EXHIBIT 10.5
BETWEEN THE UNDERSIGNED:
1/ Xx. Xxxxxxxxx XXXXXXXX, executive of economic development, residing at
CLERMONT FERRAND (Puy de Dome), 54 Boulevard Panoramique, Born in CLERMONT
FERRAND (Puy de Dome) on April 29, 1947.
Divorced from Xxx. Xxxxxxxx Xxxxxx Xxxxx Xxxxxxxx XXXXXXX And not remarried
since.
Of French nationality.
Is resident under the definition of fiscal authorities, Not subject to the
national pact of solidarity.
Hereinafter called the "LESSOR", which obligates him to the ordinary guaranties
and to the law in the matter.
2/ The company POSEIDIS SAS, company by simplified shares, with a capital of
EURO 38,000, Whose headquarters is in XXXXXXXXXX 00000 (Xxxxxx), Xxx
Xxxxxxxxxxxx.
Represented by Xx. Xxxxx Xxxxx Xxxxxx XXXXX, residing 28, Bd. Malesherbes in
Paris 8th, acting in his capacity of President of the company.
Registered at the Commercial Registry of Companies of MONTLUCON, SIREN # 447 983
149 Moral person with a status of resident under the definitions of the fiscal
authorities. Hereinafter called the "LESSEE", which obligates him to the
ordinary guaranties and to the law in the matter.
LONG-TERM LEASE
The LESSOR provides a long-term lease on the ground and the underground of the
parcels of land designated thereafter, with the purpose of exploitation by
collecting of the mineral water spring of "La Trolliere". The deposit being
within the limits of the parcels of land so designated.
DESIGNATION
-On the community of THENEUILLE (Allier), hamlet La Trolliere, being: a series
of parcels of land of total area of two hectares, ten acres and 49th of a
hundred acres, including a spring of mineral water, that appear in the land
registry as follows:
---------------- ------ --------------------- ----- ---- ----------- ------
Section Nr. Location Area Asset
---------------- ------ --------------------- ----- ---- ----------- ------
Hect. Acr. 1/100th
---------------- ------ --------------------- ----- ---- ----------- ------
A 904 Pres de la Trolliere 09 Land
---------------- ------ --------------------- ----- ---- ----------- ------
A 905 La Trolliere 1 64 10 Meadow
---------------- ------ --------------------- ----- ---- ----------- ------
A 967 ---d--- 17 90 Meadow
---------------- ------ --------------------- ----- ---- ----------- ------
A 968 ---d--- 28 00 Meadow
---------------- ------ --------------------- ----- ---- ----------- ------
A 1049 ---d--- 40 Meadow
---------------- ------ --------------------- ----- ---- ----------- ------
For a total area of 2 10 49
--------------------------------------------- ----- ---- ----------- ------
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As these parcels appear in the land registry attached, and as they exist, with
their easements, attached parts, and the rights of all nature that are attached,
without reserve or exception.
OBJECT OF CONTRACT
It is stipulated that the present lease has for exclusive object to grant to the
LESSOR a real estate right as to the total right to use the underground mineral
water reserves of the geo thermal deposit of La Trolliere, located and
geographically situated in the parcels of land mentioned above.
It covers the entirety of the productive capacity in gaseous natural mineral
water of which collection is authorized, named "BERTHIER XXXXX" (ministerial
authorization of November 28, 2002), as well as the other potential collections
that may be possible on the site.
The LESSOR will have free access to the land described above and will be able to
undertake all necessary work towards the exploitation of the spring: new
collection, buildings, improvement and various work; all within the respect of
authorizations in effect.
Are included in annex:
1/ Geological survey of the Bourbon Basin l'Xxxxxxxxxxx, illustrating the
characteristics and the hydrological potential of the basin,
2/ Study on the analytical characteristics of the water of La Trolliere, dated
May 15, 2000,
3/ Declaration of the French Agency of Sanitation Security of Foods dated June
17, 2000
4/ Article 288 of the Official Journal of December 11, 2002, that published the
decree of November 28, 2002 that grants to Xx. XXXXXXXX the authorization to
exploit "as mineral water, as it is present as a source, the water from the
Berthier Xxxxx located in the community of Theneuille (Allier)".
