EXHIBIT 10.15
Lease Contract
Between:
The Auxiliary Society of Public Information (FIP)
Societe Anonyme au Capitol de 2.240.000 Frs
Social seat & Bureau:
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Tel: 48.00.86.00
Represented by: M. M. Bichot, Adjunct Director General
hereafter referred to as the Lessor
First part,
and:
Twinsys Dataguard SA
SA au Capitol de 250.000 F
Tour Mirabeau- ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Represented by: _________
Hereafter referred to as the Lessee
Other part,
General Terms of the Lease
Section 1 Date of effect of the lease, rentals, methods of payment:
1.1 The lease takes into account the putting into service of equipment
belonging to the Lessee certified by a written agreement that is put into
working order.
For the equipment already in use and on location close to the Supplier, the
date the lease takes effect is specified in the Special Conditions of the
contract (date of conversion). The rentals are payable according to the
methods indicated in the Special Conditions of the contract.
1.2 The rentals are transferrable and uncontestable. They will stay fixed
throughout the duration of the lease under the sole condition that any
variation in tax or T.V.A. will be imposed according to general fiscal rules
of operation. To that effect, the Lessor is authorized in full right,
without formal preamble, to make any practical and correlating adjustments.
All taxes due on the present title are the sole responsibility of the Lessee.
1.3 In case of delay in payment of sums by the Lessee, late interest/fees
will be due to the lessor; they will be calculated on a temporary, pro-
rated basis by taking the highest of these obligations taking affect by the
date of eligibility, the rate is increased three points. The late interests
are carried by the number of days running since the date of eligibility
increased by 15 days. The Lessor gains, over and above, by right the value
of maturity, and makes reimbursement, in all cases the various costs engaged
for all recalling of maturities.
1.4 The rentals figured under the Special Conditions are established on
partly a scale of the Supplier's and partly on a scale of the Lessor's
taking effect on the date of establishment by the Lessor of the present
contract. They will be actualized following the scales put in effect after
the Lessor's receipt of a written agreement placing in working order, where
that of the Lessee in lieu of, issues a delay of eight days seen in article
2.1. The Lessor has also the ability, in full right, to modify, and without
prior establishment, the raising of rents proportionally according to the
scales retained. At all times the Lessor renounces the actualization
following his own scale if he receives a written agreement to place in
working order during a delay of one month counting from the date of signature
by the Lessor on the present contract.
1.5 The rents and equipment previously on location and on site are closed and
non-revisable counting from the date of signature, by the Lessor, on the
present contract and throughout the duration of the contract.
1.6 The duration of the contract is irrevocable and the obligations defined
are indivisible.
Article 2 Equipment in Working Order-On Site Conversions
2.1 Equipment left behind
2.1.1 The Lessor chooses the equipment marked and of the type which he
determines, and the function of the required qualities and methods. For the
proper needs and uses the Lessee will procure under general conditions of
supply, equipment indicated. The Lessee estimates the technical
specifications. The places and delays of installments of delivery are
indicated by the Lessor and previously accepted by the Lessee.
2.1.2 The Lessee recognizes having foreknowledge of the general conditions of
the of the Lessor having subscribed to the present contract. The Lessor
transfers to the Lessee all rights and obligations relating to the Lessee.
As a result, the Lessee renounces all action against the Lessor- notably
the title of guarantee. The risks, industrial ownership and guarantee of the
Lessor against all action of the supplier concerning the protection and
misuse or exploitation of programs and the private affairs of the employees.
2.1.3 The Lessee must notify the Lessor of effective delivery of
equipment as soon as possible.
2.1.4 The Lessee effects that, for his own account, under the present contract,
he will verify that the equipment is entirely in conformity with the
specifications of the rental agreement's tests of usage.
2.1.5 That verification being made, the Lessee must furnish the Lessor:
1. A written agreement that places in working order (signed by himself
and the Lessor) that all equipment furnished conforms with
specifications and was subject to tests of usage.
