EXHIBIT 10.25
29 April 1997
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Property lease granted by
SLIBAIL IMMOBILIER and
NORBAIL IMMOBILIER to
AUXITROL SA
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▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇-▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
LUC BOUVET ET FRANCOIS THESSIEUX
NOTARIES
holders of a notarial office at
▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
At the head office of Societe Civile Professionnelle "▇▇▇▇ BERGERAULT, ▇▇▇▇▇▇▇
BERGERAULT, Bruno BERGERAULT, Notaires associes, holder of a notarial office at
▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ (▇▇▇▇),
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ THESSIEUX, notary in partnership of a company holding a notarial
office at ▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, received this deed in authentic
form.
INFORMATION ABOUT THE PARTIES
1. LESSORS
1.1 SLIBAIL IMMOBILIER
A public limited company,
governed by existing laws, notably Article 2 of Act No 66-455 of 2 July 1966,
modified by government order No 67-837 of 28 September 1967, with respect to
enterprises carrying on a leasing business, and by its bylaws,
with a capital of two hundred twenty million French francs (FRF 220,000,000),
having its registered office at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
entered in the Register of Companies of Paris under No B 682 039 086 (68B03908),
approved for the benefit of the tax rules applicable to SICOMIs (French
tax-exempt commercial property companies) by an order from the Ministry of
Finance dated 3 October 1968, whose decision to preserve the benefit of this tax
regime on the conditions stipulated in Article 96.I, second paragraph, of Act
90.1168 (Budget Act for 1991) was recorded on 4 July 1991 by the Ministry of the
Economy, Finance and the Budget,
originally incorporated under the name "SOCIETE LYONNAISE IMMOBILIERE POUR LES
COMMERCE ET L'INDUSTRIE - SLICOMI" and having:
- changed its name to "SLIBAILSICOMI" by virtue of a resolution adopted by
the Extraordinary General Meeting of partners of the said company on 9
November 1992, a duly certified copy of whose minutes was appended, after
mention, to an office copy of a deed recording their registration, received
by ▇▇▇▇▇▇ ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇, notary in partnership in Paris, on 21
December 1992,
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- adopted its current name by virtue of a resolution adopted by the
Extraordinary General Meeting of partners of the said company on 29 January
1996, a duly certified copy of whose minutes was appended, after mention,
to an office copy of a deed recording their registration, received by
▇▇▇▇▇▇ ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇, notary in partnership in Paris, on 4 March 1996,
represented by:
▇▇ ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇, attorney in fact, domiciled at ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇
Fontanot, Nanterre, Hauts de Seine,
acting on behalf of Mr Claude VIVIEN, General Manager of the said company,
by virtue of a power of attorney granted privately on 28 April 1997 in
Nanterre, appended hereto after mention,
the said Mr VIVIEN being at the time domiciled at ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇ and currently domiciled at ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ Fontanot, Nanterre,
Hauts de Seine, duly empowered to act herein by virtue of his functions,
confirmed for an indefinite time, with the right of substitution and with
the broadest possible powers to act under all circumstances on behalf of
the said company, including the power to act before the courts, by virtue
of a resolution adopted by the Board of Directors of the said company on 16
February 1995, a duly certified copy of whose minutes was appended, after
mention, to an office copy of a deed recording their registration, received
by ▇▇▇▇▇▇ ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇, the aforesaid notary, on 22 May 1995.
1.2 NORBAIL IMMOBILIER
A public limited company,
with a capital of FRF 50,000,000,
having its registered office at ▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
entered in the Register of Companies of Paris under No B 352 109 656 (89B14721),
represented by:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇▇, domiciled at ▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
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acting in her capacity as corporate secretary of the said company and by virtue
of the powers delegated to her by ▇▇ ▇▇▇▇▇▇▇▇▇ under a private deed executed in
Paris on 28 May 1996, filed on 12 June 1996 at the notarial office at ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
Under the said deed, ▇▇ ▇▇▇▇▇▇▇▇▇ himself acted as Chairman of the Board of
Directors of the said company, a function to which he was elected and which he
accepted by virtue of a resolution adopted by the Board of Directors on 29 March
1996, of which the minutes were filed on 12 June 1996 at the notarial office at
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
SLIBAIL IMMOBILIER and NORBAIL IMMOBILIER as well as their representatives are
herein referred to as the "LESSOR", acting jointly and respectively up to 50%
for SLIBAIL IMMOBILIER, the lead manager, and up to 50% for NORBAIL IMMOBILIER,
PARTY OF THE FIRST PART
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2. LESSEE
AUXITROL SA
A public limited company,
with a capital of FRF 25,000,000,
having its registered office at 78, ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇,
entered in the Register of Companies of Bourges under No B 602 023 251 (63B64),
represented by:
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Chairman of the Board of Directors of the said company,
domiciled at 78, ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, duly empowered to act
herein by virtue of a resolution adopted by the Board of Directors of the said
company in Saint Cloud on 3 April 1997, of which a duly certified copy is
appended hereto after mention.
AUXITROL SA and its representative are herein referred to as the "LESSEE",
PARTY OF THE SECOND PART
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PREAMBLE
WITNESSETH
1. The LESSEE wishes to have industrial premises, to be constructed on the
site described hereinafter, located in BOURGES (▇▇▇▇) and currently owned
by SEMARB, hereinafter referred to as the OWNER OF THE SITE.
2. Without intervention by the LESSOR, the LESSEE has taken the initiative to
negotiate its acquisition terms directly with the OWNER OF THE SITE.
3. The LESSEE arranged to have established, according to its needs, the
construction program for the premises to be erected at the site.
4. On 10 February 1997, the LESSEE filed a building permit application.
On 7 March 1997, the LESSEE obtained a building permit bearing No 018033 97
P0025, delivered by the Commune of BOURGES.
This permit was displayed at the townhall of BOURGES, as witness an
affidavit issued by the said townhall on 14 April 1997, and was displayed
at the site, as witness a report drawn up on 11 March 1997 by Maitre ▇▇▇▇
▇▇▇▇▇▇▇, bailiff in partnership in BOURGES.
5. The LESSEE has asked the LESSOR for the following property financing
transaction in its favor, including:
- acquisition of the said site by the LESSOR,
- construction by the LESSOR of the premises needed by the LESSEE,
- and lease by the LESSEE of the building, under a lease tied to a sales
undertaking.
6. The LESSOR has agreed to carry out this financing transaction in the light
of the LESSEE's person and the guarantees which the LESSEE has agreed to
provide.
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7. Under a deed received this day by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BERGERAULT, notary in
partnership in BOURGES, the LESSOR accordingly acquired the said site at a
price of FIVE MILLION FRANCS excluding VAT (FRF 5,000,000 ex-VAT),
incremented by ONE MILLION THIRTY THOUSAND FRENCH FRANCS (FRF 1,030,000) by
way of VAT, paid cash.
The LESSOR has further paid the notary the sum of SEVENTY-FIVE THOUSAND
FRANCS (FRF 75,000) by way of provision for the duties, taxes, costs and
emoluments due in connection with said acquisition.
8. The LESSEE has intervened in this sales deed to declare that all clauses
and terms of this deed correspond to those which the LESSEE itself had
negotiated with the seller.
DESCRIPTION OF PROPERTY
LAND TO BE ACQUIRED
In BOURGES (▇▇▇▇).
A building site survey section ZM number 139 at the site known as "Le Noir a
Beurat", with a content of five hectares thirty-seven areas and ninety-one
centiares (5ha 37a 91ca).
The said site is part of a development program governed by the ZONE
D'AMENAGEMENT CONCERTE DE L'ECHANGEUR (cloverleaf concerted development zone)
procedure adopted by resolution of the town council of the city of BOURGES on 26
October 1989, approved by the Prefect of the ▇▇▇▇ district on 26 October 1989,
of which the documents are filed with Maitre ▇▇▇▇▇▇, notary in partnership in
BOURGES, referred to more extensively hereinafter.
CONSTRUCTIONS TO BE ERECTED
An industrial building with a gross leasing area of 10,183 sq.m. and 251 parking
places at the surface.
In the remainder of the text, the term "property" shall be used to refer to all
property elements and rights covered by the lease.
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AGREEMENTS
NOW THEREFORE IT HAS BEEN AGREED AS FOLLOWS
The parties agree to carry out, within the framework of Act No 66-455 of 2 July
1966 and Article 57 of Act No 95-115 of 4 February 1995, the property financing
transaction described in the foregoing preamble and forming an indivisible whole
by agreement between the parties.
Accordingly,
- the parties have laid down and agreed to their reciprocal obligations
during the construction period;
- the LESSOR leases to the LESSEE, which agrees to let, the property
described above;
- the LESSOR undertakes to sell said property to the LESSEE, which accepts
this undertaking as an undertaking only, and reserves the right to acquire
or not to acquire said property at its discretion;
on the General Terms (part one) and the Special Terms (part two) laid out below.
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PART ONE
GENERAL TERMS
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GENERAL TERMS
CONTENTS
PRELIMINARY DECLARATION: TRANSFER OF RISKS TO THE LESSEE
TITLE 1
100 AGREEMENT REGARDING PERIOD PRIOR TO EFFECTIVE DATE OF LEASE
101 Purchase of site (*)
102 Erection of constructions (*)
103 Financing of works (*)
104 Pre-rent (*)
105 Resolution during the period prior to the effective date of the lease
TITLE 2
200 LEASE
201 Effective date - Term (*)
202 Defects in leased property
203 Enjoyment and purpose of property (*)
204 Transfer of contract
205 Sublet - Pledge of business
206 Works
207 Rent (*)
207bis Temporary complementary rent (*)
208 Charges
209 Termination
210 Termination at LESSEE's request
211 Expropriation
212 Insurance
213 Insurance losses
TITLE 3
300 UNILATERAL UNDERTAKING TO SELL THE LEASED PROPERTY
301 Purpose
302 Request to consummate sale
303 Terms and conditions of sale (*)
(1) Note: The paragraphs followed by the (*) sign must be filled out with the
data in the corresponding paragraph in the Special Terms. The other
paragraphs may also be modified in the Special Terms.
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TITLE 4
400 GUARANTEES OFFERED BY THE LESSEE
401 Personal guarantee (*)
402 Death and disability insurance (*)
403 Other guarantees (*)
TITLE 5
NOT APPLICABLE
TITLE 6
600 CONDITION PRECEDENT
TITLE 7
700 MISCELLANEOUS PROVISIONS AND REPRESENTATIONS
701 Terms of payment governing sums owed by the LESSEE (*)
702 Late-payment interest
703 Vacation of premises
704 LESSOR's privilege
705 VAT option
706 Repayment of VAT to the Treasury by way of regularization
707 Land registration (*)
708 General Meetings of Co-owners Association
709 Miscellaneous costs
710 Management powers (*)
711 Other provisions (*)
712 LESSEE's representation
713 Election of domicile - jurisdiction
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PRELIMINARY DECLARATION: TRANSFER OF RISKS TO THE LESSEE
The parties represent that it is their common intention to consider all phases
and aspects of this operation - notably its legal and financial aspects - an
indivisible whole.
Moreover, the parties wish to stress the LESSOR's essentially financial
intervention in this operation.
The LESSEE, which has taken the initiative to make this investment, chosen the
site and ordered construction drawings according to its needs, and will be the
user of the property and may become its owner if it so desires, intends to
remain entirely in control of the operation, both during the construction period
and during the term in which the property is leased, even though the property
will be owned by the LESSOR for the financing term.
The LESSOR acknowledges that, even though it is the legal owner of the property,
its role, within the limits agreed between the parties and provided the LESSEE
fully performs its contractual obligations, is to finance a site chosen by the
LESSEE and the constructions defined in descriptive specifications.
Accordingly, it not only seems legitimate for the LESSEE to assume the risks
generated by its legal situation but also to assume the transfer of any and all
obligations and any and all risks, even those resulting from force majeure,
which would be incumbent on the builder and the property owner under general law
provisions.
This agreement is drafted subject to this preliminary declaration, which shall
be the constant reference to determine the division of charges, obligations and
risks between the parties and as necessary to determine the common intention of
the parties.
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TITLE 1 OF THE GENERAL TERMS
100 AGREEMENT REGARDING PERIOD PRIOR TO EFFECTIVE DATE OF LEASE
*101 PURCHASE OF SITE
Acquisition shall be by notarized deed.
The notarized deed can be signed only if the building permit and any
administrative authorizations necessary for construction and use of the
property by the LESSEE have been duly issued and have not been or can no
longer be subject to recourse.
The LESSEE shall intervene in the acquisition deed in order to certify that
all clauses and terms of this deed correspond to those which the LESSEE
itself had negotiated with the seller.
If said acquisition deed is not signed this day at the same time as this
contract (as specified in the Special Terms), it shall at all events be
signed before the deadline stipulated in paragraph 101 of the Special
Terms, in accordance with paragraph 600 "CONDITION PRECEDENT" below.
The parties undertake to provide the notary in time with all necessary
information and documents.
102 ERECTION OF CONSTRUCTIONS
102.1 The constructions to be erected are defined by the drawings and
descriptive specifications established at the initiative of the LESSEE and
approved by the LESSOR.
102.2 In accordance with the principles laid out in the PRELIMINARY DECLARATION
above, the LESSEE alone shall be charged with construction of the
constructed works, of which it shall deemed to be the builder and for which
it alone shall have full responsibility.
Accordingly, the LESSEE undertakes to assume any and all consequences
vis-a-vis the LESSEE itself as well as vis-a-vis third parties and the
government for all insurance losses to the property during construction,
all bad workmanship or defects in the constructions, whether during or
after construction, as well as all damage or harm to third parties due to
the site and the constructed works, and to reimburse the LESSOR promptly
all sums which the latter may have incurred in this respect.
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102.3 The LESSOR vests full powers in the LESSEE, which shall not be entitled to
substitute a third party for the performance of this mandate, in order to
accomplish all formalities and steps, sign all documents, agreements and
contracts and do whatever else is necessary to build the constructed works
to completion, from the building permit application (or, if already
delivered, from application to transfer it to the LESSOR's name) until
acceptance report and completion declaration, in order to obtain the
certificate of conformity for the property as soon as possible.
102.3.1 Safety and health prevention and coordination
The LESSEE shall comply with the special provisions applicable to building
and civil engineering operations under Act No 93.1148 of 31 December 1993
and decree no 94.1159 of 26 December 1994.
Accordingly, if necessitated by the duration or volume of the works, the
LESSEE shall notably file the prior declaration with the authorities in
charge of job-related health and safety.
At its own expense, the LESSEE shall also appoint a safety and health
protection coordinator with the qualifications stipulated in the applicable
regulations, which the LESSEE shall be able to prove.
Moreover, if required because of the size of the works, the LESSEE shall
see to the organization of a college of contractors before the start of the
works and to compliance with disclosure obligations vis-a-vis this college.
The LESSEE undertakes to reimburse the LESSOR all sums which the latter may
have to pay if forced to substitute itself for the LESSEE because of the
latter's non-performance, notably in order to comply with a request from
the authorities.
In the event that the LESSEE does not perform its commitments, this
contract may be terminated in accordance with paragraph 209 below.
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102.4 Insurance - construction
102.4.1 In order to be able to cover the risk transfer referred to above, and to
comply with the provisions of the law of 4 January 1978, the LESSEE shall
take out the following before groundbreaking day, in its own name as well
as on behalf of the LESSOR:
- a policy covering "Decennial owner and prime contractor's (constructed
works damage) liability"
designed to cover, apart from assignment of liability, payment of the works
necessary to repair all damage, even resulting from soil deficiencies,
which:
* jeopardizes the strength or solidity of the constructed works forming
the construction operation;
* affects one or more integral parts of the said constructed works or
one or more of their fixtures or facilities in such a way as to make
them unfit for their design purpose;
* affect the strength or solidity of one of the fixtures or facilities
which forms an integral part of the development, foundation,
framework, roof or wall works in the meaning of Article 1792-2 of the
Civil Code.
as well as any necessary demolition, earth, removal or disassembly works.
- A policy covering "Decennial liability of the building owner"
designed to cover the decennial liability of the LESSOR and the LESSEE as
the LESSOR's agent against tangible damage to the building entailing the
insured's liability, tangible damage entailing exercise of the cover for
proper operation and intangible damage (excluding bodily injuries) suffered
by the LESSOR, the LESSEE or any other occupant of the building, resulting
from an insured tangible risk.
