EXHIBIT 10.27
NOTARY/CLERK: GT
CASE FILE No.: 021016
21 OCTOBER 2002
REAL PROPERTY LEASE
BY SOGEFIMUR AND AUXICOMI
TO S.F.E.A.
(stamp: NOTARY'S OFFICE)
0, xxx x'Xxxxxx
00000 Xxxxx Cedex 08
SIMPLE COPY
(not authoritative)
313512 01
/B8/SG
COMMERCIAL LEASE
By "SOGEFIMUR" AND "AUXICOMI"
to SOCIETE DE FABRICATION D'EQUIPEMENTS ET D'ACCESSOIRES:
ON TWENTY-ONE OCTOBER, IN THE YEAR TWO THOUSAND AND TWO,
Before Xx Xxx Xxxxxxx, a partner notary of civil law
professional partnership "Xxx Xxxxxxx, Olivier Thienot, Notaires
Associes, in Reims (Marne), at 00 xxx Xxxxxxxxx.
Replacing his colleague
Ms Xxxxxx Xxxxxxxx, a partner notary of "Xxxxxxx Xxxxxxxxx, Xxxxx Xxxx,
Xxxxxx Xxxxxxxxx, Xxxxxx Xxxxxxxx, Xxxxx Xxxxx, Xxxxx Xxxxxxx, and Xxxx-Xxxxxxxx
Xxxxxx", a civil law professional partnership with a notarial office with its
registered office located in Paris (8th arrondissement) at 0 xxx x'Xxxxxx.
With the participation of Mr. name, a notary in Paris (17th
arrondissement), adviser of Auxicomi, a company.
And Mr. Guy Thienot, a notary in Reims, adviser of the Finance-Xxxxxx.
Xxxx notarised this document containing a:
COMMERCIAL LEASE
BETWEEN:
1) The company called "SOGEFIMUR", a public limited liability company
with capital of E.55,854,600, with its registered office located in Paris (9th
arrondissement), at 29, bd. Xxxxxxxxx, identifIEd under SIREN number 339 993
214, registered with the Paris Registrar of Companies.
Represented by: Ms Xxxxxxx Xxxxxxx, pursuant to the powers granted to
her by Xx Xxxxx Xxxxxxxxxx, pursuant to a private power of attorney made at
Courbevoie (Hauts de Seine) on 18 October 2002, the original of which is annexed
hereto.
Xx Xxxxxxxxxx, acting as special representative pursuant to the powers
granted to him on 30 September 2002 by Mr Xxxxx Xxxxxx,
SAID Mr Xxxxx Xxxxxx, having himself acted as assistant managing
director of "SOGEFIMUR", a position to which he was appointed and that he
accepted following the deliberations of said company's Board of Directors on 30
May 2002, a certified copy of which has been filed with the records of Ms Xxxxxx
Xxxxxxxx, aforementioned notary, on 4 October 2002.
2) The company called "AUXICOMI", a public limited liability company
with capital of E.3,625,000, with its registered office at Maisons-Alfort (Val
de Marne), at 00-00 xxxxxx xx Xxxxxxx Xxxxxxx, identified under SIRET number 329
121 404, registered with the Creteil Registrar of Companies.
Represented by:
Mrs Xxxxx Xxxxxxx, domiciled at Maisons-Alfort (Val de Marne), at 00-00
xxxxxx xx Xxxxxxx Xxxxxxx.
Acting in the name and on behalf of Auxicomi pursuant to the
powers granted to her by Xx Xxxxxx Xxxx, domiciled at Maisons-Alfort
(94170), at 00/00 xxxxxx xx Xxxxxxx Xxxxxxx, pursuant to a document
notarised by Ms Sylvie Gouguenheim, undersigned notary in Paris, on 11
July 2002.
Said Xx Xxxxxx Xxxx, having himself acted pursuant to the
powers granted to him by Mr Xxxx-Xxxxxx Xxxxx, managing director of
said company, pursuant to a document notarised by Xx Xxxxxx Xxxxxxxxxx,
undersigned notary in Paris, on 11 July 2002.
Said Mr Xxxx-Xxxxxx Xxxxx, appointed to said position pursuant
to a deliberation of said company's Board of Directors on 17 May 2002,
a certified copy of which was filed with the records of the civil law
professional partnership called "Xxxxxx Xxxxxxxxx, Xxxxx-Xxxxxxxx
Xxxxxxx, Xxxxxxx Xxxxxx and Xxxxxx Xxxxxxxxxx, partner notaries in
Paris, on 11 July 2002.
Said companies, hereinafter referred to in the rest of the document as
"the Finance-Lessor".
Said companies acting jointly between them, on an EQUAL basis.
Sogefimur is the leading firm.
FIRST PARTY
AND:
"SOCIETE DE FABRICATION D'EQUIPEMENTS ET D'ACCESSOIRES", known in
abbreviated form as S.F.E.A., a public limited liability company with capital of
E.77,749, with its registered office in Betheny (00000), xxxxxx xx xX Xxxxxxx,
xxxxxxxxxx under SIREN number 336 580 378, registered with the Reims Registrar
of Companies.
Represented by:
Xx Xxxxxxx Xxxxx, domiciled at said company's registered office.
PURSUANT to the powers granted to him by a deliberation of said
company's Board of Directors on 21 May 2002, a certified copy of the minutes of
which is annexed hereto.
Said company is referred to hereinafter in the rest of the document as
"the Finance-Lessee"
SECOND PARTY
RECITALS
In order to ensure the clarity of this document, it is hereby stipulated that
the commercial lease is presented as follows:
INTRODUCTION
PART ONE - PRELIMINARY AGREEMENTS
CHAPTER I - FINANCE-LESSOR'S COMMITMENTS
CHAPTER II - FINANCE-LESSEE'S COMMITMENTS
CHAPTER III - LAPSING OF THE PRELIMINARY AGREEMENTS
PART TWO - COMMERCIAL LEASE
CHAPTER I
Article 1 - Commercial lease
Article 2- Term of the commercial lease
Article 3- Option to terminate by the Finance-Lessee
Article 4- Inventory of the premises - Putting into compliance with standards
A - Inventory of the premises
B - Putting into compliance with standards
Article 5 - Liabilities that could result from the use of the building leased,
as well as from its structure
CHAPTER II - CONDITIONS
Article 6- Occupation conditions
A- Allocation of the premises
B - Enjoyment of the premises
C - Usage authorisations
D - Easements (if any)
E - Building estate: "Les Naux"
F - Conditions for the allocation of subsidies
Article 7 - Work carried out during the term of the commercial lease
A - Maintenance - Repairs
B - Fitting out - Enlargement- Extension work
C - Changes of layout
D - Finance-Xxxxxx's liability as a result of the work
E - Inspection visits
Article 8- Furnishings
Article 9 - Pledging - Examination of the Finance-Xxxxxx's financial position
A- Pledging
B- Examination of the Finance-Xxxxxx's financial position
Article 10 - Subletting
Article 11 - Assignment of the Finance-Xxxxxx's right to the commercial lease
A- Assignment of the right to the commercial lease
B- Receivership or legal liquidation
Dissolution of the Finance-Lessee
Article 12 - Finance-Lessor's obligation if the building is sold
Article 13- Contributions - Taxes - Charges
A - Contributions
B - Taxes and charges
C - Expenses incurred for examination and verification visits
D - Charges related to the building estate
Article 14- Value Added Tax
Article 15 Expenses - Charges - Fees
CHAPTER III - SAFETY - INSURANCE - LOSSES
Article 16 - Safety/Security
Article 17 - Insurance
I- Construction insurance
II- Insurance during the term of the commercial lease
A - Content of the guarantees that must be taken out
B - Conditions for the implementation of the guarantees
C - Finance-Lessee's liability if the insurance is implemented
D - Maintenance of the guarantees over time
III - Finance-Xxxxxx's obligation in the event of a loss
Article 18 - Loss - Reconstruction
A - Partial loss
B - Total loss
C - Reconstruction authorisation
D - Reconstruction - Repair
E - Provisions concerning rent
CHAPTER IV - FINANCIAL EXPENSES
Article 19 - Origination fees - Advance rent payments
1/ Origination fees
2/ Management expenses
3/ Subsidy management commission
4/ Xxxxxx's loan
5/ Advance rent payments
Article 20 - Base for calculating the rent
Article 21 - Commercial lease rent
A - Determination of the rent
B - Indexing of the rent
C - Elimination of the rates used
Article 22 - Payability of the rent - Final financial summary - Summary
statement and table prepared in accordance with the provisions of Decree No.
95-617 of 6 May 1995
Article 23- Payment of the value added tax and charges and other taxes
Article 24- Penalty interest
CHAPTER V- TERMINATION OF THE COMMERCIAL LEASE
Article 25- Termination by the Finance-Lessor
Article 26- Receivership or legal liquidation - Dissolution of the
Finance-Lessee
Article 27- Failure to obtain the certificate of conformity
Article 28- Compensation if the commercial lease is terminated
CHAPTER VI - EXPROPRIATION - REQUISITION
Article 29 - Expropriation of the building
A - Total expropriation
B - Partial expropriation
C - Dispute concerning the expropriation compensation
Article 30 - Requisition of the building
PART THREE - UNILATERAL PROMISE TO SELL
Article 31 - Promise to sell
Article 32 - Sales price
A - Determination of the sales price
B - Increase of the sales price (if applicable)
PART FOUR - GUARANTEES
Article 33 - Pledging of the commercial lease contract
Article 34 - Letter of intent from Brink International BV
PART FIVE - SUNDRY PROVISIONS
Article 35 - Publication
Article 36 - Powers
Article 37 - Valuations
Article 38- Statements
Article 39 - Assignment of jurisdiction
Article 40 - Law on data processing and privacy and professional secrecy
Article 41 - Choice of address for notification purposes
Prior to the agreements that are the subject hereof, the parties stated the
following:
RECITALS
- I -
For the needs of its activity, the Finance-Lessor wishes to have access to (but
without assuming ownership of) a building to be used for industrial
manufacturing, located in Betheny (Marne),
With a view to financing this transaction, it contacted the Finance-Lessor. The
object of this transaction, as defined by Article L. 313-7 of the Monetary and
Financial Code (codification of Act No. 66-455 of 2 July 1966) in respect of
companies engaged in leasing, is the leasing of non-equipped buildings for
professional use.
- II -
The Finance-Xxxxxx has asked the Finance-Lessor to:
o acquire for this purpose a plot of land located on the territory of Betheny
(Marne),
o finance the work to build the building within the framework of a delegated
contracting authority contract,
o lease it the entire premises, within the framework of a commercial lease
contract, for a period of twelve (12) years.
The Finance-Lessor granted the Finance-Xxxxxx's request.
- III-
BUILDING PERMIT
The permit to build the building that is the object of this lease was issued by
the mayor of Betheny (Marne) on 31 December 2001 under No. PC 5105501J1027.
The Finance-Lessee declares that, in accordance with the provisions of Article
R. 421-39 of the Town & Country Planning Code, the aforementioned building
permit has been displayed, specifically:
* at City Hall: as indicated by an attestation issued by the mayor of Betheny
(Marne) on 1 August 2002.
* at the site: as indicated by a report establishing facts prepared by Xx
Xxxxxxx Xxxxxxx, a court bailiff in Reims (Marne), on 18 January 2002.
The Finance-Lessee declares and guarantees the Finance-Lessor that to date, the
aforementioned building permit has not been the object of:
o any contentious recourse on the part of third parties,
o any administrative recourse (non-contentious or involving an appeal to a
higher administrative authority),
o any cancellation or withdrawal.
- IV -
CLASSIFIED FACILITY
- Authorisation
The Finance-Lessee declares that its activity is subject to the
authorisation regime pursuant to the regulation on classified facilities for
environmental protection.
Pursuant to a letter dated 3 October 2002, the chief administrative
officer of the La Marne departement sent the Finance-Lessee a draft prefecture
authorisation decree.
The Finance-Lessee undertakes not to use the building that is the
object thereof until the final prefecture authorisation decree has been issued.
- V -
Pursuant to a document notarised by Mr Guy Thienot, a notary in Reims (Marne),
dated today (21 October 2002)
The Finance-Lessor acquired from the Finance-Lessee
The base plot of land that is the object of this commercial lease contract.
The sale was granted and accepted in exchange for the price of FIVE HUNDRED AND
FIFTY-SEVEN THOUSAND, FIVE HUNDRED AND SIX EUROS AND SIX CENTS (E.557,506.06),
excluding value added tax, paid in cash, in said document, which contains
receipt thereof.
The acquirer has borne all of the sale's expenses, fees and charges.
In said document the parties have made the customary declarations applicable to
such a case.
An official copy of this document will be published at the Bureau des
Hypotheques [Mortgage Office] before, or at the latest, at the same time,
hereof.
- VI -
The Finance-Lessor has applied for subsidies of roughly THREE HUNDRED AND EIGHTY
THOUSAND EUROS (E.380,000) with various subsidising entities.
If these subsidies are granted and collected by the Finance-Lessor, the latter
undertakes to repay this entire amount to the Finance-Lessee in the form of
advances on rent payments, as will be indicated hereunder in Article 21.
In the event that the Finance-Lessor repays the entities the amount of these
subsidies as a result of the Finance-Lessee's failure to satisfy its
obligations, pursuant to the decrees that will be issued and/or agreements that
will be signed, or for any reason whatsoever, the latter undertakes to repay the
Finance-Lessor in accordance with the terms defined below in Article 21.
Finally, the Finance-Lessee releases the Finance-Lessor from any liability if
these subsidies cannot be obtained for any reason whatsoever. In this case, the
lease shall continue for the entire investment defined in Article 20 hereunder.
In addition, the Finance-Lessee declares that it is fully aware that these
applications for subsidies are currently in the process of being considered and
expressly requires the Finance-Lessor to formalise this transaction without
awaiting the handing down of the decision to grant said subsidies, which it
undertakes to do. In this connection, it hereby releases the Finance-Lessor from
any liability if said subsidies are not granted.
WHEREFORE, the parties proceeded to the agreements that are the object hereof.
PART ONE
AGREEMENTS PRECEDING THE LEASING PERIOD
These preliminary agreements shall govern the relationship between the parties
as of this date and until the date of completion of the work to build the
building, as will result from the provision of the premises between the parties
stipulated in the delegated contracting authority contract analysed hereunder.
CHAPTER I
THE FINANCE-LESSOR'S COMMITMENTS
NONE
CHAPTER II
THE FINANCE-LESSEE'S COMMITMENTS
1/ CONTRACTING AUTHORITY DELEGATION
Pursuant to a private document concluded in Paris today, a copy of which,
together with the specific technical specifications, will be attached and
annexed to the original hereof,
The parties hereto have concluded a contract for the project's management, the
result of which will be:
o The work must be carried out under the responsibility of the
Finance-Xxxxxx, acting as delegated contracting authority, in accordance
with the stipulations of the building permit, as well as the descriptive
plans and estimates prepared by the architect and approved by the
Finance-Lessor.
o The cost of the work cannot exceed SIX MILLION, TWO HUNDRED AND
NINETY-EIGHT THOUSAND, NINE HUNDRED AND FIFTY-SIX EUROS AND NINETY-FOUR
CENTS (E.6,290,956.94), excluding value added tax, and including any and
all ancillary amounts.
o The cost of the work shall be repaid by the Finance-Lessor to the
Finance-Xxxxxx as and when progress is made on said work on reports that
shall be considered as invoices.
o The work must be carried out on a continuous basis, in order to ensure that
it is completed by 30 November 2002.
o The work shall be made available between the parties as of the completion
thereof, pursuant to a report that shall officially note, simultaneously,
the conformity of the building built with the descriptive plans and
estimates filed in support of the application for the building permit and
any additional or rectifying requests.
o The delegated contracting authority will be required to obtain the
certificate of conformity stipulated by the regulations on the building
permit, its expenses and risks.
Given the fact that the Finance-Lessor, the Owner, is the sole owner of the
constructions as they are built, the delegated contracting authority has taken
note of the following points:
* The building's construction shall be covered by the open policies
taken out by Societe Generale with Axa via Gras Savoye, namely, a Damages to the
Works policy and a "Constructeur Non Realisateur" policy NO. 37503 5151112 H. It
is understood that the Constructeur Non Realisateur policy is taken out on
behalf of both the Finance-Xxxxxx, Owner, and the Finance-Xxxxxx, delegated
contracting authority.
A note, indicating the main characteristics of the guaranty conditions and
limits, as well as the financial conditions, was submitted for information to
the delegated contracting authority on all of the aforementioned policies. It is
understood that the delegated contracting authority may at any time supplement
the guarantees of the policies taken out by Societe Generale with the insurer of
its choice.
The delegated contracting authority alone shall be responsible for the actual
implementation of the aforementioned policies to cover the construction in
question, and it has undertaken:
* to have any measures taken to implement the guarantees and, in
particular:
+ to fill out, under its sole responsibility the "Construction
insurance" questionnaire
+ to furnish, under its sole responsibility, to Gras Savoye, all
useful information on the transaction's technical conditions
(content and value of the existing works and neighbouring works,
aggravations of risks), both prior to the work and during the
project.
+ to monitor and to obtain from Gras Savoye the issuance of the
insurance certificates
+ to send Gras Savoye, on a timely basis, all of the documents
necessary to the implementation of the policies, the list of
which falls below:
- the summary technical description and estimated
cost of the work
- the list of all participants in the construction
work
- the ten-year sinking fund insurance certificates of
the builders, in effect on the date of the beginning
of the work, as well as those of the architect,
project manager, technical study bureau, building
shell firms, foundations, roofing, and
water-tightness firms.
These certificate shall conform to the model
"Appendix E" furnished by the Finance-Lessor in the
letter of commitment, and must:
- Be signed by an insurer, rather than an insurance
broker
- Be valid on the "DROC" [declaration of the start of
work] date
- Refer expressly to the project in question
- Contain a list of the activities covered. The
latter must correspond exactly to those contained in
the contracts corresponding to the lot owned by the
company.
IF THESE CERTIFICATES ARE NOT SUBMITTED AT THE LATEST
TWO MONTHS AFTER RECEIPT, CONSTITUTING AN AGGRAVATION
OF RISK FOR THE INSURER, THE CLIENT MUST PAY AN
ADDITIONAL PREMIUM CORRESPONDING TO 100% OF THE RATE
IN ORDER TO COMPENSATE THIS AGGRAVATION (THE AMOUNT
OF THIS ADDITIONAL PREMIUM WILL BE INCLUDED IN THE
AMOUNT OF THE FINAL PREMIUM).
- the report of receipt and, if applicable, the
lifting of reservations
- the estimate of the total cost of the work
- the final closing of the accounts within two months
after the acceptance of the work; OTHERWISE, GRAS
SAVOYE SHALL BE ENTITLED TO ESTABLISH THE FINAL
PREMIUM BASE BY ADDING 20% TO THE KNOWN PREMIUM BASE.
The amount of the premiums and any increases shall be paid by the Owner to Axa
and included in the base for the calculation of the lease's rent amounts (or
re-invoiced in addition to the rent amounts).
If there is no insurance policy on the market that is able to cover all
construction-related risks, the taking out of these insurance policies cannot,
in any manner whatsoever, release the delegated contracting authority, even
partially, from the obligation to produce a specific result that it has
contracted with the Owner, or any other obligations contracted as Finance-Lessee
in this document.
In the event of a loss, the delegated contracting authority must pay any
difference between the cost of the complete reconstruction of the works and the
amount of the compensation paid by the insurers.
In addition, the delegated contracting authority has undertaken:
* to take out, for its behalf and that of the Owner, the following
insurance policy:
"CONTRACTOR'S ALL RISKS" POLICY, which must satisfy at least
the following conditions:
* Regardless of the cause, and with the exception of
any limitation to the concept of accident, coverage
of work to repair damages of any nature, any
deterioration, destruction, alteration, modification
of appearance, loss, theft, disappearance of an
object or substance, or if the same is rendered
unusable, affecting the property insured, including
the damaged parts resulting from an error and/or
defect in the design of the flow chart, hidden
defect, or a defect involving materials,
construction, connection, or assembly, including fire
or explosion, affecting the building.
* The amount insured must be sufficient to permit a
restoration of the work at any time.
* In particular, the guarantee must not be
conditional upon the setting into motion of the
participants' liability. Moreover, the insurer
undertakes to waive any recourse against the insured
and its insurers.
