(A)

The Landlord is the owner of the real property located at the postal address of Hafenstraße 9 in 97424 Schweinfurt (the “Property”).

(B)

The Tenant already currently leases the Property from the Landlord under a lease agreement dated 30 September 1996, as amended from time to time, (the “Existing Lease Agreement”).

(C)

The tenancy under the Existing Lease Agreement expires on 31 December 2016.

(D)

The Parties do not wish to further amend the Existing Lease Agreement, but replace it by a new and restated lease agreement.

1

Leased Premises

1.1

This Lease Agreement relates to the manufacturing facilities and ancillary space located on the Property and comprises the entire Property as outlined in colour in the layout plan attached hereto as Annex 1.1 (the “Leased Space”).

1.2

This Lease Agreement includes all essential fixtures which are part of the Leased Space by virtue of law (wesentliche Bestandteile) and which are available at the commencement of the lease (the “Leased Fixtures”).

1.3

The Landlord warrants that (i) the Leased Space meets the general technical requirements which may apply to the purpose of the lease and (ii) complies with all statutory provisions and/or all directives of authorities.

2

Term, Termination and Handover

2.1

The lease term shall commence on 1 January 2017, 0.00 hrs. CET (the “Lease Commencement”).

2.2

In the event of termination of this Lease Agreement before the agreed date for which termination the Tenant is responsible, the Tenant shall be liable for any and all damage caused thereby, in particular, but not limited to, loss of rent, incidental expenses and other charges relating to the period for which the lease has been entered into. The same shall apply vice versa should the Landlord be responsible for the termination.

2.3

Since the Tenant already occupies the Leased Space and possesses the required number of keys, no separate physical handover shall take place. The Leased Space under this Lease Agreement is automatically deemed handed over as of the Lease Commencement.

3

Rent, Rent Adjustment and Advance Payments on Ancillary Costs

3.1

The annual rent for the Leased Space is initially agreed at EUR 4,606,167 plus the statutory VAT applicable from time to time (currently 19%).

3.2

The rent shall automatically be adjusted at the beginning of each calendar year in accordance with the increase or decrease of the consumer price index for Germany (Verbraucherpreisindex für Deutschland), basis 2010 = 100, as published by the Federal Office of Statistics, as compared to the level of such index on the Lease Commencement or as compared to the time any subsequent adjustment of the rent has been made as provided for herein. It is however understood that no Party shall be in default with the adjusted payment prior to a written notification of the adjustment by the other Party.

3.3

The Landlord is in its equitable discretion (nach billigem Ermessen) entitled to claim reasonable advance payments on ancillary costs which are not directly settled by the Tenant (Clause 4). Such advance payments shall be payable each month in addition to and together with the rent.

4

Ancillary Costs

4.1

The Tenant shall bear all operating costs within the meaning of the Operation Cost Ordinance (Betriebskostenverordnung).

4.2

The Tenant shall directly settle accounts for these ancillary costs with the individual service providers/creditors if and to the extent that this is possible.

5

Manner of Payment

5.1

The rent and the advance payments on ancillary costs shall be payable in advance for each month no later than on the third business day (Werktag) of each month.

5.2

The receipt of the amount and/or the credit entry on the Landlord’s account shall be decisive for timely payment.

5.3

If and when the Tenant is in arrears with any payment, the Tenant shall owe dunning costs, if any and default interest at the respective statutory rate according to Sec. 247 of the German Civil Code (Bürgerliches Gesetzbuch – “BGB”).

6.1

The Parties undertake to effect and shall bear the costs for the maintenance (incl. decorative repairs), repair and replacement within the Buildings as set out in the Annex 6.1 which is attached hereto.

6.2

The Tenant is entitled to effect improvements to the Leased Space with the Landlord’s consent which shall not be unreasonably withheld.

6.3

Where the Parties agree that, for reasons of practicality, the Tenant performs services that are contractually owed by the Landlord, e.g. according to Annex 6.1, the Tenant will invoice such services to the Landlord. However, the Tenant is obliged to obtain the Landlord’s approval in advance which is not to be unreasonably withheld.

7

Setoff, Retention and Reduction of Rent

7.1

The Tenant may offset a claim against the rent or the ancillary costs or exercise a right of retention only, if the counterclaim is uncontested or has become res judicata.

7.2

The Tenant may reduce the rent payments (Minderung) because of a defect of the Leased Space or its use only if and when (i) it notifies the Landlord in writing of its intention to reduce the rent at least one month before effecting the first reduction and (ii) it is not in arrears (Verzug) with any payments.

