The following exhibit constitutes a fair and accurate English translation of
the original copy of this document.
/s/ Xxxx Xxxxxxx
--------------------------
Erez Shacher
President and Chief Executive Officer
NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. Leasing Agreement
CONFIDENTIAL
Property Leasing Agreement
Between:
NIVELLEASE S.A., with registered offices at Xx Xxxxx in 1490
Court-Saint-Etienne, set up by a deed executed and authenticated by the notary
Hourdeau in Wavre, on October 16, 1987, published in the appendices of the
Moniteur belge of November 6, 1987. Registered in the Register of Commerce at
Nivelles under the number 58.222 and with the VAT authorities under the number
432.218.835.
Represented here in compliance with the provisions of Article 15 of its statutes
by:
Xx. Xxxxxxxx Xxxx, Executive Director, and
Xx. Xxxxxxx Xxxxxxx Gevaert, Chairman of the Executive Committee
of the first part,
and
NUR ADVANCED TECHNOLOGIES (EUROPE) S.A., with registered offices at Waterloo
Office Park, Building E-F, Xxxxx Xxxxxxxx no. 161 at 1410 Waterloo, registered
in the Register of Commerce at Nivelles.
Represented her in compliance with its statutes by
Xx. Xxxxx Xxx Xxxxx, Director, residing at 0000 XXXXX, Xxxxxx Circulaire no.
108, and Xx. Xxxxxx Xxxxxx, Director, residing at 00 Xxxxxxx Xx., Xxxx Xxxx,
Xxxxxx,
of the second part,
the following is set forth:
NUR ADVANCED TECHNOLOGIES (EUROPE) S.A., specialized in the European
distribution and maintenance of large-format digital printers, wishes to expand
its activities.
NIVELLEASE S.A. intends to encourage investments with a view to promoting
employment, and generally, the economy of Walloon (French-speaking Belgian]
Brabant.
NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. has requested that NIVELLEASE assist in
the development of its activities by participating in its financing by means of
granting a property lease.
Notwithstanding its position as landlord and lessor, the intervention of
NIVELLEASE is on an exclusively financial basis. Consequently, it is expressly
agreed that NIVELLEASE S.A. shall assume no liability nor obligation other than
financial, particularly in the areas of construction, delivery and use of the
buildings and of the guarantee, even with respect to hidden flaws.
The parties intend to use this agreement to settle the terms and conditions of
this property lease.
NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. Leasing Agreement
As a result, the spirit in which this agreement has been concluded and shall be
executed shall place supreme importance on good faith and on the industrial and
commercial partnership.
The clauses of this agreement should be interpreted in as reasonable and
constructive a light as should prevail in this type of relationship.
The following is agreed:
Article 1 - Preliminary Conditions
This agreement for the granting of a property lease shall take effect under a
suspensive condition:
- Ratification by the SOWAGEP of the resolution of the Board of
Directors of NIVELLEASE passed on October 9, 1996;
- Signature of the sale agreement between NIVELLEASE S.A. and U.M.
Engineering S.A. of building located at 0, xxx xx Xxxxxxx, 0000
Xxxxxxx-xx-Xxxxx (600m(2)) and a plot of 4,000 M(2), whose price has
been set at BF 18 million, excluding taxes.
Prior to the intervention of NIVELLEASE and the implementation of the provisions
of this agreement, the following conditions must be fulfilled by the company by
December 31, 1996 at the latest:
Commitment from the company to comply with the following comprehensive financial
package:
- Capital (subscribed and paid-up by NUR ADVANCED 30 million
TECHNOLOGIES LTD. Israel)
- Convertible subordinate loan NUR ADVANCED 30 million
TECHNOLOGIES LTD. (with no interest for five years, half
released in 1997 and the remaining half in 1998, non-
reimbursable before NIVELINVEST has been fully paid)
- NIVELINVEST investment credit 20 million
- NIVELLEASE property lease (purchase of the U.M. Engineering 23 million
building in Louvain-la-Neuve plus various expenses
Should these conditions not be met within the above-mentioned timetable,
NIVELLEASE shall be released from any obligation deriving from this agreement,
which shall be considered as null and void.