- A policy covering "All construction site risks"
designed to cover tangible damage to the constructed works during
construction, damage to existing property, any financial losses and various
costs and fees, and to cover the property at new value, the fees of experts
and the liability of the LESSOR or the LESSEE for risks linked to fire or
explosions as well as CIVIL LIABILITY to cover claims which may be made by
damaged third parties against the LESSOR and the LESSEE further to
accidental damage caused by the building works,
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the cover to be in an amount compatible with the nature of the executed
works and at least for the term of the works.
102.4.2 Subscription
The insurance policies listed in paragraph 102.4.1 shall be taken out by
the LESSEE as part of the "group" insurance policies under the asset
protection plan which the LESSOR, with the assistance of its insurance
broker, has implemented. The purpose of this plan is to ensure that the
LESSEE is covered by a policy which meets the exact requirements stipulated
in paragraph 102.4.1 above.
Should the LESSEE exceptionally, on its sole responsibility, decide not to
subscribe to the LESSOR's "group" insurance contracts but to cover the
risks which it is obliged to insure (as stipulated in paragraph 102.4.1) by
means of "other insurance policies", it shall provide evidence of
subscription of such "other policies" by supplying the LESSOR's insurance
broker with copies thereof, failing which the LESSOR shall be entitled to
cover the foregoing risks at the LESSEE's expense.
The LESSEE shall also reply to every request for information or additional
documents received from the LESSOR's insurance broker.
Said "other policies" shall stipulate that the insurance company concerned
may not suspend their covers for any reason, nor refuse to indemnify the
LESSOR in case of loss on the ground that the LESSEE has not complied with
the obligations of the insurance contract, without notifying the LESSOR at
least one month in advance by registered letter, in which event the LESSOR,
at its own discretion, shall be entitled to pay the premiums in the
LESSEE's place.
The "other policies" shall specify that all indemnities payable under the
damage covers shall be paid directly to the LESSOR and shall necessarily
provide for reciprocal waiver of recourse between the LESSOR and the
LESSEE.
Moreover, the LESSEE may or shall take out all complementary policies it
considers useful or necessary.
The LESSOR reserves the right to require subscription of all complementary
policies which turn out to be necessary. Inspection or lack of inspection
of said policies by the LESSOR or its insurance broker shall not entail any
liability on its part for lack of insurance or inadequate insurance.
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102.4.3 Premiums:
As part of the LESSOR's asset protection plan and in application of the
preliminary declaration, the LESSEE shall be solely responsible for
negotiating with the LESSOR's broker both the face amount to be insured and
the premium rate of the subscribed insurance.
The LESSOR's broker shall send the invoices for the premiums on the
insurance taken out within the framework of this plan to the LESSEE for the
latter's approval. The insurance premiums referred to in paragraph 102.4.1
above shall be paid by the LESSOR on the terms and within the limits
provided for in paragraph 103.2 and 103.4 of this contract.
102.4.4 Insurance broker
The LESSOR has appointed the following insurance broker:
SGAP
SOCIETE GENERALE D'ASSURANCES ET de PREVOYANCE
having its registered office at
▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
The LESSOR expressly reserves the right to appoint any other insurance
broker in place of the above broker, which the LESSEE herewith accepts.
102.4.5 Miscellaneous
At its own expense, the LESSEE shall resort to the services of an
officially approved technical inspection firm to carry out the assignments
stipulated in title II of Act No 78-12 of 4 January 1978. Its services
shall cover all construction lots.
The LESSEE shall comply with its obligations in this respect and shall
disclose the inspector's recommendations, comments and reservations
simultaneously to the insurer and the contractor concerned and shall not
prevent the insurers, at their own expense, from asking the technical
inspector, in his official capacity, for any additional information they
believe they may need to judge the insured risks.
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The LESSEE shall also verify that the chosen contractors are adequately
insured.
102.5 Acceptance of works
The LESSEE shall notify the LESSOR at least fifteen days in advance, by
registered letter with notice of receipt, of the date and time of the works
acceptance procedure, which the LESSOR shall be entitled to attend at its
own discretion.
*102.6 Works completion date
The works shall be completed and accepted at the latest by the date
stipulated in the Special Terms, failing which the LESSOR shall be entitled
to apply the resolution condition stipulated in paragraph 105.1.a.
102.7 Documents and information to be disclosed by the LESSEE to the LESSOR
- Copy of the building permit application (and appended drawings) and
the original of the acknowledgment of receipt issued by the
authorities.
- Building permit and builder and user authorizations (if these
government authorizations are necessary).
- Name and address of main contractor (architect or design firm).
- Detailed drawings and complete descriptive specifications of the
contemplated constructions, including all works drawings.
- Contracts signed by the LESSEE and stamped by the main contractor.
- Works and payment schedules.
- Copy of insurance certificates, insurance policies and premium
receipts from the insurance companies for the construction insurance
policies.
- Name and address of officially approved technical inspector.
- Copy of declaration opening the construction site.
- Copy of construction site reports.
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- Contractors' payment requests bearing the LESSEE's "good for payment"
and the main contractor's stamp.
- Copies of various documents delivered by the authorities, notably as
regards safety and hygiene.
- Reports on any significant incident or suspension of works.
- Works acceptance reports and as applicable reservation withdrawal
reports.
- Copy of works completion declaration.
- Original of certificate of conformity.
- Copy of prior declaration provided for by Article L.235-2 of the
French Labor Code.
- Contract signed with the safety and health protection
- coordinator.
- Affidavit as to the coordinator's qualifications.
- Insurance certificate regarding the coordinator's decennial liability.
- General safety and health protection coordination plan.
- Rules of college of contractors.
- File on subsequent intervention on the constructed works, as delivered
by the coordinator on acceptance of the works.
These documents and information must be sent to the LESSOR as soon as they
are established or are served on or known to the LESSEE.
Within forty-five days from completion of the property, the LESSEE, after
having duly performed its obligations, shall send the LESSOR, for the
latter's signature, the new construction declaration designed for the
Survey Department. In the event that the LESSEE fails to send this
document, it shall bear all consequences thereof, especially any resulting
loss of partial temporary exemption from land tax.
103 FINANCING OF WORKS
103.1 The LESSOR shall not be obliged to make payments to finance the
constructions as long as:
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1. It has not been able to become, on the conditions provided for
under paragraph 101 above and by authenticated deed, owner of the
site or holder of a real property right to the said site.
2. The LESSEE has not provided it with evidence that the insurance
policies stipulated under paragraph 102.4 have been implemented.
3. The LESSOR is not in possession of the contract or agreement
corresponding to the expense.
*103.2 The LESSOR agrees to finance the investment (land and constructions
provided for in the descriptive specifications) up to the ceiling specified
in the Special Terms.
The LESSEE undertakes to bear all additional costs. It is agreed that the
fraction of the construction financed by it shall become the LESSOR's
property by accretion, without indemnity, whether on early termination of
the lease, irrespective of the reason, or at its normal expiration, if the
LESSEE does not exercise the sales undertaking granted in its favor.
103.3 The LESSOR shall in no event be obliged to finance works not provided for
in the descriptive specifications.
103.4 Requests for payment (invoices, accounts, bills for fees) established in
the LESSOR's name shall bear the LESSEE's notice "good for payment" and the
stamp of the architect or the design firm, in accordance with the
directives given by the LESSOR.
Payments shall be made cash by check, which shall be the sole payment
method. The LESSOR shall have at least fifteen days from the date of
receipt of such payment requests to make these payments.
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104. PRE-RENT
*104.1 Commitment fee
The LESSEE shall pay a commitment fee whose calculation method and terms of
payment are stipulated in the Special Terms.
*104.2 Interim interest
During the period between the date on which this contract is signed and the
effective date of the lease, the LESSEE shall pay the LESSOR quarterly
interest, payable in arrears, prorated to the annual rate stipulated in the
Special Terms, on all sums (including VAT) paid by the LESSOR in connection
with the operation. It is herewith specified that sums paid in respect of
VAT which can be recovered shall bear interest over a fixed period of four
months.
104.3 After the effective date of the lease, the interest referred to in
paragraph 104.2 shall continue to be collected on each amount paid in
connection with VAT which can be recovered.
*104.4 Financial engineering costs
The amount of these costs and their terms of payment are fixed in the
Special Terms.
*104.5 Other fees and costs
A management fee, whose amount shall be the same as that stipulated in
paragraph 207.5 of the Special Terms, shall be collected together with each
pre-rent.
The other costs are specified and fixed in the Special Terms.
104.6 The pre-rent shall be subject to VAT; which shall be borne by the LESSEE,
which shall further bear any tax added to or substituted for VAT.
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105. RESOLUTION DURING THE PERIOD PRIOR TO THE EFFECTIVE DATE OF THE LEASE
105.1 It is expressly agreed that:
a. In the event that, irrespective of the reason, whether technical,
legal, administrative or other, even in case of force majeure not
under the LESSOR's control, the constructions cannot be completed,
delivered and put at the LESSEE's disposal by the date stipulated in
paragraph 102.6 of the Special Terms;
b. Or failing payment, at its due date, of any sum owed by the LESSEE to
the LESSOR under this contract, from the date on which it is signed
until the effective date of the lease, or failing performance of one
or more of the obligations incumbent on the LESSEE during this period;
c. In the event that the activity planned on the premises to be erected
is jeopardized further to recourse by third parties against a
government authorization, notably a prefectural authorization to
establish classified facilities under the Act of 19 July 1976 or
authorization from the District Commission for Commercial Facilities;
This contract shall be automatically and fully terminated at the LESSOR's
discretion, without legal formality, one month after the LESSEE is served a
bailiff's writ containing the LESSOR's decision, or a summons to pay or
perform containing the LESSOR's declaration that it intends to use the
benefit of this clause has not been acted upon, notwithstanding payment or
performance after expiration of this period of one month.
105.2 The LESSEE shall pay the LESSOR, within maximum one month from
termination, by way of damages under the Articles 1152 and 1226 of the
Civil Code, an indemnity equal to the amount of the financing ceiling
stipulated in paragraph 103.2 plus VAT to be paid by the LESSOR to the
Treasury, incremented by 20% over the total.
Said termination indemnity shall be incremented by the applicable VAT.
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105.3 However, the LESSEE shall be entitled, but only in the case provided for
in paragraph 105.1.a and provided it has duly performed all its contractual
obligations, to acquire the real rights held by the LESSOR to the site as
well as the constructions, in consideration of a price equal to the total
expenses incurred by the LESSOR at the day of the sale and all sums due on
works, including indemnities if any due to participants in the
construction, the whole being increased by 10%.
In order to be admissible, the acquisition request must be sent by
registered letter with notice of receipt accompanied by the price and the
amount of costs within one month from the notice served in accordance with
paragraph 105.1.
Moreover, the sale shall be consummated on the terms and conditions laid
out in the paragraphs 303.4 and 303.10 below.
105.4 If the notarized sales deed cannot be signed for failure to pay the price
or for any other reason due to the LESSEE, within four months from the
aforesaid notice, the resolution clause provided for above shall apply.
105.5 Pre-rent shall remain due until the termination date of the lease or until
the notarized property sales deed is signed.
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TITLE 2 OF THE GENERAL TERMS
200 LEASE
201 EFFECTIVE DATE - TERM
201.1 The lease shall take effect at the date on which construction is
completed.
*201.2 From this date, the lease shall have the term stipulated in the Special
Terms.
In any event, as the constructions concerned are leased bare, the lease
shall take effect in accordance with the foregoing, even if the LESSEE has
not yet installed the facilities and equipment connected with its business.
201.3 The completion date shall become official by the signing of a works
acceptance report, even if this document includes reservations.
201.4 The LESSEE undertakes not to demand any indemnity from the LESSOR in the
event that completion of the constructions is overdue.
202 DEFECTS IN LEASED PROPERTY
202.1 The LESSEE, which has chosen the site, conceived the construction program
and been mandated to have other parties carry out the works and to monitor
progress, shall deal personally, without recourse against the LESSOR, with
all urban development rules, formalities and government authorizations
connected with the site and the constructions as well as their use and, as
applicable, their opening to the public. The LESSEE releases the LESSOR
from any obligation to provide a guarantee against visible or hidden
defects, bad workmanship or faults, as well as easements of any and all
kinds capable of affecting the leased property, even if such defects and
faults emerge during the lease and even if they would prevent use of the
property. The LESSEE notably undertakes not to demand any reduction in rent
or any indemnity on this ground.
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202.2 The LESSEE undertakes to inform the LESSOR of any bad workmanship, defects
and faults affecting the constructions, within one month from their being
noticed.
The LESSOR herewith fully empowers the LESSEE to dispute the quality of the
works vis-a-vis the architects, contractors and other parties having
participated in the erection of the constructions.
If such dispute cannot be settled amicably, the LESSOR shall be entitled to
bring any necessary suit, provided recourse times have not lapsed.
All cots, duties and fees generated by these actions shall be borne
exclusively by the LESSEE.
203 ENJOYMENT AND PURPOSE OF PROPERTY
*203.1 The property shall be occupied exclusively for the purpose provided for
in the Special Terms.
The LESSEE represents that it takes sole responsibility for the declaration
made under paragraph 203.1 of the Special Terms with respect to the use of
the premises covered by this contract.
It herewith undertakes to preserve this use for the entire term of the
property lease or to use said premises only for a purpose compatible with
the law on property leasing in force at the day of the change in purpose,
subject to the LESSOR's prior written consent. The LESSEE expressly
represents that it shall deal personally with all legal and fiscal
consequences of a change in purpose of the premises.
The LESSEE shall use the property in such a way as not to disturb the quiet
or peaceful enjoyment by other occupants or neighbors of the property. It
shall bear all consequences of actions brought by said occupants or
neighbors in this respect.
This lease does not offer any guarantee of exclusive occupancy or
non-competition on the part of the LESSOR, which reserves the right to
lease any and all premises other than those governed by this contract for
the exercise of any and all similar or identical activities, regardless of
the place where they are located.
203.2 The premises shall at all times be furnished with the equipment,
furnishings and movables in sufficient quantity and of sufficient quality
to cover payment of the rent and to ensure performance of all lease terms.
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203.3 In accordance with the Preliminary Declaration, the LESSEE shall during
the entire lease term hold full surveillance, management and inspection
powers over the leased property.
During the entire term of the lease, the LESSEE shall ensure compliance
with the government regulations and safety rules applicable to the class of
building concerned. It shall accomplish all formalities and bear all costs
necessary to carry out its business and accordingly releases the LESSOR
from any responsibility in this respect.
The LESSEE undertakes to comply with the laws and regulations applicable to
environmental protection. It releases the LESSOR from any responsibility in
this respect, notably in the event that soil pollution is discovered. In
this case, the LESSEE alone shall bear all study and analysis costs and all
expenses necessary to comply with all demands from the authorities or third
parties. The LESSOR shall as necessary be entitled to demand that the
LESSEE order an expert analysis at the LESSEE's own expense.
The LESSEE shall also bear the cost of all soil and subsoil removal and
restoration works. Such works shall be carried out in accordance with the
regulations applicable to the type of activity carried on and on the terms
in paragraph 206.3 et seq.
For the entire lease term, the LESSEE undertakes not to bring any recourse
against the LESSOR for compliance with environmental regulations and to
make sure that the LESSOR is not wanted in the event that this contract is
transferred or terminated or that the property is subsequently sold.
203.4 The LESSEE also releases the LESSOR from any liability for disruption of
enjoyment by third parties.
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203.5 The LESSEE alone shall bear all consequences of bodily injuries or
tangible damage caused to third parties by the site or the constructions or
by the existence or use of the fixtures or installations (water, gas,
electricity and heating installations, etc.; elevators and freight
elevators, escalators, etc.) or by the LESSEE's employees as well as all
consequences of recourse brought by social security against the LESSOR
further to job-related accidents.
203.6 In the event that the property belongs to a co-ownership or a regulated
zone, the LESSEE undertakes to comply with the provisions of the
co-ownership regulations, the zone regulations, the specifications or the
internal rules.
204. TRANSFER OF CONTRACT
Transfer of the contract shall be subject to the LESSOR's prior written
acceptance. In any event, transfer shall be authorized only if it complies
with the following terms:
204.1 It shall be a total transfer; partial transfers of any kind shall be
forbidden.
204.2 The LESSEE shall transfer to the transferee, in one and the same deed, the
lease and the unilateral sales undertaking which, by express agreement
between the parties and because of the very nature of the lease
transactions, form an indivisible whole.
204.3 The transferee shall respect the exclusive purpose for the property
referred to under paragraph 203.1 above.