8

Subleasing

8.1

The Landlord’s consent shall be required for any subleasing or other permission to use the Leased Space granted to third parties. Such consent to subleasing may not be unreasonably withheld.

8.2

Subletting to affiliated entities of the Tenant within the meaning of Sec. 15 seq. AktG shall be deemed consented to by the Landlord as long as the relevant subtenant remains the Tenant’s affiliate within the meaning of Sec. 15 seq. AktG.

11

Security, Landlord’s Lien

11.1

The Tenant shall pay an amount of EUR 1,151,542 as security for any and all payment obligations hereunder including costs of legal remedies and eviction.

11.2

This security may also be provided also in the form of an irrevocable, directly enforceable, unconditional guaranty, unlimited in time, of a major German bank (selbstschuldnerische Bankbürgschaft). Payment by the guarantor shall be made upon first request of the Landlord.

11.3

Any security will be returned to the Tenant only, but then without undue delay, after fulfilment of all obligations of the Tenant, in particular, but not limited to, the obligation to pay rent, ancillary costs and repair costs and after vacation of the Leased Space.

11.4

The Tenant knows that the Landlord has a statutory lien (Vermieterpfandrecht) on the Tenant’s property which the Tenant brought into the leased premises, and that the Tenant shall not be entitled to remove this property without the Landlord’s consent, except in the ordinary course of business. The ordinary course includes disposal of obsolete or replaced equipment.

12

Termination or Expiration of the Term of this Lease Agreement

13

Insurances and Duty to ensure Safety

13.1

To the extent permitted by law, the Tenant shall have the duty to make the Leased Space safe for persons and vehicles (Verkehrssicherungspflicht).

13.2

The Tenant shall be responsible for Insurance coverage for the risk resulting from its business operation.

14

Miscellaneous

14.1

This Agreement contains all contractual arrangements made between the Parties with respect to the lease. There are no verbal side agreements.

14.2

Modifications of and supplements to this Lease Agreement shall be valid only if made in writing in the form of a formal amendment.

14.3

If any provision of this Lease Agreement or of any amendment to it is or will become invalid, this shall not affect the validity of the remaining provisions hereof and thereof. The Parties undertake to replace the invalid provision by a legally valid provision most closely matching the commercial and legal intention of the invalid provision.

14.4

The Parties are aware of the requirements of written form provided for in Sec. 550 BGB in conjunction with Sec. 578 para 1 BGB. Each of the Parties undertakes that at the other Party’s request it will immediately issue any statements and take any other action that may be required to ensure compliance with these requirements of written form and both Parties further undertake not to terminate this Agreement prematurely on grounds of it being ineffective due to non-compliance with any written form requirements. These undertakings shall apply not only to this ‘original’ or ‘principal’ Lease Agreement, but also to any addenda, amendments or supplements to this Lease Agreement. The aforementioned Parties are in agreement that, in deviation from Sec. 125 para 2 BGB, any failure to observe the written form requirement shall not affect the validity of this Lease Agreement.

14.5

Due to the protection purpose of Sec. 550 BGB, the written form cure clause in Clause 14.4 does not have any binding effect on a possible acquirer of the Property. Therefore, if the Property is sold and is transferred to the acquirer as new landlord, the Tenant undertakes to conclude a new written form clause with the same content with the acquirer if the latter requires it. In the Tenant’s interest, the Landlord undertakes to oblige an acquirer by means of the purchase agreement (agreement according to Sec. 328 BGB) to conclude an amendment containing a written form clause with the Tenant at the Tenant’s request.

14.6

This Lease Agreement shall be governed by German law. Exclusive place of jurisdiction is Bad Homburg v.d.H.

(i)

Roof and structure refers to the roof and roof cover of the Buildings, their facade, the floor, the outside areas including parking spaces, the overarching technical systems (e.g. fire protection systems), the canalisation, all structural and load bearing elements, the outside of external doors and windows as well as overarching technical systems such as plumbing, electricity supply, heating, ventilation and cooling systems.

(ii)

Maintenance and repair (Instandhaltung and Instandsetzung) refers to measures required to keep the Building and its installations functional and restore functionality in case of defects, including the replacement of expendable items (Verbrauchsteile).

(iii)

Replacement and renewal refers to the exchange of defective parts – except for expendable items – that cannot or not with any commercially reasonable effort be repaired or have exceeded their permitted lifespan.

(2)

Fresenius Medical Care Deutschland GmbH,

(A)

The Landlord is the owner of the real property located at the postal address of Hafenstraße 9 in 97424 Schweinfurt (the “Property”).