* Coverage must be acquired throughout the duration
of the work and until the last date of acceptance,
EVEN IN THE CASE OF EARLY TAKING OF POSSESSION OR
STAGGERED ACCEPTANCE, on the basis of the following
clause:
"In case of staggered acceptance, the following shall
remain covered, during the construction: the losses
suffered by the works accepted, the origin of which
is in the work carried out for the construction or
the conversion of the other parts of the
construction. It is understood that this excludes
losses caused by fire, lightning, or explosion to
said works accepted.
It is agreed that the insurer of this contract will
waive any recourse against the insurers of the parts
accepted.
If the premises are occupied and/or used prior to
acceptance, the following shall remain covered,
during the construction: losses suffered by property
insured as of the date of total or partial occupancy,
excluding losses caused by fire, lightning, or
explosion to the works occupied and/or used."
* Pursuant to the insurance contract, the payment of
insurance compensation will only be made to the
Owner.
* The policy includes a first loss to surrounding
properties resulting from fire, lightning or
explosion covered by a multi-risk policy;
* The effects of the insurance contract are extended
to the maintenance period, for a period, after
acceptance of the work, of at least 1 year, during
which the following will be guaranteed: material
losses or damages to the insured property that is
attributable to those parties participating directly
in the construction if they return to the site to
satisfy their obligations in accordance with the
contract, such as the withdrawal of reservations,
inspection visits, repairs (excluding damages caused
by fire, lightning and explosion, which will be
covered by a multi-risk policy referred to below);
The guarantee of interest expenses following a loss
guaranteed under the Contractor's All Risks policy,
covering:
1 - Either the amount of additional
interest, called "pre-rent", up to the
implementation of the lease contract,
collected by the Finance-Lessor, Owner, for
the amounts already paid on behalf of the
delegated contracting authority, on the date
of the loss or that it is required to pay
based on the statements or invoices
preceding the loss
2- Or the loss of financial revenue suffered
by the delegated contracting authority,
future Finance-Xxxxxx, if it has paid the
amounts of the work or fees from its own
cash (prior to the implementation of the
lease contract).
3- Or the combination of the final costs in
the two paragraphs above if the
pre-financing is furnished jointly by the
Owner and the delegated contracting
authority.
And that result from a delay in delivering
the building to the Owner, thereby deferring
the implementation of the lease contract.
* The insurer expressly waives, via a specific clause
of the policy in this connection, the option to
terminate after a loss;
The excess must not exceed E.7,600 per loss.
* A "WORK/AFTER WORK" CIVIL LIABILITY POLICY
covering the consequences of the liability incurred
by co-contracting party and/or the Owner vis-a-vis
others, as a result of the project, for the duration
of the legal liability.
Moreover, the delegated contracting authority has committed itself to:
* to send the Owner the certificates corresponding to the
aforementioned policies, PRIOR TO ANY PAYMENT BY THE Owner.
* carry out with insurers the formalities required to take out the
insurance policies referred to in the above paragraphs, in accordance
with the mandate given to the delegated contracting authority by the
Owner
* to furnish under its sole responsibility the information needed by
the insurers.
* to make with the insurers the declarations stipulated in these
policies, both during the work and at the time of acceptance. * to make
direct payment to the insurers for the premiums and premium adjustments
resulting from the final total cost of construction, as well as related
taxes and expenses, including additional premiums, expenses and taxes.
The co-contracting party's taking out of the insurance referred to
above cannot, in any way, be exonerated, including partially, from the
obligation to produce a specific result contracted with the Owner.
* Similarly, the delegated contracting shall be liable for any event
occurring during the work that calls into question the guarantees. The
same shall apply for the liquidation of the leading insurer's property
up to and including the 10 years following the acceptance of the work.
In this latter case, the delegated contracting authority will be
responsible for taking any measures to obtain a new guarantee, at its
exclusive expense; and, in particular, the responsibility to refer the
matter in question to the Bureau Central de Tarification [Central
Price-setting Office] if the insurers approached refuse to grant new
guarantees.
The same obligations apply if the liquidation of assets concerns one of
the policy's co-insurers.
* If, after all is said and done, it appears that the insurer
approached by the delegated contracting authority refuses or
is unable to guarantee the building in the conditions stated
above, and to furnish the corresponding certificate, the Owner
is hereby authorised to take out the necessary insurance,
within the framework of the group insurance policies taking
out by Societe Generale: a Contractor's All Risks policy NO.
37503 5151110 F, and to incorporate the amount of the premiums
corresponding to the lease base.
Finally, the Finance-Lessee shall verify the scope and the validity of the
insurance policies taken out by the various participants in the construction, in
particular by the project manager, consultancy bureaus, technical inspectors,
co-ordinators, and contractors, pursuant to their legal obligations, and, in
particular, in coverage of the presumptions of liability laid down by Articles
1.792 et seq. of the French Civil Code.
2/ EXECUTION OF THE CONSTRUCTION
The project's co-ordination, including the project's design, study and
preparation and the execution of the construction, must be entrusted to one or
more co-ordinators in accordance with Article L. 235-3 of the Labour Code. Said
person(s) must be chosen by the Finance-Lessee after verification of his/their
expertise. Said person(s) must be duly insured.
The Finance-Lessee shall represent the Owner at the site and must see to it that
the constructions are built in accordance with the contracts, regulatory
provisions, and the obligations of the building permit, and general prevention
principles based on the provisions of the Labour Code and all regulatory texts
applicable to the project.
The parties agree, as a result of the financial nature of this agreement, on the
Finance-Xxxxxx's role in designing the work, and the choice of its location and
the participants and the monitoring of the construction, that the Finance-Lessor
does not intend to participate in the design and technical monitoring and safety
of the constructions, or in the prevention of risks, or bear any liability in
this connection. For all matters related to this aspect of the lease, the
Finance-Lessee assumes vis-a-vis third parties complete technical and safety
liability for the construction and undertakes to guarantee the Finance-Lessor if
legal proceedings are taken against the latter in this connection.
The Finance-Lessee undertakes to submit to the Finance-Lessor, at the latest one
month after the project's commencement, a copy of the prior declaration
stipulated in Articles L. 235.2, R. 238.1 and R. 238.2 of the Labour Code in
accordance with the decree of 7 March 1995.
Finally, the Finance-Lessee expressly undertakes to submit to the
Finance-Lessor, in addition to the acceptance report, the aforementioned
declaration of completion of the work and the certificate of conformity, and, as
of the end of the project, the subsequent work dossier on the work, prepared by
the safety and health co-ordinator pursuant to Article R. 238-38 of the Labour
Code.
CHAPTER III
VOIDANCE OF PRIOR AGREEMENTS
This document shall become void, if the Finance-Lessor so wishes, if the
constructions stipulated have not been completed by the agreed date due to
technical or legal reasons not attributable to the Finance-Lessor, such as the
refusal by the delegated contracting authority to carry out its mission,
recourse against the building permit, or the material impossibility to build the
constructions stipulated in the delegated contracting authority contract.
The same shall apply in the event that the construction work is not completed in
accordance with the construction delegation contract (building not usable,
serious failures to comply with the building permit, etc.).
In these cases, this document could be terminated at the request of the
Finance-Lessor. This termination would take effect one month after receipt of a
notice to remedy sent to the Finance-Lessee, by registered mail with request for
acknowledgement of receipt, containing a declaration by the Finance-Lessor of
its intention to make use of this termination clause.
This termination shall give rise --automatically and without any formality-- to
the payment by the Finance-Lessee to the Finance-Lessor of compensation equal to
the total of the amounts paid by the latter for this project, plus an amount
equal to one percent (1.00%) of its amount.
This compensation, the amount of which is expressly agreed between the parties,
shall be considered as fixed damages to compensate the prejudice suffered by the
Finance-Lessor as a result of the non-implementation of the lease and shall be
payable on the date of the expiration of the aforementioned timeframe.
However, and up to the effective date of termination, the Finance-Lessee may
acquire from the Finance-Lessor the plot of land purchased by it, in exchange
for a price equal to all of the above amounts, thereby exonerating itself from
having to pay the termination compensation.
The request to make use of this option to acquire offered to the Finance-Lessee
shall only be valid if it is accompanied by the consignment, in person to the
Finance-Lessor, of an amount sufficient to cover both the selling price
calculated as indicated above, and the expenses, fees and taxes caused by the
occurrence of this sale.
In addition, advance rent payments, rent payments, study expenses, commitment
commission or other financial charges of any kind stipulated below, payable by
the Finance-Lessee, that have expired on the termination date and have actually
been paid by the Finance-Lessee, shall become the permanent property of the
Finance-Lessor, who shall not be bound to return any portion thereof. Those
amounts that have expired on the termination date but have not yet been paid by
the Finance-Lessee shall become immediately payable.
Similarly, the Finance-Lessee shall be responsible for paying (but will not be
entitled to demand the restitution thereof from the Finance-Lessor) all of the
expenses, advances or other expenditures of any kind that it incurs, on its own
behalf or on behalf of the Finance-Lessor, with a view to the implementation of
the lease or the execution of the obligations for which it is responsible.
PART TWO
REAL PROPERTY LEASE
CHAPTER I
ARTICLE 1 - REAL PROPERTY LEASE
The Representative of the Finance-Xxxxxx, acting in his official capacity,
Hereby leases, within the framework of the provisions of Article L. 313-7 of the
Monetary and Financial Code (codification of Act No. 66-455 of 2 July 1966,
modified and supplemented) on the lease,
In favour of the Finance-Lessee, which is accepted by its representative, acting
in his official capacity,
The real properties whose description, after the completion of the work, is as
follows:
DESCRIPTION
On the territory of the district of Betheny (Marne), in the "Les Naux"
Activity Zone,
A building, to be used for industrial manufacturing, with a net floor
area of 14,599 m(2),
Built on a plot of land registered as follows:
SECTION NUMBERS Site AREA
------- ------- ---- ----
ZS 28 LES NAUX 01ha 43a 15ca
ZS 29 LES NAUX 02ha 56a 85ca
FOR A TOTAL AREA OF 4HA 00A 00 CA
ARTICLE 2 - LEASE TERM
This lease is granted for a period of TWELVE (12) years, as of the date of
completion of the building's construction work, as resulting from the provision
of the premises between the parties, as stipulated in the aforementioned
construction delegation contract.
ARTICLE 3 - THE FINANCE-LESSEE'S OPTION TO TERMINATE
In accordance with the provisions of Article L. 313-9 of the Monetary and
Financial Code (codification of Article 1.2 of Act No. 66-455 of 2 July 1966,
modified and supplemented, the provisions of Article L. 145-1 of the New
Commercial Code (codification of Decree No. 53-960 of 30 September 1953)
granting the lessee of premises to be used for commercial or industrial purposes
the option to terminate at the end of each three-year period are not applicable
to this lease agreement.
However, and subject to that which is stated hereunder for cases of loss or
expropriation, the Finance-Lessee shall be entitled, as of the end of the
seventh year of the lease, and provided that it has indeed obtained the
certificate of conformity for the building, terminate this agreement, subject
to:
* notice of nine months, given to the Finance-Lessor by registered mail with
request for acknowledgement of receipt, sent to the Finance-Lessor's registered
office,
* the simultaneous payment to the Finance-Lessor of the fixed termination
compensation indicated in Article 28 hereunder.
Regardless of the circumstances, termination may only take place at the end of
the calendar year in progress.
Termination so requested must be officially noted by an official recorded
instrument, which will be notarised by the notarial office referred to at the
top of this document and published at the competent Mortgage Office. The
expenses of this officially recorded instrument and its publication shall be
borne by the Finance-Lessee. It is expressly agreed, to the extent necessary,
that should the Finance-Lessee fail to sign this officially recorded instrument
or to pay the resulting expenses, its request for termination shall be
considered as null and void.
The amount of the termination compensation mentioned above due to the
Finance-Lessor shall, if appropriate, be increased by the amount of any
subsidies that the Finance-Lessor is required to repay in part or in whole to
the granting entities.
ARTICLE 4 - INVENTORY OF THE PREMISES - PUTTING INTO COMPLIANCE WITH STANDARDS
A- INVENTORY OF THE PREMISES
It is expressly agreed that no inventory of the premises will be prepared at the
time of the coming into use.
As a result, the Finance-Lessee shall be deemed to have taken the building that
is the object of the lease in perfect condition.
The signing by the Finance-Xxxxxx, as delegated contracting authority and as
future lessee, of the acceptance report of the aforementioned work shall entail
its automatic recognition of the building's conformity with the plans and
estimates and with the finishing of the work in accordance with the provisions
and stipulations of said estimates.
Accordingly, the Finance-Lessee shall take the building that is the object of
this lease in the condition in which it is found at the time of the coming into
use and cannot make any complaint in this connection against the Finance-Lessor.
It undertakes not to exercise against the Finance-Lessor any recourse for
reasons of poor workmanship, or for visible or hidden defects, even if these
impede the use of the building leased.
The Finance-Lessor shall not be guarantor of the building's condition, including
as a result of construction and other defects, whether visible or hidden, or for
the condition of the soil or subsoil as a result of searches or excavations
carried out under said building, or for the presence of asbestos, pyralene,
jointly owned party walls, ditches, fences, etc., or for errors or omissions in
the description of the building or the area of the plot of land, even if these
exceed one-twentieth (1/20th), regardless of the date on which the constructions
are completed.
In addition, the Finance-Lessee undertakes to notify the Finance-Lessor, within
one month of the noting thereof, of any defects that it identifies in the
construction.
The Finance-Xxxxxx, to whom full power is given for this purpose, must
immediately exercise, at its expense, any recourse against the companies,
against the project manager, or against any other third party in question.
The Finance-Lessee must keep the Finance-Lessor informed by sending it a copy of
any useful documents.
However, the Finance-Lessor shall be entitled to ask the Finance-Xxxxxx, at any
time, to relinquish the jurisdiction of its court, unconditionally and as soon
as requested. Regardless of the circumstances, the resulting expenses shall be
borne by the Finance-Lessee.
However, the Finance-Lessee may ask the Finance-Lessor to interrupt the
proceedings in order to avoid expenses, insofar as the Finance-Lessee assumes
responsibility for taking back any defects and disorder noted.
B- PUTTING INTO COMPLIANCE
Within the framework of both its activity and of the management of the leased
building, the Finance-Lessee must conform to the requirements fixed in national
or European standards, in particular as regards security and health.
It must ensure the compatibility of any equipment or materials located in the
building with these same standards, in the case of a movable property or a
landlord's fixture.
The Finance-Lessee cannot demand that the Finance-Lessor make modifications or
carry out work to put into compliance the building or a machine belonging to
said building that is the object of this lease, even if this bringing into
compliance results from legislative or regulatory requirements.
Asbestos:
It must comply with any regulations, in particular with the enacting clause in
respect of searches, verifications, or periodic inspections or work resulting
from Decree No. 96-97 of 7 February 1996, as modified by Decree No. 97-855 of 12
September 1997 and by Decree No. 2001-840 of 13 September 2001, and by Decree
No. 2002-839 of 3 May 2002, stipulating the rules of protection against risks
related to asbestos exposure: the Finance-Lessor transfers to the Finance-Lessee
all of the obligations resulting from this regulation.
Termites:
The Finance-Lessee must also satisfy the provisions of Act No. 99-471 of 8 June
1999, which defines the conditions in which the prevention and combat against
termites and other xylophagous insects are organised, with a view to protecting
buildings, and Decree No. 2000-613 of 3 July 2000, adapted pursuant to said Act.
The Finance-Lessee, as soon as it becomes aware of the presence of termites or
other xylophagous insects in the building must declare the same at the City
Hall, pursuant to the provisions resulting from the aforementioned Decree.
In the event that the building that is the object hereof is located within the
perimeter of a contaminated zone, defined by the competent authority, it is
specially agreed between the parties that the Finance-Lessee must, within six
(6) months, search for termites and engage in the necessary preventive and
eradication work, and provide proof thereof to the Finance-Lessor by submitting
an analysis of the search, issued by an authorised entity, or an attestation
issued by the authorised company having carried out, if applicable, the
necessary work on a preventive or eradication basis, pursuant to Article R.
133-1 of the Construction and Housing Code, in order to avoid the application of
the penalties stipulated by Article R. 133-1 of the Construction and Housing
Code.
As caretaker of the building, the Finance-Lessee undertakes to comply with all
current or future provisions concerning the regulations for combating the spread
of termites and other xylophagous insects.
It is further stipulated that in the case of a total or partial demolition of a
building located in a contaminated zone, as referred to in texts in effect, the
contaminated wood and materials shall be incinerated, or, if incineration is not
possible on site, said objects shall be treated before any transport. In such a
case, a declaration must be made at City Hall by the person having carried out
such work, in compliance with texts in effect, in particular in the provisions
resulting from Article 3 et seq. of the Decree of 3 July 2000.
The Finance-Lessor cannot be subjected to inquiry or disturbed in any way
whatsoever concerning compliance with all of the provisions and obligations
resulting from regulations currently in effect and any subsequent text. The
Finance-Lessee assumes all related responsibility.
Legionellosis:
It must comply with the provisions resulting from Circular No. 98-771 of 31
December 1998 and subsequent texts concerning the monitoring and prevention of
legionellosis.
The Finance-Lessee must assume, at its expense and without any recourse against
the Finance-Lessor, the cost of any work required to satisfy any legal or
regulatory provisions, all such that the Finance-Lessor can never be subjected
to inquiry as a result.
ARTICLE 5 - POSSIBLE LIABILITY FROM THE USE OF THE LEASED BUILDING AND ITS
STRUCTURE
All decisions related to the choice of the location, the nature, the
configuration or the intended use of the building that is the object hereof have
been taken by the Finance-Lessee. The Finance-Lessor has not participated in any
way in these decisions and, at the request of the Finance-Lessee, has merely
furnished, within the limit fixed above, the funding of the transactions
rendered necessary by the decisions in question.
Throughout this contract's term, the Finance-Lessee shall hold the right to use,
manage and inspect the leased building. It is therefore considered to be the
caretaker and this building is placed under its exclusive responsibility. It
must assume this responsibility in its entirety, without being entitled to
exercise any recourse whatsoever, for any reason whatsoever, against the
Finance-Lessor.
The Finance-Lessee shall assume alone and shall satisfy all obligations required
of building owners by any European or national legal or regulatory text. As
regards damages that may be caused, both to the Finance-Lessee and to third
parties, as a result of the very structure of the building leased (and, in
particular, that of the soil), which, it is important to recall here has been
chosen by the latter, shall be fully borne by the latter, which cannot, as in
the previous paragraph, exercise against the Finance-Lessor any recourse
whatsoever, for any reason whatsoever.
If an activity is carried out on the premises that could give rise to a risk of
pollution, in particular of the subsoil, the parties agree, as an essential and
decisive condition of the Finance-Lessor's commitment, which the Finance-Lessee
expressly accepts-- to the following:
* The Finance-Lessee shall assume the responsibility --in strict compliance with
current and future legislation applicable to the type of activity and
installation carried out-- for the disposal of waste and the recovery of
materials, so as to avoid any harmful effects, and in order to ensure that the
Finance-Lessor can never be subjected to inquiry as a result of damages caused
to others.
* The Finance-Lessee shall inform the Finance-Lessor of any formal notice by the
authorities aimed at obtaining the putting in conformity of the building with
national or Community legislation and regulations and international agreements
(subject to their integration and applicability in French law) in respect of
environmental protection and the dumping of waste in water, in the soil or in
the subsoil, emissions in the air, noise, waste treatment, storage on
inflammable or dangerous products, PCB's (Polychlorobiphenyls) and PCT's
(Polychloroterphenyls), asbestos, and the rules concerning worker protection and
safety inside the building.
- any accident or incident resulting from the building's use that could have
harmful consequences on the environment or that could create a risk of
environmental damage and that must be declared at the time of the inspection of
classified facilities pursuant to Article 38 of Decree No. 77-1133 of 21
September 1977, adopted pursuant to the Act of 13 July 1976 and any subsequent
text.
- of any legal decisions or injunctions following complaints filed by third
parties or by an administrative authority, the purpose of which is to repair any
damage to the environment or cause the cessation of any nuisance resulting from
the activity.
- any obligation to restore all or part of the building following a temporary or
permanent cessation of any activity or following the modification of any
activity carried out in the building.
* The Finance-Lessee shall be considered as the owner of any such waste that
exists, and it waives any recourse against the Finance-Lessor in this
connection. On the contrary, it undertakes to exonerate it from any disputes and
to see to it that the Finance-Lessor can never be implicated, in the event of
the subsequent sale of the building (if the Finance-Lessee or any beneficiary
exercises the option, or in the case of a sale to a third party following the
termination of this lease).