2. By a written agreement stating the difficulties in each condition
below, so for each clause whatever, the equipment will have been in
conformity. The written agreement must mention explicitly all the
motives assigned justifying the composition.
In the event that the Lessee abstains from drafting one or the other written
agreement, and eight days after placing the working order the equipment
provided by the supplier, the Lessor will address to the Lessee a letter
recommending acknowledgment of receipt, reminding him that with the
intervention of another eight day delay in the placement of the working
order, he has consented to make all the reserves he deems necessary. After
the delay has passed, the Lessor may then in right consider that the Lessee
has accepted the equipment at the date placed on the working orders. The
signature on the written agreement under the conditions defined below implies
that the Lessee accepted the equipment complete.
2.1.6 In case of extension of the delay of implementation of the working
orders is not created by the Lessor, an equal indemnity of rents is due to
the Lessor prorated by the Lessee on a temporary basis. The Lessee accounts
for the initial date already appearing in paragraph II of the Special
Conditions, and for the entire duration of that delay.
2.2 Equipment Already on Site The equipment covered in the contract is
already opened and placed in working order by the Lessor. The signature on
the current contract allows for intervention no later than the date of
conversion listed in Special Conditions, through which, by default, the
Lessor ceases to engage in equipment.
2.3 Grouping of Equipment In each case figured held by precedent, the
Lessor is not able to be held responsible for the following: notably in
case of deterioration, the defective functioning of the material or the bad
placement of damages caused by the said equipment or his obligation to
deliver.
Article 3 Guarantees
3.1 The material is covered by the guarantee given by the supplier. At the
beginning the Lessor confers to him orders to be in accordance with the law
in case of contests relative to the construction, functioning, and rendering
open or abandonment of the equipment. The equipment will be provided with a
sign indicating that it is the property of Credit d'Equipement des Petites et
Moyennes Enterises/Small and Medium Sized Business Equipment Credit. In the
case that the sign has not been posted by the supplier, the Lessee then
informs the Lessor within three days following the date of effect at the
location defined in Article III of the Special Conditions. The Lessor then
sends the Lessee a sign which will be immediately posted behind the
equipment, a place visible and legible throughout the duration of the
contract.
Section 4 Use/Installation/Maintenance and Verification of the Equipment
4.1 Use, in the case where, for a reason not understood by the Lessor, the
equipment is not able to be placed at the disposal of the Lessee in the delay
already seen in the contract or if the supplier or another intermediary
doesn't respect the technical specifications or the conditions of initial
use, that, for some reason, the contract is not able to take effect on the
date indicated, the Lessee is not able to take recourse against the Lessor,
or make demands of damages and interests or reductions of rent in case of
indemnity. After the signing date of the written agreement has been placed in
effect, after tacit acceptance of the already seen article 2.1 indentation 5
where, after the date of conversion already seen in the Special Conditions,
the Lessee is not able to delay the application of the contract- neither
report nor interrupt the regular payment of rents. In particular, the Lessee
does not have the right to a reduction in rents or indemnities, neither the
cancellation of the contract if the equipment is not able to be used for each
cause listed: in case of deterioration, theft, avarice or strike. By
derogation of the dispositions Article 1721 of the Civil Code, all expenses
required for use by employees, and the good condition/repair of the equipment
are the responsibility of the Lessee. In particular, the Lessee must
subscribe, close to the Builder, a maintenance contract conforming with
standard rules of construction. The Lessee remains responsible for the
aforesaid maintenance contract for the entire duration of the contract. In
the case where, for some reason or another, the Lessee terminates the
maintenance contract or cease to respect obligations, the Lessor may cancel
the present contract in conformity with the terms of Article 7 hereafter. The
Lessor is to be notified by the Lessee of all deterioration, avarice or
destruction of equipment. Thus the Lessor is notified by the Lessee of each
accident caused. The Lessor, where mandatory, may visit the equipment at
his convenience. The breaking off of the equipment by onerous title or
gratuitous title and it's provision are forbidden. The taking, subleasing of
equipment and all cessation of rights resulting for the Lessee in the lease
are subordinate to previous authorization in writing by the Lessor. In case
of possible seizure of equipment the Lessee must immediately notify the
Lessor, raising protestation against the seizure and taking steps to make
known CEPME's property. If the seizure is levied, it will become necessary to
raise costs to obtain a levy. As a matter of course the Lessee must respect,
on each occasion, by all means and costs the right of the property of CEPME.