If the transferor operates a classified facility, said transferor shall
file a declaration of change of operator or cessation of business prior to
transfer. In the event that the transferor ceases business, it shall
complete all soil and subsoil removal and restoration works and prove by
means of an expert analysis conducted at its expense that no pollution or
trace of substances capable of contaminating the site remains.
204.4. The LESSEE shall remain the joint guarantor of the transferee and
subsequent transferees, without being able to oppose the benefit of
discussion or division.
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204.5 In case of court-ordered reorganization or liquidation, transfer of the
contract by the trustee in bankruptcy or by the debtor, assisted by the
trustee in bankruptcy, shall be subject to the terms and conditions
stipulated in this Article. In this case, the transferor's joint guarantee
shall be replaced by a joint guarantee from a bank.
204.6 Transfer shall take place by notarized deed, executed with the
participation of the LESSOR's notary. The LESSOR shall be invited to
intervene in this deed by registered letter with notice of receipt and
shall receive a binding copy without cost for said LESSOR.
204.7 The foregoing stipulations (paragraph 204.1 to 204.6 above) shall apply to
all transfer cases, regardless of their form, as well as to assignment of
the lease right to any company of any form, whether such assignment is to a
new company or to an already existing company.
205 SUBLET - PLEDGE OF BUSINESS
205.1 Sublet
205.1.1 The LESSEE shall be authorized to sublet the property to one or more
users.
205.1.2 Any sublet contract shall contain the following stipulations:
"The lessor, itself a lessee, has the enjoyment of the leased
property by virtue of a lease contract expiring on ......... (to be filled
out by the lessor, itself a lessee, in the sublet deed).
The sublessee acknowledges that it has been informed that the rights it is
granted herein are linked to the existence of the aforesaid lease and that
the lease is not governed by the stipulations of the decree of 30 September
1953 on commercial leases.
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Accordingly, this sublease shall automatically end on expiration of the
aforesaid lease contract if the lessor, itself a lessee, has not requested
consummation of the property sale, or before this date if the lease
contract itself is terminated at an early date, irrespective of the reason.
In such case, the sublessee shall immediately release the premises without
being able to claim any right against the lease company which is the
owner."
205.1.3 The parties expressly acknowledge that, in their common intention, the
premises governed by the lease for an indivisible whole.
205.1.4 All layout or repair works further to sublets and connected with either
the constructions or the soil or subsoil shall be borne exclusively by the
LESSEE, as shall all indemnities which the sublessees may claim from the
LESSOR for any reason whatsoever.
205.2 Pledge of business
The LESSEE shall only be entitled to pledge the business carried on in the
property covered by this contract after having informed the LESSOR by
registered letter with notice of receipt and having received the latter's
written permission.
In the event that a pledge is granted in violation of this clause or in the
event that a privilege is registered by a third party, as validated by
final court order with the force of RES JUDICATA, the LESSOR shall be
entitled to terminate the contract at its sole discretion and apply the
provisions stipulated in paragraph 209 below.
206. WORKS
206.1 Repair and maintenance works
The LESSEE shall not only be in charge of rental repairs and small
maintenance works (Article 1720 paragraph 2 and Article 1754 paragraph 1 of
the Civil Code) but shall also be responsible for major maintenance and
repairs which become necessary during the contract, including the major
repairs defined in Article 606 of the Civil Code, regardless of the origin
of damage (construction defects or faults, wear, etc.).
The LESSEE shall immediately destroy all rodents, insects and other
parasites appearing on the leased property.
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The LESSEE shall promptly notify the insurers and the LESSOR of any damage,
destruction or accident to or caused by the leased premises.
On normal expiration of the contract, if the LESSEE has not requested the
sale to be consummated, or in case of early termination, the LESSEE shall
prove by means of an inventory, prepared at its expense and approved by the
parties, that the premises are well maintained and in excellent repair in
all respects. Failing this, it shall reimburse the LESSOR the cost of the
necessary repair works.
206.2 Improvement or layout works
At its own discretion but at its exclusive expense, the LESSEE shall be
entitled to carry out such works.
Works entailing demolitions or piercing of walls, beams, floors or roofs,
or extension or elevation, or a change in indoor layout, shall require
prior written permission from the LESSOR which, in case of authorization,
shall be entitled to impose inspection by its architect, whose fees shall
be borne by the LESSEE.
206.3 Works imposed by the regulations
The LESSEE shall furthermore see personally to all works, irrespective of
their cost, imposed by existing laws or regulations, or by order from the
authorities, notably in order to obtain the health and safety certificate
of conformity. The LESSEE shall not be entitled to claim the benefit of
Article 1755 of the Civil Code in this respect.
The LESSEE undertakes to comply with applicable laws and regulations on
protection against risks connected with asbestos and releases the LESSOR
from any liability in respect of these provisions.
If the property covered by this lease is to be subjected to inspection,
surveillance or works operations, the LESSEE shall deal personally with the
performance of such obligations and alone shall bear the cost.
The LESSEE undertakes to provide the LESSOR with evidence of the
accomplishment of such operations on the conditions stipulated in Article
711 of the Special Terms.
206.4 The LESSEE shall carry out all of the foregoing works on its sole
responsibility and shall have no recourse against the LESSOR. It shall take
out all necessary insurance policies, notably legally necessary policies or
any policies which may be advisable and shall require contractors to take
out adequate insurance for their risks.
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206.5 In the event that the LESSEE fails to carry out the works provided for in
paragraph 206.1 and 206.3, the LESSOR shall be entitled to substitute
itself for the LESSEE, after a summons has not been acted upon within one
month, and have such repairs or works carried out by a contractor of its
choice. In the event, the LESSEE shall promptly reimburse the amount plus
10% to the LESSOR as soon as it is requested to do so, and shall alone
remain responsible for any consequences of failure to carry out the said
works by the stipulated date.
206.6 The LESSEE shall not be entitled to demand any reduction of rent or
termination of the contract, regardless of the scope or length of works,
and whether such works are carried out by the LESSEE or by the LESSOR.
206.7 All real property added by the LESSEE shall be deemed to be the LESSEE's
property during the entire term of the lease and shall automatically and
without indemnity become the LESSOR's property by accretion on normal
expiration of the contract if the LESSEE has not exercised the option, or
on early termination of the contract, irrespective of the reason for such
termination.
The LESSEE shall not be entitled to remove or demolish them without the
LESSOR's express consent. The LESSOR shall always be entitled to demand
that the premises be restored in their original state at the LESSEE's cost
and risk.
In case of departure, the LESSEE shall leave all existing telephone lines
at the LESSOR's disposal.
206.8 The LESSOR's representatives shall be authorized to enter the leased
property freely, subject to advance notice for the LESSEE.
206.9 If the leased property is part of a co-ownership, the obligations
incumbent on the LESSEE by virtue of the foregoing stipulations shall only
concern works connected with the leased private elements.
As regards works connected with the common elements, as approved and
carried out by the co-ownership organization, the LESSEE shall reimburse
the LESSOR its share of the expenses charged to the leased property, as
part of the charges governed by paragraph 208 below.
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207. RENT
It is herewith specified that the word "rent" is used here for convenience
but should be considered a financial fee which comprises the interest on
and amortization of the capital invested by the LESSOR in the operation.
The frequency and date of each rental payment are specified in paragraph
207.5 below.
The periodic rent shall be calculated and collected on the following
conditions:
The rent shall be equal to the addition of the following two elements:
- Rent on the share invested by SLIBAIL IMMOBILIER
- Rent on the share invested by NORBAIL IMMOBILIER
RENT ON THE SHARE INVESTED BY SLIBAIL IMMOBILIER
207.1 AMOUNT OF PERIODIC BASIC NET RENT
207.1.1 At each rental term, the amount of the periodic basic net rent shall be
equal to the addition of, first, an amount representing financial
amortization, and, secondly, an amount representing interest.
*207.1.1.1 At each rental term of the periodic rent, the amount of financial
amortization shall be determined by applying the percentages given in
column 1 of the table in the Special Terms to the "total investment cost"
defined in paragraph 207.1.2 below.
*207.1.1.2 At each rental term of the periodic rent, the amount of interest
shall be calculated by applying, to the financial outstandings, according
to the formula indicated below, the proportional annual rate T stipulated
in the Special Terms. The financial outstandings themselves are determined
at each rental term of the period rent by applying the percentages given in
column 2 of the table in the Special Terms to the "total investment cost"
defined in paragraph 207.1.2 below.
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The amount of interest, "i", included at each rental term in the amount of
the periodic basic net rent shall therefore be determined according to the
following formula:
NB
in = PR x Pn x T x ---
360
where:
in Amount of interest included in the periodic basic net rent at term n
PR the "total investment cost" defined in paragraph 207.1.2
Pn The percentage indicated in column 2 of the table in the Special Terms
for term n
T The proportional annual rate stipulated in the Special Terms
Nb 182.5 for a whole calendar period of six months and 91.25 for a whole
calendar quarter
*207.1.2 "Total investment cost" is defined as the total sums, not including VAT
which can be recovered, disbursed by the LESSOR, irrespective of the
reason, in connection with this lease operation.
If the "total investment cost" is not definitively known at the effective
date of the lease, the rent shall provisionally be calculated on the basis
of the sums disbursed by the LESSOR by this date.
Disbursements, excluding recoverable VAT, made after the effective date of
the lease shall generate complementary rent calculated by applying
proportionally to the amount of such disbursements, excluding recoverable
taxes, the annual rate used to calculate the due amount, prorated between
the date of such disbursement and the date of their inclusion in the "total
investment cost".
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Moreover, in order to respect the financial amortization pace provided for
in the contract (without changing the percentages included in the columns 1
and 2 of the table referred to in the paragraphs 207.1.1.1 and 207.1.1.2
above), the complementary rent shall be incremented by the financial
amortization which had to be applied to disbursements excluding recoverable
taxes if they had to be made at the effective date of the lease.
The foregoing disbursements excluding recoverable taxes shall be included
in the "total investment cost". The non-indexed and indexed parts of the
effective periodic rent excluding taxes defined in the paragraphs 207.2 and
207.3 below shall be modified accordingly at the date on which these
disbursements are factored in.
After expiration of the second lease year, no more disbursements may be
requested from the LESSOR, even if the financing ceiling stipulated in
title 1 of these General Terms has not been reached at the time.
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*207.2 INDEXATION OF PERIODIC BASIC NET RENT
Said rent shall be indexed at each term, at the percentage stipulated in,
the Special Terms, against the national construction cost index published
by INSEE. The balance shall remain non-indexed during the entire term of
the lease.
In indexing the periodic basic net rent, the initial reference index shall
be the index for the antepenultimate calendar quarter preceding the
calendar quarter in progress at the effective date of the lease(1)
The periodic rent shall automatically vary at each term in the same
direction as the said index.
The comparison index used to calculate each term of the periodic rent shall
be the index for the antepenultimate calendar quarter preceding the quarter
in which this term falls due.
In the event that the INSEE index goes down, the periodic rent shall go
down as well. However, given the financial nature of this lease contract,
it is expressly agreed that the periodic rent, after impact of indexation,
shall in no event be less than the periodic basic rent.
If the national construction cost index issued by INSEE ceases to be
published or if recourse to this index is forbidden by future regulations,
it will be replaced, failing an official replacement index, by an
equivalent index chosen by agreement or, failing this, by a single expert,
appointed by agreement between the parties or by order of the Chief Judge
of the District Court at the petition of the first party to act; the
expert's costs and fees shall be borne exclusively by the LESSEE.
----------
(1) Antepenultimate quarter: quarter prior to the before-last quarter. Example:
if the lease took effect during the first quarter of year n, the reference
will be the index for the second quarter of year n-1. If the lease took
effect during the fourth quarter of year n, the reference index is the
index of the first quarter of year n.
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Moreover, should all indexation be forbidden by future regulation, the
parties shall meet in order to replace the indexation provided for in the
lease with another formula which complies with the applicable regulations
and is designed to maintain the financial equilibrium of the contract.
207.3 FORMULA FOR CALCULATING PERIODIC BASIC NET RENT
The periodic basic net rent to be paid by the LESSEE shall be equal to the
result of applying the indexation to the periodic basic net rent. This
periodic basic net rent shall consist of a Non Indexed Part: PNI, and an
Indexed Part: PI, calculated as follows:
- for the period between the effective date of the lease and the end of
the calendar period (corresponding to the frequency of the rent
specified in paragraph 207.5 below) then in progress, according to the
following formula:
PNI1 = L1 x (1 - H1)
IND1
PI1 = L1 x HI ----
INDo
5 L'1 = PNI1 + PI1
- at subsequent terms according to the following formula:
Ln
PNIn = PNIn-1 x ----
Ln-1
LN INDn
PIn = PIn-1 x LN x -- x ------
LN INDn-1
L'n = PNIn + PIn
In the foregoing formulas:
HI Height, as a percent, of the periodic basic net rent subject to
indexation, as defined in paragraph 207.2
PNI1 Non Indexed Part of the first due periodic basic net rent
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PI1 Indexed Part of the first due periodic basic net rent
PNIn Non Indexed Part of term n of the first periodic basic net rent
PNIn-1 Non Indexed Part of term n-1 of the first periodic basic net rent
Pin Indexed Part of term n of the first periodic basic net rent
PIn-1 Indexed Part of term n-1 of the first periodic basic net rent
L1 Periodic basic net rent of the first term stipulated in paragraph
207.1
Ln Periodic basic net rent of term n stipulated in paragraph 207.1
Ln-1 Periodic basic net rent of term n-1 stipulated in paragraph 207.1
INDn National construction cost index issued by INSEE applicable to term n
as defined in paragraph 207.2
INDn-1 National construction cost index issued by INSEE applicable to term
n-1 as defined in paragraph 207.2
IND1 National construction cost index issued by INSEE applicable, by way of
comparison, to term 1 as defined in paragraph 207.2
INDo National construction cost index issued by INSEE applicable, by way of
initial reference, to term 1 as defined in paragraph 207.2
L'1 Periodic basic net rent of the first term
L'n Periodic basic net rent of term n
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RENT ON THE SHARE INVESTED BY NORBAIL IMMOBILIER
The second part of the rent, connected with the share of NORBAIL
IMMOBILIER, is defined in the Special Terms.
207.4 VAT ON RENT
Rent shall be subject to VAT (see 705 below). This tax shall be paid by the
LESSEE, which shall also bear any tax added to or substituted for VAT.
*207.5 PAYMENT OF RENT
The periodic basic net rent, incremented by due VAT, shall fall due and be
payable at the dates and according to the calendar frequency stipulated in
the Special Terms.
A management fee, whose amount is fixed in the Special Terms, shall be
payable together with each rental term.
If the effective date stipulated in paragraph 201.1 of the General Terms
becomes only officially known afterwards to the LESSOR, the LESSOR, because
the time needed to prepare the invoice, shall be entitled to postpone the
term for payment of the first effective periodic rent. In this case, the
amount of the first term shall simply be incremented by the impact of such
postponement at the pro-rated agreed interest rate.
207BIS TEMPORARY COMPLEMENTARY RENT
207bis 1 In the event that the investment is subject to VAT because of
acquisition of the building, the seller's delivery of a VAT attestation or
financing of works by the LESSOR, the LESSEE shall owe complementary rent
calculated as follows.
*207bis 2 Each amount disbursed by the LESSOR for recoverable VAT shall be
subject to interest calculated over a fixed period of four months in
proportion to the annual rate specified in the Special Terms.
207bis 3 This complementary rent, incremented by due VAT, shall be payable in
arrears at the end of each calendar period defined in paragraph 207.5 of
the Special Terms and for the first time on expiration of the calendar
period in progress at the effective date of the lease.
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208 CHARGES
208.1 All charges connected with the property - services and supplies, insurance
premiums, taxes and levies, even though normally incumbent on the owner
(notably annual tax on office premises located in the Ile-de-France region,
land tax and insurance premiums on the property) shall without exception be
borne exclusively by the LESSEE, which undertakes to pay them or to
reimburse them promptly to the LESSOR when requested to do so.
As regards the annual tax on office premises located in the Ile-de-France
region, created by Article 40 of the Supplementary Budget Act for 1989 (No
89.936 of 29 December 1989), the LESSEE, after having duly performed its
obligation, shall send the LESSOR, without prompting, by registered letter
with notice of receipt, for the latter's signature, thirty days before the
regulatory filing deadline, the applicable declaration, indicating the
address of the Treasury accountant in the district of the taxable premises
who is to receive it. Should the LESSEE fail to send this document or
should the information on this declaration be inexact, said LESSEE shall
bear all consequences.