Article 2 - Description of the Property
2.1 In compliance with Article 18, paragraph 2 of the Value Added Tax Code
and Royal Decree no. 30 of December 29, 1992, NIVELLEASE undertakes and
grants to S.A. NUR ADVANCED TECHNOLOGIES (EUROPE) S.A., on whose behalf
its representative accepts and commits himself, the lease to the
following property:
District of Ottignies - Louvain-la-Neuve
A property located at Louvain-la-Neuve, 0 xxx xx Xxxxxxx, 600 m(2) of
offices on a plot of land of approximately 4,000 m(2). This building,
which NIVELLEASE has purchased for
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NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. Leasing Agreement
18 million, excluding legal and conversion expenses, whose cost is
estimated respectively at 2.25 million and 2.75 million (amounts which may
not be exceeded), is immediately leased by NUR ADVANCED TECHNOLOGIES
(EUROPE) S.A., which declares that it is perfectly acquainted with the
premises which constitute the object of this agreement, and does not
require provision of more ample information herein.
2.2 Appendices
The architectural plans shall be deposited by the parties as part of the
minutes of the notary XXXXXXXX, in order to complete the above-mentioned
information.
2.3 Purpose
This property is intended primarily for use as administrative offices, a
demonstration, training and maintenance center.
2.4 Origin of the Property
The company NIVELLEASE is the owner of the aforesaid property, since it
has purchased it following a sale agreement signed on ..............at
Wavre.
2.5 Mortgage Clause
Throughout the duration of the lease, NIVELLEASE undertakes that the
above-mentioned property shall be free of all burdens of debts,
registrations, liens and mortgages.
Article 3 - Mandate
During the conversion of the building, in compliance with the estimates and
tenders submitted by the contractors selected by joint agreement, NUR ADVANCED
TECHNOLOGIES (EUROPE) S.A. shall assume - without prejudice to the legal and/or
contractual liability of the contractors - the duties and privileges of
Contracting Authority. It shall represent NIVELLEASE as its special authorized
agent vis-a-vis third parties. Consequently, without being able to appeal
against NIVELLEASE on account of bad workmanship, performance delays, fault of a
trade association, an order to suspend work, or any other cause, even force
majeure, NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. shall carry out, on its own
responsibility:
o Selection of the contractor(s), verification of their registration
and approval of status reports on the site and the work;
o Approval of payment of invoices issued by various suppliers;
o Monitoring and coordination of work, and all the measures relevant
to or required for the successful conclusion of the conversion, and
the respect of the agreed deadlines, prices and expenses.
The liability of NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. vis-a-vis NIVELLEASE
for the fulfillment of its mandate shall be that set forth in ordinary law with
respect to a mandate for which it has been remunerated, in all matters unless
otherwise set forth in this contract.
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NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. Leasing Agreement
However, NIVELLEASE retains the right to intervene and take the initiative in
relations between the contracting authority and the trade association, on the
occasion of any decision or deed which would suspend, modify, complement or
amend previous contractual decisions, and in general, on any occasion on which
its intervention concerns the cost of the conversion, owner's responsibility,
performance schedules, the security or stability of the building.
For all jobs which have to date not been the object of a firm order, NUR
ADVANCED TECHNOLOGIES (EUROPE) S.A. undertakes to submit to NIVELLEASE or its
representative for signature all documents containing any kind of commitments
whatsoever on the part of the contracting authority. Copies of all bids, tenders
and estimates received by NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. shall
immediately be transferred by it to NIVELLEASE. Supplier invoices shall be drawn
up in the name of NIVELLEASE, owner of the industrial building which is the
object of the lease. NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. undertakes to
arrange with the suppliers involved in the construction of the building for
invoices to be paid at the latest 30 days from the end of the month. Should a
contractor or subcontractor default, NUR ADVANCED TECHNOLOGIES (EUROPE) S.A.
shall be able to entrust jobs to another contractor, who has proved that he
possesses the required capacities, is certified and has a good reputation, after
consultation with NIVELLEASE.
NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. shall vouch to third parties for the
liability which may be assumed by NIVELLEASE in its capacity of contracting
authority for the jobs which are the object of this contract and their
continuation.
In order to cover this liability, NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. shall
take out, with a company proposed by NIVELLEASE, a policy covering the risks of
construction, including civil liability vis-a-vis third parties, whose scope and
methods shall have been approved by the parties, and shall provide NIVELLEASE
with proof of payment of premiums and of implementation of all measures
resulting therefrom.
Should NUR ADVANCED TECHNOLOGIES (EUROPE) S.A., in the execution of the
provisions of the preceding paragraph, be obliged to vouch to a third party for
the liability which may be assumed by NIVELLEASE, the latter shall immediately
subrogate NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. in the rights and lawsuits
that it may or could assert as a result or on the occasion of its liability
being called into question, with respect to the contractors.