The Lessor has the liberty to effect a security which he will be able to
demand from the Lessee. The Lessee will eventually be considered a third
shareholder.
Article 6 Civil Responsibility, Responsibility for Loss and Damage,
Guarantee
6.1 Civil Responsibility Starting from the effective date of the lease
defined under Special Conditions and just before the end of the lease, the
Lessee watches over the equipment to guard against loss, guaranteeing the
Lessor against all reasonable damages caused to the equipment by its' use
by employees or damages resulting from bad manufacturing or defacement; the
Lessee agrees to underwrite a security officer responsible to the CEO to
guard against equipment taken from the location. He will be engaged to obtain
the guarantee of benefits under CEPME.
6.2 Responsibility for Loss and Damage of Equipment Guarantee During the
entire duration of the lease the Lessee is responsible for all risks of
deterioration and partial or total destruction of equipment taken on
location- which will be seen as the cause of damage unless otherwise
determined to be an Act of God. In order to guarantee the interests of both
parties, the Lessor benefits from police assurances that the terms and
conditions accepted by the Lessee are precisely those in the Conditions of
Assurance made following presentations. The rules regarding the collection of
relative costs of police are included in the raising of rents.
Partial Damage- In the case of partial damage incurred to the rental equipment,
the Lessee must then pay damages on the equipment and continue with rental
payments.
Total Damage- In the case of total damage the Lessee must replace the
material identified as the cause of the damage. The damages received by the
Lessor or the insurance companies are imputed as reimbursement for sums paid
by the Lessee.
Article 7 Cancellation of the Contract
7.1 The lease is able to be canceled by full right of the Lessor without
need of judicial format 15 days after occupation by a simple letter that says
in effect, that in the case of non-payment at the maturity of terms of rent
or in case of non-execution by the Lessee of one of the terms of the general
conditions , and without offers of payment or later executions, the payment
of or the execution after the imparted delay, able to raise against the
Lessor the right to demand cancellation. In that eventuality, the Lessee
must make immediate restitution of the equipment to the Lessor and to issue
a title of indemnity of cancellation. Forfeiture will make equal the
difference between the first part, the price of the rent outside taxes, the
equipment consigned to the client by the supplier capitalized from the date
of cancellation, and the means and release of the obligations guaranteed
increased by three points, and finally, the raising of the rental not
including taxes prior to equipping, agreed to by client and by the supplier,
capitalized from the date of cancellation.
7.2 In the case where the Lessee refuses to replace equipment, he allows for
the constraint of an ordinance rendered by the President of the Tribunal of
Commerce by simple request of referral. At the outset, all costs incurred by
the Lessor for the resolution are thus all costs related to the
disassembling and transporting of the equipment on return and will be the
exclusive charge of the Lessee.
7.3 In the case of diminishment of the guarantees and sureties conferred
under the present contract it may be canceled in full right without indemnity
if it seems good to the Lessor under the conditions stipulated in the two
paragraphs below.
Article 8 Renewal of Contract
8.1 Issuing from the closing period of the lease under Article III of the
Special Conditions, the Lessor may extend the lease or extend restitution
of the supplies to the Lessor.
8.2 Notification- The Lessee must as a result of the correct initiative,
notify the Lessor of the option chosen no later than 4 months before the
expiration of the contract. A default option before delay- the lease follows
by tacit renewal and in full right under the initial conditions precisely
laid out in Article 8.3. It is able to be interrupted in respect to the
previous quarter month by notification made by the Lessor and by
restitution of the material.