208.2 Charges normally incumbent on the LESSOR but which, further to paragraph
208.1 above, are incumbent on the LESSEE, being considered by the tax
authorities as complementary rent subject to VAT like the basic rent, shall
be billed additionally.
208.3 In the event that the premises belong to a co-ownership or a regulated
zone, the related share of the common charges shall be borne entirely by
the LESSEE.
208.4 The LESSEE shall see personally to all water, gas and electricity
subscriptions, etc. whose cost it shall bear exclusively.
208.5 Suspension or breakdown of various supplies or services shall in no event
justify a request for lower rent.
209. TERMINATION
209.1 It is expressly agreed that if the LESSEE fails to pay a single rental
term at its due date, a fraction of such term or the corresponding VAT or
fails to pay the charges referred to in paragraph 208 or fails to perform
one or more of the other contractual stipulations (notably failure to
deliver the certificate of conformity within two years from the effective
date of the lease or refusal to deliver this document), this contract shall
be automatically canceled, at the LESSOR's discretion, without need for
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court order, if the LESSEE fails to remedy such non-performance within one
month from receipt of a summons served by bailiff's writ.
If this contract provides for enrollment in group death and disability
insurance contract UAP/CL No 2310, on the terms stipulated in Article 402
below, application of the termination clause shall automatically entail
cancellation of enrollment in this group death and disability insurance.
If the property covered by this lease is designed for an activity to be
carried on by classified facilities which require authorization, it is
expressly agreed that this contract shall be terminated, at the LESSOR's
discretion, without any legal formality, if, on expiration of the period of
recourse available to third parties under Act No 76-663 of 19 July 1976,
the operating authorization has not become final, either because of absence
of recourse during the legal period or because a final court order further
to recourse.
209.2 In accordance with the Articles 1152 and 1226 of the Civil Code, even in
case of partial performance, the LESSEE shall owe the LESSOR, by way of
damages, a termination indemnity equal to the sales price defined in
paragraph 303.2 below, determined at the effective termination date,
incremented by the amount of tax repayments in accordance with paragraph
303.3, the whole increased by two years of rent, based on the latest
effective periodic rent demanded from the LESSEE prior to termination. This
indemnity shall be incremented with due VAT.
The LESSEE formally recognizes the LESSOR's right to this indemnity, given
the essentially financial aspect of this lease operation and the fact that
the LESSOR enters into this operation at the LESSEE's express request and
in consideration of the LESSEE's person and needs.
Accordingly, it is expressly agreed that this penalty clause shall be a
substantive and decisive condition without which the LESSOR would not have
entered into a contract.
210 TERMINATION AT THE LESSEE'S REQUEST
210.1 The LESSEE shall be entitled to request termination of this contract from
expiration of the --th year of lease, on the following terms and
conditions.
210.2 Said termination shall be possible only each year at the anniversary of
the effective date of the lease.
The LESSEE shall notify the LESSOR at most twelve months and at least nine
months in advance, by registered letter with notice of receipt, of its
decision to use the termination option.
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Termination shall be by notarized deed, whose cost shall be borne
exclusively by the LESSEE.
210.3 The LESSEE shall vacate the property at least ten days before the
effective termination date.
210.4 An inventory drawn up at the LESSOR's initiative and at the LESSEE's cost
shall show that the property is perfectly maintained and in perfect repair,
in accordance with the stipulations in paragraph 206, and that it can be
leased for its design purpose without cost for the LESSOR.
210.5 The LESSEE shall be up to date on all its contractual obligations, in such
a way that the termination clause in paragraph 209 does no apply.
210.6 The certificate of conformity shall have been obtained.
210.7 The LESSEE shall have paid the LESSOR, by way of agreed lump-sum
indemnity, a sum equal to the sales price defined in Article 303.2 below,
determined at the effective termination date, plus the amount of tax
repayments covered by paragraph 303.3.
210.8 If one or more of the above conditions is not met at least ten days before
the effective termination date, the LESSOR shall be entitled, at its own
discretion, to consider the termination request made by the LESSEE void,
subject to notice served at least ten days before the scheduled termination
date by registered letter with notice of receipt, specifying the
condition(s) which has/have not been met.
210.9 However, the LESSEE shall be exonerated from the obligation to pay an
indemnity if, before the date set for termination, it has ensured
acquisition of the building by a third party on the following conditions:
210.9.1 The price shall be at least equal to the sales price defined in
paragraph 302.2, as determined at the day of the notarized sales deed, plus
tax (notably on capital gains) due on the sale as well as the amount of tax
repayments referred to in paragraph 303.3.
For collection of transfer duty, the market value of the property, if
higher than the sales price, shall be covered by an estimate agreed between
the parties in a declaration in the deed.
210.9.2 The sale shall furthermore be completed on the terms and conditions
stipulated in the paragraphs 303.4 to 303.10 below.
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210.9.3 The LESSEE shall inform the LESSOR, by registered letter with notice of
receipt, of the name and address of the future buyer of the building and
shall deal personally with all formalities to be accomplished by such buyer
until completion of the sale. In this respect, the LESSOR does not intend
to accept any liability vis-a-vis the LESSEE.
210.9.4 This contract shall end at the date on which the authentic sales deed is
signed. The LESSEE shall intervene in this deed in order to terminate the
contract and to accept personally vis-a-vis the buyer the undertaking to
vacate the premises promptly.
210.10 Rent and charges shall be due until the termination date or until the
notarized sales deed. Any excess payments shall be charged to sums owed by
the LESSEE, if any, or shall be reimbursed.
210.11 The indemnity provided for in paragraph 210.7 shall also be due in the
event that termination is due to the decision of the trustee appointed by
judgment in bankruptcy or liquidation proceedings (Article 37 of Act No
85.98 of 25 January 1985).
211 EXPROPRIATION
211.1 TOTAL EXPROPRIATION
If the site and constructions are entirely expropriated, the lease shall
automatically be terminated at the date of the order entailing transfer of
ownership to the expropriating organization.
211.1.1 However, as enjoyment of the expropriated property can only revert to
the expropriating organization after the LESSOR is paid the expropriation
indemnity, the LESSEE shall owe the LESSOR, from the date of the aforesaid
order and until actual payment of the expropriation indemnity, the date on
which the premises shall be immediately vacated, an occupancy indemnity
equal to the amount of rent due for this period, which indemnity shall be
payable on the same conditions and at the same time as the rent. Moreover,
the LESSEE shall continue to pay the amount of charges provided for in the
terminated contract.
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211.1.2 If the expropriation indemnity paid to the LESSOR is less than the sales
price stipulated in paragraph 303.2, as determined at the day of payment of
said indemnity, plus tax (notably on capital gains) due on the transfer of
ownership, as well as the amount of tax repayments referred to in paragraph
706, the LESSEE shall pay the LESSOR the difference plus due VAT by way of
termination indemnity.
In the opposite case, the difference plus due VAT shall be paid by the
LESSOR to the LESSEE, also by way of termination indemnity.
211.2 PARTIAL EXPROPRIATION
If the site and constructions are only partly expropriated, the lease shall
remain in effect for the remainder.
211.2.1 In this case, this contract shall be covered by an amendment recording
the change in surface area of the property and modifying the financial
terms to factor in the amount of the expropriation indemnity received by
the LESSOR less all costs and expenses incurred by the latter and all taxes
owed by it, notably capital gains tax and tax repayments in connection with
the expropriation, as stipulated under paragraph 706 below.
211.2.2 Free transfer to government authorities
In the event that parts of the building (notably land parcels) have to
transferred for free to a government authority, the financial terms of this
lease (rent and sales undertaking) shall not be modified despite a change
in surface area of the property.
211.3 REQUISITION
In case of requisition or occupancy of all or part of the site and
constructions, whether temporarily or for the entire lease term, by any
administration authorized to do so, the lease shall remain fully in effect
and the LESSEE shall owe the rent on normal terms.
However, as soon as it has collected, the LESSOR shall pay the LESSEE the
entire requisition or occupancy indemnity. It is herewith expressly
stipulated that no offsetting shall be possible between the rent and the
indemnity concerned.
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212 INSURANCE
212.1 In order to cover its own risks and those transferred to it, the LESSEE
shall, at its own expense and at the latest by the effective date of this
lease, take out all insurance policies it deems necessary. However, it
shall always take out the following policies:
212.1.1 A comprehensive tenant's risk policy (fire, explosions, related risks
and civil liability of the tenant).
Said policy shall cover the LESSEE's furnishings, machinery and goods
against fire, explosions and water damage. Said policy shall also provide
cover against recourse by third parties and neighbors, the cost of removing
and putting back the insured property further to works after an insured
loss, civil liability directly related to operating risks after delivery.
Said policy shall expressly provide for waiver of recourse against the
LESSOR.
212.1.2 A comprehensive building risk policy
Said policy shall provide cover against fire, explosions and water damage
for all constructions and all facilities, fixtures, fixed and mobile
installations, whether outdoor or indoor, whether deemed fixtures by design
or by use, without exception, at full reconstruction value, pegged to the
construction price index established by Federation Nationale du Batiment et
des Activites Annexes. The insured sum or cover shall include VAT if the
LESSEE is not subject to VAT. Otherwise the insurance shall be taken out
excluding VAT. If the LESSEE is only partly subject to VAT, the insured
amount or cover shall provide for VAT in the adequate proportion.
The policy shall further cover the following risks:
Glass breakage, indirect losses up to 10% (ten percent), fees and urban
development taxes which may be required in case of reconstruction, cost of
earthworks, demolition, removal and transportation of destroyed parts, loss
of rent up to two years of lease payments, deprivation of enjoyment,
recourse of neighbors and third parties, electric damage, hurricanes,
storms, falling aircraft, smoke and fumes, impact of vehicles, cost of
searching for leaks, leaks in automatic fire extinguisher networks of the
SPRINKLERS brand or similar, riots, acts of terrorism or sabotage, costs
and fees of experts.
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The policy shall include a clause canceling the rule on proportional face
amount.
212.1.3 Civil liability policy
Said policy shall cover the civil liability of the LESSEE and the LESSOR in
case of direct bodily injury, tangible or intangible damage caused to third
parties by the property complex.
This policy shall be taken out before the property is acquired by the
LESSOR.
212.2 Enrollment:
The LESSEE shall take out the insurance policies listed in the paragraphs
212.1.2 and 212.1.3 as part of the "Group" insurance policies connected
with the asset protection plan implemented by the LESSOR with the
assistance of its insurance broker. The purpose of this plan is to provide
the LESSEE with cover meeting the exact requirements stipulated in the
paragraphs 212.1.2 and 212.1.3.
Should the LESSEE exceptionally, on its sole responsibility, decide not to
subscribe to the LESSOR's "group" insurance contracts but to cover the
risks which it is obliged to insure (as stipulated in the paragraphs
212.1.2 and 212.1.3) by means of "other insurance policies", it shall
provide evidence of subscription of such "other policies" by supplying the
LESSOR's insurance broker with copies thereof, failing which the LESSOR
shall be entitled to cover the foregoing risks at the LESSEE's expense.
Said "other policies" shall stipulate that the insurance company concerned
may not suspend their covers for any reason, nor refuse to indemnify the
LESSOR in case of loss on the ground that the LESSEE has not complied with
the obligations of the insurance contract, without notifying the LESSOR at
least one month in advance by registered letter, in which event the LESSOR,
at its own discretion, shall be entitled to pay the premiums in the
LESSEE's place.
The "other policies" shall specify that all indemnities payable under the
damage covers shall be paid directly to the LESSOR and shall necessarily
provide for reciprocal waiver of recourse between the LESSOR and the
LESSEE.
Moreover, the LESSEE may or shall take out all complementary policies it
considers useful or necessary.
The LESSOR reserves the right to require subscription of all complementary
policies which turn out to be necessary. Inspection or lack of inspection
of said policies by the LESSOR or its insurance broker
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shall not entail any liability on its part for lack of insurance or
inadequate insurance.
212.3 Premiums:
As part of the LESSOR's asset protection plan and in application of the
preliminary declaration, the LESSEE shall be solely responsible for
negotiating with the LESSOR's broker both the face amount to be insured and
the premium rate of the subscribed insurance.
Given that the insurance premiums payable by the LESSEE under Article 212.1
above to cover the risks for which the owner is liable are considered by
the tax authorities as complementary rent subject to VAT like the basic
rent, they shall be billed additionally and paid in accordance with
paragraph 208.2 above.
As regards insurance taken out within the framework of the LESSOR's asset
protection plan, the LESSEE shall be sent a complementary rental term by
the LESSOR's insurance broker, mandated to this end by the LESSOR, which
broker shall directly collect its premiums. The complementary rent shall
correspond to the amount of the due annual premium plus the applicable VAT.
If the LESSEE is not enrolled in the LESSOR's asset protection plan,
premium receipts sent to the LESSOR as proof of payment shall be prepared
in such as way as to distinguish between premiums covering the owner's
risks and premiums covering the LESSEE's risks.
In the event that the property is part of a co-ownership, the LESSEE shall,
in the light of the policies taken out by the LESSOR or the property
manager, subscribe, in the name and on behalf of the LESSOR, all
supplemental policies necessary to cover the risks referred to in paragraph
212.1 entirely, notably those connected with the works carried out by the
LESSOR as well as the LESSEE itself. Failing this, the LESSOR shall be
entitled to take out insurance for the above risks at the LESSEE's cost.
The premiums on the policies taken out by the LESSOR or the co-ownership
shall be included in the charges incumbent on the LESSEE under the
paragraphs 208.1 and 208.3.
212.4 Insurance broker
The LESSOR has appointed the following insurance broker:
SGAP
SOCIETE GENERALE D'ASSURANCES ET de PREVOYANCE
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having its registered office at
▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
The LESSOR expressly reserves the right to appoint any other insurance
broker in place of the above broker, which the LESSEE herewith accepts.
213. LOSSES
213.1 The LESSEE shall inform the insurer or the LESSOR's broker if it has
enrolled in the LESSOR's asset protection plan, in the name and on behalf
of the LESSOR, and in the form and by the deadline stipulated in the
insurance policy, of any loss to the leased property, regardless of its
extent, even if no visible damage results. The same day, the LESSEE shall
send the LESSOR, by registered letter, a duly certified copy of its
declaration.
The LESSEE shall further make all other declarations and accomplish all
advisable or necessary formalities vis-a-vis all competent authorities or
government services, file all complaints and, in general, carry out all
formalities on behalf of the LESSOR made necessary by the circumstances.
213.2 In case of a loss, even due to an act of God or force majeure, which has
caused total or partial destruction of the premises, this contract, by
express derogation from the stipulations in the Articles 1184, 1722 and
1741 of the Civil Code, and all other similar legal provisions, shall not
be automatically terminated. The LESSEE shall continue to owe the entire
rent and charges on the agreed terms, regardless of the period for which
enjoyment is suspended.
213.3 After having obtained the necessary administrative authorizations, the
LESSEE shall, as applicable and at its own expense, either repair the
damage to the leased premises or reconstruct the premises identically or,
subject to the LESSOR's written permission, in equivalent form but in an
amount which shall be at least equal to the cost of reconstructing the
premises identically including all taxes.
Repair or reconstruction works shall be carried out on the LESSEE's sole
responsibility within the framework of the mandate granted to said LESSEE
by the LESSOR after the LESSOR has approved all drawings, quotations and
contracts.
213.4 In accordance with the clauses in the policy, the insurance indemnities
shall be paid to the LESSOR, which shall pay for the repair or
reconstruction works conducted by the LESSEE. It is agreed that the LESSEE
alone shall be all excess costs, including VAT, generated by repair or
reconstruction as compared with the amount of the said indemnities.
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Before commencing such works, the LESSEE shall provide the LESSOR with a
joint guarantee from a bank for payment of such excess.
213.5 However, in case of total destruction of the constructions or partial
destruction considered total destruction, the LESSEE, provided the
conditions in paragraph 301.3 have been met, shall be entitled to demand,
by virtue of the sales undertaking granted to it under paragraph 301.2,
that the sale be consummated, provided it bear the fiscal consequences, if
any, if the tax authorities disqualify the contract because of its short
duration.
The price shall be equal to the sales price stipulated in paragraph 303.2
below, determined at the date of the notarized sales deed, increased with
the amount of tax repayments stipulated in paragraph 706.
By virtue of the sale, the LESSEE shall be subrogated in all of the
LESSOR's rights in respect of the insurance indemnity.
Accordingly, the price shall be payable less any sums received in this
respect by the LESSOR prior to execution of the sales deed.
The sale shall take place on the terms and conditions stipulated in
Paragraph 303.4 to 303.10.