* All expenses necessary to the application of any laws, any regulations, and,
more broadly, for any consequences of the Finance-Lessee's activity, shall be
borne by the Finance-Lessee or its beneficiaries, if they had been claimed by
the Finance-Lessor.
* If the lease is terminated for any reason whatsoever, and if the activity
carried out by the Finance-Lessee can be considered as pollution-generating, an
inspection shall be carried out to determine the condition of the soil and the
subsoil, at the exclusive expense of the Finance-Lessee.
* All of the expenses and fees incurred by the Finance-Lessor as a result of the
above and in order to comply with the conditions contained therein, as well as
any deposit to which the Finance-Lessor is subject shall be paid for by the
Finance-Lessee.
* At the time that an option is exercised in favour of the Finance-Lessee or any
beneficiary, the above declarations shall be repeated by the acquirer to the
Finance-Xxxxxx, who becomes the seller.
CHAPTER II
CONDITIONS
This lease is granted by the Finance-Lessor subject to the general terms and
conditions stipulated in Articles 6 to 15 below, which the Finance-Lessee's
representative undertakes to implement and to carry out, failing which the
penalties stipulated in Chapter V below shall apply.
ARTICLE 6 - OCCUPANCY CONDITIONS
A- USE OF THE PREMISES
The premises that are the object hereof are intended to be used as an industrial
manufacturing unit.
The Finance-Lessee must continue to use the premises for this purpose throughout
the contract's lease's term and undertakes not to use them for any other
purpose, including temporarily.
B- ENJOYMENT OF THE PREMISES
The Finance-Lessee must enjoy the leased premises prudently.
The Finance-Lessee undertakes to comply with any current or future regulations
concerning the activity exercised by it, and, more specifically, the rules of
safety, including those in respect of the protection of people and of risk
prevention.
It expressly undertakes not to use, for the aforementioned intended purpose, the
building that is the object of this lease, as long as it has not furnished proof
to the Finance-Lessor of the execution of the required formalities, as well as
any authorisations required, as stipulated in Article R. 123-46 of the Code of
Construction and Housing concerning protection against the risks of fire and
panic at entities frequented by the public.
The Finance-Lessee is responsible for the safety of persons and the security of
property, as a result of the premises that are the object of this lease.
The Finance-Lessee must, on its own account and for that of the Finance-Lessor,
take out with any authorised entity a subscription for periodic inspection
visits, whenever required in order to comply with any legislation or
regulations.
The checks carried out in this connection must cover all of the buildings,
fixtures, facilities and equipment that are subject in any way to any
regulations in respect of the safety of people and the security of property.
C- USAGE AUTHORISATIONS
The Finance-Lessee shall assume responsibility for obtaining any administrative
authorisations needed to operate its activity in the premises that are the
object of this lease.
D- EASEMENTS (IF ANY)
The Finance-Lessee shall bear any easements of any nature whatsoever that
encumber the building leased, without recourse against the Finance-Lessor to
obtain a reduction of rent or other financial charges of the lease. In exchange,
it shall profit from the active easements for said building, if any exist, at
its exclusive expense and risk, provided that it participates, if applicable, in
the restoration and maintenance of the equipment available to it.
E- BUILDING ESTATE: "LES NAUX"
The Finance-Lessee shall implement the provisions and stipulations resulting
from the implementing documents governing the building estate called "Les Naux".
It is quite familiar with said documents, as they were furnished to it prior to
today.
All of the above shall be carried out in such a way that the Finance-Lessor can
never be disturbed or subjected to inquiry in this connection.
F.- SUBSIDY ALLOCATION CONDITIONS
The Finance-Lessee shall implement the conditions governing the granting and
maintenance of the aforementioned subsidies referred to in Chapter V. In
addition, it must bear, without recourse against the Finance-Lessor, any
consequences, in particular, financial, resulting from a failure to pay the
same, or as a result of the calling into question thereof.
ARTICLE 7 - WORK IN PROGRESS DURING THE LEASE
This article's stipulations are made subject to the express condition of
compliance with the implementing documents governing the estate called "Les
Naux", referred to above.
A- MAINTENANCE - REPAIRS
The Finance-Lessee undertakes to maintain (and to return at the end of the
lease) the leased premises in good condition, in terms of maintenance and tenant
or other repairs (such as, in particular, repairs and restoration of fences,
doors, windows, parquet floors, ceilings, locks, equipment, toilets, etc.).
The Finance-Lessee shall also be required to carry out on behalf of the
Finance-Lessor, at its exclusive expense and risk, and without recourse or
recovery against the Finance-Lessor, all major repairs that become necessary
during the lease, in particular, those referred to in Article 606 of the Civil
Code, that, as a general rule, are the responsibility of the owner and that, as
they are part of the building, automatically become its property.
The Finance-Lessee must pay special attention to maintaining in good condition
(in terms of maintenance and functioning) the equipment and facilities necessary
to the normal use of the leased premises, in particular, heating and
air-conditioning facilities, lift(s), or the goods lift, and the sprinkler
network, provided that the leased premises have such equipment.
In this connection, it is expressly agreed that the Finance-Lessee cannot,
without the Finance-Lessor's prior written consent, finance any replacement of
the aforementioned equipment within the framework of the contract that confers
temporary ownership thereof to the person providing the funds (in particular,
within the framework of a furniture leasing contract).
It shall also be required to carry out any repairs that become necessary as a
result of defects or faulty workmanship in construction, whether visible or
hidden, even if no external sign reveals the need to undertake such work.
For the execution of the work referred to in the three preceding paragraphs, the
Finance-Lessee cannot claim the benefit of the provisions of the second
paragraph of Article 1724 of the Civil Code.
In addition, the Finance-Lessee can never ask the Finance-Lessor, during the
course of the lease, to carry out any work or to make any conversions or
repairs.
The above work shall be carried out by the Finance-Lessee without recourse or
recovery against the Finance-Lessor, and the Finance-Lessee will not be able to
engage in any compensation of the amount thereof with the amounts due to the
Finance-Lessor for another reason.
Moreover, any obstacles that could affect the conditions for the payment of the
cost of the work by the Finance-Lessee cannot prejudice the principle of this
payment.
B- FITTING OUT WORK - ENLARGEMENT - EXTENSION
The Finance-Lessee may carry out, at its exclusive expense and risk and without
recourse or recovery against the Finance-Lessor, on the leased premises, any
fitting out and installation work necessary or specific to their professional
use.
The Finance-Lessee may, but only with the Finance-Lessor's prior written
consent, carry out in the building that is the object of this lease, and within
the limit of the administrative authorisations, if any, necessary, any
enlargement, extension raising that it believes is necessary or useful to its
needs.
It must also carry out any work required by any legal or regulatory provisions
and, in particular, by those concerning the safety of people and security of
property, and must, as a result, carry out any work stipulated, following their
inspection visits, by the relevant entities or various authorities.
The work referred to in the three previous paragraphs must be executed at the
Finance-Xxxxxx's exclusive risk, and under the supervision of an architect or a
technical consultancy bureau approved by the Finance-Lessor.
The Finance-Lessee shall take out all insurance policies made necessary by the
nature or scope of the work.
The cost of such work, including the insurance premiums, and the fees of
architects or technical consultancy bureaus, shall be borne by the
Finance-Lessee, without recourse or recovery against the Finance-Lessor, who
shall not be required to pay the cost thereof, or to reimburse property
expenditures.
Any property additions resulting from the above work shall be deemed to be the
property of the Finance-Lessee throughout the lease's term. However,
notwithstanding the postponement of the Finance-Xxxxxx's accession to the
ownership of the work so performed, the Finance-Lessee cannot -- throughout the
lease's term and without the Finance-Lessor's prior written authorisation--
remove, destroy or take away the work so performed by it.
In addition, these property additions shall automatically become the property of
the Finance-Lessor at the end of the lease. As a result, the Finance-Lessee must
--as soon as it vacates the premises, for any reason whatsoever, in particular
if the lease expires or if it is terminated prior to its expiration date-- leave
all work, embellishments, improvements or constructions involving real property,
if any, that it has made in the building. However, it cannot demand for said
work any compensation or any reimbursement of its expenses, nor may it engage in
any compensation with amounts due by it to the Finance-Lessor.
However, the Finance-Lessor may always (save for work expressly authorised by
it) ask the Finance-Xxxxxx, at the time that the latter vacates the premises, to
restore the premises to their original condition, at the Finance-Lessee's
expense and risk.
However, the equipment, fittings and facilities not permanently fixed and that,
as a result, are not considered as statutory immovables, shall remain the
property of the Finance-Lessee, and must be removed by it, when it vacates the
premises, and it must restore the premises after this removal.
C- CHANGES OF LAYOUT
Any changes of layout through demolition, drilling of walls, beams or floor,
must be covered by prior written authorisation from the Finance-Lessor, and, if
applicable, the obtaining of a building permit.
The aforementioned work, so authorised by the Finance-Xxxxxx, must be executed
at the exclusive expense and risk of the Finance-Xxxxxx, and under the
supervision of an architect or a technical consultancy bureau approved by the
Finance-Lessor.
As such work constitutes conversion or improvement work, the cost thereof and
the premiums of the insurance policies that the Finance-Lessee has taken out at
this time, plus the fees of the architect or the technical consultancy bureau,
shall be borne in full by the Finance-Lessee, without recourse or recovery
against the Finance-Lessor. In this case, the Finance-Lessee may not engage in
any compensation with the amounts due to the Finance-Lessor for another reason.
However, in the event that such work, as a result of their scope or their
nature, is undertaken by the Finance-Lessor for tax or accounting reasons, the
coverage of the corresponding expenses by the Finance-Lessee shall take the form
of a specific additional rent amount.
D- FINANCE-LESSEE'S LIABILITY AS A RESULT OF THE WORK
The Finance-Xxxxxx, having the initiative of the aforementioned work and the
responsibility for the legal qualification thereof, shall alone assume the
financial or fiscal consequences that could result for the Finance-Lessor from
the execution thereof, whether or not authorised by the Finance-Lessor, even if
they result from a legal or regulatory obligation. As a result, the
Finance-Lessee undertakes to repay the Finance-Lessor the amount of any expenses
and taxes or additional tax assessments, insurance premiums, or other charges
that the Finance-Lessor bears as a result of the execution of the work for which
the Finance-Lessee is responsible.
Similarly, the Finance-Lessee must repay the Finance-Lessor the amount of all
necessary work that the Finance-Lessor carries out following a failure to
perform by the Finance-Lessee.
E- INSPECTION VISITS
Throughout the lease's term, the Finance-Lessee must allow the Finance-Lessor's
representatives to visit the leased premises at any time to check on their
condition and to furnish, as soon as requested by the Finance-Lessor, any
supporting documents requested of it in respect of the proper execution of the
lease's conditions.
ARTICLE 8 - FURNISHINGS
The leased premises must be furnished, at all times, with equipment, fixtures,
furniture and merchandise of sufficient quantity and value to guarantee the
Finance-Lessor the payment of the rent and the implementation of this lease's
conditions.
ARTICLE 9 - PLEDGE - EXAMINATION OF THE FINANCE-LESSEE'S FINANCIAL POSITION
A- PLEDGING
The Finance-Lessee undertakes not to pledge the rights that it holds pursuant to
this lease contract.
In the event of a failure to comply with this clause, this lease shall be
terminated, if the Finance-Lessor so wishes, pursuant to the clause stipulated
in Article 25 hereunder, without to the Finance-Xxxxxx's right to void, if it so
prefers, the pledge granted in violation of this clause.
B- EXAMINATION OF THE FINANCE-LESSEE'S FINANCIAL POSITION
Each year, the Finance-Lessee shall be required to send the Finance-Lessor a
copy of the balance sheet and profit and loss account for the year ended, as
well as the text of the Management report, Board of Director's report or
Supervisory Board's report to the ordinary general meeting convened to approve
the accounts for said fiscal year.
These documents must be produced within one month following their approval by
the ordinary general meeting.
ARTICLE 10 - SUBLETTING
The building hereby leased may be sub-let to natural persons or legal entities
for the purposes of carrying out the activity stipulated in Article 6, paragraph
A above.
Subletting may either be complete in favour of a single natural person or legal
entity, or partial, in favour of more than one natural person or legal entity.
Subletting must be approved in advance and in writing by the Finance-Lessor.
Regardless of the circumstances, subletting cannot, under any circumstances, be
imposed on the Finance-Lessor for any reason whatsoever.
* the subtenant(s) must comply with all of the terms and conditions of the lease
contract, without any exception or reservation.
* under no circumstances may the sublease(s) exceed the term of the lease.
It must be expressly stipulated, in the subletting contract(s), that the
termination of the lease contract, for any reason whatsoever, shall
automatically give rise to the termination of the sublease(s).
* the Finance-Lessee must notify the Finance-Lessor, by registered mail with
request for acknowledgement of receipt, the name and status of the subtenant(s),
and shall have eight days, as of its signing, to furnish it an original copy of
each sublet agreement.
* as the leased premises form an invisible whole in the shared intentions of the
parties, regardless of the circumstances, in case of a partial sublet, the
sublet(s) shall not be binding on the Finance-Lessor.
The Finance-Lessee undertakes to pay --to its total subtenant or its partial
subtenant(s) any compensation of any nature whatsoever, in particular that due
by the Finance-Lessee to its of subtenant pursuant to the provisions of Articles
L. 145-1 et seq. of the New Commercial Code (codification of Decree No. 53-960
of 30 September 1953) on commercial property.
The Finance-Lessee undertakes to assume responsibility for any report with its
subtenant(s).
The Finance-Lessee must repay the Finance-Lessor any amounts that the latter
pays to any subtenant, in the event of its own failure to perform, as
dispossession compensation, either at the expiration of the lease contract (if
the promise to sell that supplements it has not been exercised), or at any time
in the event that it is terminated for any reason whatsoever.
ARTICLE 11 - ASSIGNMENT OF THE RIGHT TO THE COMMERCIAL LEASE
A- ASSIGNMENT OF THE RIGHT TO THE LEASE
The Finance-Lessee may only assign its right to this lease, in part or in whole,
with the express written consent of the Finance-Lessor, failing which the
assignment granted in violation of this clause shall be void, and this lease
contract shall be terminated, if the Finance-Lessor so wishes.
Any assignment of this lease shall necessarily and automatically give rise to
the transfer to the assignee of the benefit of the promise to sell granted
hereunder to the Finance-Xxxxxx.
If the right to the lease is assigned, the assigning Finance-Lessee shall be
jointly and severally liable with its assignee for all of its obligations
resulting herefrom, in particular for making each rent payment by its respective
deadline and the full implementation of all of this lease's clauses.
Accordingly, all successive Finance-Lessees, including those who, having
assigned their right to the lease, no longer occupy the leased premises, shall
be jointly and severally bound between them vis-a-vis the Finance-Lessor for the
payment of the rent amounts and charges and for the implementation of all of the
lease's terms and conditions, such that the Finance-Lessor is able to take
action against all successive tenants or any one of them, bound jointly and
severally for everything, and cannot be bound by the right of guarantors to go
to bail each for their part, or a guarantor's lawful claim for a preliminary
distraint upon the principal debtor.
In addition, the assignment shall not release the guarantors funded obligations
towards the Finance-Lessor, such that they will be jointly and severally liable
with the assignor and the assignee for all obligations required of the
Finance-Lessee by this lease.
The above stipulations shall apply to all cases of assignments in any form
whatsoever, as well as to the contribution of the right to the lease to any
company of any type whatsoever, regardless of whether or not this contribution
is made to a new company or to a pre-existing company.
The assignment or contribution to a company's assets must be carried out in the
presence of the Finance-Lessor, or be duly notified to it through a letter sent
by registered mail with request for acknowledgement of receipt, to its
registered office, at least fifteen days in advance thereof.
The assignment or contribution shall be officially noted by officially recorded
document, an execution copy of which shall be issued without expense to the
Finance-Lessor, in order to serve as an enforceable document against the
assignee(s).
The assignment of this lease contract shall give rise to the Finance-Lessor's
collection of transport expenses, the amount of which is set at the amount,
excluding value added tax, of THREE THOUSAND, ONE HUNDRED EUROS (E.3,100).
These expenses shall be borne by the assignee.
B - RECEIVERSHIP OR LEGAL LIQUIDATION - DISSOLUTION OF THE FINANCE-LESSEE
The assignment of the right to the lease within the framework of collective
proceedings may only take place in conformity with the provisions of Article L.
620-1 et seq. of the New Commercial Code (codification of Act No. 85-98 of 25
January 1985) and Act No. 94-475 of 10 June 1994, and after having been duly
authorised.
If the lessee company is dissolved, the right to the lease may only be assigned
subject to the conditions stipulated in paragraph A above and subject to the
provisions of Article L. 237-5 of the New Commercial Code (formerly Article 393
of Act No. 66-537 of 24 July 1966).
ARTICLE 12-FINANCE-LESSOR'S OBLIGATION IF THE BUILDING IS SOLD
In accordance with the provisions of modified Article L. 313-7 of the Monetary
and Financial Code (codification of Act No. 66-455 of 2 July 1966), the
Finance-Lessor undertakes, in the event of a sale or assignment of the property
that is the object of this lease during the lease's term, to impose on its
acquirer, assignee or beneficiary, the implementation of all of the terms and
conditions of this lease agreement.
ARTICLE 13 - CONTRIBUTIONS - TAXES - CHARGES
A- CONTRIBUTIONS
The Finance-Lessee shall pay directly or shall repay the Finance-Lessor, in
addition to the rent, its personal, movable property, business tax and other
contributions, and shall pay all city and police charges for which tenants are
customarily liable, all in such a way that the Finance-Lessor is never disturbed
in this connection. It must provide the Finance-Lessor evidence of the same at
the time of any requisition, in particular at the end of the lease.
B- TAXES AND CHARGES
In addition, the Finance-Lessee shall pay or repay the Finance-Lessor for the
following, in addition to the rent:
* Any taxes, fees and contributions, whether or not related to real property, of
any nature, to which the leased premises or the lease itself could be subject,
as well as any municipal taxes or city or State charges and any fees, assessed
now or in future, on said premises.
* Any taxes, charges and fees created at a later date in any form whatsoever, as
a supplement to or as replacement of those stipulated above, regardless of the
means of taxation, and even if these taxes take the form of taxation on the
capital of the Finance-Lessor represented by the premises hereby leased.
* More generally, any and all charges of any nature whatsoever that are or could
become payable on the leased premises or on the lease, all such that the rent
amounts fixed hereunder are collected by the Finance-Lessor net of any and all
actual charges, with the sole exception of any taxes encumbering, as a result of
the Finance-Lessor, the leasing revenues, which are and shall remain the
Finance-Lessor's responsibility.
The Finance-Lessee, the final debtor of the taxes fees and charges encumbering
the leased premises or the lease, shall be entitled to contest the amount or the
principle of any taxation borne directly or indirectly by it, although it may
only contest said amounts with the authorities in question at its exclusive
expense and risk, in the name of the Finance-Lessor, who hereby delegates it, to
the extent necessary, all useful powers for this purpose. Any claims or
challenges made by the Finance-Lessee with the Finance-Lessor shall be
considered as inoperative. The Finance-Lessor does not intend to take
responsibility itself for any challenges from authorities or entities. However,
such a challenge cannot delay the payability date of these charges.
Any tax refunds and any reductions obtained shall only benefit the
Finance-Lessee.
C- EXPENSES INCURRED FOR EXAMINATION AND VERIFICATION VISITS
The various charges resulting from the inspections or checks to which the
building that is the object of this lease, and its fixtures, as well as the
facilities and equipment that they contain, may be subject pursuant to the
various regulations that are applicable to them, in particular those concerning
the safety of persons and the security of property, shall be assumed directly
and in full by the Finance-Lessee, the sole party responsible for the security
of the premises that are the object of this lease and their use.
D - CHARGES RELATED TO THE BUILDING ESTATE
The Finance-Lessee shall also bear all charges and contributions, whether
general or special, ordinary or extraordinary, related to the building leased,
that are due for the building estate referred to above.
All of the above shall be apply in such a way as to ensure that the
Finance-Lessor is never disturbed or subjected to inquiry in this connection.
ARTICLE 14 - VALUE ADDED TAX
It is expressly agreed between the parties that this lease shall be subject to
value added tax in accordance with regulations in effect, and shall therefore be
exempt from any lease registration fees.
The amount of the value added tax on each rent payment, at the rate in effect on
each deadline, shall be borne by the Finance-Lessee in addition to the rent and
other charges stipulated hereunder.