LAND REGULATIONS
The LESSOR has been made aware of an information notice of land survey,
delivered by the City Hall of THENEUILLE attached in annex, and from which
results that the above-mentioned assets are not impaired by land regulation.
ORIGIN OF THE ASSETS
Reference of Publication
Acquisition, by contract received by Xxx. Xxxxxx XXXX, Notary in CERILLY, on
June 20, 1995. Published at the Office of Mortgages of Montlucon, on June 29,
1995, volume 1995P, nr.2304. Acquisition following contract received by Mrs.
TAIN, Notary above mentioned, on October 6, 1995, Published at the Office of
Mortgages of Montlucon, on November 3, 1995, volume 1995P, nr.3746.
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Origin of property
The spring (#904) belongs to Xx. XXXXXXXX following the acquisition that he has
made of the company called COMPAGNIE GENERALE DES MATIERES NUCLEAIRES (in short
COGEMA), limited liability company headquartered at VELIZY VILLACOUBLAY
(Yvelines) 2, rue Xxxx Xxxxxxx, following contract received by Mrs. TAIN, esq,
Notary at CERILLY, on June 20, 1995. The other parcels of land belong to Xx.
XXXXXXXX, following an acquisition from Mrs. Xxxxxxx Elianne Xxxxx Xxxxxxxx
XXXXX, residing at the "Tailles" in the community of Theneuille, wife of Mr.
Xxxxxxx Xxxx DENIZON, according to a contract received by Mrs. TAIN, above
mentioned Notary, on October 6, 1995.
DURATION OF THE LEASE
The present long term lease is granted and agreed to for a duration of TWENTY
YEARS from the TENTH OF APRIL TWO THOUSAND THREE until the TENTH APRIL TWO
THOUSAND TWENTY THREE.
LEASE PAYMENT
The current lease is granted and accepted for a yearly lease payment of EURO one
hundred twenty thousand.
In addition, as soon as the LESSOR will begin the bottling process, an
additional royalty of one cent of euro per bottle, whatever the content and
without limitation on the quantity of bottles, will be paid.
PAYMENT OF THE LEASE
The LESSEE is obligated to pay the lease to the LESSOR, or on his behalf to his
representative and power-of-attorney, in 12 installments, at the anniversary
date, i.e. on the tenth of each month, and for the first time on April 10, 2003.
All payments will take place at the domicile of the LESSOR, or at the domicile
of the Notary, at the choice of the LESSOR, and will have to be made in legal
tender.
In case the LESSOR would chose that the lease payment be made to the Notary, the
fees and Value Added Tax will be supported by the LESSOR.
REVISIONS-INDEXING
The amount of the lease payment will be adjusted every year, and for the first
time one year after the signature of the present contract, or April 10, 2004 in
the same proportion as the index of living INSEE for all consumption except for
tobacco products; the starting indicator is established as of January 2002 at
104.4 points.
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CONDITIONS
The current long-term lease is concluded with the expenses and the conditions
that the LESSEE is obligated to fulfill, namely: The assets leased will be "as
is", without the possibility, at no time and for no reason, to demand from the
LESSOR any compensation.
He will maintain in good repairs the leased assets, including as the case may be
the new constructions that he will build, without the possibility to claim any
compensation from the LESSOR, and will have to return the whole assets in good
condition at the end of the lease.
He will support the covenants attached to the land, active or hidden, continuous
or discontinuous, that may be attached to the leased assets, and will benefit in
return from the active easements, if any exist, at his own risk, without
recourse against the LESSOR.
He will be allowed to purchase active covenants and attach to them passive
covenants by title, for a time period that cannot exceed the duration of the
present lease and under the condition that he informs the LESSOR of such action.