213.6 If the LESSEE, at the date on which notice is served of the decision taken
by the authorities concerned in respect of the building permit, has not
used its option under paragraph 213.5 above, it shall be entitled to:
- if the building permit is delivered without restriction or
reservation:
- opt for reconstruction of the buildings on the conditions stipulated
in paragraph 213.3 and, accordingly, continue the contract. However,
if the LESSEE does not offer the guarantee provided for excess
reconstruction costs compared with the amount of insurance indemnities
(see paragraph 213.4), the LESSOR shall be entitled to terminate the
contract and to apply the provisions in the paragraphs 213.8, 213.9
and 213.10 below;
- or demand consummation of the sale on the terms and conditions
stipulated in paragraph 213.5.
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- if the building permit is refused or delivered precariously or with
reservation, request consummation of the aforesaid sale or termination
of the contract.
The LESSEE shall have one month from receipt of notice of the decision of
the authorities concerned, given by registered letter with notice of
receipt, to inform the LESSOR of its option.
213.7 Failure to reply by the stipulated deadline shall be considered:
- if the building permit has been delivered, as tacit agreement to
continue the contract;
- if the building permit has been refused, as tacit agreement to
terminate the contract.
213.8 In case of termination request or tacit agreement to termination,
termination shall take effect at the day on which the termination indemnity
provided for below is paid.
213.9 If the sales price stipulated in paragraph 303.2, as determined at the
termination date, plus taxes and other costs owed by the LESSOR in
connection with such termination or collection of the insurance indemnity,
as well as the amount of the tax repayments referred to in paragraph 706,
exceeds the amount of the insurance indemnity, the LESSEE shall pay the
LESSOR the difference plus due VAT by way of termination indemnity.
In the opposite case, the LESSOR shall pay the LESSEE the differences, plus
due VAT, by way of termination indemnity.
213.10 Rent and charges shall be due until the date on which the notarized sales
deed is signed or until the termination effective.
Any excess payment shall be charged to sums owed by the LESSEE, if any, or
be reimbursed.
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TITLE 3 OF THE GENERAL TERMS
300 UNILATERAL UNDERTAKING TO SELL THE LEASED PROPERTY
301 PURPOSE
301.1 By virtue of the undertaking granted to it, the LESSEE shall be entitled
to request consummation of the sale of the property at the end of the tenth
year and each of the ensuing years of the lease until expiration of the
contract.
301.2 The LESSEE shall also be entitled to request consummation of the sale in
case of total loss or a similar event (see paragraphs 213.5 and 213.6).
301.3 The LESSEE shall only be entitled to request consummation of the sale if
it has duly performed its obligations under the contract.
301.4 Termination of the lease, irrespective of the reason, shall void this
sales undertaking.
302 REQUEST TO CONSUMMATE SALE
302.1 The LESSEE shall only be entitled to request consummation of the sale by
registered letter with notice of receipt.
In the cases provided for in paragraph 301.1, the registered letter shall
be sent to the LESSOR at most twelve months and at least nine months before
the end of the lease year.
For the case provided for in paragraph 301.2, the maximum deadline at the
LESSEE's disposal to request consummation of the sale is stipulated in
paragraph 213.6.
302.2 If the LESSEE has not requested consummation of the sale at least nine
months before the end of the last year of the lease, the sales undertaking
shall become void, unless the LESSOR agrees to extend the term.
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302.3 The request for consummation shall not entail transfer of ownership, which
shall be by notarized sales deed.
However, in case of sale on termination of the contract, transfer of
ownership shall be deferred until expiration of the lease if the notarized
deed is signed before this date.
303 TERMS AND CONDITIONS OF SALE
303.1 The sale shall be consummated by notarized deed.
303.2 At the end of a given lease year, the sales price shall be equal to the
indexed residual financial value of the "total investment cost".
*303.2.1 The residual financial value before indexation of the "total investment
cost" shall be obtained by applying to the "total investment cost" as
defined in paragraph 207.1.2 the percentages fixed in the Special Terms,
the result being increased with any sums still to be disbursed by the
LESSOR in connection with this lease operation.
303.2.2 The resulting residual financial value shall be pegged, in the same
percentage as used for indexation of the periodic basic net rent stipulated
in paragraph 207.2 of the Special Terms, to the national construction cost
index issued by INSEE.
The basic reference index shall be the index for the antepenultimate
calendar quarter preceding the calendar quarter in progress when the lease
takes effect, the comparison index being the index for the antepenultimate
calendar quarter preceding the quarter in which the sales deed is signed.
In the event that this index is not known at this date, the comparison
index shall provisionally be the latest published index, in which case
readjustment shall occur within eight days following publication of the
aforesaid chosen comparison index.
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However, it is expressly agreed that the sales price resulting from such
revision shall in no event be less than the non indexed residual financial
value determined in accordance with paragraph 303.2.1.
In the event that the INSEE index ceases to be published or recourse to
this index or to any indexation is forbidden, the parties shall apply the
provisions applicable in the same situation to the effective periodic rent.
303.2.3 Given the essentially financial nature of the LESSOR's intervention in
this lease operation, as explained in the PRELIMINARY DECLARATION, it is
expressly agreed between the parties, as a substantive condition of this
contract, without which it would not have been entered into, that, if, for
any reason connected with a fact under the LESSEE's control or connected
with applicable laws or regulations, the periodic net rent effectively paid
by the LESSEE is higher or lower than the periodic effective net rent
defined in paragraph 207.3, the amount of such increase or reduction, shall
respectively be reduced from or added to the amount of the sales price
stipulated in paragraph 303.2.
Accordingly, in case of reduction of the agreed periodic effective net
rent, the sales price shall be increased by adding the following elements:
- amount of difference between the total periodic effective net rent
stipulated contractually and the effective rent actually received by
the LESSOR;
- amount of interest calculated proportionally at the base rate of
CREDIT LYONNAIS plus three points, pro-rated in time over the
difference resulting from the foregoing paragraph.
In case of a rental increase imposed by the applicable laws or regulations,
the sales price shall be reduced by the above elements.
303.3 The resulting sales price shall be increased with the amount of tax
repayments stipulated in paragraph 706 below.
303.4 The sales price shall be paid cash at the day on which the sales deed is
signed. However, the additional price if any resulting from index
adjustment shall be paid within eight days from the date on which the
accounts are drawn up and the invoice is issued. In this respect, the
LESSOR expressly reserves the right to exercise the seller's privilege as
well as the termination action.
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303.5 All costs, duties, emoluments, taxes and levies connected with the sale
shall be borne exclusively by the LESSEE.
303.6 The sale shall take place at the LESSEE's exclusive risk, without
guarantee on the LESSOR's part, neither as regards eviction nor for faults
or hidden defects in the sold property.
Consequently, the LESSEE:
- shall take the property as-is at the date on which ownership is
transferred, without being entitled to bring any recourse against the
LESSOR for bad condition of the soil, the subsoil or the buildings,
construction defects, even if hidden, an error in description or
surface area, any difference, up or down, even if such difference
should exceed one-twentieth, to be the LESSEE's loss or gain;
- shall bear all negative easements and profit from all positive
easements, at its own risk, and shall see personally to all
administrative easements.
303.7 The LESSEE shall see personally to the continuation or termination of all
insurance policies and all subscriptions, in such a way that no recourse
can be brought against the LESSOR.
303.8 The sales deed shall be signed with the participation of the LESSOR's
notary.
303.9 In the cases provided for in paragraph 301.1, the sales deed shall be
signed at the latest at the expiration date of the lease year during which
the LESSEE validly requests consummation of the sale. In the cases provided
for in paragraph 301.2, it shall be signed within three months from the
sales consummation request.
If it was impossible to execute the notarized deed by these deadlines due
to an event ascribable to the LESSEE, the sales consummation request shall
be deemed null and void, unless the LESSOR agrees to extend the term.
303.10 After acquisition of the property, the LESSEE shall comply with the
provisions in Article 239 SEXTIES et seq. of the General Tax Code, whose
text is contained in the appendix hereto titled "Regulatory texts".
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TITLE 4 OF THE GENERAL TERMS
400 GUARANTEES OFFERED BY THE LESSEE
401 PERSONAL GUARANTEE
Not applicable.
402 DEATH AND DISABILITY INSURANCE
Not applicable.
*403 OTHER GUARANTEES
As applicable specified in the Special Terms.
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TITLE 5 OF THE GENERAL TERMS
Not applicable.
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TITLE 6 OF THE GENERAL TERMS
600 CONDITION PRECEDENT
As the LESSOR has received this day, by notarized deed, the rights referred
to under paragraph 101 of the General Terms, this contract is not subject
to any condition precedent.
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TITLE 7 OF THE GENERAL TERMS
700 MISCELLANEOUS PROVISIONS AND REPRESENTATIONS
*701 TERMS OF PAYMENT GOVERNING SUMS OWED BY THE LESSEE
All sums owed by the LESSEE to the LESSOR, regardless which, shall be
debited by the LESSOR by debit advice from the LESSEE's bank account
specified in the Special Terms.
To this end, the LESSEE irrevocably undertakes to sign a "debit request"
for the LESSOR and a "debit authorization" for its bank.
Before each due date, the LESSOR shall inform the LESSEE of the amount of
due sums. Should the LESSOR for one or more terms forego issuing a debit
advice and instead request the LESSEE to make payment by transfer, said
LESSEE shall make such transfer to the LESSOR's bank account specified in
the Special Terms, at the value date stipulated in the term advice, in
order to comply with the financial nature of the contract.
702 LATE-PAYMENT INTEREST
In case of late payment of any sum due under this contract, the LESSEE
shall owe the LESSOR, for every past-due month, a net indemnity calculated
over the due amount and billed monthly in arrears at the base rate of
CREDIT LYONNAIS in force at the first day of the period covered by the
invoice for late-payment interest, plus six points. Said rate shall in no
event be less than the annual proportional rate applied to the last
periodic effective net rent prior to the late payment. Any month which has
begun shall be counted as a full month.
This indemnity shall be automatically due without prior summons and its
payment shall in no event be construed as approval of additional time for
payment for the LESSEE.
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703 VACATION OF PREMISES
703.1 In the event that no sales consummation request is made and no new lease
is signed between the parties and in the event of early termination, the
LESSEE and any occupant for whom it is answerable shall vacate the premises
at the latest by the expiration or termination date of this contract.
In case of late departure from the premises, the LESSEE shall pay the
LESSOR an occupancy indemnity equal to three times the rent of the last
lease term, including VAT, calculated pro-rata temporis month by month.
Each month which has begun shall be due. This indemnity shall be
independent from the termination indemnity provided for in the paragraphs
209.2 and 210.7.
The LESSEE may further be constrained to leave the premises at once by
order in summary proceedings finding in favor of termination of the
contract and ordering the LESSEE's expulsion.
703.2 If the LESSEE carries on a business entailing pollution risks, notably of
the subsoil, it shall, if no sales consummation request is made and in case
of early termination, carry out the necessary soil and subsoil removal and
restoration works and provide evidence of an expert analysis, conducted at
its own expense, showing that no pollution remains, nor any trace of
substances capable of contaminating the site.
If a classified facility, the LESSEE shall also produce the receipt for its
declaration that it has ceased business.
704 LESSOR'S PRIVILEGE
It is expressly stipulated that the LESSOR's privilege shall guarantee not
only payment of the rent and charges but also all complementary rent, all
occupancy indemnities and all termination indemnities provided for in the
contract.
705 VAT OPTION
At the LESSEE's request, the LESSOR declares that it opts for value-added
tax on the income of this lease.
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706 REPAYMENT OF VAT TO THE TREASURY BY WAY OF REGULARIZATION
706.1 In the event that, by virtue of applicable tax laws and regulations,
notably Article 210, Appendix II, of the General Tax Code, the LESSOR has
to repay VAT on the investment to the Treasury, the amount of such
repayments shall be borne by the LESSEE or the buyer of the property on the
following conditions.
706.2 If repayment is further to the sale of the property by virtue of any of
the clauses of the contract, whether to the LESSEE or to a third party, the
sales price, as defined in paragraph 303.2, shall be incremented by the
amount of VAT repayments, in accordance with paragraph 303.3.
In consideration of this price increase, the LESSOR, in its capacity as
seller, shall supply the buyer with an the affidavit provided for in
paragraph IV of the before-mentioned Article 210, which shall enable the
buyer to deduct the amount of VAT mentioned therein within the limits of
its own rights.
If repayment is further to total expropriation, it shall be taken into
account in calculating the lease termination indemnity incumbent on the
LESSOR or the LESSEE, as applicable.
706.3 In all other cases of VAT repayment by the LESSOR, the LESSEE shall pay
the LESSOR complementary net rent equal to the amount of the repayment,
incremented by the corresponding VAT.
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*707 LAND REGISTRATION
This deed shall be registered at the competent mortgage registry at the
LESSEE's cost.
For collection of the land registration tax and the emoluments of the
mortgage registrar, the parties shall value the cumulative rent for all
years of the lease, the sale price to the LESSEE on expiration of the lease
and the amounts of charges stipulated in the Special Terms.
In their common interest, the parties empower the persons designated in the
Special Terms, with the power to act separately, to draw up and sign all
complementary deeds or amendments to this contract necessary to accomplish
the land registration formalities.
708 GENERAL MEETINGS OF CO-OWNERS ASSOCIATION
The LESSOR mandates the LESSEE to represent it at the General Meetings of
the Co-Owners Association, if there is one, and on its behalf to take part
in all deliberations and votes at such General Meetings.
The LESSEE shall send the LESSOR within fifteen days a report on such
General Meetings.
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709 MISCELLANEOUS COSTS
All costs, duties and emoluments connected with this contract, the deed
recording performance of the condition precedent if there is one, the
binding copy to be delivered to the LESSOR and all future costs, duties and
emoluments connected with this, shall be borne exclusively by the LESSEE,
which so accepts.
*710 MANAGEMENT POWERS (IF THE LESSOR IS AN UNDIVIDED ENTITY)
As applicable specified in the Special Terms.
*711 OTHER PROVISIONS
As applicable specified in the Special Terms.
712 LESSEE'S WARRANTIES AND REPRESENTATIONS
The LESSEE warrants and represents that it is a company governed by French
law.
The LESSEE warrants and represents that it is not subject to any request
for nullity or dissolution.
The LESSEE warrants and represents that it has no objection to the LESSOR's
mentioning in its corporate documents the location of the lease property
and the name of the LESSEE's business as well as the amount of the
investment, as determined in this contract.
713 ELECTION OF DOMICILE - JURISDICTION
For the purpose of this contract and any deeds and documents further
hereto, the parties elect domicile at the respective registered offices of
the companies represented by them.
Moreover, it is agreed that all disputes connected with this lease contract
and the unilateral sales undertaking contained herein shall be the
exclusive jurisdiction of the courts of PARIS.
-61-
PART TWO
SPECIAL TERMS
This second part only refers to those General Terms which are complemented
or modified in application of this contract.
TITLE 1 OF THE SPECIAL TERMS
100 AGREEMENT REGARDING THE PERIOD PRIOR TO THE EFFECTIVE DATE OF THE LEASE
101 PURCHASE OF SITE
The notarized deed of the LESSOR's acquisition of the rights referred to in
paragraph 101 of the General Terms is signed this day in the presence of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BERGERAULT, the aforesaid notary.
An authentic copy of this deed shall be published at the competent mortgage
registry.
102 ERECTION OF CONSTRUCTIONS
102.6 Works completion deadline: 31 March 1998
103 FINANCING OF WORKS
103.2 The LESSOR agrees to finance the investment up to the following ceiling:
- acquisition of site FRF 5,000,000 ex-VAT
- provision for acquisition costs FRF 75,000
- construction FRF 25,925,000 ex-VAT
--- ----------
FRF 31,000,000
(THIRTY-ONE MILLION FRANCS)
To this ceiling shall be added the corresponding VAT.
The investment shall be financed as follows:
- Financing by SLIBAIL IMMOBILIER FRF 15,500,000
- Financing by NORBAIL IMMOBILIER FRF 15,500,000
--- ----------
FRF 31,000,000
It is herewith specified that the LESSEE, in accordance with paragraph 403
of the Special Terms, in order to guarantee the financings provided by
SLIBAIL IMMOBILIER and NORBAIL IMMOBILIER, the LESSEE shall pay an advance
of FRF 8,000,000, including FRF 4,000,000 onto the account of SLIBAIL
IMMOBILIER and FRF 4,000,000 onto the account of NORBAIL IMMOBILIER.