This agreement expressly excludes all work, equipment, material, objects used to
decorate or convert the premises, all the more so if they are buildings by
nature, incorporation or purpose, which shall have been converted by NUR
ADVANCED TECHNOLOGIES (EUROPE) S.A. at its expense, in addition to the
description in Article 1, and which shall therefore remain the property of NUR
ADVANCED TECHNOLOGIES (EUROPE) S.A.
Notwithstanding this stipulation, said work, items of equipment, materials,
objects used in the decoration or conversion of premises, installed by NUR
ADVANCED TECHNOLOGIES (EUROPE) S.A. in the leased property, which are not
removed upon termination of the lease, shall be acquired by NIVELLEASE, without
compensation or expense, without prejudice to the right to demand the removal
thereof, with restoration of the premises to their original condition if it has
not expressly approved them.
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NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. Leasing Agreement
Article 4 - Condition of Premises
A report on the condition of the premises shall be drawn up by both parties, at
their joint expense, in the month preceding the leasing of the above-mentioned
property.
Article 5
The building described in Article 2 is leased to NUR ADVANCED TECHNOLOGIES
(EUROPE) S.A. for the aforesaid purpose, with the express exclusion of:
o Any activity whose effect is to subject this lease to legislation
concerning commercial leases;
o Any activity requiring administrative authorization which has not
been obtained in advance;
o Any activity liable to affect the good condition of the premises and
their environment, the preservation of the building or of its
equipment, or to increase the maintenance expenses thereof, or, in a
general manner, to threaten its stability or reduce the market or
rental value thereof.
Article 6 - Rental - Duration - Option
6.1 The property lease contract is concluded for a non-reducible period of
FIFTEEN years which shall take effect on the first day of the month which
follows the signature of the sale agreement drawn up by a notary, as
described in Article 2, provided that this date is no later than March 31,
1997.
Upon expiration of this period, and for as long as NUR ADVANCED
TECHNOLOGIES (EUROPE) S.A. is in good order with respect to payment of the
quarterly property lease fees and expenses incumbent thereupon by virtue
of this agreement, NIVELLEASE grants it a purchase option as defined
below.
6.2 Purchase Option
NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. shall have the option of
purchasing, on its own or by means of any person it shall designate, but
for whom it shall stand joint surety, the building and all the accessories
which are the object of this agreement, at a price of ten percent of the
investment, excluding VAT, to which NIVELLEASE has committed itself, i.e.,
on the basis of the estimate set forth in Article 2, BF 2,300,000 (two
million three hundred thousand Belgian francs).
The option price shall be readjusted:
a) In keeping with the real cost of expenses and work financed by
NIVELLEASE, according to a detailed account which shall be drawn up
no later than March 31, 1997;
b) Up to fifteen percent of the principal amount indicated in a)
above, in proportion to the change in the Consumer Price Index
(Sante index) in relation to the reference index (month of taking
possession, at the latest, March thirty-first, nineteen hundred and
ninety-seven).
For this readjustment the index of the month preceding the date of exercise of
option shall be taken into account.
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NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. Leasing Agreement
Unless otherwise agreed by the parties, the exercise of the purchase option
shall take effect only upon expiration of the term of this lease.
It shall have to be exercised in accordance with the following procedure, on
penalty of foreclosure:
o NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. shall indicate to NIVELLEASE
its wish to exercise the option, by registered mail, addressed to
the registered office of NIVELLEASE between the twelfth and the
ninth month preceding the expiration of the lease.
o The option exercise letter shall be signed by a person authorized to
bind NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. in the purchase of a
property.
o NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. shall pay an advance payment
equal to twenty percent of the option price for the exercise of the
option. The balance of the option price and the fees for the sale
agreement drawn up by a notary shall be paid in cash upon signature
of the agreement, at the latest upon termination of this lease, by
the notary XXXXXXXX (or his successor), if the parties do not agree
otherwise, at the expense of the purchaser.
6.3 Preferential right to continue the occupation of the premises by the
conclusion of a lease
Should NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. fail to exercise the purchase
option upon termination of the lease, it shall be able, provided that the
request to do so shall have been made at least six months before the end of this
lease, to obtain from NIVELLEASE, under no other condition, the finalization of
a lease, for a (renewable) term of three years. Unless otherwise agreed by the
parties, the lease shall be finalized in return for a rent corresponding to the
normal rental value of the property, set by an expert designated by the district
Justice of the Peace if the parties have failed to reach an amicable agreement,
all other provisions of this contract remaining applicable, with the exception
of the purchase option stipulated in Article 6 above.
