs,
renovations etc.) during the customary hours of business after giving 48
hours' notification in advance.
12.2 In the absence of the Lessee the keys shall be kept available.
13. Insurance
13.1 The Lessor shall take out the compulsory fire insurance, property-owner's
liability insurance and property water-damage insurance.
13.2 The Lessee shall bear the risk of damage to or loss of his appointments,
his furniture or his goods, particularly as a result of fire, explosion,
water, burglary or theft. He undertakes to take out an employer's
liability insurance policy.
13.3 The Lessor assumes no liability for any display windows, showcases, panes,
glass panelling, company signs, luminous signs etc. Adequate insurance
against such damage shall be the concern of the Lessee.
14. Furnishing of security
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14.1 Within 14 days of signing the contract the Lessee shall furnish for the
entire duration of the lease + 3 months the following securities in the
form of a bank guarantee for the following amount:
CHF 60,000.00 until the availability of planning permission
CHF 140,000.00 from the availability of planning permission.
In the event of the Lessor asserting legal claims against the Lessee
arising from the tenancy, the bank guarantee must remain valid until the
settlement of the legal dispute. In this case the Lessor must advise the
bank.
14.2 Once planning permission becomes available, the Lessee shall furnish a
financing statement for the extension work by the Lessee in accordance
with subitem 2.4c.
15. Return of the leased property.
15.1 The Lessee shall hand over the rented premises, complete with all keys, no
later than the last day of the lease term, by 12 noon. Any additional keys
made shall be handed over to the Lessor without compensation. Where the
deadline for return falls on a Saturday, Sunday or bank holiday, the
premises shall be returned on the following working day (by 12 noon).
15.2 When surrendering the leased property, the Lessee shall again remove the
completed extensions executed by the Lessee without compensation. The
additional extensions provided by the Lessor (subitem 2.4b) shall remain
part of the leased property. Where installations made by the Lessee
(subitem 2.4c) are able to remain in the leased property with the consent
of the Lessor, the Lessor shall pay no compensation for such.
15.3 Refurbishment and cleaning work to be undertaken by the Lessee shall be
commenced on time so as to be completed by the end of the tenancy.
Where, for reasons to be supported by the Lessee, the leased property
cannot be handed over to the successor on time, the Lessee shall be liable
to the Lessor for any damages arising as a result.
15.4 When surrendering the property, the Lessor--preferably in the presence of
the Lessee--shall provide a restitution log, recording the state of the
leased property and, in particular, defects and damage for which the
Lessee is to pay. The log shall be signed by the Lessee or delivered to
him without delay by registered letter. If it is not possible for the
Lessee to sign the log, the Lessor can also have a record drawn up by an
official expert at the Lessee's expense. Again, this is to be brought to
the attention of the Lessee by registered letter. If the Lessee raises no
objection within 30 days of delivery of the log, it shall be deemed to
have been approved by him.
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Hidden defects can be asserted by the Lessor subsequently. However, he
must inform the Lessee thereof by registered letter immediately after
ascertaining such.
16. Final provisions
16.1 Contractual amendments
Any amendment to the contract shall be made in writing.
16.2 Postal domicile
Until revoked by registered letter to the other party, the following
addresses shall be valid as the effective postal domiciles of the parties
to the contract within the meaning of this contract:
<TABLE>
<CAPTION>
<S> <C>
Lessee's postal domicile: Stadtweg 4, CH-4910 Rheinfelden
Lessor's postal domicile: Spiegelgasse 2, CH-4002 Basel
</TABLE>
16.3 Legal venue
For all disputes arising from this leasehold contract the location of the
rented property shall be held to be the legal venue.
16.4 Entry in the land register
The Lessee has the right to have this leasehold contract entered in the
register at his own expense for the duration of the contract.
16.5 Residential property
In the event of the property being divided up into freehold flats, the
Lessor is prepared to guarantee the Lessee a purchase option for the
duration of the tenancy.
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The above leasehold contract to be drafted and signed in triplicate.
Basel, 18 June 1997
/s/ Rheinfelden, 19.6.97
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The Lessor: The Lessee:
Basler Kantonalbank Discovery Technologies AG
/s/ illegible
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/s/ illegible /s/ illegible
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17. Appendix:
Floor plan recording rented premises.