As regards the value added tax paid by the Finance-Lessor on fixed assets, and
in accordance with Decree No. 72-102 of 4 February 1972, the Finance-Lessor
shall carry out all formalities and all steps needed to obtain repayment as
quickly as possible.
For a fixed term of four months from each payment made by the Finance-Lessor for
this transaction, the Finance-Lessee shall be required to pay it, in addition to
the financial charges stated hereunder, and as a supplement to the rent, the
interest calculated at the Average Monthly Money Market Rate, plus 90 basis
points per year (i.e. 0.90% per year) on the amount of the credit on the value
added tax corresponding to this disbursement.
Said interest, accompanied by any value added tax applicable thereto, shall be
payable at the end of each calendar month.
ARTICLE 15 - EXPENSES - CHARGES - FEES
All of the expenses, charges and fees of this lease contract, and those that
follow it or are the result thereof, shall be borne by the Finance-Xxxxxx, and
the Finance-Xxxxxx's representative commits the Finance-Lessee to doing so.
CHAPTER III-
SAFETY-INSURANCE-LOSSES
ARTICLE 16 - SAFETY/SECURITY
The Finance-Lessee shall be responsible for the safety of persons and the
security of property having regard to the building that is the object of this
lease and its use.
In the event that the leased building constitutes an "entity frequented by the
public" pursuant to Articles R.123-2 and R. 123-18 to 20 of the Construction and
Housing Code, the Finance-Lessee undertakes to scrupulously comply with and to
have all persons working for it scrupulously comply with the regulations
concerning the type and category of this entity.
To this end, it undertakes to:
* have maintained and checked at its expense, throughout the lease's term, all
of the equipment and facilities on the leased premises, at the times and in the
manner indicated in the texts referred to above.
* not to modify these premises in any way that violates the provisions of these
texts,
* to open and to keep up-to-date (or to have others open and keep up-to-date) a
safety record.
* to have others carry out periodic checks during the lease, as stipulated in
Article R. 123-43 of the Construction and Housing Code, by the entity of its
choice approved in the conditions stipulated in said Article.
In the event that any sort of legal proceedings are initiated against the
Finance-Lessor following a failure to comply with the above obligations, the
Finance-Lessee must repay the Finance-Lessor the amount of any legal decision
rendered against it, as well as the expenses and fees that it should have
incurred for the defence.
ARTICLE 17 - INSURANCE
1- CONSTRUCTION INSURANCE
As stipulated in the lease's preliminary provisions, an All Risks policy will be
taken out. Moreover, in order to satisfy the obligations of Act No. 78-12 of 4
January 1978 in respect of construction liability and insurance, a Works Damages
and a Ten-Year "Constructeurs Non Realisateurs" [translator's note: Builder Not
Designer???] Liability policy will be taken out.
Under no circumstances will the taking out of these insurance policies release
the delegated contracting authority, including partially, from the obligation to
produce the result that it has contracted vis-a-vis the Owner, or from any other
obligations contracted as Finance-Lessee in this document.
II - INSURANCE DURING THE TERM OF THE COMMERCIAL LEASE
A) Content of the guarantees that must be taken out
1) Insurance of the building.
The premises that are the object of the lease and all of the real property
fixtures and facilities on it shall be insured, for an indexed amount that is
sufficient, at any time, to permit their identical reconstruction or replacement
against all damages caused by fire, lightning, explosions, storms, hurricanes,
snow on roofs, breaking of the sound barrier, hail, falling aeroplanes,
collisions between land vehicles, electricity or fluids, including damages
resulting from acts of terrorism or sabotage, strikes, riots or uprisings.
This coverage will be supplemented by an "Indirect Losses" guarantee of at least
10%.
The following shall also be guaranteed: experts' fees, demolition and clearance
expenses following a loss, as well as the amount of the premiums of the "Works
Damages" insurance policy, to be taken out at the time of the reconstruction or
restoration of the buildings.
2) Insurance of movable objects, equipment and merchandise.
The Finance-Lessee shall also have insurance taken out on the movable objects,
equipment and merchandise in the buildings leased with the Finance-Lessor. The
policy taken out must contain a waiver by the insurers of any recourse against
the Finance-Lessor.
3) Loss of Rent - Deprivation of enjoyment insurance.
Such a guarantee, covering at least two years of financial lease charges, must
also be taken out. Any compensation collected by the Finance-Lessor from the
insurer in this connection shall be repaid by it to the Finance-Lessee if the
charges stipulated in the lease contract have actually been paid by the latter,
in accordance with said lease contract.
4) Civil liability insurance concerning the building.
The civil liability of the Finance-Lessor, and that of the Finance-Lessee
against any third parties, including, if applicable, subtenants, shall be
guaranteed against:
* The pecuniary consequences of the civil liability incurred by the
Finance-Lessor, owner of the premises and/or the Finance-Lessee, related to the
building that is the object of the lease (Article 1382, 1383, 1384, paragraph 1,
and Article 1386 of the Civil Code), for at least E.4.5 million for bodily
injury and E.4.5 million for material and immaterial damages, including E.1.5
million per loss for immaterial damages, whether or not consequential.
* The pecuniary consequences of the civil liability, if any, incurred by the
Finance-Lessor, owner of the premises, and or the Finance-Lessee, related to the
building that is the object of the lease contract, as a result of fire,
explosions or fluids (Article 1384, paragraph 2 of the Civil Code- "Recourse of
Neighbours and Third parties"), for at least E.4.5 million for bodily injury and
E.3.3 million for other damages.
B) Condition for the implementation of the guarantees
* All of the aforementioned guarantees, excluding movable property and
merchandise, must be taken out by the Finance-Xxxxxx, on its own behalf and on
behalf of the Finance-Lessor, owner of the premises.
* The various insurance guarantees indicated above shall be taken out by the
Finance-Lessee under its sole responsibility, with one or more insurers of known
solvency. It must see to it that said policy/policies remain valid throughout
the term of the leasing contract. It must pay on a regular basis the premiums of
these insurance policies, plus any related charges and taxes.
* The insurers with which the various aforementioned guarantees are taken out
must expressly commit themselves in each of the policies taken out:
- to notify the Finance-Lessor in writing, one month prior to any cancellation
or reduction of the guarantees requested by the tenant, without the latter
having simultaneously furnished the Finance-Lessor's express consent.
- notify the Finance-Lessor of any delay in paying premiums and only suspend the
guarantees granted one month after receipt of this notice by the Finance-Lessor;
notify the Finance-Lessor at least one month in advance of any termination of
the policy at its initiative;
- pay the Finance-Xxxxxx alone, unless expressly authorised by the latter, any
compensation related to the rent and to real property damages;
- not to cite against the Finance-Lessor any omission, insufficient declaration
or false declaration by the Finance-Xxxxxx and, as a result, not to enforce
against the Finance-Lessor any nullity, average clause, or forfeiture if the
insured fails to satisfy its obligations subsequent to the loss. However, the
insurer shall continue to enjoy all of its types of recourse against the
Finance-Lessee, the policyholder;
- to waive any recourse against the Finance-Lessor in the event of an incident
causing damage to movable objects, equipment and merchandise contained in the
building
- not to cite any clause limiting compensation to the cost of the materials if
the building is built on land owned by another party/ies
* In order to enable the Finance-Lessor to verify the existence of the insurance
policies taken out by the Finance-Lessee, the latter undertakes to have its
insurers produce the certificate shown in "Appendix M" in the letter of
commitment.
THIS CERTIFICATE MUST BE SUBMITTED TO THE FINANCE-LESSOR AT THE LATEST 15 DAYS
PRIOR TO ACCEPTANCE OF THE WORK WITH THE COMPANIES.
It expressly authorises the Finance-Lessor:
- to be sent directly by the Finance-Xxxxxx's insurers the policies that it has
taken out pursuant hereto. Should the Finance-Lessor make use of this option,
this fact shall not be considered as interference by it in the taking out of
said policies
- to send the Finance-Xxxxxx's insurers a copy of the commitment letter's
insurance appendix
* Should the Finance-Lessee fail to satisfy these insurance obligations and, in
particular, should its insurers refuse to formalise the "Appendix M"
certificate, to reduce or terminate guarantees, the Finance-Lessee may be given
notice, by registered mail with acknowledgement of receipt, to produce, within
eight days, a certificate that conforms to the model furnished by the
Finance-Lessor. It shall be informed that should it fail to do so, the insurance
shall be implemented by the Finance-Lessor, pursuant to the lease's
stipulations.
* After this eight-day period, the building shall be insured by the
Finance-Lessor within the framework of its contract, in which case Gras Savoye
will furnish the guarantees.
IN THIS CASE, THE INSURANCE PREMIUMS WILL BE RE-INVOICED TO THE FINANCE-LESSEE
IN ADDITION TO ITS RENT PAYMENTS.
C) Finance-Xxxxxx's responsibility in taking out the insurance
Given that the Finance-Lessor cannot-- based on the actual characteristics
specific to each of the buildings that it leases-- determine itself the amount
of the capital that should serve as the basis for each of the policies to be
taken out in order to ensure that the aforementioned guarantees are obtained, it
is expressly agreed that the guaranteed amounts will be determined between the
insurer and the Finance-Lessee, under the latter's sole responsibility. Said
amount cannot be less than the replacement value amount, including expenses and
fees.
The Finance-Lessee shall assume vis-a-vis the Finance-Lessor all of the
consequences that could result, in particular if there is no insurance coverage
or insufficient insurance coverage, as well as in the case of an error, omission
or intentional failure to disclose in the declarations made to the insurers.
As a result, if the amount of the compensation paid by the insurers following
any loss is insufficient to cover the complete pecuniary reparation of the
damages caused by this loss, in particular:
- because the risk whose occurrence caused the damage is not insured by
the Finance-Lessee for any reason whatsoever,
- or because the amount of the capital guaranteed by the policies taken
out is less than the amount that should have been taken out in order
for this compensation to provide said complete reparation,
- or because this amount is insufficient, the insurers, for any reason
whatsoever, only pay compensation that is less than the compensation to
which the beneficiary is entitled from said insurance,
- or because the excesses are charged by the insurer(s) to the
beneficiaries of the compensation.
the tenant shall be liable vis-a-vis the Finance-Lessor for the difference
between the amount of the complete pecuniary reparation of the damages caused by
said loss and that of the compensation paid by the insurers.
III - FINANCE-LESSEE'S OBLIGATION IN THE EVENT OF A LOSS
* The Finance-Lessee must notify the Finance-Lessor in writing, within
forty-eight hours of its occurrence, of any loss suffered or caused by the
premises that are the object of the lease. The Finance-Lessee must also, in the
conditions and within the time frames stipulated by each insurance policy, make
any necessary declarations to the insurers: the Finance-Lessor, to the extent
necessary, hereby authorises it to make these declarations. THE FINANCE-LESSEE
UNDERTAKES NOT TO INITIATE ANY PROCEEDINGS OR ACTIONS AGAINST THE FINANCE-LESSOR
IN RESPECT OF THE LOSS.
* It must also due whatever is necessary in order to obtain from the insurers
the rapid payment of compensation, either on its own behalf, or on behalf of the
Finance-Lessor, which hereby gives it all necessary authorisations for this
purpose, to carry out any steps and any formalities, to request any expert's
reports, and to attend any expert's inspections. Should any related problems
occur, it may initiate any legal proceedings or exercise any coercive measures
and steps.
* However, in the case of legal proceedings, the Finance-Lessor must FREE be
notified by the Finance-Lessee of any action undertaken, whether as plaintiff or
as defendant. In this case, the Finance-Lessor shall have a casting vote with
respect to the choice of the attorney, who may not be designated by the
Finance-Lessee without the Finance-Lessor's consent. Any and all fees, expenses
and charges, including attorney's fees and the fees of an architect or a
consultancy bureau approved by the Finance-Lessor to monitor the legal expert's
work, that are due as a result of the fulfilment of the aforementioned
obligations shall be paid directly by the Finance-Lessee.
* The Finance-Lessee shall exonerate the Finance-Lessor of any court rulings
against the latter if said policies do not offer a guarantee or do not offer a
sufficient guarantee, and, more generally, in the case of a refusal of a total
or partial guarantee on the part of the insurer. In addition, it shall pay the
fees and expenses, if any, that the Finance-Lessor has incurred for its defence.
* In the event of a loss that sets in motion the application of the construction
insurance policies (Contractor's All Risks policy or Damages to Works policy),
the Finance-Lessee also undertakes to reconstitute the guarantee, at its
exclusive expense, such that the amount of the guarantee is at least equivalent
to what it was prior to the occurrence of the incident and provided, in any
case, that it is sufficient to allow for a complete reconstitution of the
premises that are the object of the lease, and to furnish proof thereof to the
Finance-Xxxxxx as soon as requested by the latter.
* REGARDLESS OF THE CIRCUMSTANCES, the compensation paid following any loss
shall first be collected by the Finance-Lessor, which shall then be responsible
for repaying said compensation to the Finance-Lessee, subject to the provision
of proof of the complete performance of the work and presentation of the
invoices paid.
The Finance-Lessee must also pay the Finance-Lessor the loss's management
expenses, which shall be ONE percent (1%) of the amount of the loss, but cannot
exceed THREE THOUSAND, EIGHT HUNDRED EUROS (E.3,800), excluding value added
tax.
ARTICLE 18 - LOSSES - RECONSTRUCTION
This Article's stipulations are made subject to the express reservation of the
application of the implementing documents governing the building estate
mentioned above.
A- PARTIAL LOSS
By derogation to the provisions of Article 1722 of the Civil Code, partial
obstruction, including by act of God or force majeure, of the leased building,
shall not entitle the Finance-Lessee to request the termination of the lease or
the payment of any compensation.
The Finance-Lessee shall be required to restore the damaged premises, at its
exclusive expense and risk, after having obtained the necessary administrative
authorisations.
The Finance-Lessor shall repay the Finance-Lessee, based on proof of the work
carried out, any compensation that it collects on the insurers or any entity
whatsoever, less, however, any taxes and charges on said compensation.
If the restoration work is not carried out as a result of a failure to obtain
the necessary administrative authorisations, the Finance-Lessee may:
* request the lease's termination, without waiting for the expiration of the
minimum period referred to in Article 3 above, and subject to the payment to the
Finance-Lessor of compensation equal to the entire price, stipulated below in
Article 32, of the building's sale's referred to in Article 31, determined on
the date of termination,
* or exercise the promise to sell granted to it, in the conditions stipulated in
Article 31, and in exchange for the price stipulated in Article 32,including
prior to the expiration of the minimum period stipulated hereunder,
* or continue this lease on the usable part of the building. In this case, the
Finance-Lessee must pay the Finance-Lessor compensation representing the
building's depreciation, determined on the date of the incident by joint
agreement between the parties or, in the absence of such an agreement, the
opinion of the expert designated by either party.
The rent amount shall be reduced in proportion to the amount of this
compensation (net of any applicable charges and taxes) in relation to the price
stipulated in Article 32 below of the sale of the building promised to the
Finance-Xxxxxx, determined on the date of the payment of said compensation. The
selling price stipulated in Article 32 shall itself be reduced by the amount of
compensation received (net of any applicable charges and taxes).
These reductions shall take effect as of the date of the payment of the
compensation by the Finance-Xxxxxx, rather than as of the date of the loss.
In the three aforementioned cases (termination of the lease, early exercise of
the promise to sell, or continuation of the lease on the remainder of the
building), if the Finance-Lessor collects compensation from the insurers or from
any entity, it shall repay said compensation to the Finance-Lessee, less any
applicable charges and taxes on said compensation.
B.- TOTAL LOSS
In the event of an incident giving rise to the complete destruction of the
building, this lease shall be automatically terminated, but only as of the
expiration of the periods stipulated below in favour of the Finance-Lessee, to
exercise its option, if any, unless the Finance-Lessee expressly waives this
option in writing.
However, it is expressly agreed between the parties and by derogation to Article
1722 of the Civil Code, that such termination shall give rise to the obligation
for the Finance-Lessee to pay the Finance-Lessor compensation equal to the
building's selling price, as stipulated in Article 32, determined on the date of
the termination, plus any applicable expenses for the restoration of the plot of
land after the incident (in particular, destruction and removal of remains). In
exchange, the Finance-Lessor shall pay the Finance-Lessee the amount of all
compensation collected from the insurers or from any entity whatsoever, less any
applicable charges and taxes on said compensation.
Nevertheless, and notwithstanding the above provisions, the Finance-Lessee shall
be entitled:
* to implement the promise to sell in the conditions indicated in paragraph A
above.
* or (by express derogation to the provisions of Article 1722 of the Civil
Code), to continue this lease while reconstructing the premises at its exclusive
expense and risk, after having obtained the necessary administrative
authorisations.
The Finance-Lessee must communicate its decision within six months of the date
of the incident, via a letter sent by registered mail with request for
acknowledgement of receipt.
In the event that the Finance-Lessee chooses to continue the lease, the
necessary administrative authorisations should be obtained by the Finance-Lessee
within one year of the date of the notification of its decision. Otherwise, the
lease shall be automatically terminated in the conditions stated above, unless
the Finance-Lessee prefers, within said one year, to implement the promise to
sell.
Regardless of the Finance-Xxxxxx's decision, the Finance-Lessor shall pay it the
amount of the compensation collected from the insurers or any other entities,
less any charges and taxes applicable to said compensation.
The payment to the Finance-Lessee of any compensation due to it pursuant to the
provisions of this Article 18 shall only take place after the Finance-Lessee has
actually paid all amounts that it owes to the Finance-Lessor pursuant to this
contract. However, the Finance-Lessor reserves the right to automatically engage
in compensation between these amounts.
C- RECONSTRUCTION AUTHORISATION
In all of the scenarios referred to in paragraphs A and B above, the
Finance-Lessee is required to obtain any necessary administrative
authorisations. The Finance-Lessee shall also be required to obtain, if
applicable, the authorisations resulting from the rules of co-ownership and/or
the documents governing the zone in which the lease building is located.
D -RECONSTRUCTION - REPAIR
In all of the scenarios referred to in this Article, the reconstruction of the
completely destroyed building or the repair of the partially damaged building
shall be carried out by the Finance-Lessee:
* on the basis of an estimate of work and plans prepared by the Finance-Lessee,
at its expense and under its responsibility,
* and under the supervision and monitoring of an architect or a technical
consultancy bureau approved by the Finance-Lessor, the fees of which shall be
included in the reconstruction or repair expenses.
E - PROVISIONS CONCERNING RENT
In all situations of loss in which the Finance-Xxxxxx has decided to repair or
reconstruct the leased building (and, in so doing, has decided to continue the
lease), the Finance-Lessee shall continue to bear, during the period from the
date of the incident until the actual reconstruction, all of the rent amounts,
charges and ancillary amounts stipulated in this document.
In exchange, any compensation received by the Finance-Lessor from the insurers
pursuant to the "Loss of Rent" guarantee or the "Deprivation of Enjoyment"
guarantee (or of any other equivalent guarantee), if these guarantees have been
taken out by the Finance-Lessee in the conditions stipulated in Article 17
above, shall be repaid by the Finance-Lessor to the Finance-Lessee.
CONTRACTING AUTHORITY DELEGATION AGREEMENT
The Undersigned,
S.F.E.A.
0, xxx xx xx Xxxxxxx- 00000 XXXXXXX (Xxxxxx)
Hereinafter named THE DELEGATED CONTRACTING AUTHORITY or THE COMPANY
On the one hand,
SOGEFIMUR Company, a French Limited Liability company with a capital of E.55 854
600 and Head Office in PARIS (9th district), 00 xxxxxxxxx Xxxxxxxxx, xxxxxxxxxx
xx xxx XXXXX Trade Register under number B 339 993 214, represented by X. Xxxxx
XXXXXXXXXX or Xx Xxxxxx XXXXXXXXX and Xx Xxxxxx XXXXXXX or Xx Xxxxxxx xx
XXXXXXXXXXXX, acting in virtue of the authorization they were specifically
granted by Mr Xxxxx XXXXXX, Assistant General Manager
On the other hand,
Prior to the agreement hereby conclude, wish to state what follows :
RECITALS
In order to have the use of professional or business premises, THE COMPANY
requested SOGEFIMUR, which said company agreed, to provide it lease financing
for the building of such premises. The description of these premises and the
respective commitments of the relevant parties have been laid down in writing in
the lease contract made this day in the THIBIERGE notarial office cabinet and to
which the present agreement is attached.