(B)

On 30 December 2016, the Parties concluded a lease agreement in relation to the Property (hereinafter referred to as the “Initial Lease Agreement”).

(C)

The Leased Space under Initial Lease Agreement comprised the entire Property, including all manufacturing facilities and ancillary space located on the Property, such facilities in turn including the Bosch-Hallen (the “BH”) marked as no. 19 on the plan attached to this Amendment No. 1 as Annex 1.

(D)

In mid-2017, the BH were demolished and are no longer used by the Tenant. The Parties have therefore agreed to adjust the rent accordingly as of 1 July 2017. Further, the Parties agreed on a one-time payment to the Landlord as rent compensation and a reimbursement to the Tenant for over-paid rent.

(E)

The Parties therefore conclude this Amendment No. 1 to the Initial Lease Agreement (Initial Lease Agreement and Amendment No. 1 together the “Lease Agreement”).

1

Leased Premises

2.1

The annual rent according to clause 3.1 of the Initial Lease Agreement was initially agreed at EUR 4,606,167 plus the statutory VAT applicable from time to time (currently 19%).

2.2

The annual rent was reduced to EUR 4,506,145.68 plus the statutory VAT applicable from time to time (currently 19%) as of 1 July 2017 due to the demolition of the BH.

2.3

As rental payments for July – December 2017 had already been made, the Landlord still has to reimburse the Tenant in a one-time payment of EUR 50,010.64 for overpaid-rent.

2.4

The Tenant, in turn, has made a one-time payment in the amount of EUR 762,219.97 to the Landlord as rent compensation.

4.1

Defined terms, insofar as not stipulated differently in this Amendment No. 1, shall have the same meaning as in the Initial Lease Agreement.

4.2

Insofar as not explicitly amended in this Amendment No. 1 all provisions of the Initial Lease Agreement continue to apply unchanged.

4.3

This Amendment No. 1 including its Annex 1 shall become an integral part of the Initial Lease Agreement and – together with it – as the Lease Agreement contains all contractual arrangements made between the Parties with respect to the lease. There are no verbal side agreements. Any modification or addition to the Lease Agreement, including the present provision, must be made in writing.

4.4

The Parties are familiar with the decision of the Federal Court of Justice dated 27 September 2017 – XII ZR 114/16 – according to which so called “written form curing clauses” are held void. However, the Parties hereby nevertheless expressly agree that they want to agree on the following curing clause in case of a change or re-interpretation of case law:

4.5

Should any provision of the Lease Agreement (including clause 4.4) be void, voidable or otherwise unenforceable for any other reason, this shall not affect the validity of any of the other provisions of the Lease Agreement. The Parties agree that they will replace any provision that may be void, voidable or otherwise ineffective by such valid provision that comes closest to the economic purpose and the essence of the original provision and that guarantees a corresponding economic success.

4.6

Should the Lease Agreement contain any unintended contractual gap the Parties will close such gap by agreeing on a provision that corresponds to what the Parties would have agreed had they duly considered the unintended contractual gap when negotiating this Amendment No. 1.

4.7

If this Amendment No. 1 is initially signed by only one of the Parties and submitted or sent to the other Party for signature, this shall be deemed to constitute an offer to enter into this Amendment No. 1 and such offer may be accepted by the other Party within a deadline of 10 business days, as stipulated in § 148 of the German Civil Code.

(A)

The Landlord is the owner of the real property located at the postal address of Hafenstraße 9 in 97424 Schweinfurt.

(B)

On 30 December 2016, the Parties concluded a lease agreement in relation to Hafenstraße 9 as amended with Amendment no. 1 dated 15/20 March 2018 (hereinafter referred to as the “Initial Lease Agreement”).

(C)

On 24 August 2018, the Landlord acquired a property located at Werner-von-Siemens-Straße 1 in Schweinfurt (hereinafter referred to as the “Property”) in exchange for a property located at Sven-Wingquist-Straße 2. The Tenant wishes to rent the Property from the Landlord whereas at the same time he will stop using the property located at Sven-Wingquist-Straße 2.

(D)

The Parties therefore conclude this Amendment No. 2 to the Initial Lease Agreement (Initial Lease Agreement and Amendment No. 2 together the “Lease Agreement”).

1.1

The Leased Space is hereby altered and amended as outlined in Annex 1 attached to this Amendment No. 2.

1.2

The Tenant is familiar with the size and shape of the Property as depicted in Annex 1 and accepts this as the agreed size and shape. The Tenant accepts the current condition of the Property as the contractually owed condition (vertragsgemäß).