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104 PRERENT
104.1 Commitment fee
Calculation basis: financing ceiling excluding recoverable VAT as defined
above in the chapter "Works Financing".
Annual rate: 0.25% (zero unit and twenty-five centimes per cent).
Terms of payment:
Quarterly in advance on 1 January, 1 April, 1 July and 1 October of each
year, from 30 November 1996 until the end of the calendar quarter during
which the lease takes effect and, for the first time, at the day on which
this contract is signed, for the period running until the end of the
current calendar quarter.
104.2 Interim interest
Annual rate for calculating interest according to the terms specified in
the General Terms:
Average monthly money market rate paid on the interbank market, established
by Association Francaise des Banques and officially published by Societe
des Bourses Francaises for the month preceding the month of the term, plus
1.00 point.
104.4 Financial engineering costs
FRF 50,000 paid when this contract is signed and divided as follows:
- SLIBAIL IMMOBILIER: FRF 40,000
- NORBAIL IMMOBILIER: FRF 10,000
104.5 Other costs
Not applicable.
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TITLE 2 OF THE SPECIAL TERMS
200 LEASE
201 EFFECTIVE DATE - TERM
201.2 From its effective date, the lease shall have a term of 12 whole and
consecutive years.
203 ENJOYMENT AND PURPOSE OF PREMISES
203.1 The premises shall be occupied exclusively for industrial use.
207 RENT
On the terms stipulated in paragraph 207.5 of the Special Terms, the
periodic basic net rent shall fall due and be payable in advance, each
calendar quarter.
207.1 Amount of periodic basic net rent
1) SHARE OF SLIBAIL IMMOBILIER
207.1.1.1 and 207.1.1.2
By exception to the General Terms, given that the LESSEE must pay
SLIBAIL IMMOBILIER on the effective date of the lease an initial
advance of FRF 4,000,000, as specified in Article 403 of the Special
Terms, the rent shall consist of two elements:
1) FIRST ELEMENT
This first element shall be calculated by applying the
percentages stipulated below, in accordance with paragraph 207.1
of the General Terms, to the "net total investment cost", as
defined in paragraph 207.1.2 of the General Terms, less the
amount of the initial advance paid by the LESSEE.
The first element shall be calculated in accordance with the
terms laid out in the General Terms in application of the table
below.
-64-
2) SECOND ELEMENT
This element, which shall consist only of amortization of the
principal, shall be calculated by applying the same percentages
as used for the first element to the amount of the initial
advance paid by the LESSEE, assuming that the lease takes effect
on the first day of a calendar period.
The net amount, ex-VAT, of this second element shall be paid by
offsetting it with the amortization of the LESSEE's advance, as
stipulated in paragraph 403 of the Special Terms.
If the LESSEE's advance of FRF 4,000,000 is not paid at the
effective date of the lease, the first element of the periodic
rent shall be calculated over the total investment cost as
defined in paragraph 207.1.1 of the General Terms.
As the percentages to be applied to the "total investment cost" at
each term of the periodic rent in order to determine, first, the
amount of the financial amortization (column 1) and, secondly, the
financial outstandings (column 2) used to calculate the amount of
interest - established on the assumption that the effective date of
the lease will fall on the first day of a calendar period - they shall
therefore be revised, if the effective date of the lease occurs during
a calendar period - have been fixed as follows:
-65-
FINANCIAL AMORTIZATION INTEREST CALCULATION BASIS
DUE DATES (%) (%)
--------- ------------------------- --------------------------
1 2.94371 97.05629
two units and ninety-four ninety-seven units and
thousand three hundred five thousand six hundred
seventy-one thousandth twenty-nine thousandth
percent percent
2 2.88903 94.16726
two units and eighty- ninety-four and sixteen
eight thousand nine thousand seven hundred
hundred three thousandth twenty-six thousandth
percent percent
3 2.83579 91.33147
two units and eighty- ninety-one units and
three thousand five thirty-three thousand one
hundred seventy-nine hundred forty-seven
thousandth percent thousandth percent
4 2.78397 88.54751
two units and seventy- eighty-eight units and
eight thousand three fifty-four thousand seven
hundred ninety-seven hundred fifty-one
thousandth percent thousandth percent
5 2.73353 85.81398
two units and seventy- eighty-five three hundred
three thousand three ninety-eight thousandth
hundred fifty-three percent
Thousandth units
-66-
FINANCIAL AMORTIZATION INTEREST CALCULATION BASIS
DUE DATES (%) (%)
--------- ------------------------- --------------------------
6 2.68445 83.12953
two units and sixty-eight eighty-three units and
thousand four hundred twelve thousand nine
forty-five thousandth hundred fifty-three
percent thousandth percent
7 2,63670 80.49283
two units and sixty-three eighty units and forty-
thousand six hundred ine thousand two hundred
seventy thousandth eighty-three thousandth
percent percent
8 2.59026 77.90257
two units and fifty-nine seventy-seven units and
thousand twenty-six ninety thousand two hundred
thousandth percent fifty-seven thousandth
percent
9 2.54510 75.35747
two units and fifty-four seventy-five units and
thousand five hundred ten thirty-five thousand
thousandth percent seven hundred forty-seven
thousandth percent
10 2.50119 72.85629
two units fifty thousand seventy-two units and
one hundred nineteen eighty-five thousand six
thousandth percent hundred twenty-nine
thousandth percent
-67-
FINANCIAL AMORTIZATION INTEREST CALCULATION BASIS
DUE DATES (%) (%)
--------- ------------------------- --------------------------
11 2.45851 70.39778
two units and forty-five seventy units and thirty-
thousand eight hundred nine thousand seven
fifty-one thousandth hundred seventy-eight
percent thousandth percent
12 2.41704 67.98074
two units and forty-one sixty-seven units and
thousand seven hundred ninety-eight thousand
four thousandth percent seventy-four thousandth
percent
13 2.37675 65.60400
two units and thirty- sixty-five units and
seven thousand six sixty thousand four
hundred seventy-five hundred thousandth
thousandth percent percent
14 2.33762 63.26638
two units and thirty- sixty-three units and
three thousand seven twenty-six thousand six
hundred sixty-two hundred thirty-eight
thousandth percent thousandth percent
15 2.29963 60.96674
two units and twenty-nine sixty units and ninety-
thousand nine hundred six thousand six hundred
sixty-three thousandth seventy-four thousandth
percent percent
-68-
FINANCIAL AMORTIZATION INTEREST CALCULATION BASIS
DUE DATES (%) (%)
--------- ------------------------- --------------------------
16 2.26276 58.70398
two units and twenty-six fifty-eight thousand
thousand two hundred units and seventy
seventy-six thousandth thousand three hundred
percent ninety-eight thousandth
percent
17 2.22699 56.47699
two units and twenty-two fifty-six units and
thousand six hundred forty-seven thousand six
ninety-nine thousandth hundred ninety-nine
percent thousandth percent
18 2.19229 54.28470
two units and nineteen fifty-four units and
thousand two hundred twenty-eight thousand
twenty-nine thousandth four hundred seventy
percent thousandth percent
19 2.15865 52.12605
two units and fifteen fifty-two units and
thousand eight hundred twelve thousand six
sixty-five thousandth hundred five thousandth
percent percent
20 2.12605 50.0000
two units and twelve fifty units percent
thousand six hundred five
thousandth percent
-69-
FINANCIAL AMORTIZATION INTEREST CALCULATION BASIS
DUE DATES (%) (%)
--------- ------------------------- --------------------------
21 2.09447 47.90553
two units and nine forty-seven units and
thousand four hundred ninety thousand five
forty-seven thousandth hundred fifty-three
percent thousandth percent
22 2.06389 45.84164
two units and six forty-five units and
thousand three hundred eighty-four thousand one
eighty-nine thousandth hundred sixty-four
percent thousandth percent
23 2.03429 43.80735
two units and three forty-three units and
thousand four hundred eighty thousand seven
twenty-nine thousandth hundred thirty-five
percent thousandth percent
24 2.00566 41.80169
two units and five forty-one units and
hundred sixty-six eighty thousand one
thousandth percent hundred sixty-nine
thousandth percent
25 1.97798 39.82372
one unit and ninety-seven thirty-nine units and
thousand seven hundred eighty-two thousand three
ninety-eight thousandth hundred seventy-two
percent thousandth percent
-70-
FINANCIAL AMORTIZATION INTEREST CALCULATION BASIS
DUE DATES (%) (%)
--------- ------------------------- --------------------------
26 1.95123 37.87249
one unit and ninety-five thirty-seven units and
thousand one hundred eighty-seven thousand two
twenty-three thousandth hundred forty-nine
percent thousandth percent
27 1.92540 35.94709
one unit and ninety-two thirty-five units and
thousand five hundred ninety-four thousand
forty thousandth percent seven hundred nine
thousandth percent
28 1.90047 34.04661
one unit and ninety thirty-four units and
thousand forty-seven four thousand six hundred
thousandth percent sixty-one thousandth
percent
29 1.87643 32.17018
one unit and eighty-seven thirty-two units and
thousand six hundred seventeen thousand
forty-three thousandth eighteen thousandth
percent percent
30 1.85327 30.31691
one unit and eighty-five thirty units and thirty-
thousand three hundred one thousand six hundred
twenty-seven thousandth ninety-one thousandth
percent percent
-71-
FINANCIAL AMORTIZATION INTEREST CALCULATION BASIS
DUE DATES (%) (%)
--------- ------------------------- --------------------------
31 1.83096 28.48596
one unit and eighty-three twenty-eight units and
thousand ninety-six forty-eight thousand five
thousandth percent hundred ninety-six
thousandth percent
32 1.80950 26.67646
one unit and eighty twenty-six units and
thousand nine hundred sixty-seven thousand six
fifty thousandth percent hundred forty-six
thousandth percent
33 1.78887 24.88759
one unit and seventy- twenty-four units and
eight thousand eight eighty-eight thousand
hundred eighty-seven seven hundred fifty-nine
thousandth percent thousandth percent
34 1.76906 23.11854
one unit and seventy-six twenty-three units and
thousand nine hundred six eleven thousand eight
thousandth percent hundred fifty-four
thousandth percent
35 1.75005 21.36848
one unit and seventy-five twenty-one units and
thousand five thousandth thirty-six thousand eight
percent hundred forty-eight
thousandth percent
-72-
FINANCIAL AMORTIZATION INTEREST CALCULATION BASIS
DUE DATES (%) (%)
--------- ------------------------- --------------------------
36 1.73185 19.63664
one unit and seventy- nineteen units and sixty-
three thousand one three thousand six
hundred eighty-five hundred sixty-four
thousandth percent thousandth percent
37 1.71442 17.92221
one unit and seventy-one seventeen units and
thousand four hundred ninety-two thousand two
forty-two thousandth hundred twenty-one
percent thousandth percent
38 1.69777 16.22445
one unit and sixty-nine sixteen units and twenty-
thousand seven hundred two thousand six hundred
seventy-seven thousandth forty-five thousandth
percent percent
39 1.68188 14.54257
one unit and sixty-eight fourteen units and fifty-
thousand one hundred four thousand two hundred
eighty-eight thousandth fifty-seven thousandth
percent percent
40 1.66674 12.87583
one unit and sixty-six twelve units and eighty-
thousand six hundred seven thousand five
seventy-four thousandth hundred eighty-three
percent thousandth percent
-73-
FINANCIAL AMORTIZATION INTEREST CALCULATION BASIS
DUE DATES (%) (%)
--------- ------------------------- --------------------------
41 1.65234 11.22348
one unit and sixty-five eleven units and twenty-
thousand two hundred two thousand three
thirty-four thousandth hundred forty-eight
percent thousandth percent
42 1.63867 9.58481
one unit and sixty-three nine units and fifty-
thousand eight hundred eight thousand four
sixty-seven thousandth hundred eighty-one
percent thousandth percent
43 1.62573 7.95908
one unit and sixty-two seven units and ninety-
thousand five hundred five thousand nine
seventy-three thousandth hundred eight thousandth
percent percent
44 1.61349 6.34559
one unit and sixty-one six units and thirty-four
thousand three hundred thousand five hundred
forty-nine thousandth fifty-nine thousandth
percent percent
45 1.60196 4.74362
one unit and sixty four units and seven-four
thousand on hundred thousand three hundred
ninety-six thousandth sixty-two thousandth
percent percent
-74-
FINANCIAL AMORTIZATION INTEREST CALCULATION BASIS
DUE DATES (%) (%)
--------- ------------------------- --------------------------
46 1.59113 3.15249
one unit and fifty-nine three units and fifteen
thousand one hundred thousand two hundred
thirteen thousandth forty-nine thousandth
percent percent
47 1.58098 1.57151
one unit and fifty-eight one unit and fifty-seven
thousand and ninety-eight thousand one hundred
thousandth percent fifty-one thousandth
percent
48 1.57151 0.0000
one unit and fifty-seven zero unit percent
thousand one hundred
fifty one thousandth
percent
-75-
207.1.1.2 The annual proportional rate T referred to in paragraph 207.1.1.2 of
the General Terms shall be determined as follows:
T = 6.75%
Calculated according to the refinancing rates based on resources from
industrial development accounts (CODEVI), currently subject to interest of
3.50%, this rate shall vary the same way as the average interest rate on
the credit balance of such industrial development accounts (CODEVI) during
the three (3) months preceding the month in which the periodic rental term
is due.
For example, if the average interest rate on the credit balance of CODEVI
accounts is lowered from 3.50% to 3.00% (i.e. a decrease of 0.50 point),
the proportional annual rate T shall also be lowered by 0.50 point to
6.25%.
In the event that the average interest rate on the credit balance of CODEVI
accounts can no longer be determined, irrespective of the reason, and no
official replacement rate is provided, the proportional annual rate T
applicable to each due date of the periodic rent shall be determined as
follows:
T = M.TRM02 + 2.00 point. M.TRM02 shall be equal to the arithmetic mean of
the average yield (TRM) on blue chip private-sector bonds on the secondary
market, at the end of the week, calculated by Caisse des Depots et
Consignations during the month preceding the month in which the periodic
rental term falls due.
2) SHARE OF NORBAIL IMMOBILIER
The quarterly basic net rent (ex-VAT) shall be equal to the sum of the
following elements.
1. 1ST ELEMENT
1ST PART
Reimbursement of principal over the term of the lease according
to the accelerated amortization method, in accordance with the
foregoing table, for the entire principal invested in the
operation by NORBAIL IMMOBILIER less the amount of the initial
advance paid by the LESSEE.
-76-
SECOND PART
This second part, which shall only include amortization of the
principal, shall be calculated at the same amortization rate as
the first part, over the amount of the initial advance paid by
the LESSEE, on the assumption that the lease takes effect on the
first day of a calendar period.
The ex-VAT amount of this second part shall be paid by offsetting
it with the amortization of the LESSEE's advance, as stipulated
in paragraph 403 of the Special Terms.
If the LESSEE's advance of FRF 4,000,000 is not paid at the
effective date of the lease, the first element of the periodic
rent shall be calculated over the total principal invested by
NORBAIL IMMOBILIER and the LESSOR shall be entitled to demand
application of the resolution clause, in accordance with
paragraph 403 of the Special Terms.
2ND ELEMENT
Interest calculated pro-rata temporis, i.e. by entering under the
numerator the exact number of days of the calendar year and under
the denominator the financial year, and applying to the financial
outstandings, after amortization of the principal invested by
NORBAIL IMMOBILIER in the operation over interest-bearing
resources, a quarterly coefficient equal to:
TC+3.25 (nominal advance rate)
-------
4
where TC stands for the interest rate on CODEVI savings accounts
opened at CREDIT DU NORD with a minimum of 3.50%.
The TC shall be the rate in force at the date of the rental term.
For example, for an investment net of subsidies of FRF 1,000,000,
excluding VAT, based on a quarter of 90 days and reference rate
"TC" for March 1996, i.e. 3.50%, the straight-line constant
quarterly rent, excluding VAT, would be FRF 30,230.76 during 48
quarters.
207.2 Indexation of periodic basic net rent
- percentage of indexable quarterly basic net rent: 0% (zero percent)
- percentage of indexable quarterly basic net rent: 100% (one hundred
percent)
-77-
207.5 Payment of rent
The periodic effective net rent, plus due VAT, shall fall due and be
payable quarterly in advance on 1 January, 1 April, 1 July and 1 October of
each year and for the first time at the effective date of the lease, for
the period remaining until the end of the calendar period then in progress.
No management fee shall be collected at each due date.