THE COMPANY has had all prior technical studies carried out as well as the
descriptive and estimate plans and quotations of the planned premises. Once
having examined these plans and quotations, SOGEFIMUR agreed to finance the
building of such premises.
THE COMPANY having taken the initiative to construct the said building and also
having defined its features, it appeared logical and necessary, in order to
ensure the unity of designing and fulfilment, to entrust THE COMPANY with the
construction of the premises acting as DELEGATED CONTRACTING AUTHORITY.
The fact that THE COMPANY may be acting as DELEGATED CONTRACTING AUTHORITY for
the present agreement does in no manner imply any particular professional skill
on its behalf in the building trade, but defines the function that it agrees to
assume on a contractual basis for the construction of these buildings and the
responsibilities that it agrees to take on contractually. This function and
these responsibilities are made explicit in the articles which follow.
This having been explained, the following is agreed (all clauses being deemed
rigorous, impulsive and determining):
ARTICLE 1- OBJECT
The present agreement has for object the construction of a building the features
of which are laid down in the Particular Technical Specifications attached to
the present agreement.
ARTICLE 2- MISSION- CONTRACTUAL DOCUMENTS
Subject to termination clauses stipulated in article 15, SOGEFIMUR hereby
entrusts the DELEGATED CONTRACTING AUTHORITY with the mission of having
constructed, on account of SOGEFIMUR but in its own name, the building mentioned
above. It is clearly understood that this mission does not imply ANY
REPRESENTATION of SOGEFIMUR as regards third parties, in such a way that the
DELEGATED CONTRACTING AUTHORITY shall act in its own name but for the account of
SOGEFIMUR.
The DELEGATED CONTRACTING AUTHORITY accepts this mission and undertakes as
concerns SOGEFIMUR to carry out, under its own responsibility and complying with
standard practices, all the works and achievements technically described in the
documents produced by the Architect chosen by the DELEGATED CONTRACTING
AUTHORITY and which are briefly described in the Particular Technical
Specifications attached to the present agreement.
Consequently, the transactions already signed by the DELEGATED CONTRACTING
AUTHORITY in its own name and for its own account, prior to the agreement with
SOGEFIMUR, shall remain in its own name and shall not be in any way "recovered"
in the name of SOGEFIMUR for the account of which they shall be pursued without
any form of substitution. The agreements to be signed in the future shall in the
same way be made in the name of the DELEGATED CONTRACTING AUTHORITY with no
reference to the DELEGATING CONTRACTING AUTHORITY.
The present agreement is signed to serve the interests of both parties
considering the DELEGATED CONTRACTING AUTHORITY itself has a benefit in having
this building constructed which it will be entitled to purchase at the end of
the commercial lease contract. The DELEGATED CONTRACTING AUTHORITY therefore
irrevocably accepts this mission for which there will be no financial
consideration.
Shall be considered as legally binding for the parties the stipulations included
in the following articles as well as those included in the following listed
documents, which the parties acknowledge having fully taken note of and accepted
with no restrictions. However, should any inconsistency appear between these
various stipulations, those of the present agreement shall override those of the
said documents without there being any need for explicit exceptions to be
expressed.
The DELEGATED CONTRACTING AUTHORITY declares that the whole set of the said
documents is sufficient to enable the full and complete carrying out of the
works leading to their total fulfilment according to professional standards.
A/- Particular Technical Specifications attached to the agreement
These Specifications give the expected or definite factors of the construction
operation.
They MUST be signed by the Delegated Contracting Authority and by
SOGEFIMUR. Should the Delegated Contracting Authority not have knowledge of the
final assessed figures the day the present agreement is signed, it shall be
compelled to pass them on to SOGEFIMUR as soon as they are known to it.
It is expressly agreed that :
- the Particular Technical Specifications shall become integral part of
the present agreement as from the date they are signed by SOGEFIMUR.
- whatever the circumstances, the date the Real Estate Commercial lease
contract is signed shall be the time the present Delegated Contracting
Authority Agreement comes into force.
B/- Particular documents agreed to by the parties
1. All the graphic documents concerning the list of designs fully
describing the building to be constructed (architect's blueprints).
2. The building trade rough estimate. The present estimate, as well as
those mentioned in the previous chapter, have been worked out for each
type of works by the Architect hired by the DELEGATED CONTRACTING
AUTHORITY.
3. The rough estimate worked out by the contractors under the
responsibility of the DELEGATED CONTRACTING AUTHORITY.
All these specific documents, produced at the initiative of the DELEGATED
CONTRACTING AUTHORITY and accepted by SOGEFIMUR shall be stamped and signed by
the architect and/or the leading contractor chosen by the DELEGATED CONTRACTING
AUTHORITY for each type of works.
C/- General type documents
1. The general bill of materials applicable to private tenders for
building- AFNOR documents, French P 03 001 standard dated 20 September,
1991.
2. The bills of materials and the calculation rules or other
specifications withheld by the Technical Texts Coordination Group as
the "Unified Technical Documents-U.T.D." as published when the present
was produced and, for new articles, the CSTB technical notes.
3. The full set of French AFNOR technical standards and particularly those
included in the "Recueil des Ensembles et Elements Fabriques"
(Manufactured Sets and Parts Handbook) updated the month prior to being
submitted.
D/- Building permit file
The DELEGATED CONTRACTING AUTHORITY has given in (or shall give in) to SOGEFIMUR
the copy of the documents mentioned in the Particular Technical Specifications.
The DELEGATED CONTRACTING AUTHORITY shall give in to SOGEFIMUR a copy of all
extra documents and/or modifying documents with whichever registered building
permit requests it may put in along with a deposit receipt.
Furthermore, the DELEGATED CONTRACTING AUTHORITY undertakes to inform SOGEFIMUR,
as soon as advised, of any legal action brought against the building permit and
declares that none of such is known of at this present day.
Should such legal action be taken before official time limits expire, SOGEFIMUR
in its sole appreciation of the circumstances, is entitled to suspend the
effects of the present agreement and to stop all expenditure until the validity
of the building permit(s) is finally recognized and without the DELEGATED
CONTRACTING AUTHORITY being entitled to any compensation from SOGEFIMUR.
ARTICLE 3- ADMINISTRATIVE AUTHORIZATIONS
The DELEGATED CONTRACTING AUTHORITY shall undertake in its own name all
declarations and actions and fill in all formalities in order to obtain the
necessary administrative authorizations for the building of these premises and
in particular, the building permit. It shall make sure that that these
authorizations have been given out in compliance with prevailing rules and
regulations concerning urban layouts, buildings and the security of persons and
property, all in such a manner that SOGEFIMUR shall in no way be subject to
pursuits for this matter.
The DELEGATED CONTRACTING AUTHORITY shall grant SOGEFIMUR full security for any
adverse sentence for this reason or generally speaking for any sum which might
be charged them in any way, the said sum being possibly accrued of compensatory
interest at the legal rate at the time of the expenses incurred by SOGEFIMUR.
The DELEGATED CONTRACTING AUTHORITY shall hand over to SOGEFIMUR a copy of all
the administrative authorizations as soon as they are delivered, including all
attached parts.
Furthermore, the DELEGATED CONTRACTING AUTHORITY shall respect all imposed
conditions, clauses and expenses such as may be stipulated by the plot rules,
the Industrial Zone regulations, etc... and particularly urbanism rules
mentioned in these deeds.
Finally, the DELEGATED CONTRACTING AUTHORITY shall negotiate and agree to, in
the name of and for the account of SOGEFIMUR who will give it any necessary
authorizations in that sense, all the necessary urbanism conventions needed for
the constructing of the building (grant or taking of easements, co-ownership
agreements, setting-up of a common yard, etc...).
Should these formalities not be accomplished or the above-mentioned
authorizations not be obtained, the DELEGATED CONTRACTING AUTHORITY shall
indemnify SOGEFIMUR for whatever loss the latter may sustain. It shall refund
this company all the sums it may be obliged to pay by court decision, and these
sums may be accrued by compensatory interest worked out at the legal rate as
from the date of spending, without prejudice to what is stipulated in article 15
hereinafter.
ARTICLE 4- CHOICE OF THE BUILDERS
The DELEGATED CONTRACTING AUTHORITY shall alone select the Architects and/or
Design and Engineering Offices and the security/health coordinator as well as
the contractors he may consider as being the most suitable for undertaking in
the best conditions the planned buildings, and once having verified their
professional qualification and insurance shall alone
sign in his own name all the necessary contracts, discussing himself and under
his single responsibility all the terms and conditions of these contracts, as
well as if necessary the acceptation of the sub-contractors, whose insurance and
qualification he shall also verify, even when sub-contracting is handed down.
Should the DELEGATED CONTRACTING AUTHORITY disclose to any third party with whom
it has dealt (or to any other third party) the fact that it is the DELEGATED
CONTRACTING AUTHORITY, it shall be compelled to specify that this qualification,
which is justified by the particular features of the construction and the
financing of the building, includes no representation whatsoever of SOGEFIMUR as
regards third parties which shall have to directly contact the DELEGATED
CONTRACTING AUTHORITY for all matters related notably to the advancement of
their tasks or their settlement.
A copy certified by the DELEGATED CONTRACTING AUTHORITY of all these contracts
(even sub-contracts) shall be handed over to SOGEFIMUR once they are signed. If
the firms dealt with resort to sub-contracting, the DELEGATED SUBCONTRACTING
AUTHORITY shall be entrusted with ensuring, under its own responsibility, that
the provisions of Law n degrees 75 1334 of 31 December, 1975, on sub-contracting
are respected by notably making sure that all the sub-contractors on the site
have the guarantee meant for them, in such a way that the Delegating Contracting
Authority shall not be liable for legal pursuits in this sense. SOGEFIMUR shall
be guaranteed by the DELEGATED CONTRACTING AUTHORITY for any breach of this law
on sub-contracting.
ARTICLE 5- WORKS ACCOMPLISHMENT
The DELEGATED CONTRACTING AUTHORITY shall have done, under its supervision and
entire responsibility, all the works related to the construction of the building
described in article 1 and shall ensure they comply in all ways with the plans
and descriptions referred to in the Particular Technical Specifications.
The Architect(s) and/or Design Office(s) chosen according to article 4 shall
necessarily have the mission of designing the building as well as works
monitoring and accounts verification until the building is fully completed.
The coordinator's mission, prior to any survey of the project, shall necessarily
comply with the provisions of Law n degrees 93-1418 dated December 31st, 1993,
and its statutory instruments (n degrees 94-1159 of 26 December, 1994, and n
degrees 95-543 of 4 May, 1995) and with any other later law or regulation
concerning this obligation. It shall also namely refer to the decree n degrees
65-48 of 8 January, 1965, concerning particular protection and health measures
applying to firms undertaking public works and all other works concerning
buildings.
The DELEGATED CONTRACTING AUTHORITY shall also ensure that the works done are
fully in compliance with the laws, decrees, administrative and police
regulations possibly concerning the type of building meant by this agreement
and, more especially, with the town-planning regulations for this particular
area, the rules concerning hygiene, safety of persons and property, with the
particular regulations concerning the business of the COMPANY, as well as with
the expenses, conditions and obligations included in the Bill of materials for
the purchase of the plot of land in the relevant Industrial zone or
apportionment.
The DELEGATED CONTRACTING AUTHORITY, as defined in article 9 hereafter, shall be
responsible as regards SOGEFIMUR for the obligations incumbent to persons they
may have dealt with, it shall notably be answerable for the obligations and
expenses resulting from the stipulations of articles 1792, 1792-1, 2, 3 and 4,
1792-6 and 2270 of the French Civil Code.
It shall then be kept responsible, as regards SOGEFIMUR, for the design of the
building and the carrying-out of the works. It shall if necessary initiate in
its own name and in that of SOGEFIMUR the indemnifying proceedings related to
the Insurance policy for Material Damage stipulated in Article 10 hereinafter.
In the event of legal proceedings involving SOGEFIMUR, the DELEGATED CONTRACTING
AUTHORITY shall alone bear the full cost of legal expenses incurred by
representing SOGEFIMUR, as well as any other legal expenses related to the
proceedings.
ARTICLE 6- WORKS AND STEPS TAKEN PRIOR TO THE PRESENT
It is specified that in the expectation of the signature of the present
agreement, the main clauses of which had already been decided by the relevant
parties, SOGEFIMUR has given a spoken agreement of principle to the DELEGATED
CONTRACTING AUTHORITY allowing the latter to request the administrative
authorizations mentioned in article 3 and to sign contracts and deals, and to
have the works done according to the previously stipulated conditions.
It is therefore expressly agreed that the requested authorizations, the deals
and contracts signed and the works undertaken by the DELEGATED CONTRACTING
AUTHORITY, prior to this date, in order to construct the building identified by
the present agreement, shall be deemed as having been requested, signed and
undertaken under this contract and shall be subject to all of its stipulations.
ARTICLE 7- EASEMENTS
The DELEGATED CONTRACTING AUTHORITY having made his choice of the location of
the building, having implemented the prior technical studies and having seen to
the practical carrying-out of the works, shall alone face all the negative
consequences resulting notably from ground or underground imperfections, as from
property restrictions (passive, apparent or underlying, continuous or
discontinuous or possibly restricting the use of the land in any manner), as
well as from any prejudicial situation resulting directly or indirectly from the
opening and/or the continuation of the worksite.
For this reason, the DELEGATED CONTRACTING AUTHORITY shall refund SOGEFIMUR all
sums the latter may be obliged to pay any third parties as constraint, damages
or immaterial prejudice (even if they are not the result of material or bodily
damages) which these third parties may incur as a result of the building
project. These repayments shall be accrued by the compensatory interest worked
out at the legal rate for the expenses incurred by SOGEFIMUR.
ARTICLE 8- ACCESS, KEEPING AND RISKS
It is expressly agreed between the parties, such being an essential condition of
the present without which they would not have come to any agreement, that:
1. In application of the provisions of article 553 of the French Civil
Code, SOGEFIMUR, the proprietor of the plot of land (or the land
lessee), shall purchase all the buildings as they are set up.
2. Notwithstanding these purchases, the risks and the keeping of these
constructions shall be entrusted to the DELEGATED CONTRACTING AUTHORITY
until the premises have been made available to SOGEFIMUR by the said
DELEGATED CONTRACTING AUTHORITY according to the provisions of article
13 hereinafter.
Consequently, the DELEGATED CONTRACTING AUTHORITY shall be personally
responsible towards SOGEFIMUR for all bodily, material and/or material damage
which might be caused, until reception and waiver of all reserves, to any
physical or legal person owing to the constructions or their erection.
The DELEGATED CONTRACTING AUTHORITY shall assume all the risks related to the
lawfulness of the operations and of the acts already done while having the
buildings erected and of those which shall have to be accomplished to fulfil
this contract.
ARTICLE 9- RESPONSIBILITIES
The DELEGATED CONTRACTING AUTHORITY shall organize the building operation so
that the works are carried out continuously with all necessary means and that
they are fully accomplished according to the specifications, plans and
quotations defined in article 2, at the very latest at the date planned in the
"Worksite flow" paragraph included in the Particular Technical Specifications
attached to the present agreement.
It is as such specified that the DELEGATED CONTRACTING AUTHORITY acting as the
"builder" according to the meaning of article 1792-1 of the French Civil Code
and entrusted with such authority :
1. Has an absolute obligation towards SOGEFIMUR, and shall guarantee the
latter, without any restrictions or reserves, full completion of the
contracts made with the contractors.
Consequently, should one or several of these contractors fail to
accomplish their task, the DELEGATED CONTRACTING AUTHORITY shall cancel
the contracts signed and shall, as quickly as possible but at his own
risk, take on new contracts with other contractors chosen in the manner
specified in article 4, so that the completion of the buildings is not
delayed.
The signing of these new contracts shall not cause any increase in the
overall price stipulated in article 11. Should this not be the case and
except if SOGEFIMUR expressly agrees so, the price increase shall be
incurred solely by the DELEGATED CONTRACTING AUTHORITY.
The DELEGATED CONTRACTING AUTHORITY shall take out, if it is considered
necessary and at its own risks, for the account of SOGEFIMUR but in its
own name, any kind of legal liability action against the defaulting
contractors.
2. Assumes towards SOGEFIMUR builder responsibilities as defined by
articles 1792, 1792-2, 1792-4 and 2270 of the French Civil Code. It is
also obliged to ensure proper
functioning and perfect completion as defined by articles 1792-3 and 6
of this same code.
ARTICLE 10- INSURANCES
Considering the fact that the CONTRACTING AUTHORITY is sole owner of the
constructions as their completion goes along, the DELEGATED CONTRACTING
AUTHORITY has taken note of the following points :
1. The construction of the building shall be covered by the risk policy taken
out by the SOCIETE GENERALE with AXA Corporate Solutions through GRAS SAVOYE : A
DAMAGE TO BUILDINGS POLICY AND A BUILDER SUPERVISOR POLICY N DEGREES 37503
51511112 H, it being agreed that the Builder Supervisor policy is underwritten
for the CONTRACTING AUTHORITY and for the DELEGATED CONTRACTING AUTHORITY.
The DELEGATED CONTRACTING AUTHORITY is sole responsible for the effective
setting-up of the policies mentioned above in order to cover this building
operation.
The DELEGATED CONTRACTING AUTHORITY has undertaken to promptly set up these
guarantees and notably to :
- fill in under its own responsibility the "Construction Insurance"
questionnaire
- provide GRAS SAVOYE under its own responsibility all useful information
about the technical conditions of the operation (consistency and value
of the existing and surrounding buildings, risk increases), prior to
the beginning of the works and during the works.
- follow-up and be provided the insurance certificates by GRAS SAVOYE
- send on to GRAS SAVOYE , within due time, the whole set of documents
needed to set up the policies :
- the technical description and
the rough estimate of the cost
of the works
- the names of all the
participants in the
construction
- the decennial builder
capitalization insurance
certificates in force et the
time of the beginning of the
works from the architect,
contracting authority, design
office, contractors for
building shells, foundations,
roofs, watertightness.
FAILURE TO PRODUCE THESE CERTIFICATES, TWO MONTHS AFTER RECEPTION AT THE
LATEST, BEING AN INCREASED RISK FOR THE INSURER, WILL OBLIGE THE CLIENT TO
PAY AN EXTRA PREMIUM OF 100 % OF THE CHARGE, IN ORDER TO COMPENSATE THE
INCREASE IN RISK (THE AMOUNT OF THIS EXTRA PREMIUM SHALL BE INCLUDED IN
THAT OF THE FINAL PREMIUM).
- the reception statements and,
if necessary, the suppression
of any reserves
- the estimate of the overall
cost
- the final account statement
after acceptance of the work
done, OTHERWISE GRAS SAVOYE
SHALL BE ENTITLED TO CALCULATE
THE PREMIUM BASIS WITH A 20 %
INCREASE AS COMPARED TO THE
KNOWN PREMIUM BASIS.
The amount of the premiums and of any increases of these shall be settled by the
CONTRACTING AUTHORITY to AXA C. S. and become part of the basis for the
calculation of the lease payments (or re-invoiced on top of the payments).
Considering there is no insurance policy on the market offering coverage for all
risks related to building, the underwriting of these policies shall by no means
free the DELEGATED CONTRACTING AUTHORITY even partly from his absolute
obligation towards the CONTRACTING AUTHORITY, nor from any other obligations
taken on as LESSEE in this deed.
The DELEGATED CONTRACTING AUTHORITY shall, in case of loss, deal with any
difference between the full reconstruction cost of the buildings and the amount
paid by the insurers.
2 - FURTHERMORE, THE DELEGATED CONTRACTING AUTHORITY HAS PROMISED TO TAKE OUT
FOR ITSELF AND FOR THE CONTRACTING AUTHORITY :
* A COMPREHENSIVE WORKSITE POLICY, covering
the works for repairs of any kind that the building may need.
The guarantee shall specifically not be dependant upon the responsibility of the
participants being implicated, and they shall all be considered as insureds.
The coverage shall be granted for the duration of the works and until their
acceptance or the handing-over and then for a one-year maintenance period.
The amount insured shall be sufficient to allow the restoring of the buildings
at any time.
The deductible shall not exceed E.7 600 per loss.
The coverage shall also be extended to the material damage caused to existing
buildings if the works are done on an already existing building.