1.3

The Tenant has allowed the seller of the Property, EMS Technischer Fachgroßhandel Verwaltungs-GmbH, to use parts of the existing building on the Property as office space until 31 March 2020 at the longest. The Landlord has agreed to this sublease and gave its consent.

1.4

After 31 March 2020, the Tenant plans to demolish the building on the Property and to build parking spaces. The Parties agree that respective (rent) adjustments shall be agreed between the Parties in a subsequent amendment to the Lease Agreement, whereby it is anticipated that, as of the demolishing of the building, the Tenant shall pay to the Landlord the book value of the building while the rent for the building shall no longer be payable. The cost for demolishing the building and building the parking spaces shall be borne and accounting wise activated by the Tenant.

3.1

Based on the altered and amended Leased Space (adding Werner-von-Siemens-Straße, subtracting Sven-Wingquist-Straße), the total rent as of the conclusion of this Amendment is agreed as follows:

3.2

The rent remains payable plus statutory VAT applicable from time to time (currently 19%).

4

Final Provisions

4.1

Defined terms, insofar as not stipulated differently in this Amendment No. 2, shall have the same meaning as in the Initial Lease Agreement.

4.2

Insofar as not explicitly amended in this Amendment No. 2, all provisions of the Initial Lease Agreement continue to apply unchanged.

4.3

This Amendment No. 2 including its Annex 1 shall become an integral part of the Initial Lease Agreement and – together with it – as the Lease Agreement contains all contractual arrangements made between the Parties with respect to the lease. There are no verbal side agreements. Any modification or addition to the Lease Agreement, including the present provision, must be made in writing.

4.4

The Parties are familiar with the decision of the Federal Court of Justice dated 27 September 2017 – XII ZR 114/16 – according to which so called “written form curing clauses” are held void. However, the Parties hereby nevertheless expressly agree that they want to agree on the following curing clause in case of a change or re-interpretation of case law:

4.5

Should any provision of the Lease Agreement (including clause 4.4) be void, voidable or otherwise unenforceable for any other reason, this shall not affect the validity of any of the other provisions of the Lease Agreement. The Parties agree that they will replace any provision that may be void, voidable or otherwise ineffective by such valid provision that comes closest to the economic purpose and the essence of the original provision and that guarantees a corresponding economic success.

4.6

Should the Lease Agreement contain any unintended contractual gap the Parties will close such gap by agreeing on a provision that corresponds to what the Parties would have agreed had they duly considered the unintended contractual gap when negotiating this Amendment No. 2.

4.7

If this Amendment No. 2 is initially signed by only one of the Parties and submitted or sent to the other Party for signature, this shall be deemed to constitute an offer to enter into this Amendment No. 2 and such offer may be accepted by the other Party within a deadline of 10 business days, as stipulated in § 148 of the German Civil Code.

1.1

This Lease Agreement relates to the Property and comprises the building outlined in colour in the layout plan attached hereto as Annex 1.1, including the parking spaces, and the bridge (the “Leased Space”).

1.2

This Lease Agreement includes all essential fixtures which form part of the Leased Space by virtue of law (wesentliche Bestandteile) and which are available at the commencement of the lease (the “Leased Fixtures”).

2

Term, Termination and Handover

2.1

The lease term shall commence on 1 December 2022, 0.00 hrs. CET (the “Lease Commencement”). Economically, the Parties will put each other in such position, in particular as to the payment of rent, as if this Lease Agreement had become effective as of 1 December 2022. For this purpose, the Parties will engage in the required nettings/set-offs to the extent required.

2.2

In the event of termination of this Lease Agreement before the agreed date for which termination the Tenant is responsible, the Tenant shall be liable for any and all damage caused thereby, in particular, but not limited to, loss of rent, incidental expenses and other charges relating to the period for which the lease has been entered into. The same shall apply vice versa should the Landlord be responsible for the termination.

2.3

Since the Tenant already occupies the Leased Space and possesses the required number of keys, no separate physical handover shall take place. The Leased Space under this Lease Agreement is automatically deemed handed over as of the Lease Commencement.

3

Rent, Rent Adjustment and Advance Payments on Ancillary Costs

3.2

The rent shall automatically be adjusted at the beginning of each calendar year in accordance with the increase or decrease of the consumer price index for Germany (Verbraucherpreisindex für Deutschland), basis 2015 = 100, as published by the Federal Office of Statistics, as compared to the level of such Index on the Lease Commencement or as compared to the time any subsequent adjustment of the rent has been made as provided for herein. It is however understood that no Party shall be in default with the adjusted payment prior to a written notification of the adjustment by the other Party.