207bis TEMPORARY COMPLEMENTARY RENT
207bis 2 Annual rate to be retained for calculating interest according to the
conditions stipulated in the Special Terms.
Average monthly money market rate paid on the interbank market, established
by Association Francaise des Banques and officially published by Societe
des Bourses Francaises for the month preceding the month of the term, plus
1.00 point.
-78-
TITLE 3 OF THE SPECIAL TERMS
300 UNILATERAL UNDERTAKING TO SELL THE LEASED PROPERTY
301 PURPOSE
301.1 By derogation from the provisions in the General Terms, the LESSEE shall
be entitled to request consummation of the property sale by the end of the
5th year and each of the following lease years until expiration of the
contract, subject to compliance with the option terms and deadlines
stipulated in paragraph 302.2.
303 TERMS AND CONDITIONS OF SALE
303.2 Given the above derogation to paragraph 301.1 of the General Terms and if
the stipulations in these Articles are exercised by the LESSEE, the sales
price including an indemnity shall be calculated as follows:
The total rent remaining due after discounting at the contract rate less
2.50%. The contract rate would itself be discount on the basis of T (for
SLIBAIL IMMOBILIER) and TC (for NORBAIL IMMOBILIER) known at the option
exercise day, if the amount of this rate is less than that used to
determine the rent.
303.2.1 At the end of each lease year, the residual financial value before
indexation of the "total investment cost" shall be obtained by adding up
the following two elements:
1ST ELEMENT
This element is obtained by applying the following percentages to the
"total investment cost" defined in paragraph 207.1.2 of the General
Terms less the amount of the LESSEE's initial advance.
2ND ELEMENT
This element is obtained by applying the same percentages as to
element 1 to that part of the "total investment cost" defined in
paragraph 207.1.2 of the General Terms, financed from the LESSEE's
advance referred to in paragraph 403 of the Special Terms.
-79-
This second element shall be paid by offsetting it with the balance of
the LESSEE's advance.
It is herewith specified that, although the LESSEE can only request
consummation of the sale by the end of the fifth lease year at the
earliest (paragraph 301.1), the following percentages are also given
for earlier years, to make it possible, as applicable, to implement
the provisions in the paragraphs 209, 210, 211 and 213 of the General
Terms.
-80-
END OF LEASE YEAR RESIDUAL VALUE (%)
----------------- ------------------
1 88.5475
eighty-eight units and fifty-four thousand seven
hundred fifty-one thousandth percent
2 77.90257
seventy-seven units and ninety thousand two hundred
fifty-seven thousandth percent
3 67.98074
sixty-seven units and ninety-eight thousand seventy-
four thousandth percent
4 58.70398
fifty-eight thousand units and seventy thousand
three hundred ninety-eight thousandth percent
5 50.0000
fifty units percent
6 41.80169
forty-one units and eighty thousand one hundred
sixty-nine thousandth percent
7 34.04661
thirty-four units and four thousand six hundred
sixty-one thousandth percent
8 26.67646
twenty-six units and sixty-seven thousand six
hundred forty-six thousandth percent
-81-
END OF LEASE YEAR RESIDUAL VALUE (%)
----------------- ------------------
9 19.63664
nineteen units and sixty-three thousand six hundred
sixty-four thousandth percent
10 12.87583
twelve units and eighty-seven thousand five hundred
eighty-three thousandth percent
11 6.34559
six units and thirty-four thousand five hundred
fifty-nine thousandth percent
12 1
one franc
-82-
TITLE 1 OF THE SPECIAL TERMS
400 GUARANTEES OFFERED BY THE LESSEE
403 OTHER GUARANTEES
LESSEE'S ADVANCE
At the effective date of the lease, the LESSEE shall pay the LESSOR an
advance of FRF 8,000,000, including FRF 4,000,000 onto the account of
SLIBAIL IMMOBILIER and FRF 4,000,000 onto the account of NORBAIL
IMMOBILIER, which shall not bear interest and which shall be deducted from
the calculation basis of the first element of the rent referred to in
paragraph 207.1 of the Special Terms.
This advance shall be reimbursed at each due date by offsetting it with the
amount of the second element of the rent for SLIBAIL IMMOBILIER and with
the second part of the first element of the rent for NORBAIL IMMOBILIER, as
defined in paragraph 207.1 of the Special Terms.
In case of early exercise of the option, the balance of the advance shall
be reimbursed by offsetting it with the sales price defined in paragraph
303.
The amount of the advance not yet reimbursed shall consist of cash pledged
in favor of the LESSOR to guarantee that the LESSOR will be paid all sums
due by the LESSEE under this contract.
Failure to pay the said advance of FRF 8,000,000 shall entail, at the
LESSOR's discretion, application of the resolution clause referred to in
paragraph of the General Terms.
-83-
TITLE 7 OF THE SPECIAL TERMS
700 MISCELLANEOUS PROVISIONS AND REPRESENTATIONS
701 TERMS OF PAYMENT GOVERNING SUMS OWED BY THE LESSEE
Reference of LESSOR's bank accounts to be credited:
For SLIBAIL IMMOBILIER
- Name of LESSOR: SLIBAIL IMMOBILIER
- Name of bank: CREDIT LYONNAIS (Code 30002)
- Designation and address of bank branch:
Agence ABI (Code 00880)
▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
- Account No: 2P, bank sort code 46
For NORBAIL IMMOBILIER
- Name of LESSOR: NORBAIL IMMOBILIER
- Name of bank: CREDIT DU NORD (Code 30076)
- Designation and address of bank branch:
Agence Centrale Entreprises 02020
- Account No: 27457200200, bank sort code 35
Reference of LESSEE's bank accounts:
For SLIBAIL IMMOBILIER
- Name of bank: CREDIT LYONNAIS (Code 30002)
- Designation and address of bank branch:
CAE LEVALLOIS 796 Nanterre
- Account No: 100 Z, bank sort code 09
For NORBAIL IMMOBILIER
- Name of bank: CREDIT DU NORD (Code 30076)
- Designation and address of bank branch:
Agence de Puteaux, rue Bellini
- Account No: 300760206310597700200, bank sort code 74
The share of each LESSOR in the rent shall be debited separately.
-84-
707 LAND REGISTRATION
Since this property lease does not exceed twelve (12) years, it will not be
subjected to land publication formalities.
VALUATION
a) For the purpose of land publication, as applicable, the parties value:
- All cumulative years of rent, ex-VAT, at the sum of FORTY-TWO
MILLION SIXTY-FIVE THOUSAND SIX HUNDRED TWENTY FRENCH FRANCS (FRF
42,065,620 ex-VAT), including ELEVEN MILLION SIXTY-FIVE THOUSAND
SIX HUNDRED TWENTY FRENCH FRANCS (FRF 11,065,620 ex-VAT) for
financial costs paid by the LESSEE, i.e. an assessment basis of
THIRTY-ONE MILLION FRENCH FRANCS (FRF 31,000,000) for land
publication tax.
b) For the emolument of the Registrar, as applicable, the parties value:
- All cumulative years of rent, including value-added tax, at the
sum of FIFTY MILLION SEVEN HUNDRED THIRTY-ONE THOUSAND ONE
HUNDRED THIRTY-SEVEN FRENCH FRANCS (FRF 50,731,137 including
VAT).
- The residual price in consideration of which the sale will be
consummated in favor of the LESSEE when the operation is settled,
if the aforesaid sales undertaking is exercised, shall be ONE
FRENCH FRANC (FRF 1).
c) For the land publication tax and for the emolument of the Registrar,
as applicable, the parties value the charges incumbent on the LESSEE,
which would be due to the LESSOR, at the sum of THREE HUNDRED
SEVENTY-TWO THOUSAND FRENCH FRANCS (FRF 372,000).
The parties further specify that the amount of the total investment
projected by the LESSOR for this operation amounts to the net sum of
THIRTY-ONE MILLION FRENCH FRANCS (FRF 31,000,000 ex-VAT), i.e.
including all taxes the sum of THIRTY-SEVEN MILLION THREE HUNDRED
SEVENTY THOUSAND FIVE HUNDRED FIFTY FRENCH FRANCS (FRF 37,370,550
including VAT).
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710 MANAGEMENT POWERS
Mrs Morane Gaillard, ex-officio as the representative of NORBAIL
IMMOBILIER, herewith mandates SLIBAIL IMMOBILIER, for the entire term of
this lease, to carry out all day-to-day management and administration
operations connected with the said lease, notably:
- to collect all sums by way of pre-rent, ordinary and extraordinary
charges, termination indemnities, sales price, levies and taxes,
except NORBAIL IMMOBILIER's share in the rent, which it shall ▇▇▇▇
directly.
- to divide the income from its management between SLIBAIL IMMOBILIER
and NORBAIL IMMOBILIER in proportion to their participation in this
operation.
▇▇ ▇▇▇▇▇▇, ex-officio as the representative of SLIBAIL IMMOBILIER,
expressly accepts the mandate hereby vested in SLIBAIL IMMOBILIER.
The LESSEE takes note of the above agreements and undertakes:
- to pay SLIBAIL IMMOBILIER all sums which it must pay the LESSOR in any
respect by virtue of this lease, except NORBAIL IMMOBILIER's share in
rent, which shall be paid directly.
- to send SLIBAIL IMMOBILIER notice of all option exercise requests,
whether at an early date or not, or lease termination requests and to
send it notice of all transfers or contributions of the right to this
lease.
However, it is herewith specified:
- that VAT shall be managed separately by each property financing
company;
- that the mandator's prior agreement shall be obtained for all
decisions exceeding the framework of day-to-day management (early
termination, transfer, expropriation of the building, insurance
losses, legal actions, etc.).
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711 OTHER PROVISIONS
- REGULATED ZONE
It is herewith stipulated that the property leased under this contract
is part of the ZONE D'AMENAGEMENT CONCERTE DE L'ECHANGEUR
("Cloverleaf" concerted development zone), created by resolution of
the town council of the city of BOURGES on 26 October 1989 and
approved by the Prefect of the ▇▇▇▇ district on 26 October 1989, of
which the documents are filed with Maitre ▇▇▇▇▇▇, notary in
partnership in BOURGES.
The LESSEE warrants and represents that it has acquainted itself with
the terms and conditions of these development regulations (concession
agreement, concession specifications, land transfer specifications)
and undertakes, in the LESSOR's place, to comply with and to
accomplish all obligations and conditions resulting from these
documents, in such a way that the LESSOR can never be wanted in this
respect for any reason whatsoever.
In accordance with paragraph 208.3 of the General Terms, the LESSEE
shall also bear all charged resulting from these regulations, in such
a way that the LESSOR can never be wanted in this respect for any
reason whatsoever.
- BUILDING PERMIT
At the date on which this contract is signed, the period for recourse
further to delivery of building permit No 018033 97 P0025 of 7 March
1997 has not yet expired.
This lease shall automatically be terminated, at the LESSOR's
discretion, without legal formality, if, by 31 December 1997, the
LESSEE has not obtained, for the premises governed by this contract, a
building permit which has become final because of absence of recourse
during the legal period of recourse or because of a final court order
pronounced further to recourse.
Termination shall take effect at the date on which the LESSEE receives
a registered letter informing it of the LESSOR's decision or a
bailiff's writ with the same purpose.
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The LESSEE shall pay the LESSOR, within maximum one month from
termination, by way of damages under the Articles 1152 and 1226 of the
Civil Code, an indemnity equal to the amount of the financing ceiling
stipulated in paragraph 102.2 plus VAT to be paid by the LESSOR to the
Treasury, incremented by 20% over the total.
Said termination indemnity shall be incremented by the applicable VAT.
However, the LESSEE shall be entitled, provided it has duly performed
all its contractual obligations, to acquire the real rights held by
the LESSOR to the site as well as the constructions, in consideration
of a price equal to the total expenses incurred by the LESSOR at the
day of the sale and all sums due on works, including indemnities if
any due to participants in the construction, the whole being increased
by 10%.
In order to be admissible, the acquisition request must be sent by
registered letter with notice of receipt accompanied by the price and
the amount of costs within one month from notification.
Moreover, the sale shall be consummated on the terms and conditions
laid out in the paragraphs 303.4 and 303.10 of the General Terms.
If the notarized sales deed cannot be signed for failure to pay the
price or for any other reason due to the LESSEE, within four months
from the aforesaid notice, the resolution clause provided for above
shall apply.
Pre-rent (or rent if termination occurs after the effective date of
the lease) shall remain due until the termination date of the lease or
until the notarized property sales deed is signed.
- RELIEF FOR CAUSE OF LESION
The site covered herein was acquired by SEMARB, the previous owner,
less than two years ago. Accordingly, the period for bringing an
action for relief for cause of lesion has not lapsed.
Consequently, further to transfer of the risks to the LESSEE, as
stipulated in the PRELIMINARY DECLARATION to this contract, the LESSEE
undertakes to reimburse the LESSOR all sums which the latter may be
obliged to pay if this action is brought, to stop it from going
further, notably a fair price complement.
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Said sums shall be incremented with interest calculated pro-rata
temporis at the rate of this contract.
712 LESSEE'S WARRANTIES AND REPRESENTATIONS
* REPRESENTATION REGARDING THE VALUE OF THE SITE
The LESSEE further warrants and represents that the value of the property
site covered by this property financing contract is (FRF 5,000,000) ex-VAT
at the acquisition date by the LESSOR. It undertakes to bear all
consequences resulting from the foregoing declaration.
* REPRESENTATION REGARDING CLASSIFIED FACILITIES
Lastly, the LESSEE warrants and represents that it fully acquainted with
the laws and regulations on classified facilities (Act No 76-663 of 19 July
1976 and Decree No 77-1133 of 21 September 1977, modified by Decree No
89-837 of 14 November 1989, and Decree No 80-813 of 15 October 1980).
It warrants and represents that the activity it plans to carry on at the
premises covered herein fall within the scope of the declaration, as
witnessed further by an affidavit issued by the Prefecture of ▇▇▇▇ on 10
February 1997.
It undertakes to comply with said laws and regulations on classified
facilities and to bear all consequences resulting from the aforesaid
declaration.
713 SUBSIDIES
The LESSEE has informed the LESSOR that this property financing operation
may be subject to subsidies.
The LESSEE declares that it has taken the initiative to request from:
1) FERI a subsidy of FRF 1,950,000 and a concessionary subsidy of FRF
650,000 to be applied to the rental terms;
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2) the CONSEIL GENERAL OF THE ▇▇▇▇ DISTRICT a subsidy in the amount of
FRF 1,200,000, partly in the form of a concessionary subsidy to be
applied to the rental terms;
in order to help finance this operation.
It is here agreed that in the remainder of this text, the term "subsidy"
shall be used to designate all subsidies requested by the LESSEE for the
property operation described in the preamble.
In this respect, the LESSEE warrants and represents that it is aware of the
obligations resulting from delivery of such subsidy and undertakes to
comply with them and promptly to produce evidence of compliance with such
agreements when requested to do so.
In practice, this subsidy will be granted to the LESSOR which, at the
LESSEE's express request, shall offer the latter its benefit by reducing
the amount of periodic rent, net of tax, based on the net cash received on
this head.
Said reduction shall be found by applying to the amount of the subsidy
actually received by the LESSOR the same coefficients as applied to the
total investment cost to determine the periodic basic rent.
Subsidies in the form of abatements shall be granted to the LESSOR which,
at the LESSEE's express request, shall offer the latter the benefit thereof
by reducing the amount of periodic rent, net of tax, as defined in
paragraph 207.1 of the General Terms, in the amount of the net abatements
received on this head.
As regards the share financed by NORBAIL IMMOBILIER, the ▇▇▇▇ for each
rental term shall take account of reinstatement, over the term of the
contract, in accordance with the applicable laws, of a fraction of the
equipment subsidies granted in the form of a credit, net of value-added
tax, at the same pace as the pace used for financial amortization on the
rental scale.
Moreover, as it is the LESSEE which will benefit from the subsidy, the
LESSEE alone shall be responsible for compliance with all conditions, if
any, determining delivery or continuance of such assistance by the
authority concerned.
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The LESSEE shall also bear all consequences of termination of such
assistance.
Thus, if the conditions laid down by the authority having granted the
subsidy are not complied with, the LESSEE shall pay, by way of non-interest
bearing guarantee deposit, a sum equal to the amount of the reimbursement
requested by such authority.
It is herewith also noted that the LESSEE is and shall remain exclusively
responsible for monitoring of such subsidy, in the broadest meaning of the
term. Accordingly, the LESSOR assumes no responsibility in this respect,
has no tangible charge and can in no event be held liable or wanted in case
of difficulties.