THE DELEGATED CONTRACTING AUTHORITY ACKNOWLEDGES HIS ATTENTION HAS BEEN
ESPECIALLY CALLED UPON THE NEED TO PROVIDE A COVERAGE FOR THE FINANCIAL EXPENSES
INCURRED BY ANY LOSS COVERED BY THE COMPREHENSIVE WORKSITE POLICY, AND
INCLUDING:
1 - Either the amount of extra interest named "pre-rental expenses" until the
commercial lease contract is implemented, cashed by the Contracting Authority
LESSOR, by way of the sums already spent on account of the Delegated Contracting
Authority at the date of the loss, or that it shall be compelled to spend on the
evidence of reports or invoices produced prior to the loss.
2 - Either the financial loss incurred by the Delegated Contracting Authority,
the future tenant, once having paid fees and expenses out of its own cash
(before the commercial lease contract is implemented).
3 - Either the combination of the final costs mentioned in the two above
chapters if the pre-financing is done jointly by the Contracting Authority and
the delegated Contracting Authority,
and which would result from a delayed handing-over of the building to the
Contracting Authority, thus deferring the implementing of the commercial lease
contract.
* A CIVIL LIABILITY POLICY FOR
"WORKS/FOLLOW-UP"
offering coverage for the consequences of the liability that the contracting
party and/or the CONTRACTING AUTHORITY might incur towards other parties,
related to the worksite, for the time legal responsibility lasts.
* THE DELEGATED CONTRACTING AUTHORITY HAS
ALSO UNDERTAKEN TO :
- pass on to the CONTRACTING AUTHORITY the certificates for the
above-mentioned policies (Comprehensive Civil Liability and Civil
Liability for Works and their follow-up) PRIOR TO ANY PAYMENT BY THE
CONTRACTING AUTHORITY.
- Accomplish all formalities with the Insurers in order to take out the
insurance policies described in the paragraphs above, according to the
warrant given the DELEGATED CONTRACTING AUTHORITY by the CONTRACTING
AUTHORITY.
- provide, under its own responsibility, all necessary information to the
insurers.
- make all declarations to the companies as provided so in the policies,
regarding works being carried out and their acceptance.
- directly pay the Insurers the premiums and premium adjustments
resulting from the final total cost of the construction as well as all
related expenses and taxes, including extra premiums, costs and duties.
The taking out by the contracting party of the insurances mentioned in
the chapters above shall by no means exempt it, even partly, of the
absolute obligation it has towards the CONTRACTING AUTHORITY.
- make its personal affair in case of loss of any difference between the
cost of total reconstruction of the buildings and the payments made by
the insurance company.
- Should it finally appear that the insurer approached by the DELEGATED
CONTRACTING AUTHORITY refuses or is not in a position to guarantee the
building in the above-specified conditions, and to produce the relevant
certificate, the CONTRACTING AUTHORITY is immediately authorized to set
up the necessary insurances, by resorting to the Comprehensive Worksite
group policy n degrees 37503 5151110 F, taken out by SOCIETE GENERALE
and to include the amount of the corresponding premiums in the basis of
the commercial lease.
ARTICLE 10b- QUALIFICATION OF THE FIRMS
The DELEGATED CONTRACTING AUTHORITY shall ensure that all the persons with whom
it shall deal in order to construct the building, including the technical
controller, the designers and contracting authorities and the security/health
coordinator:
- are qualified for the work they are to carry out,
- have taken out a decennial Liability insurance, in compliance with
their obligations resulting from Law n degrees 78.12 of 4 January,
1978,
- have taken out an insurance covering their civil contractual,
professional liability as well as for offences and technical offences,
owing to bodily, material or immaterial damages sustained by
contracting and third parties, in the course of their professional
activity, during and after the works for as long as their legal
responsibility lasts,
- produce prior to the opening-up of the site all necessary certificates
giving evidence of the signing of the above-mentioned policies and of
the payment of the relevant premiums.
The DELEGATED CONTRACTING AUTHORITY shall demand any sub-contractor to produce
the same documents, even if the sub-contracting is further handed down.
The DELEGATED CONTRACTING AUTHORITY also undertakes to pass on to the insurance
companies the declarations specified in these policies during the works, at the
time of their acceptance and after acceptance.
ARTICLE 10c- CONTROL
Should a technical control become necessary owing to the type or the size of the
works, notably in reason of the provisions of article R 111.38 of the French
Construction Code, the DELEGATED CONTRACTING AUTHORITY shall accomplish, under
its own responsibility, the necessary formalities with the verification organism
of its choice.
The technical control shall also be done if the cost of the works and the fees
exceeds the sum of E.1.5 million (tax exclusive).
ARTICLE 11- COST OF THE WORKS
The parties settle upon the total cost of the building as defined in the
commercial lease contract to which the present agreement and appendixes refer
and as it appears in the technical descriptions and the rough estimate listed in
the Particular Technical Specifications, which shall be a maximum amount thereby
specified in article II 2-a). This maximum amount shall include all the
construction works as mentioned in the above documents, all the connecting
expenses and duties, all the fees (surveyor, architect, control office, design
office, coordinator...), various duties, the costs of any price changes and,
generally speaking, accessories of any kind.
It is the responsibility of the DELEGATED CONTRACTING AUTHORITY to make sure
that all the contracts and deals signed in its name but on account of SOGEFIMUR
in order to have the constructions done remain within the limits of the maximum
amount.
ARTICLE 12- PAYMENT OF THE COST
The construction works, actually done and invoiced by the contractors to the
DELEGATED CONTRACTING AUTHORITY, shall be settled by the latter, according to
what is agreed in the contracts.
Contractor settlement guarantee : the DELEGATED CONTRACTING AUTHORITY shall make
a personal affair of the relationships with the contractors it deals with, and
shall satisfy the obligations resulting from the provisions of article 1799.1 of
the French Code Civil, so that SOGEFIMUR has no pursuits to fear.
The works already existing at the time the present agreement is signed and
already invoiced to THE COMPANY by the contractors shall be re-invoiced with VAT
to SOGEFIMUR by the DELEGATED CONTRACTING AUTHORITY. A copy of the situations or
reports of verified and completed works in the same conditions as specified in
the following paragraphs shall be attached to this re-invoicing.
The DELEGATED CONTRACTING AUTHORITY, acting as opaque middle-man in the sense of
article 256 V of the Xxxxxx Xxxxxxx Tax Code, shall pass on to SOGEFIMUR
according to the planning included in the appendix to the present agreement, a
"report with invoice value" summarizing the total tax-exclusive cost of the
works it has already settled the contractors plus VAT.
o This report shall be sent to SOGEFIMUR, along with a copy of the
situations or the papers for the works and delivered by the
contractors, verified and signed for agreement by the architect or the
Contracting Authority.
o The copies of the situations, papers or invoices shall necessarily be
completed by evidence of purchases for the spent sums:
- either a formal written original agreement on the invoices, situations
or fee notes by the relevant supplier, being dated, signed and stamped
by the contractor,
- either a copy of the check or the money transfer order and of the bank
statement giving evidence of the payment,
- either certification for SOGEFIMUR on paper with the supplier's heading
that the payment has been made and releasing SOGEFIMUR from any
obligation as regards this invoice, situation or fee note (according to
the model provided by SOGEFIMUR).
Furthermore, a Banker's Identity Card shall be enclosed by the DELEGATED
CONTRACTING AUTHORITY with the first invoice or note.
The settlement of the note shall be done by SOGEFIMUR within 15 days of receipt
of the above-mentioned documents.
No supply of material or equipment, or of labour services alone shall be paid
for.
The final report shall be sent at the latest 3 months after the Handing Over
defined in article 13 following. If this report is not provided, the final
setting up shall take place in function of the amounts actually paid at that
time.
In no case shall the DELEGATED CONTRACTING AUTHORITY be entitled to request
SOGEFIMUR to settle the difference between the final tax-exclusive cost of the
works done and the tax-exclusive maximum cost mentioned in the Particular
Technical Specifications, should the cost of the works actually done be lesser
than this maximum cost.
The settlement made at the time of the final report will include the contract
holdback agreed to with the contractors. It shall be the responsibility of the
DELEGATED CONTRACTING
AUTHORITY to pay this contract holdback when lifting the reserves. Up until this
settlement, the DELEGATED CONTRACTING AUTHORITY shall report for the sums thus
received. This last settlement may be reduced by the amount of the extra
premiums owing to the insurances and mentioned in article 10- Insurances.
The DELEGATED CONTRACTING AUTHORITY shall communicate to SOGEFIMUR, as the works
go ahead, all the site notes and the various reports concerning the conception
and the realization of the works.
SOGEFIMUR shall be entitled at any time and in all respects to verify the works
done under the guidance of the DELEGATED CONTRACTING AUTHORITY. The latter
undertakes to facilitate the mission of SOGEFIMUR representatives, notably by
granting them free access to the site and by allowing them to consult any
documents related to the building operation; they shall also be entitled to have
copies of these documents at the expense of the DELEGATED CONTRACTING AUTHORITY.
The verification done by SOGEFIMUR shall by no means lighten the absolute
obligation of the DELEGATED CONTRACTING AUTHORITY and shall in no case create
any particular responsibility for SOGEFIMUR or its representatives.
ARTICLE 13- WORKS ACCEPTANCE AND HANDING-OVER OF PREMISES
Once the construction work is completed, the DELEGATED CONTRACTING AUTHORITY,
with the help of its architect or contracting authority, shall proceed to the
works acceptance from the contracting firms involved.
SOGEFIMUR shall be advised by registered mail sent to its office by the
DELEGATED CONTRACTING AUTHORITY at least 10 days in advance prior to the
acceptance and shall be entitled, if that is deemed necessary, to be present as
an observer and to receive all reports.
This works acceptance shall be put down in writing as many times as shall appear
necessary and shall stand for transfer of keeping of the site from the
contractors to the DELEGATED CONTRACTING AUTHORITY.
The day of the works acceptance and if SOGEFIMUR is present, or at any later
date agreed upon between the DELEGATED CONTRACTING AUTHORITY and SOGEFIMUR, the
building shall be visited in order to verify the compliance between the
completed building and the specifications agreed to in the present contract.
The noting of the good performance of the works specified by the contracting
authority delegation contract shall be materialized by a certified written
statement signed by SOGEFIMUR and which shall be worthy of the handing-over of
the premises.
If the opening date to the public (for premises open to the public) or the
starting-up date of the building precedes the handing-over date but is later
than the acceptance date, SOGEFIMUR reserves the right to set the departure of
the rental at this handing-over or acceptance date.
The fact that THE COMPANY does not dispute this statement by registered mail
shall be legal evidence, as a future tenant, of the full completion of this
building for the use it is intended for.
This statement can only be made if the following conditions are fulfilled:
1. The building permit with any amendments has been obtained and can be
considered as definite.
2. The building is fully completed according to the plans accepted by the
contracting parties and to this definite building permit (or its
amendments).
3. The building appears to comply with the contractual commitments
undertaken according to the lend-lease contract, the present agreement
or the CSTP, according to the statement made the representative of
SOGEFIMUR.
4. The premiums related to the various insurance policies defined in
article 10, taken out by the contractors as well as by the DELEGATED
CONTRACTING AUTHORITY have been paid in full and the relevant
certificates provided to SOGEFIMUR.
5. Evidence has also been given to SOGEFIMUR of the taking out by the
DELEGATED CONTRACTING AUTHORITY of property and civil liability
insurances stipulated in the appendix to the letter of commitment
referred to in the summary.
6. If the building is meant to be open to the public, SOGEFIMUR shall have
been given a copy of the report of the visit of the safety commission
and of the authorization to open signed by the Mayor of the town (or of
the declaration of opening for buildings subject to such a
declaration).
During the year following the works acceptance date, the DELEGATED CONTRACTING
AUTHORITY shall undertake to have all disorders noted in the reception report
put into order.
ARTICLE 14- COMPLIANCE
Within 8 days following the acceptance defined in article 13 above, the
DELEGATED CONTRACTING AUTHORITY shall deposit unto the relevant administrative
body the legal works completion statement officially stamped by the architect in
charge of the operation.
He shall pass on to SOGEFIMUR a copy of this document and of the deposit
receipt.
The DELEGATED CONTRACTING AUTHORITY shall immediately inform SOGEFIMUR the
compliance certificate has been issued and shall send SOGEFIMUR this document
with no delay.
Should the certificate be refused for any particular reason, the mission
entrusted to the DELEGATED CONTRACTING AUTHORITY by the present agreement shall
be considered as having not been fulfilled.
The DELEGATED CONTRACTING AUTHORITY shall then be in the obligation to have done
immediately, under its own responsibility and at its own risks and perils, all
the necessary works to have the buildings in compliance with the provisions of
the final building permit (or of any other document replacing the latter).
He shall also refund SOGEFIMUR, on its first request, any expenses incurred as
penalty, constraint or otherwise, notably owing to the revision of the fiscal
status of the land purchase, and the said repayments shall be accrued by
compensatory interest worked out at the legal rate as from the date of the
expense.
As soon as the buildings have been set up to the final building permit standards
and the compliance certificate delivered, another visit with the DELEGATED
CONTRACTING AUTHORITY and SOGEFIMUR will be organized and a new report according
to the stipulations of article 13 above shall be produced. These formalities
shall have no effect on the lease contract which will have commenced as from the
date of handing-over of the building as provided by article 13.
ARTICLE 15- DEFEASANCE CLAUSE
The present agreement shall be cancelled ex officio should SOGEFIMUR decide so :
1. In the case where -except for force majeure- the construction work is
not completed by the deadline specified in article 9, i.e. at the date
specified in the "Worksite Progress" paragraph, included in the
Particular Technical Specifications attached to the present agreement.
2. In the case of even partial non-accomplishment by the DELEGATED
CONTRACTING AUTHORITY of any one of his obligations specified in the
present agreement.
Such a cancellation shall take place without any legal formalities 15 days after
the DELEGATED CONTRACTING AUTHORITY has received formal notice followed by no or
only partial effects, the said notice including a declaration by SOGEFIMUR that
it wishes to resort to the benefit of the present clause, it being understood
that any offer to undertake made by the DELEGATED CONTRACTING AUTHORITY once the
15-day period has expired shall be of no effect.
In such a case, the cancellation of the present agreement according to the above
conditions, shall cause the ex officio payment to SOGEFIMUR by the DELEGATED
CONTRACTING AUTHORITY of a compensation sum equal to the total of the following
items:
a- Eventually the purchase cost of the land by SOGEFIMUR as agreed in the
commercial lease contract mentioned in the summary. This cost shall be
increased by the expenses, duties and fees burdening the purchase cost
and by all the charges, whatever they may be, incurred by SOGEFIMUR as
regards this piece of land.
b- The amount of the sums paid by SOGEFIMUR for work expenses, works or
constructions, completed or not, carried out on the land at the time of
the cancellation of the present agreement.
c- A commission for initial expenses equal to 1 % of all tax-exclusive
expenses carried out by SOGEFIMUR.
d- The rents due in advance specified in the memorandum of agreement,
owing and not yet paid by THE COMPANY.
The anticipated rents already paid by THE COMPANY shall be considered as
definitely the property of SOGEFIMUR.
This compensation, expressly agreed upon outside the rules of article 1 231 of
the French Civil Code, shall be considered as standard damages meant to make
good for the prejudice sustained by SOGEFIMUR owing to the non-completion of the
operation and shall therefore not be reduced for any reason whatsoever.
Once having settled the amount of this compensation, the DELEGATED CONTRACTING
AUTHORITY shall, for a period of 2 months beginning at the cancellation date, be
entitled to eventually purchase the piece of land bought by SOGEFIMUR, as well
as the buildings thereon, whether completed or not, for a price equal to the
total of the sums specified in paragraphs a/, b/, c/, and d/ above.
Should the DELEGATED CONTRACTING AUTHORITY make use of this purchasing faculty,
the amount of the compensation it has paid, as stipulated above, shall be
applied to the sales price, but all the associated extra charges shall be paid
by the DELEGATED CONTRACTING AUTHORITY.
ARTICLE 16- COMING INTO FORCE
According to the provisions of article 2 A above, the present agreement shall
come into force at the time of the signature of the Real Estate Commercial Lease
contract and shall come to an end at the time of delivery by THE COMPANY of the
compliance certificate issued by legal authorities to SOGEFIMUR at its
above-mentioned Head Office.
ARTICLE 17- ADDRESS FOR NOTIFICATION PURPOSES
For the execution of the present, for which all related expenses will be charged
the DELEGATED CONTRACTING AUTHORITY, residence is elected by the latter and by
SOGEFIMUR at their respective Head Offices mentioned above.
Done in three copies in Paris,
On 21 October of 2002.
THE DELEGATING CONTRACTING AUTHORITY
THE DELEGATED CONTRACTING AUTHORITY
SOGEFIMUR
SOGEBAIL / SOGEFIMUR
PARTICULAR TECHNICAL SPECIFICATIONS
Attached to Contracting Delegation Agreement dated :
File n(degrees) 800175
Client name: SFEA SA
Address: 0, xxx xx xx Xxxxxxx 00000 XXXXXXX (Xxxxxx)
Type of operation
Industrial premises X Warehouses Offices
Shops Hostelry Clinics
Old people's home Teaching Other
Location/site
Address: ZAC LES XXXX 00000 XXXXXXX (Xxxxxx)
Land surface: 40 000 sq. meters Real Estate Register references: Section Zs, 28 and 29.
Type of occupation right:
Purchase X Building lease Joint ownership Plot(s):
Public/Private Industrial zone Housing estate Plot(s):
Buildings
Administrative authorizations Document references Deposit date Delivery date
----------------------------- ------------------- ------------ -------------
Demolition permit
Building permit PC 5105501J1027 18/07/01 31/12/01
Amendment/transfer
Under way, decision project came in 09/07/01
Classified premises beginning of September 2002
Surface areas:
Gross out of alignment surface: 14 671 sq. meters
Net out of alignment surface: 14 599 sq. meters
WORKS
Participants
Contractors: List attached
Architect (design):
Architect or contracting authority (works follow-up): GNAT -see attached list
for address
Control office: CEP Veritas- see attached list for
address
Prevention/ Safety/ Health Coordinator:
Other (design Office): soil surveys + surveyor + permit = address= see attached
list
Building insurances: SG Group contract X Company: see attached description
SG extra contract X Company: see attached description
Overall tax-exclusive costs in euros
Comments: see attached description
City planning taxes (local equipment tax, CAUE, connections) 143 651
Road maintenance 778 378
Construction 4 988 486
Technical fees 461 870
Building insurances 88 460
Miscellaneous
---------
TOTAL TAX-EXCLUSIVE COST 6 460 845
---------
Maximum tax-exclusive cost: 6 298 956
WORKS COST ACCEPTED WITHIN THE CONTRACTING DELEGATION AGREEMENT
Worksite progress:
Beginning of the works Planned end of the works
---------------------- ------------------------
10 January of 2002 31 November of 2002
Remarks/ Attached documents
- Specification sheet
- List of participants
The Lend-Lease Company
The Delegating Contracting Authority
Done in 3 copies in PARIS
On 21 October of 2002
The Client
Delegated Contracting Authority
PARTICIPANTS IN THE CONSTRUCTION (amounts in euros)
a) architect and Contracting Authority
Name and address Mission
---------------- -------
GNAT plan design 369 580
Pole technologique Farman works monitoring
00, xxx Xxxxxxx Ader- BP 1018 permit request 14 483
51685 REIMS CEDEX
b) design, engineering consultants and soil survey offices
Name and address Type of study
---------------- -------------
CEBTP Soil surveys 7 013
Centre d'Etudeset d'Essais de Reims
00, xxx Xxxxx Xxxxxxx
00000 XXXXX
c) Technical Control, CSPS and miscellaneous
Name and address Type of study
---------------- -------------
CEP VERITAS L + STI controls 27 308
Cente Administratif France
41, Chemin des Peupliers BP 100
69573 DARDILLY CEDEX
Name and address Type of study
---------------- -------------
SCP Xxxxxxx Land surveyor 335
X. XXXXXXX investigation officer 465
safety coordination 42 686
TOTAL TECHNICAL FEES 461 870
d/ Contractors- Allocated plots
Name and address Type of study
---------------- -------------
SCREG Reims agency earthwork 000 000
Xxx Xxxxxxx Goulet- BP 000 xxxx xxxxxxxxxxx
00000 XXXXX XXXXX
SPIE THOURAUD BP 2759 main building work 1 606 124
000, xxx Xxxx Xxxxxxx
00000 XXXXX XXXXX
DISTRILAB HATRY supply of fluids 75 000
Xxx xx Xxxxxxx Xxxxxxxxxxxx
00000 XXXXX
XXXX XXXXXXXX timber framework 496 858
0, xxx Xxxx Xxxxxx
00000 XXXXXX XXX XXXXXXX
GIBEAUX metal framework 99 092
Vavray le Grand BP 226
51300 VITRY LE FRANCOIS
SOPREMA waterproof barding 886 226
00, xxx Xxxxxxx Voisin BP 338 roofing
00000 XXXXX XXXXX 0
TEMA TECVER internal separations 414 000
Xxx Xxxx-Xxxxx Xxxxxxxx BP 443 locksmithing
51012 CHALONS EN CHAMPAGNE CEDEX
MANUREGION
000, xxx Xxxx Faucher sectional doors 45 170
(illisible)
KONECRANE
00, xxx xx xx Xxxxxxx rolling bridges 43 000
45800 XXXXX XXXX XX XXXXX
XXXX
00, xxx xx Xxxxxxxx xxxxxxxxxx fittings 638 000
51350 CORMONTREUIL
FORGEL
00, xxx Xxxxxx Xxxxxx
BEZANNES BP 130 heating 260 490
51434 TINQUEUX CEDEX
GAYET
ZI du Moulin de l'Ecaille BP 62 plumbing 86 750
51432 TINQUEUX CEDEX
SOFFI plasterwork 154 000
0, xxx xxx Xxxxx xx Xxxxxx XX 00
00000 XXXXX
TECHNIQUES REVETEMENTS
00, xxx Xxxxx Xxxxxxx BP 915 earthenware tiling 88 000
08004 CHARLEVILLE MEZIERES CEDEX
APE
00, xxx Xxxxx Nivelet BP 915 paintwork 29 500
08004 CHARLEVILLE MEZIERES CEDEX
ALCATEL
0, xxx Xxxx Xxxxxx BP 1045 telephony 31 000
51688 REIMS CEDEX
Euro Quartz
access control 29 124
Supplier unknown to this day
signalling 5 000
WORKS TOTAL 5 766 865
E/ miscellaneous expenses
Name and address Type of study
---------------- -------------
Tresor Public (Tax Office) Taxe Locale d'Equipement 000 000
Xxx Xxxxxxx Xxxxxx XX 000
00000 XXXXX XXXXX
CCAR Water supply 4 079
Sewage connection 7 768
Rain water connection 9 197
Electricite de France Electrical main connection 8 007
Gaz de France Gas main connection 2 188
CGU Worksite and contactor's insurance.