3.3

The Landlord is in its equitable discretion (nach billigem Ermessen) entitled to claim reasonable advance payments on ancillary costs which are not directly settled by the Tenant (Clause 4). Such advance payments shall be payable each month in addition to and together with the rent.

4

Operation and Running Costs

4.1

The Tenant shall bear all operating costs within the meaning of the Operation Cost Ordinance (Betriebskostenverordnung). Furthermore, the Parties agree to share running costs (e.g. for maintenance, decorative repairs, replacements and repairs) as set out in Annex 4.1 attached hereto.

4.2

The Tenant shall directly settle accounts for these ancillary costs with the individual service providers/creditors if and to the extent that his is possible.

(a)

property tax (Grundsteuer)

(e)

hot water, water consumption

(f)

wastewater and use of the sewerage system

(g)

garbage disposal

(h)

electricity consumption

(i)

gas consumption.

5.3

If and when the Tenant is in arrears with any payment, the Tenant shall owe dunning costs, if any and default interest at the respective statutory rate according to Sec. 247 of the German Civil Code (Bürgerliches Gesetzbuch – “BGB”).

6

Improvements

7

Setoff, Retention and Reduction of Rent

7.1

The Tenant may offset a claim against the rent or the ancillary costs or exercise a right of retention only, if the counterclaim is uncontested or has become res judicata.

7.2

The Tenant may reduce the rent payments (Minderung) because of a defect of the Leased Space or its use only if and when (i) it notifies the Landlord in writing of its intention to reduce the rent at least one month before effecting the first reduction and (ii) it is not in arrears (Verzug) with any payments.

8

Subleasing

8.2

Subletting to affiliated entitles of the Tenant within the meaning of Sec. 15 seq. AktG shall be deemed consented to by the Landlord as long as the relevant subtenant remains the Tenant’s affiliate within the meaning of Sec. 15 seq. AktG.

8.3

The Tenant shall be liable for any and all acts or omissions of its subtenants. The Tenant, here and now, assigns to the Landlord for security purposes the Tenant’s claims against the subtenant under the sublease – including the lien (Pfandrecht) securing such claims – up to the amount of rent and ancillary cost prepayments owed to the Landlord. The Landlord accepts such assignment. The Tenant, however, remains entitled to collect rent and enforce claims under the sublease agreement unless the Landlord notifies the subtenant in writing that the security purpose has occurred.

9

Advertising Measures

10

Entry of Leased Space by Landlord

11

Security, Landlord’s Lien

11.1

The Tenant shall pay an amount of EUR 512,345.18 as security for any and all payment obligations hereunder including costs of legal remedies and eviction.

11.2

This security may also be provided also in the form of an irrevocable, directly enforceable, unconditional guaranty, unlimited in time, of a major German bank (selbstschuldnerische Bankbürgschaft). Payment by the guarantor shall be made upon first request of the Landlord.

11.3

Any security will be returned to the Tenant only, but then without undue delay, after fulfilment of all obligations of the Tenant, in particular, but not limited to,

11.4

The Tenant knows that the Landlord has a statutory lien (Vermieterpfandrecht) on the Tenant’s property which the Tenant brought into the leased premises, and that the Tenant shall not be entitled to remove this property without the Landlord’s consent, except in the ordinary course of business. The ordinary course includes disposal of obsolete or replaced equipment.

12

Termination or Expiration of the Term of this Lease Agreement

13

Insurances and Duty to ensure Safety

13.1

To the maximum extent permitted by law, the Tenant shall have the duty to make the Leased Space safe for persons and vehicles (Verkehrssicherungspflicht).

13.2

The Tenant shall be responsible for insurance coverage for the risk resulting from its business operation.

14

Miscellaneous

14.2

Modifications of and supplements to this Lease Agreement shall be valid only if made in writing in the form of a formal amendment.

14.4

The Parties are familiar with the decision of the Federal Court of Justice dated 27 September 2017 - XII ZR 114/16 - according to which so called “written form curing clauses” are held void. However, the Parties hereby nevertheless expressly agree that they want to agree on the following curing clause in case of a change or re-interpretation of case law:

14.5

Due to the protection purpose of Sec. 550 BGB, the written form cure clause in Clause 14.4 does not have any binding effect on a possible acquirer of the Property. Therefore, if the Property is sold and is transferred to the acquirer as new landlord, the Tenant undertakes to conclude a new written form clause with the same content with the acquirer if the latter requires it. In the Tenant’s interest, the Landlord undertakes to oblige an acquirer by means of the purchase agreement (agreement according to Sec. 328 BGB) to conclude an amendment containing a written form clause with the Tenant at the Tenant’s request.