For example, preparation of the application file, follow-up of disbursement
planning, and submission of all information or evidence to the authority
having paid the subsidy shall remain the LESSEE's responsibility.
In the event that the LESSOR has to intervene in respect of the authority
charged with paying the subsidy, whether to send a file, to request actual
payment of the subsidy or to submit documents claimed in connection with
said subsidy, the LESSEE shall send the LESSOR all draft letters or
documents necessary to submit the requested documents.
Accordingly, the LESSOR shall in no event be liable for late availability
of the subsidy if due to late delivery of papers or documents because said
LESSOR was not informed in time by the LESSEE.
More generally, the LESSEE undertakes to make sure that the LESSOR does not
suffer any prejudice because of the approval and processing of the subsidy,
in accordance with the stipulations in the PRELIMINARY DECLARATION
"TRANSFER OF RISKS TO THE LESSEE" in this lease contract.
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Drawn up on ninety-two (92) pages
With the participation of Maitre ▇▇▇▇ ▇▇▇▇▇▇▇, associate notary in PARIS,
counsel for NORBAIL IMMOBILIER,
And with the participation of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BERGERAULT, the aforesaid notary,
counsel for the LESSEE,
After reading, the parties have signed with the undersigned associate notary
Twenty-nine April
Nineteen hundred ninety-seven
Six referrals
Twenty-five crossed-out blank spaces
Twenty-four crossed-out figures
Nine lines and eighteen words void
Referrals:
page 39
1) sixth
page 65
1) in column 1 of the following table
page 80
1) fifth
page 86
1) directly to the latter
page 5
1) March
page 89
1) Five million French francs ex-VAT
-92-
At the notarial office / ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ THESSIEUX, notary in partnership of a company holding a notarial
office at ▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, received this deed in authentic
form.
INFORMATION ABOUT THE PARTIES
I. LESSORS
1. SLIBAIL IMMOBILIER
A public limited company,
governed by existing laws, notably Article 2 of Act No 66-455 of 2 July 1966,
modified by government order No 67-837 of 28 September 1967, with respect to
enterprises carrying on a leasing business, and by its bylaws,
with a capital of two hundred twenty million French francs (FRF 220,000,000),
having its registered office at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
entered in the Register of Companies of Paris under No B 682 039 086 (68B03908),
approved for the benefit of the tax rules applicable to SICOMIs (French
tax-exempt commercial property companies) by an order from the Ministry of
Finance dated 3 October 1968, whose decision to preserve the benefit of this tax
regime on the conditions stipulated in Article 96.I, second paragraph, of Act
90.1168 (Budget Act for 1991) was recorded on 4 July 1991 by the Ministry of the
Economy, Finance and the Budget,
originally incorporated under the name "SOCIETE LYONNAISE IMMOBILIERE POUR LES
COMMERCE ET L'INDUSTRIE - SLICOMI" and having:
- changed its name to "SLIBAILSICOMI" by virtue of a resolution adopted by
the Extraordinary General Meeting of partners of the said company on 9
November 1992, a duly certified copy of whose minutes was appended, after
mention, to an office copy of a deed recording their registration, received
by ▇▇▇▇▇▇ ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇, notary in partnership in Paris, on 21
December 1992,
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- adopted its current name by virtue of a resolution adopted by the
Extraordinary General Meeting of partners of the said company on 29 January
1996, a duly certified copy of whose minutes was appended, after mention,
to an office copy of a deed recording their registration, received by
▇▇▇▇▇▇ ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇, notary in partnership in Paris, on 4 March 1996,
represented by:
Mr ____________, notarial clerk, domiciled at ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
acting on behalf of and as attorney in fact for ▇▇ ▇▇▇▇▇▇ GAVAU, Vice-President
Sales, domiciled at ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ Fontanot, Nanterre, Hauts de Seine, duly
empowered to act herein by virtue of a private deed dated __________, Nanterre,
appended hereto after mention,
in which power Mr GAVAU, with the right of substitution, acted on behalf of and
as attorney in fact for Mr Claude VIVIEN, General Manager of the said company,
being at the time domiciled at ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and currently
domiciled at ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ Fontanot, Nanterre, Hauts de Seine, under a deed
received by ▇▇▇▇▇▇ ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇, the aforesaid notary on 22 May 1995,
in which power Mr VIVIEN himself acted by virtue of his functions, confirmed for
an indefinite time, with the right of substitution and with the broadest
possible powers to act under all circumstances on behalf of the said company,
including the power to act before the courts, by virtue of a resolution adopted
by the Board of Directors of the said company on 16 February 1995, a duly
certified copy of whose minutes was appended, after mention, to an office copy
of a deed recording their registration, received by ▇▇▇▇▇▇ ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇,
the aforesaid notary, on 22 May 1995.
2. NORBAIL IMMOBILIER
A public limited company,
with a capital of FRF 50,000,000,
having its registered office at ▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
entered in the Register of Companies of Paris under No B 352 109 656 (89B14721),
represented by:
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Mr ______________, notarial clerk, domiciled at ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇,
by virtue of ___________________________________________________________________
SLIBAIL IMMOBILIER and NORBAIL IMMOBILIER as well as their representatives are
herein referred to as the "LESSOR", acting jointly and respectively up to 50%
for SLIBAIL IMMOBILIER, the lead manager, and up to 50% for NORBAIL IMMOBILIER,
PARTY OF THE FIRST PART
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II. LESSEE
AUXITROL SA
A public limited company,
with a capital of FRF 25,000,000,
having its registered office at Centre d'Affaires Esplanade ***, 5 Allee ▇▇▇▇▇▇▇
▇▇▇▇▇, 18941 Bourges Cedex 9,
entered in the Register of Companies of Bourges under No B 602 023 251 (63B64),
represented by:
Mr ______________, notarial clerk, domiciled at ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇,
by virtue of ___________________________________________________________________
AUXITROL SA and its representative are herein referred to as the "LESSEE",
PARTY OF THE SECOND PART
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PREAMBLE
WITNESSETH
1. The LESSEE wishes to have industrial premises with a net leasing area of
10,183 sq.m., to be constructed on the site described hereinafter, located
in BOURGES (▇▇▇▇) and currently owned by SEMARB, hereinafter referred to as
the OWNER OF THE SITE.
2. Without intervention by the LESSOR, the LESSEE has taken the initiative to
negotiate its acquisition terms directly with the OWNER OF THE SITE.
3. The LESSEE arranged to have established, according to its needs, the
construction program for the premises to be erected at the site.
4. On 10 February 1997, the LESSEE filed a building permit application.
On 7 March 1997, the LESSEE obtained a building permit bearing No 018033 97
P0025, delivered by the Commune of BOURGES.
This permit was displayed at the townhall of BOURGES, as witness an
affidavit issued by the said townhall on 14 April 1997, and was displayed
at the site, as witness a report drawn up on 11 March 1997 by Maitre ▇▇▇▇
▇▇▇▇▇▇▇, bailiff in partnership in BOURGES.
5. The LESSEE has asked the LESSOR for the following property financing
transaction in its favor, including:
- acquisition of the said site by the LESSOR,
- construction by the LESSOR of the premises needed by the LESSEE,
- and lease by the LESSEE of the building, under a lease tied to a sales
undertaking.
6. The LESSOR has agreed to carry out this financing transaction in the light
of the LESSEE's person and the guarantees which the LESSEE has agreed to
provide.
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7. Under a deed received on 29 April 1997 by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BERGERAULT, notary
in partnership in BOURGES, the LESSOR accordingly acquired the said site at
a price of FIVE MILLION FRANCS excluding VAT (FRF 5,000,000 ex-VAT),
incremented by ONE MILLION THIRTY THOUSAND FRENCH FRANCS (FRF 1,030,000) by
way of VAT, paid cash and of which a receipt was given in the said deed.
The LESSOR has further paid the notary the sum of SEVENTY-FIVE THOUSAND
FRANCS (FRF 75,000) by way of provision for the duties, taxes, costs and
emoluments due in connection with said acquisition.
An office copy of this deed was published at the BOURGES mortgage registry
on 13 May 1997, volume 1997 P, number 2704.
DESCRIPTION OF PROPERTY
LAND TO BE ACQUIRED
In BOURGES (▇▇▇▇).
A building site survey section 2M number 139 at the site known as "Le Noir a
Beurat", with a content of five hectares thirty-seven areas and ninety-one
centiares (5ha 37a 91ca).
The said site is part of a development program governed by the ZONE
D'AMENAGEMENT CONCERTE DE L'ECHANGEUR (cloverleaf concerted development zone)
procedure adopted by resolution of the town council of the city of BOURGES on 26
October 1989, approved by the Prefect of the ▇▇▇▇ district on 26 October 1989,
of which the documents are filed with Maitre ▇▇▇▇▇▇, notary in partnership in
BOURGES.
The LESSEE has intervened in this sales deed to declare that all clauses and
terms of this deed correspond to those which the LESSEE itself had negotiated
with the seller.
8. Under a deed received on 29 April 1997 by Maitre THESSIEUX, the undersigned
notary in partnership, the LESSOR and the LESSEE agreed to carry out,
within the framework of Act No 66-455 of 2 July 1966 and Article 57 of Act
No 95-115 of 4 February 1995, the property financing transaction described
in the foregoing preamble.
Accordingly,
- the parties have laid down and agreed to their reciprocal obligations
during the construction period;
- the LESSOR leases to the LESSEE, which agrees to let, the property
described above;
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- the LESSOR undertakes to sell said property to the LESSEE, which accepts
this undertaking as an undertaking only, and reserves the right to acquire
or not to acquire said property at its discretion;
Under the said deed, it was notably stipulated as follows, reiterated literally:
TITLE 1 OF THE SPECIAL TERMS
100 AGREEMENT REGARDING THE PERIOD PRIOR TO THE EFFECTIVE DATE OF THE LEASE
101 PURCHASE OF SITE
.. . .
102 ERECTION OF CONSTRUCTIONS
102.6 Works completion deadline: 31 March 1998
103 FINANCING OF WORKS
103.2 The LESSOR agrees to finance the investment up to the following ceiling:
- acquisition of site FRF 5,000,000.00 ex-VAT
- provision for acquisition costs FRF 75,000.00
- construction FRF 25,925,000.00 ex-VAT
FRF 31,000,000.00
(THIRTY-ONE MILLION FRANCS)
To this ceiling shall be added the corresponding VAT.
The investment shall be financed as follows:
- Financing by SLIBAIL IMMOBILIER FRF 15,500,000.00
- Financing by NORBAIL IMMOBILIER FRF 15,500,000.00
FRF 31,000,000.00
It is herewith specified that the LESSEE, in accordance with paragraph 403
of the Special Terms, in order to guarantee the financings provided by
SLIBAIL IMMOBILIER and NORBAIL IMMOBILIER, the LESSEE shall pay an advance
of FRF 8,000,000, including FRF 4,000,000 onto the account of SLIBAIL
IMMOBILIER and FRF 4,000,000 onto the account of NORBAIL IMMOBILIER.
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9. The LESSEE has asked the LESSOR to bear the cost of additional works to be
carried on the premises covered by the property lease contract concerned.
-100-
The cost of these works amounts to ONE MILLION EIGHT HUNDRED THIRTY-FIVE
THOUSAND FRENCH FRANCS ex-VAT (FRF 1,835,000 ex-VAT).
Accordingly, the LESSOR and the LESSEE have agreed to raise the ceiling of the
original property lease contract from THIRTY-ONE MILLION FRENCH FRANCS (FRF
31,000,000) to THIRTY-TWO MILLION EIGHT HUNDRED THIRTY-FIVE THOUSAND FRENCH
FRANCS ex-VAT (FRF 32,835,000 ex-VAT).
Further to this new agreement, the parties have agreed to modify the following
paragraph of the property lease contract received by Maitre Francois THESSIEUX,
the undersigned notary, on 29 April 1997.
NOW THEREFORE IT HAS BEEN AGREED AS FOLLOWS:
AMENDMENT
The property lease received by Maitre Francois THESSIEUX, the undersigned
notary, on 29 April 1997, is amended as follows:
TITLE 1 OF THE SPECIAL TERMS
100 AGREEMENT REGARDING THE PERIOD PRIOR TO THE EFFECTIVE DATE OF THE LEASE
.. . .
103 FINANCING OF WORKS
103.2 The LESSOR agrees to finance the investment up to the following ceiling:
.acquisition of site FRF 5,000,000.00 ex-VAT
provision for acquisition costs FRF 75,000.00
construction FRF 27,760,000.00 ex-VAT
FRF 32,835,000.00
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(THIRTY-TWO MILLION EIGHT HUNDRED THIRTY-FIVE THOUSAND FRANCS)
To this ceiling shall be added the corresponding VAT.
The investment shall be financed as follows:
- Financing by SLIBAIL IMMOBILIER FRF 16,417,500.00
- Financing by NORBAIL IMMOBILIER FRF 16,417,500.00
FRF 32,835,000.00
It is herewith specified that the LESSEE, in accordance with paragraph 403
of the Special Terms, in order to guarantee the financings provided by
SLIBAIL IMMOBILIER and NORBAIL IMMOBILIER, the LESSEE shall pay an advance
of FRF 8,000,000, including FRF 4,000,000 onto the account of SLIBAIL
IMMOBILIER and FRF 4,000,000 onto the account of NORBAIL IMMOBILIER.
No other amendment is made to the property lease contract of 29 April 1997.
LAND REGISTRATION - POWERS
Since the aforesaid property lease of 29 April 1997 does not exceed twelve
(12) years, it will not be subjected to land publication formalities.
Accordingly, this amendment will not be subjected to land publication
formalities.
VALUATION
a) For the purpose of land publication, as applicable, the parties value:
- All cumulative years of complementary rent, ex-VAT, at the sum of
TWO MILLION FOUR HUNDRED NINETY THOUSAND THIRTEEN FRENCH FRANCS
(FRF 4,490,013 ex-VAT), including SIX HUNDRED FIFTY-FIVE THOUSAND
AND THIRTEEN FRENCH FRANCS (FRF 655,013 ex-VAT) for financial
costs paid by the LESSEE, i.e. an assessment basis of ONE MILLION
EIGHT HUNDRED THIRTY-FIVE FRENCH FRANCS (FRF 1,835,000) for land
publication tax.
b) For the emolument of the Registrar, as applicable, the parties value:
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- All cumulative years of rent, including value-added tax, at the
sum of THREE MILLION TWO THOUSAND NINE HUNDRED FIFTY-FIVE FRENCH
FRANCS (FRF 3,002,955 ex-VAT).
- The parties note that the residual price in consideration of
which the sale will be consummated in favor of the LESSEE when
the operation is settled, if the aforesaid sales undertaking is
exercised, shall be ONE FRENCH FRANC (FRF 1).
c) For the land publication tax and for the emolument of the Registrar,
as applicable, the parties value the charges incumbent on the LESSEE,
which would be due to the LESSOR, at the sum of TWENTY-TWO THOUSAND
TWENTY FRENCH FRANCS (FRF 22,020).
The parties further specify that the amount of the complementary investment
projected by the LESSOR under this amendment amounts to the net sum of ONE
MILLION EIGHT HUNDRED THIRTY-FIVE FRENCH FRANCS (FRF 1,835,000 ex-VAT),
i.e. including all taxes the sum of TWO MILLION TWO HUNDRED THIRTEEN
THOUSAND AND TEN FRENCH FRANCS (FRF 2,213,010 including VAT) and further
specify that, because of this amendment, the amount of the total investment
projected by the LESSOR amounts to THIRTY-TWO MILLION EIGHT HUNDRED
THIRTY-FIVE THOUSAND FRENCH FRANCS ex-VAT (FRF 32,835,000 ex-VAT), i.e.
including all taxes the sum of THIRTY-NINE MILLION FIVE HUNDRED
EIGHTY-THREE THOUSAND FIVE HUNDRED SIXTY FRENCH FRANCS (FRF 39,583,560
including VAT).
NOTICE
Notice hereof shall be given wherever needed.
MISCELLANEOUS COSTS
All costs, duties and emoluments connected with this amendment and all
resulting or related costs shall be borne by the LESSEE, which so accepts.
WHEREOF RECORD
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Established on ___ pages. With the participation of Maitre ▇▇▇▇ ▇▇▇▇▇▇▇,
associate notary in PARIS, counsel for NORBAIL IMMOBILIER, And with the
participation of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BERGERAULT, the aforesaid notary, counsel for
the LESSEE, After reading, the parties have signed with the undersigned
associate notary
This day,
NINETEEN HUNDRED NINETY-EIGHT
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