He will donate and abandon to the LESSOR or to his representatives, all
constructions and improvements that may exist at the end of the present lease,
without recourse against the LESSOR.
He will pay, in addition to the lease payment above all taxes and charges
relative to the leased assets. He will have the ability to transfer his right to
the present lease as well as sub-lease in totality or in parts, however by
remaining the joint guarantor to the execution of the conditions of the lease as
well as the payment of the lease as stipulated above.
SPECIAL CONDITION:
The LESSEE commits to abide by obligations towards the relevant authorities,
with the purpose to safeguard the authorization to exploit the spring of La
Troliere, the collection of water of "Puits Berthier" by proceeding with the
improvements and technical investigations that are necessary, as well as with
the periodical analyses demanded by AFSSA, DDASS, etc.
RECAP OF OBLIGATIONS
In the document of charges dated May 4, 1961, it is stipulated in Chapter III
"Particular Conditions" the following: Article 00 "Xx xxxxxxxxx xxxxx, xxx
xxxxxxx xx Xxxxx-Xxxxxxx and of La Troliere have been declared of public
interest by ministerial decree of July 31, 1878."
"However, this declaration will be terminated if the buyer does not exploit the
springs in conformity with the current rules and regulations pertaining to the
exploitation of mineral water springs" Article 31 The buyer will be held
responsible, without recourse against the State, to support the rights
attributed to the residents of the community of THENEUILLE, to supply free of
charge the spring water of Saint-Pardoux and La Troliere necessary for their
use. He also will have, under the same conditions, to allow collecting water
necessary to their use by the civil and military hospital of Bourbon
l'Xxxxxxxxxxx."
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EVENTS OF DEFAULT
The present lease can be cancelled by the LESSOR in the following cases:
- in the event of non-execution by the LESSEE of the obligations that result
from the lease or if serious damage is done to the assets;
- in case of non payment of the lease, and after one month after demand, in
conformity with the law. The LESSEE cannot free himself of the payment nor
escape his obligations by walking away from the assets. In case of cancellation
for any of the reasons above, the LESSEE will have to vacate and abandon to the
LESSOR all constructions and improvements that he may have performed, without
the possibility to claim compensation.
The LESSEE commits to respect all procedures in place to obtain the necessary
authorizations, as soon as he is leaseholder, and owner of the SAUTY land, whose
acquisition is stipulated in other documents. If the judicial and administrative
constraints make the exploitation of the site impossible, the present contract
will be cancelled between the parties, one month after notification, and this
without recourse against each other.
LONG TERM CHARACTER OF THE LEASE
The present contract is la long-term lease.
The lease provides to the LESSEE a real right on the leased assets.
The LESSEE is authorized to grant a mortgage on the assets that he holds as a
result of the present contract. The LESSEE can transfer or lease the leased
assets; however he remains jointly responsible with the sub lessee for the
execution of all obligations resulting from the present lease as well as the
payment of the lease as mentioned above.
TAXES-FORMALITIES
Local real estate taxes will be levied on the cumulative amount of the lease
payments, i.e. the sum of EURO 2,400,000 at a rate of 0.615%. The current lease
will be published in the relevant mortgage office.
If attachments exist, the LESSOR will have to bring forward certificates of
cancellation within a month after being informed in writing at the elected
domicile.
In order to perform these formalities, the undersigned give all powers to Xx.
Xxxx XXXXX, Notary Clerk, residing professionally in CERILLY (Allier) or any
other clerk or employee of the office of Mrs. TAIN, Notary in CERILLY, to
deposit in the minutes log of said Notary a sample of the current contract. It
is required that the power-of-attorney verify that the signatures appearing on
this contract originate from the parties and that the contract is a true and
valid contract.
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ELECTION OF DOMICILE
For the execution of this contract, the parties elect their respective
domiciles.
Made in three originals
At:
On April 10, 2003
LESSOR
/s/Xxxxxxxxx XXXXXXXX
----------------------------
LESSEE
/s/ Xxxxx Xxxxx Xxxxxx XXXXX
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