8.3 Extension of the Lease- The rents of the extension are identified as
those of the period closing and under the conditions of article 5/Special
Conditions. It will be therefore established on a monthly basis- it falls to
the Lessee to define with the supplier the following conditions regarding
material; at issue is the period of extension and under reserve of
notification made in the conditions of Article 8.2. The Lessee has the
faculty to restore the equipment according to the modalities of Article 9.
8.4 By default of friendly restitution of equipment by the Lessee, it
suffices to constrain the Lessee by an ordinance rendered by the President of
the Commerce Tribunal or the Grande Instance de Paris under simple request or
by verbal referral.
Article 9 Return of the Equipment
The Lessee must, at the end of the lease, return the equipment to the
Lessor in good condition and complete functioning, with the pieces it
composes in consecutive and normal condition. The costs to be returned at the
end of the lease will be the responsibility of the Lessee, the costs at all
times may not exceed those which resulted from a return of the merchandise to
Paris.
Article 10 Taxes and Costs
All taxes and costs which are able to be justified in line with the rental of
the equipment, will be the sole responsibility of the Lessee. This includes
all costs occasioned by the execution of the lease.
Article 11 Selection of Legal Residence-Jurisdiction
To execute the present contract, the parties may make their current seat/
headquarters their legal residence. As other litigation will be given in lieu
of execution or interpretation of what the obligations resulting from the
present will be, made known at the Lessor's discretion to the Paris
Tribunals otherwise known as the Competance of the Tribunals Registered
Office of the Lessee.
Special Conditions
I Value of the Equipment
The value of the equipment under the present contract is 13.500.000 F HT,
price reached by a common agreement between the Lessor and Lessee in July
of 1995.
II Introduction
Date of Effect of Lease Location Rented
July 1, 1995 Twinsys Dataguard
Tour Mirabeau
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III Duration of the Lease 36 months
By a common agreement between the parties, the date of effect of the lease is
fixed at July 1995. The equipment is included and already delivered, placed
in service and accepted in the state in which they were found, used regularly
by the Lessee who prohibits all returns at which time the title will be
transferred back to the Lessor.
IV Rentals
The rentals of the lease are payable monthly on standing terms by automatic
withdrawal defined under Article 1 of the General Terms figuring under
section 1:
- The grand total (rentals) is 14.679.386 F HT and is broken down as follows:
- 1 monthly rental limited to falling due 01.07.95 with one increase to
423.106 F HT
- 1 monthly rental end payable on 01.08.95 with one increase to 3.923.106 F
HT
- Seven monthly rents maturing, the first of which is due 01.09.95 and the
following dates; 01.10.95, 01.11.95,.01.12.95,.01.03.95
- 27 monthly payments ending with each falling due with an increase to
273.016 the first of which is payable 01.04.96 and the last .01.06.98
The raises mentioned are closed and final for one price in effect at the
location from July of 95. They will be increased by TVA at a rate in force so
that all rights, costs, fixed taxes existing come directly or indirectly
under the title of present contract and the materials leased in the outline.
V Payment of Rents
The payment of rents fall below on the figure of Annex #1
VI Validity of the Proposal of Offer of Lease
The present contract must be returned signed by the Lessee before July 3 1995.
VII Other Proposals
1. The present contract is settled under the reserve of security of the
profit of F.I.P. The contracts in effect between the Lessee and its'
clientele, notably France Telecom. The act of delegation is established
according to a model with three copies of each of the contracts, signed by
the Lessee and accompanying the original correspondence contract delivered by
title pledged.
2. In case of loss by the Lessee of the payment obligations of title of the
present contract, whereby the Lessee has not remedied the situation, after a
period of eight days the Lessor sends a certified letter to the Lessee.
This will include the right of beneficiary of sureties and guarantees already
seen in the act of delegation in the joint annex of the present contract.
3. The present contract annuls and replaces the contract established on July
7, 1995.
Made with 2 copies in Paris, July 12, 1995.