Master SFEA SA insurance policy
15 285
AXA Insurance for material damage 73 175
Insurance
TOTAL MISCELLANEOUS EXPENSES 232 111
SUM TOTAL 6 460 846
CHAPTER V
TERMINATION OF THE COMMERCIAL LEASE
Article 25- Termination by the FINANCE-XXXXXX
Should any one of the obligations of the FINANCE-LESSEE resulting from the
present contract not be fulfilled, the commercial lease shall terminate ex
officio and without resorting to any legal formalities if the FINANCE-LESSOR so
wishes, two months after the FINANCE-LESSOR has been delivered notice to pay or
a summons, remaining fully or partly without effect, and including the declared
intention of the FINANCE-LESSEE to resort to the present clause, it being
understood that any offer to pay or to comply made once the two-month period has
expired shall remain without any effect.
In such a case, the FINANCE-LESSEE or his assignees may be evicted by an urgent
proceedings order given by the President of the Regional Court, immediately
enforceable notwithstanding any application to set aside or appeal proceedings.
The FINANCE-LESSEE shall then immediately return the rented premises to the
FINANCE-LESSOR, in a proper state of repair and maintenance, and provide
evidence of having settled all taxes, duties and expenses and insurance
premiums.
He shall also pay the FINANCE-LESSOR, as well as any unpaid rent, the
compensation for termination stipulated in article 28 hereinafter.
Article 26 -Receivership or legal liquidation- Dissolution of the Finance-Lessee
In the case of collective proceedings brought against the Finance-Xxxxxx, and
providing the stipulations of articles L 620-1 and following of the New French
Commercial Code (codified pursuant to Law n degrees 85-98 of 25 January, 1985)
and Law n degrees 94-475 of 10 June, 1994 prevail, the present commercial lease
may be terminated at the request of the FINANCE-LESSOR.
In the case of dissolution of the Finance-Lessee company, the present commercial
lease shall be terminated only if the FINANCE-LESSOR requires that should be.
In any one of these cases, this termination shall lead to the ex officio payment
by the FINANCE-LESSEE of the compensation for termination stipulated in article
28 hereinafter.
Article 27- Failure to obtain the certificate of conformity
The FINANCE-LESSEE undertakes to show proper diligence in order to obtain the
certificate of conformity required by building permit regulations within two
years as from the completion of the construction works, as mentioned in the
contracting authority delegation agreement.
If the Administrative Authorities suspend the delivery of this certificate to
the realization of modifying or of extra works, the FINANCE-LESSEE shall
undertake them at its own expense, so that the certificate of conformity may be
obtained within the above-mentioned two-year period.
Once this two-year period has expired, the FINANCE-LESSEE shall be liable
towards the FINANCE-LESSEE of a compensation amounting to a set cost of one per
cent of the prevailing yearly rent per month overdue.
The failure to deliver the certificate of conformity shall not be put forth,
either by the FINANCE-LESSEE or the FINANCE-LESSOR, as a reason for termination.
However, should the termination of the commercial lease be decided for any other
reason on the request of either party, and especially for the failure of the
FINANCE-LESSEE to settle the fixed compensation stipulated above, the cost of
compensation for termination shall be increased according to the provisions of
article 28 hereinafter.
In all cases, the FINANCE-LESSEE shall be liable for any fiscal adjustments the
FINANCE-LESSOR might be charged should it be considered that he has not
fulfilled his commitment to build in the conditions and within the time-limit
stipulated by article 691 of the Xxxxxx Xxxxxxx Tax Code.
Article 28- Compensation if the commercial lease is terminated
The termination for any reason whatsoever of the present commercial lease before
the agreed term, and especially pertaining to the clause included in article 25
above or for any other reason mentioned or not in the present agreement,
including termination at the request of the FINANCE-LESSEE, shall oblige the
FINANCE-LESSEE to pay, ex officio and without any kind of legal formality, a
compensation sum according to the selling price, which shall be mentioned in
article 32 hereinafter, and due at the date of the actual termination.
Being a fundamental condition of the present agreements, such a compensation
which is related to the particular features of a commercial lease, shall be
considered as basic damages meant to make good for the prejudice sustained by
the FINANCE-LESSOR owing to the early termination of the commercial lease.
However, the FINANCE-LESSEE shall not be entitled to any compensation if the
termination of the commercial lease is the result of the conclusion of the
promise to sell hereinafter agreed to by the FINANCE-LESSOR.
Likewise, no compensation shall be due by the FINANCE-LESSEE in the case of
total expropriation.
The amount of compensation shall be equal to half the selling price in all cases
of termination. It shall be raised to three quarters of this selling price if at
the time of the termination of the commercial lease, the certificate of
conformity of the building has not yet been delivered.
It is to be noted that the provisions included in the present article shall not
replace those stipulated in article 18 above in the case of any loss related to
the building, in which case the stipulations of article 18 shall expressly
remain in force.
All the expenses, duties and taxes and especially value-added tax due on this
compensation, which is stipulated tax-exclusive, shall be charged to the
FINANCE-LESSEE.
The value of the above-mentioned compensation for termination due to the
FINANCE-LESSOR shall, if necessary, be increased by the amount of the subsidies
that the FINANCE-LESSOR may have to repay, partly or in total, to the dispensing
public bodies.
CHAPITRE VI
EXPROPRIATION-REQUISITION
Article 29- Expropriation of the building
A- Total expropriation
In the case of total expropriation, the commercial lease shall be terminated ex
officio.
However, as from the date of the court order giving service of property transfer
and until the date of actual takeover of the building by the evicting Authority,
the FINANCE-LESSEE shall be due to pay the FINANCE-LESSOR an occupancy allowance
equal to the rents due for that period.
Should the compensation for expropriation the FINANCE-LESSEE is awarded be
greater than the selling price defined in article 32 hereinafter, as defined at
the date of payment and after all taxes and duties have been deducted, the
FINANCE-LESSOR shall refund the FINANCE-LESSEE the difference between these two
sums.
In the opposite case, the FINANCE-LESSEE shall owe this difference to the
FINANCE-LESSOR.
B- Partial expropriation
In the case of partial expropriation of the leased building, the commercial
lease shall continue to have its full effects on the part of the building
remaining available.
The rent shall be reduced in due proportion to the amount of the expropriation
compensation, net of all taxes and duties attached to it, with the selling price
defined in article 32 hereinafter, determined at the date of payment of the said
compensation.
This reduction shall begin to have effect only as from the cashing of the
expropriation compensation by the FINANCE-LESSOR.
The same selling price defined in article 32 hereinafter shall also be reduced
by the amount of the compensation allotted (net of all taxes and duties attached
to it).
C- Dispute concerning the expropriation compensation
The assessment of the amount of the compensation due in case of total or partial
expropriation of the building actually being leased shall only be accepted by
the FINANCE-LESSOR in the presence of the FINANCE-LESSEE, or if the latter has
been duly called to appear.
The FINANCE-LESSEE shall make clear its stand on this issue no later than eight
days after the period granted the FINANCE-LESSOR to accept or to refuse the
expropriation compensation expires, and in any case no later than one month
after having specified his intention to accept the offers made, by registered
mail with confirmation of receipt. This notice by the FINANCE-LESSEE shall be
given to the FINANCE-LESSOR by registered mail with confirmation of receipt.
The FINANCE-XXXXXX may refuse the offers accepted by the FINANCE-LESSOR only by
conforming to the instructions hereinafter.
Should a dispute arise concerning the amount of compensation, the FINANCE-LESSEE
which shall receive full powers to this effect, shall undertake any necessary
legal proceedings and keep the FINANCE-XXXXXX informed of the proceedings by
passing on a copy of all the documents produced.
In the case of total expropriation, the FINANCE-LESSEE shall only be entitled to
reject the offers accepted by the FINANCE-LESSOR if it has paid the
FINANCE-LESSOR within one month's time as specified in the second paragraph
above, a sum equal to the residual value defined in article 32 hereinafter,
determined the last calendar day of the term during which the payment was made.
In such a case and for the period the deposit lasts, no rent or compensation
shall be due to the FINANCE-LESSOR. The sum deposited shall be pledged for the
sums which might be due pursuant to the present agreement. The pledged sum shall
not yield any interest ; it shall be considered remunerated by the
FINANCE-LESSOR relinquishing all rents or compensation amounts.
For partial expropriations, any questioning of the amount of the compensation
offered shall always be reserved to the FINANCE-LESSEE under the conditions
stipulated above, without any obligation to deposit money or otherwise, but it
remains understood that the rent reduction mentioned in the present article,
paragraph B, shall only be effective once the FINANCE-LESSOR has in fact cashed
the amount of the expropriation compensation.
Article 30- Requisition of the building
In the case of requisition or of total or partial occupancy of the building
presently leased by any competent authority or organism during the period of the
present commercial lease, the latter shall continue to have all its effects. The
agreed rents shall continue to be due without any reduction. The requisition or
occupancy compensation that is paid shall be entirely due to the FINANCE-LESSEE.
PART THREE
UNILATERAL PROMISE TO SELL
Article 31- Promise to sell
According to the provisions of article L 313-7 1 degrees of the French Monetary
and Financial Code which relates to commercial lease operations, the present
agreements must allow the
FINANCE-XXXXXX, should he decide so, to become the owner of the premises
presently leased.
To this effect, the representative of the FINANCE-XXXXXX promises the
FINANCE-LESSEE to sell him the presently leased building ; this is accepted by
the representative of the FINANCE-XXXXXX, but only as a promise.
The present promise to sell is granted for a period beginning at the end of the
seventh calendar year following the commencement of the commercial lease and
finishing at its agreed lapse.
The application shall have to be made before the commercial lease expires or
during the commercial lease for the end of a calendar year, by means of a
registered letter with confirmation of receipt sent to the Head Office of the
FINANCE-LESSOR at least six (6) months in advance ; in order to be valid, this
application must be followed within three (3) months time by the deposit in the
custody of the FINANCE-LESSOR of a sum sufficient to cover the selling price and
the expenses and duties related to the sale.
This promise to sell shall lapse, if the FINANCE-XXXXXX so decides, should the
beneficiary fail to fulfil any one of the clauses and stipulations included in
the commercial lease, with no exception whatsoever.
The sale shall be granted for a price determined the day the legal deed is
signed, according to the provisions of article 32 hereinafter.
The price shall be paid cash when the deed is signed.
If accomplished, the sale shall be confirmed by means of a legal deed.
The property transfer shall be subject to the payment of the total selling price
and of any sum remaining due for any reason by the FINANCE-LESSEE to the
FINANCE-LESSOR.
The enjoyment shall take place by the real and effective takeover of the
property.
The sale shall be done at the usual legal and customary conditions prevailing in
such matters.
However, in application of the provisions of article 1627 of the French Civil
Code, the FINANCE-LESSOR shall provide no guarantees, even for latent defects,
as an express exception to the provisions of article 1641 of the French Civil
Code.
The expenses, duties and fees related to the sale shall be borne by the
purchaser.
Article 32- Selling price
A- Determination of the selling price
The price of the sale promised above shall be equal to ONE EURO (E.1) at the
agreed termination date of the commercial lease.
For the previous years, the selling price shall be worked out as follows :
For the fixed rent element (TEC 10 or TME)
* The selling price shall be equal to the updated value the day the sale is
valid of all the sums due until the agreement expires, that is to say the
residual value. This amount shall not be any less than the amount of the
outstanding debts increased by 1%.
The maturity rate of return shall be equal to the rate stipulated in the
agreement for this rent element, minus 2%.
For the variable element rate (EURIBOR 3 months term)
o The selling price shall be equal to the debts outstanding on this rent
element, increased by 3%.
These values shall be calculated according to the commencement of the agreement
in such a manner that, assuming the basic yearly rents are collected when due,
the sales price estimated at the end of each calendar year ensures an annual
rate equivalent to the yield to maturity of the operation.
It is expressly agreed that the selling price worked out as mentioned, and the
contractual rents paid when due, make up in the minds of the parties one single
set of financial conditions applying to the present agreement. Therefore, if for
any particular reason the FINANCE-LESSOR should be compelled to grant a
reduction of the agreed rent over one or several terms or payment extensions,
the sales price would be recalculated by taking into account the sums really
paid in and when they were paid on the one hand, and on the other hand the rent
payments the FINANCE-LESSOR would have been paid when due had there been no rent
reductions or payment extensions, all this in order to ensure the FINANCE-LESSOR
is thus paid what he would have obtained through the strict enforcement of the
provisions of the present agreement.
The sales price mentioned above shall if necessary be increased by the amount of
the subsidies that the FINANCE-LESSOR would be compelled to repay totally or
partly to the dispensing organisms.
According to the provisions of Decree 95-617 of 6 May 1995, signed in
application of article 57 of Law 95-115 of 4 February 1995, the FINANCE-LESSOR
shall produce a descriptive account notably including the agreed purchasing
price of the building at the term of the agreement or the information enabling
the determination of this price, as well as a break-up chart showing in
particular for each term of rent the fraction taken into account in order to fix
the selling price above as planned according to the provisions of article 22 of
the present agreement.
B- Increase of the selling price (if applicable)
The selling price, determined as specified in paragraph A above, shall if
necessary be increased by the amount of any sums the FINANCE-LESSOR may have to
repay Tax Authorities in virtue of the adjustment of value-added tax previously
applicable to the amount of the investment, according to the provisions of
article 210, paragraph 2 of Xxxxx XX of the Xxxxxx Xxxxxxx Tax Code as modified
and completed in particular by Decree 79-1163 of 29 December 1979 and Decree
95-1328 of 28 December 1995.
In return for this increase, the FINANCE-LESSOR shall provide the purchaser with
the certificate described at the end of paragraph 1 of article 210 mentioned
above and which will allow the purchaser to deduct the amount of the value-added
tax indicated on the certificate under the conditions meant for purchases of
asset investments.
This possible price increase shall apply in all the cases of sale of the
building concerned by the present commercial lease as provided by the present
agreement, whether as the fulfilment of the sales promise above or of any one of
the other stipulations of the contract, especially those pertaining to losses.
Furthermore and by express agreement between the parties, it is stipulated that:
1) in the case of a partial loss causing a reduction of the rent and of
the sales price, the FINANCE-LESSEE shall pay the FINANCE-LESSOR in
addition to the compensation for the depreciation of the building, the
amount of which shall be used to calculate the reduction of the rent
and of the sales price, the amounts the FINANCE-LESSOR may be obliged
to repay Tax Authorities according to the stipulations of article 210
of Xxxxx XX of the Xxxxxx Xxxxxxx Tax Code amended as mentioned above.
2) in the case of total expropriation, the amount of all the sums that the
FINANCE-LESSOR may be obliged to repay Tax Authorities for adjustment
of the value-added tax previously applied to the investment shall be
deducted from the expropriation compensation paid to the
FINANCE-LESSOR; only what is left of the expropriation compensation
after this deduction shall be taken into consideration in order to
determine the difference with the sales price defined according to the
conditions of paragraph A of the present article, this difference
standing for the gain or the loss of the FINANCE-LESSEE.
3) In the case of partial expropriation, the amount of the expropriation
compensation used for determining the reduction of the rent and the
sales price shall be taken into consideration only after deduction of
the amount of value-added tax the FINANCE-LESSOR may be obliged to
repay Tax Authorities according to the stipulations of article 210 of
Xxxxx XX of the amended Xxxxxx Xxxxxxx Tax Code.
In these three last situations, the FINANCE-LESSOR shall provide the
FINANCE-LESSEE with a certificate allowing it, according to article 210 above,
to deduct the amount of the tax repaid by the FINANCE-LESSOR under the
conditions pertaining to the purchase of asset investments.
It is expressly stipulated, as regards all the provisions included in the
present paragraph B, that they may also apply to the FINANCE-LESSEE itself as
well as to its future successors and beneficiaries in whatever capacity, even if
the FINANCE-LESSEE, its successors, beneficiaries or assignees are not able to
use the certificate provided by the FINANCE-LESSOR to have the benefit of the
deduction of the tax paid, and whatever the cause may be, even if it is not
ascribable to the FINANCE-LESSEE, its successors, beneficiaries or assignees.
PART FOUR
GUARANTEES
Article 33- Pledging of the commercial lease contract
In order to guarantee the payment of the rent and of all the sums charged the
FINANCE-LESSEE according to the present, and in a more general sense of all the
obligations incumbent to the FINANCE-XXXXXX, the latter shall deposit and pledge
in favour of the FINANCE-LESSOR, which agrees, the intangible elements
benefiting the FINANCE-LESSEE according to the present commercial lease,
including the benefit of the lease right and the promise to sell, with no
exception or restriction.
This will allow the FINANCE-LESSOR to maintain and exercise all rights, legal
actions and preferential rights granted by law to pledged creditors over the
various elements of the present commercial lease.
In accordance with article 2 076 of the French Civil Code, the effectiveness of
the preferential rights resulting from this pledge shall be ensured as follows :
- The relevant parties require the Associated Notary to only deliver one
certified copy of the present deed, such a legal deed bearing the
following mention "Certified Genuine, Unique and Particular Copy as
legal property certificate subject to Pledge", and shall be delivered
to the FINANCE-LESSOR.
- The FINANCE-LESSEE undertakes to apply for no other certified copy of
the present deed.
Such a stipulation shall not however prevent the executive copy being given to
the FINANCE-LESSOR.
Article 34- Letter of intent from BRINK INTERNATIONAL BV
Once having been mentioned, the following documents remain attached :
- A copy of the letter of intent issued by BRINK INTERNATIONAL BV with
its certified translation by Xx Xxxxx-Xxxxxx XXXXXXXX, official
translator for the REIMS Court of Appeal,
- A copy of the mail dated 15 July 2002 specifying the letter of intent
had been sent to SOGEFIMUR,
- A copy of the Articles of Association of the said BRINK INTERNATIONAL
BV company dated 11 December 1996 with its certified translation by Xx
XXXXXXXX, official translator for the REIMS Court of Appeal,
- A registration extract of the said BRINK INTERNATIONAL BV company with
its translation done by the said Xx XXXXXXXX,
- A certificate of foreign law provided by XXXXXX & LOEFF, lawyers.