The foreclosure which sanctions the default of the exercise of the option within
the above-mentioned timetable, shall however proceed only after NIVELLEASE sends
to NUR ADVANCED TECHNOLOGIES (EUROPE) S.A., by registered mail, or against
signed receipt, a reminder granting it one month to exercise said option, and
stating that foreclosure shall take place if it fails to fulfill the condition
within this period or in accordance with the stipulated procedures.
Article 7 - Quarterly Lease Fee - Index Linkage - Penalty Interest
7.1 This property lease is agreed and accepted in return for:
A. During the period of conversion of the leased premises, NUR ADVANCED
TECHNOLOGIES (EUROPE) S.A. shall pay to NIVELLEASE, on the eighth
day of each month from December 31, 1996, an interim fee, calculated
at the annual rate of 6.3% of the amounts disbursed by NIVELLEASE
for the cost, excluding VAT, of the purchase of the building, the
expenses and the conversion. Details of the amounts paid as well as
the details of the interim fees shall be communicated by NIVELLEASE
to NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. within the fifteen days
which follow each monthly expiration date.
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NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. Leasing Agreement
In the event of non-payment of the interim interest within eight
days after NIVELLEASE has sent a detailed account thereof, a penalty
interest of 9% shall be calculated on the amount of the detailed
account and shall be payable by right. This interim fee shall cease
on the first day of the month following the date upon which the
premises were made available, latest March 31, 1997.
B. After the premises are made available, NUR ADVANCED TECHNOLOGIES
(EUROPE) S.A. shall pay to NIVELLEASE by standing bank order, in
favor of account no. 000-0000000-00 of NIVELLEASE - or to any other
account which it shall subsequently indicate - every quarter - i.e.,
in principle, for the first time on June 30, 1997, a quarterly fee
corresponding to 2.487% of the amounts, excluding VAT, invested by
NIVELLEASE in the properties which are the object of this agreement,
since this investment was intended to include expenses for deeds,
fees of architects, experts, research departments, on-site
supervision, connections, supplier and contractor invoices,
insurance premiums, and generally, all amounts disbursed by
NIVELLEASE, including taxes or fees to public services, for the
construction, conversion and making available of the premises, with
the sole exception of those which shall have been recovered (inter
alia, VAT). The final amount of this quarterly fee shall be notified
by NIVELLEASE as soon as the accounts therefor have been drawn up.
In the event of a dispute between the parties, the quarterly fee
shall be temporarily set and payable on the basis of the above
projected estimate, adjusted in accordance with all documentary
evidence. On the basis of the projected estimate of the cost of the
investment (without either prejudicial commitment or acknowledgment
in the event of an overrun) this quarterly fee shall be set at BF
572,075 per quarter during the lease period.
7.2 Index Linkage of the Quarterly Fee
The quarterly fee thus determined shall be readjusted by right every
January 1, and for the first time on January 1, 2000, up to a limit of
fifteen percent of its amount (the balance of eighty-five percent
remaining unchanged), in proportion to the changes in the Consumer Price
Index (Sante index) published in the Moniteur belge, in accordance with
the following formula:
85% basic quarterly fee + 15% base x (new index / basic index)
in which the basic index is points (month of taking possession, latest
December 31, 1997) and the new index is that of the previous December.
In addition to this quarterly fee, NUR ADVANCED TECHNOLOGIES (EUROPE) S.A.
undertakes to pay throughout the period of this lease, the following
charges:
o Value Added Tax, as well as any other taxes whatsoever which are
payable owing to the above quarterly fee, or leasing charges:
o Taxes and fees due to company, municipal authorities or utilities,
such as water, gas, electricity, telephone, etc.
o The property estimate, its supplements, as well as all other taxes
relating to the leased property, its equipment or the activity which
takes place therein.
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NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. Leasing Agreement
Should NIVELLEASE have been subjected to or required to pay the above-mentioned
charges, or new ones, NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. shall be required
to reimburse NIVELLEASE in respect thereof upon its first demand.
7.3 Penalty Interest
For each arrears of more than fifteen days in payment of the
above-mentioned quarterly fee, penalty interest at an annual rate of 9%
shall be calculated, starting from the date of expiration of the quarterly
fee(s) in arrears.