Attachment 2
The monthly rentals of the lease extension are fixed following the conditions
below
Lot Designation Ext of lease Terms
in Francs HT
1 All Equipment 273.016 By choice
Section #1
Reference Series# Quantity Designation Rent in Francs
CPS ▇▇▇▇ ▇▇▇ 18420286 1 Central ▇▇▇▇ ▇ ▇ ▇▇▇.▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇ 18490249 1 Water Cooling System 1 X 3.923.106
CSU ▇▇▇▇ ▇▇▇ 18630166 1 Console System 7 X 423.106
27 X 273.016
The rents are payable monthly in the terms chosen:
The address created is:
The rules will be effective under the presentation by the Lessor
appropriation domiciles at the bank designated by the Lessee. Authorization
of appropriation corresponds with the judgement of appropriation that will be
signed by the latter at the same time as the rental agreement.
Attached Conditions of Assurance
Important Note-
Under penalty the expiration of the Guarantee of Assurance, the Lessee must,
in less than 48 hours inform the Lessor of sudden loss.
1. Object of Assurance
The assurers grant against all loss or material damage that the losses or
damages will not make object one of the exclusions already seen in Chapter
11, here below, all of the general materials standard or office, so that
their accessories and supports all say that they are owned by CEPME.
2. Exclusions
It is agreed that the following are uniquely excluded of the guarantee:
a. Damages created by foreign or civil war so that the following decisions by
civil or military authorities (destruction,requisition,confiscation)
b. The damages or aggravation of damages of nuclear cause or causes by all
sources of ionic radiation
c.The damages resulting from an intentional fault where the administrators
and/or the legal representatives act individually or collectively with third
parties, so that they, by default execute their actions with the assurances of
the above mandates
d.The damages normally guaranteed by the suppliers, constructors and builders
by virtue of the maintenance contract signed by the Lessee In all cases, if
they decline their responsibility or are insolvent, and if the cause of
breaking is guaranteed under the present contract, the guarantor takes the
loss and exercises himself recourse instead
e. The Damages
-Due to use whether it be mechanical, heat related, chemical, deterioration
or depreciation normal or progressive, dryness, the presence of coal dust
-Attachment of cables other than electrical conductors
-Interchangeable parts mounted on the machines, or, in general, damages to all
parts of the machine necessary for its' function or frequent replacement. In
all cases where damages will be entered under the same breach of destruction
or loss of neighboring parts or other parts in good condition, the guarantee
of acquirement is raised and the worn out piece is excluded
f.The theft or misappropriation of materials
g. The damages of video or electronic tubes save those resulting from a loss
guaranteeing damage to other parts of material
III The Connection of Guarantees & Franchise
The guarantees in the present contract exercise a maximum sum of 60,000,000
per loss with the application of one exemption
-10% of the mounting of damages in the case where the damages are equal to or
less than 100,000F with a minimum of 4000 F
-10,000 F of the mounting of damages in the case of damages greater than
100 000F.
If the total cost of the assured value (cf chapter IV) is lowered directly or
indirectly by CEPME exceeding that on site, then the sum of 60 000 000 F is
guaranteed by the Lessee, CEPME must be informed before the last subscription
of an specific insurance for exceptional risk.
IV Assured Value
For each material guaranteed, the value assured is the difference between one
part, the prix of the initial taxes of equipment consented to by the client to
the supplier and the other part is raised by taxes paid on the title and
location after all has been capitalized. That value is then capitalized and
may eventually be increased by a total of monthly rents paid in advance to
AUXIFIP by the clients, who must be reimbursed for loss before the final pay
period.
V Rules of Losses
It is understood that one understands by:
-Reparation Costs: Cost of Reparation for pieces and their replacement, costs
of mounting and dismounting an costs of transport
-Partial Damages- A damage where the cost of reparation is less than the
current assured value of the material
-Total Damages- A damage where the total cost of reparation is equal or
greater than the current assured value of the part
In the case of damages these indemnities will follow:
a. Partial damage- Cost of repair defined below, less than the current
declared value of the item
b. Total damage- Higher than the last assured value of the material
VI Agreements
It is agreed that these assurances renounce all recourse that must be
exercised in the case of material damage caused by third party sub-leases or
users with whom AUXIFIP may sub-let or give in assurance guaranteed materials.