PART FIVE
SUNDRY PROVISIONS
Article 35- Publication
Nil
Article 36- Powers- Effect as between the parties
The parties acting in their common interest confer all necessary powers to any
Head Clerk or Assistant Head Clerk belonging to the Notary's Office named at the
beginning of the present in order to duly write and sign all complementary,
amending or correcting acts to the present, thus enabling them to be consistent
with all mortgage, cadastral and civil status documents and to make all
complementary fiscal declarations (in order to have them given public notice).
It is hereby specified that the FINANCE-LESSOR is the owner of the land on which
the leased building is constructed as that so appears in a deed registered by
Xxxxxx XXXXXXX, notary in REIMS, on 21 October 2002, a copy of which shall be
published at the local Mortgage Registry (prior to or no later than the same
time as the present).
Article 37- Valuations
For the calculation of expenses only, the parties declare :
* that the amount of the investment made by the FINANCE-LESSOR for the present
commercial lease operation is estimated for a tax-exclusive value of SIX MILLION
EIGHT HUNDRED AND SIXTY THOUSAND EUROS (E.6 860 000) and for a VAT-inclusive
value of EIGHT MILLION TWO HUNDRED AND FOUR THOUSAND, FIVE HUNDRED AND SIXTY
EUROS (E.8 204 560).
Article 38- Management powers
The representative of AUXICOMI Company hereby empowers SOGEFIMUR Company, for
the time the commercial lease operation shall last, to settle all guarantees
hereby mentioned and to accomplish all administrative and management operations
pertaining to the commercial lease and in particular :
- to cash any sums due for confirmation commissions, rents paid in advance,
normal rents, ordinary or extraordinary expenses, cancellation or termination
compensation, sales price, contributions and taxes, etc...
- divide the sums cashed and the expenses due between the members of the pool
according to the proportions specified above,
- exercise and carry out all the functions reserved to the FINANCE-LESSOR and
generally do all that is considered necessary or useful for the proper
accomplishment of the operation coming under the present contract,
- manage the whole of the VAT on a common account basis.
SOGEFIMUR Company as leader shall however obtain the prior consent of the pool
members before taking any common decision that goes beyond normal management
considerations provided by the contract, especially in the following cases :
- extension endorsement,
- transfer of the commercial lease contract,
- eventual legal proceedings against the FINANCE-XXXXXX,
- loss settlements preventing the normal continuation of business in the
premises financed by the commercial lease,
- expropriation,
- anticipated termination, etc...
SOGEFIMUR Company shall also inform AUXICOMI Company of any request for interest
rate consolidation coming from the FINANCE-LESSOR within (10) ten days upon
receipt of such a request.
Article 38- Statements
The representatives of the FINANCE-LESSOR and FINANCE-LESSEE companies declare :
- that the companies they represent are French by law and have their head
offices in France,
- that they are presently subject to no action intended to declare void
or possibly lead to dissolution,
- that they are not presently and never have been in a state of cessation
of payments and have never come under the provisions of Law 67-563 of
13 July 1967 concerning receivership, liquidation and bankruptcy,
- that they have never come under any of the measures provided by
articles L 620-1 and following of the New French Commercial Code and by
Decree 85-1387 of 27 December 1985 on receivership and bankruptcy of
firms.
Article 39- Assignation of jurisdiction
It is expressly agreed that any disputes that may arise concerning the
fulfilment of the present commercial lease agreements shall come before the
relevant Commercial Courts in PARIS, to which exclusive assignation of
jurisdiction is granted for all necessary purposes.
Article 40- Law on data processing and privacy and professional secrecy
The nominative information gathered within the scope of the present contract and
later on are to be passed on to the FINANCE-LESSOR which is expressly authorized
by the parties to keep it in computer memory, to use it and to communicate it
for the same purposes to the companies of its group, to its brokers and
insurers, and even to third parties or to sub-contractors for management
purposes.
The right of access and the right to amend may be exercised with the
FINANCE-LESSOR.
The FINANCE-LESSEE allows:
- The FINANCE-LESSOR to be communicated any confidential information concerning
it and held by the member companies of the SOCIETE GENERALE Group and/or brokers
which are therefore expressly authorized to provide the said information.
- The FINANCE-XXXXXX to communicate any confidential information concerning it
to these same persons.
All measures shall of course be taken to protect the confidentiality of the
information passed on to the FINANCE-LESSOR.
Article 41- Choice of address for notification purposes
For the execution of the present, the persons appearing ex officio choose their
respective head offices for notification purposes.
CERTIFIED
Written out on sixty pages
In REIMS (Marne), 00 xxx Xxxxxxxxx
In the office of the substituting notary
The substituting notary has read the present to the parties, collected their
signatures and signed the present deed.
The present deed shall be put in the registers of the substituting and
substituted notaries and shall be kept in the records of the office of the
substituted notary.
The signatures follow.
CHAPTER IV
FINANCIAL EXPENSES
The present commercial lease is respectively granted and accepted in return for
the payment of the financial expenses (setting-up costs, advance rent payments,
rents and other fees) hereinafter specified.
Article 19- Origination fees-Management costs- Advance rent payments
1) Origination fees
A lump sum, exclusive of VAT, of TEN THOUSAND SEVEN HUNDRED EUROS (E.10 700),
divided into FIVE THOUSAND SEVEN HUNDRED AND FIVE EUROS (E.5 705) excluding
taxes for SOGEFIMUR and FOUR THOUSAND NINE HUNDRED AND NINETY FIVE EUROS
(E.4 995) excluding taxes for AUXICOMI, which works out to TWELVE THOUSAND SEVEN
HUNDRED AND NINETY SEVEN EUROS AND TWENTY CENTS (E.12 797.20) including all
taxes has been paid by the FINANCE-LESSEE to the FINANCE-LESSOR prior to this
day.
2) Management costs
The FINANCE-LESSOR shall be paid the following tax-exclusive costs by the
FINANCE-LESSEE, if need be, during the whole length of the commercial lease, in
case of :
- Rent costs for other than Societe Generale direct payment E.55 per rent
- Transfer of commercial lease contract (E.3 100 charged the assignee)
- Management of a dispute related to the construction or to a loss E.2 300
- Contract amendment requested by the FINANCE-XXXXXX leading
to the drawing up of an endorsement E.1 550
- Anticipated exercise of option E.1 550
- Assessment of anticipated exercise of option E.300
- Land tax recovery expenses E.115 per year
3) Subsidy management commission
Subsidies shall lead to the payment of a TWO THOUSAND EURO (E.2 000) management
commission.
4) Xxxxxx's loan
The FINANCE-LESSEE grants SOGEFIMUR company on account of AUXICOMI company,
which its above-mentioned representative accepts, a loan of an amount of EIGHT
HUNDRED AND SEVENTY SIX THOUSAND EUROS (E.876 000), including a sum of ONE
HUNDRED AND NINETY THOUSAND EUROS (E.190 000) paid owing to the missing as to
this day of the written agreement concerning the above-mentioned subsidies
according to the terms of the letter of commitment signed by the FINANCE-LESSEE,
and which shall be pledged by the FINANCE-LESSOR for AUXICOMI for the total
length of the commercial lease as from this day.
The collection and the refunding of this loan shall be carried out as follows :
- the FINANCE-LESSEE paid this day, unrelated to the undersigned notary's
accounts, to SOGEFIMUR company, on account of AUXICOMI company, the amount of
the loan, i.e. EIGHT HUNDRED AND SEVENTY SIX THOUSAND EUROS (E.876 000),
- the FINANCE-LESSOR shall open a special account in its books in the name of
the FINANCE-LESSEE pertaining to the granted and accepted loan and meant to
enable the follow-up of the relationship between the FINANCE-LESSOR and the
FINANCE-LESSEE relating to this loan,
- this loan shall yield interest at the reference rate for the AUXICOMI company
rent share as specified in article 21 hereinafter, that is to say as from the
moment the rent is due:
* Rate = EURIBOR 3 months term + 0.85 % X exact number of days of period/360
- the repayment of the loan shall take place by clearing with the VAT-exclusive
rents due to AUXICOMI company by the FINANCE-LESSEE concerning the present
commercial lease contract,
- it shall be done over the same period of TWELVE (12) years and at identical
due dates, which means 48 quarterly payments,
- the repayment of this loan can also be done, if necessary, by clearing with
any other sums due to by the FINANCE-LESSEE to AUXICOMI for any other reason,
which shall then be deducted from the rent payments as they become due,
- the FINANCE-LESSEE acknowledges AUXICOMI the right to amend the repayment
terms of the loan defined above, in the case of default, of receivership or
liquidation at the one and only condition that it be informed,
- AUXICOMI shall be considered as having fulfilled its obligations as a borrower
by the mere fact that the loan is fully repaid at the latest at the time of the
contractual lapse, if necessary by means of a single payment,
- the FINANCE-LESSEE relinquishes in advance to demand the repayment of the loan
before the contractual lapse of the commercial lease and to put forward for any
reason whatsoever the provisions of article 1944 of the French Civil Code,
- in case of termination of the present commercial lease contract or of
realization of the promise to sell prior to the contractual lapse of the
commercial lease, the part of the loan outstanding shall be repaid in advance by
AUXICOMI.
- Pledge of the positive account balance
In order to warrant any sums in capital, interests and incidental expenses that
the FINANCE-LESSEE might owe AUXICOMI in virtue of the present commercial lease,
and for any particular reason, the FINANCE-LESSEE especially pledges in favour
of AUXICOMI the positive balance of the above-mentioned account according to the
provisions of article 2 075 of the French Civil Code, which guarantee is
accepted by the representative of AUXICOMI.
AUXICOMI shall exercise all legal rights provided for pledges over these sums.
Furthermore, and as an exception to the provisions of article 2 078 of the
French Civil Code (considering it concerns sums owing), and for set-off
purposes, AUXICOMI shall always be entitled to withdraw directly from the sums
owed by the FINANCE-LESSEE for any reason whatsoever and resulting from the
present commercial lease.
The pledge shall continue to have effect even once the present commercial lease
has lapsed, until all accounts concerning the present commercial lease have been
settled between the parties.
The representative of AUXICOMI declares the above-mentioned pledge has been
accepted and regularly notified.
5) Advance rent payments
Advance rent payments worked out on the hereinafter basis are due for the period
running from the first payment of any sum by the FINANCE-LESSOR for the present
operation until the day the present commercial lease comes into force.
The amount of these advance rent payments shall be calculated at the money
market rate increased by 85 basic points per annum (0.85 % per annum) on the
sums spent by the FINANCE-LESSOR in undertaking the present commercial lease
operation, as much for the purchase of the land as for the construction works of
the building, in capital and incidental costs as well as any fees, expenses or
other sums paid related to the present commercial lease operation.
This said amount, increased by the VAT applied, shall be directly paid by the
FINANCE-LESSEE at the end of each month through its account at the SOCIETE
GENERALE as that will be explained further on.
Article 20- Base for calculating the rent (investment)
The rent stipulated further shall be calculated in function of the following
elements, representing the sums invested by the FINANCE-LESSOR in the present
commercial lease operation, and which shall hereinafter be termed as the
"investment":
* the purchase price, tax-exclusive on VAT, of the land plot paid by the
FINANCE-LESSOR, of an amount of FIVE HUNDRED AND FIFTY SEVEN THOUSAND, FIVE
HUNDRED AND SIX EUROS AND SIX CENTS (E.557 506.06),
* the amount of the expenses, duties and fees, tax-exclusive on VAT, incurred by
the FINANCE-LESSOR for this purchase, estimated at THREE THOUSAND, FIVE HUNDRED
AND THIRTY SEVEN EUROS (E.3 537),
* the cost, tax-exclusive on TVA, of the construction of the building, as set
out in the contracting authority delegation agreement above, for an amount of
SIX MILLION TWO HUNDRED AND NINETY EIGHT THOUSAND, NINE HUNDRED AND FIFTY SIX
EUROS AND NINETY FOUR CENTS (E.6 298 956.94),
* the building insurance premiums (Damage and non-realizing Builder) directly
paid by the FINANCE-LESSOR.
The cost of this investment shall in no circumstances exceed a tax-exclusive sum
over VAT of SIX MILLION EIGHT HUNDRED AND SIXTY THOUSAND EUROS (E.6 860 000).
The FINANCE-LESSOR shall not be required to spend more than the maximum sum
specified above, even if the said sum should for any reason prove to be
insufficient to carry out the present operation.
Article 21- Commercial lease rent
A- Determination of the rent
The rent of the present commercial lease shall be due by the FINANCE-LESSEE to
the FINANCE-LESSOR as from the day the premises are handed over between the
parties as planned in the contracting authority delegation agreement analysed
further on.
It is expressly stipulated in that respect that the term "rent", used in the
present for convenience of speech, shall in fact mean a financial consideration
covering the amortization and the remuneration at the agreed rate of the funds
invested by the FINANCE-LESSOR in order to achieve the present operation.
Therefore, and except for any particular legal decision pertaining to real
estate commercial leases, the rents agreed to hereinafter shall not be changed
or revised for any reason whatsoever, whether that reason is caused by a fact
depending upon the FINANCE-LESSEE or by legal provisions ruling, temporarily or
otherwise, the amounts or the rates of commercial or industrial premises, nor
finally any revision based upon the provisions of article L 145-1 and following
of the New French Commercial Code and which govern the relationships between
lessors and lessees of commercial premises.
The rent shall be the result of the addition of the two following rent shares :
I. SOGEFIMUR SHARE
This rent share shall be the result of the addition of the following items :
* financial amortization enabling the investment percentage to be fully paid off
over the length of the contract.
* interest calculated on the debts remaining outstanding after the amortization
of that particular period at the following R nominal rate: R = TEC 10 + 0.90%.
In this formula, TEC 10 is the actualised return rate of an imaginary
Treasury bond, the duration of which would at each moment be equal to ten years.
The TEC 10 value referred to shall be that of the third day before the
commercial lease contract comes into force.
II. AUXICOMI SHARE
This rent share shall be the result of the addition of a financial amortization
over TWELVE (12) years and of interest.
The interest is calculated by applying the following nominal rate to the debts
remaining outstanding after the amortization of that particular period :
R = EURIBOR 3 months term + 0.85% x (number of days of the period)/360
Rate consolidation option: the FINANCE-LESSEE shall have the possibility to opt
for a definite consolidation of the interest rate of the operation, during a
period of five (5) years running from the end of the first year of rent
payments.
The fixed rate used for the conversion shall be that of the most recent TME
(Taux Moyen des Emprunts d'Etat = Average Rate of French Treasury Bonds) +
1.05%.
The conversion request must reach SOGEFIMUR by registered mail with confirmation
of receipt one month at the latest before the term of a quarterly rent period.
It will become effective as from the first payment following the request.
* Accounting principles for the subsidies received by the FINANCE-LESSOR
As has been mentioned earlier, various subsidies have been solicited.
In concrete terms, the management of these subsidies shall be ensured as follows
by the FINANCE-LESSOR.
At the time of coming into force of the present real estate commercial lease, as
defined by article 2 above, a schedule shall be worked out on the gross value of
the investment producing the estimation of rents invoiced with VAT included.
On receipt of the said subsidies by the FINANCE-LESSOR, a schedule shall be
worked out on the amount of these subsidies and for the length of the contract
remaining, thus enabling to define tax-exclusive credits on capital gains, to be
deducted from the rents.
These credits shall be calculated according to the same principles and the same
rate as for each of the rent shares.
In the case where the FINANCE-LESSOR should be compelled, for any reason
whatsoever, to repay all or part of these subsidies, the relevant credits would
no longer be posted as from the date of repayment and would no longer be
deducted from the invoiced rent. Furthermore, the FINANCE-XXXXXX would have to
repay the FINANCE-LESSOR the previously amortized fraction of the subsidies at
that time.
C- Elimination of the rents used
If for any particular reason the rate(s) previously used were no longer
available, they would be officially replaced by other rates. Should these rates
not be officially replaced, the parties shall come to an agreement on rates with
similar features.
ARTICLE 22- PAYABILITY OF THE RENT- FINAL FINANCIAL SUMMARY- SUMMARY STATEMENT
AND TABLE PREPARED IN ACCORDANCE WITH THE PROVISIONS OF DECREE 95-617 OF 6 MAY
1995
The rent is payable quarterly and in advance on the 1st of January, April, July
and October of each year.
However, the first rent payment due when the present commercial lease contract
comes into force has been calculated on a pro rata basis. In the same way, the
very last rent payment shall also be calculated on a pro rata basis.
When the commercial lease comes into force, and as soon as the FINANCE-LESSOR
has received the necessary certificates to settle the total investment, the
FINANCE-LESSOR shall produce a schedule giving the date of payment and the
amount of each rental term.
Should however and for any reason, the certificates pertaining to the settlement
of the FINANCE-LESSOR's investment not have been received by the latter within
three month's time as from the coming into force of the commercial lease
contract, the FINANCE-LESSOR shall be entitled to restrict the investment cost
to the sums actually paid at that time (once having sent the FINANCE-LESSEE a
registered mail with confirmation of receipt) and shall advise it that any
payments remaining outstanding would be at its expense.
Furthermore, according to the provisions of Decree 95-617 of 6 May 1995 signed
following article 57 of Law 95-115 of 4 February 1995, the FINANCE-LESSOR shall
produce et the time of coming into force of the present contract :
1) A summary including in particular :
* the date of conclusion and the length of the contract,
* the agreed price for the purchase of the building at the term of the contract
or the necessary information to determine it,
* the cost of the non-amortizable items and of the amortizable items on the
asset side of the balance sheet of the FINANCE-LESSOR as well as the acquisition
costs of the building,
* the location,
2) A breakdown chart giving for each rent the share related to the capital
amortization taken into account to fix the selling price as well as its
allotment to the respective payment of : acquisition costs, amortizable and
non-amortizable items.
The FINANCE-LESSOR shall send the FINANCE-LESSEE an endorsement letter to the
commercial lease with the summary, the breakdown chart and the final schedule
attached : the FINANCE-LESSEE shall return this letter to the FINANCE-LESSOR
once having approved it, within ten days of its receipt, failing that the
endorsement letter shall be deemed to have been approved.
The above-mentioned endorsement letter to the commercial lease, to which shall
be attached the above-mentioned summaries, charts and schedules planned by
Decree 95-617 of 6 May 1995, shall be deposited in the register of the Notary's
Office mentioned in the heading of the present, the FINANCE-LESSOR and the
FINANCE-LESSEE granting as from now full powers for that purpose to any Head
Clerk or Assistant Head Clerk of the undersigned Notary.
Should the economy of the present contract be changed after the coming into
effect of the commercial lease contract, owing to changes in the situation of
the FINANCE-LESSEE or in the leased property, an amended summary shall be
produced by the FINANCE-LESSOR.
Article 23- Payment of the value-added tax and charges and other taxes
The FINANCE-LESSEE shall pay the FINANCE-LESSOR at each rent payment term the
amount of the VAT pertaining to this particular rent payment at the rate in
force at that time.
The FINANCE-LESSEE shall directly pay the Insurance Companies the premiums for
all the insurances underwritten for the let premises as that is mentioned above,
including those due for the policies taken out on account of the FINANCE-LESSOR.
The FINANCE-LESSEE shall produce evidence of all these payments on first request
of the FINANCE-LESSOR.
Furthermore, the FINANCE-LESSEE shall refund the FINANCE-LESSOR the cost of any
taxes, rights charges or other expenses as well as, should it be, the expenses
that may be due involving a Zone, a Housing Estate or Co-ownership rules
concerning the leased property and that the FINANCE-LESSOR may have paid,
pertaining to the let premises or to the rental eventually increased by the VAT
on such repayments.
All the payments, the VAT and generally speaking, all the sums due by the
FINANCE-LESSEE to the FINANCE-LESSOR in virtue of the present contract shall be
recovered by the FINANCE-LESSOR by direct debit on the account of the
FINANCE-LESSEE:
SOCIETE GENERALE
REIMS agency
Account number: 30003/01690/00020308570 CLE 03
Article 24- Penalty interest
After the expiry of a fifteen-day period as from the time the rent bills and all
other invoices are sent by the FINANCE-LESSOR, the failure to pay will cause the
FINANCE-LESSEE to owe the FINANCE-LESSOR penalty interest calculated on a pro
rata basis at the Money Market Rate increased by 5 points per annum, and never
any less than 9 %, from the date the sums are due until they are paid, as well
as the VAT at the prevailing rate, without any prejudice to the right of the
FINANCE-XXXXXX to continue any termination proceedings of the commercial lease.
Furthermore, the failure to pay the rent when due will entitle the
FINANCE-LESSOR to be paid a fixed sum of EIGHTY EUROS (E.80), tax-exclusive over
VAT, for unpaid bill management costs.