Article 8 - Purpose of the Premises, Liability, Encumbrances
NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. shall possess the property in accordance
with its aforesaid purpose. It shall not be able to modify it, nor pursue in
these premises any activity liable to decrease the value of the property, nor
threaten its stability or security. It shall be liable vis-a-vis third parties
for any damage caused by its action or that of the persons for which it is
responsible, inter alia, the occupants of the leased premises, invited third
parties or visitors, by the existence of the building, and, more generally, for
any circumstance which, owing to the leased property, could involve the
liability of NIVELLEASE.
This liability shall be covered by policies taken out with a company proposed by
NIVELLEASE, to which NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. shall prove payment
of the premiums.
Should NUR ADVANCED TECHNOLOGIES (EUROPE) S.A., in the course of implementing
the provisions of the preceding paragraph, stand surety vis-a-vis a third party
for the liability of NIVELLEASE, the latter shall immediately subrogate, without
guarantee, NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. in the rights and lawsuits
which it could assert owing to or upon such questioning of its liability, with
respect to contractors, architects, supervisory offices, etc.
NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. shall be able to profit from any
encumbrances whatsoever which would benefit the leased property, as it shall
suffer, without recourse to NIVELLEASE, all those with which it is burdened.
This provision may not have the effect of conferring on any person whatsoever
more rights than would be justified by virtue of use, by the law or other normal
unstipulated rights. NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. may not confer upon
any person whatsoever any title whatsoever, which would burden the leased
property, without the agreement of NIVELLEASE.
Upon termination of the lease, NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. is
obliged, unless it exercises the purchase or rental option as described in
Article 6.3, to return the premises, free of any subletting agreement, charges
or collateral. It shall pay to NIVELLEASE all court or non-court costs, fines,
compensation or other, which could be claimed by any party whatsoever owing to
the leased property or this lease.
Article 9 - Maintenance - Repairs
Throughout the lease period, NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. undertakes
to support and carry out, without recourse to NIVELLEASE, any maintenance work
to the property, including repairs which, according to ordinary law, are for the
account
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NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. Leasing Agreement
of the lessor. This particular stipulation also includes repairs which are
necessary owing to the age of the buildings, or of the equipment therein, cases
of force majeure or accidents, as well as all other conversions which would be
required under the Regulations governing work premises and their safety.
It would not be able to demand, under this item, neither compensation, nor the
intervention of NIVELLEASE, nor a reduction in the quarterly fee.
Should it fail to perform any one of these operations, within three months from
formal notice sent to it by NIVELLEASE or its officer in charge, by simple
registered mail, or with signed receipt, NIVELLEASE would be entitled to have
the repairs carried out by a professional entity of its choice, and to
immediately recover the costs thereof from the defaulting party. To this end,
NIVELLEASE shall at any time be able to perform, either itself or by means of an
expert, an inspection of the premises. These visits shall be announced
approximately one week in advance, for the convenience of NUR ADVANCED
TECHNOLOGIES (EUROPE) S.A.
Article 10 - Modifications to the Building
NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. shall be able to undertake
modifications, alterations or conversions, at the leased premises, with the
prior written consent of NIVELLEASE. The latter shall refuse its consent only
for reasons which are justified and objective.
Furthermore, it undertakes to countersign any request for an administrative
permit required insofar as the proposed modifications:
o Comply with the administrative regulations or have been authorized
by the competent authorities (building permit, commodo et incommodo,
inspection of work premises, etc.)
o Do not affect the stability or security of the building.
o Do not include any modification to the purpose or allocation of the
premises, and do not increase its liability as the owner of the
building.
No authorization is required from NIVELLEASE for interior conversions whose cost
is less than five hundred thousand francs (or if performed in phases, this
amount each quarter).
Article 11 - Extensions to the Building
Any construction which would increased its areas built on the ground by at least
thirty-three percent in relation to that indicated in the current plans is
considered an extension to the building.
NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. shall be able to undertake similar
extensions under the conditions specified above in Article 10 for alterations
and modifications.
Should these extensions involve NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. in
recourse to external financing, in any form whatsoever, with a tangible security
on all or part of the leased property, NIVELLEASE retains the rights to
guarantee the finance of such work, by a leasing contract under usual market
conditions (rate, duration, method, etc.) in an agreement separate from this
one.
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NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. Leasing Agreement
This priority right shall be exercised as follows:
o NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. shall deposit with
NIVELLEASE all documents and estimates, and proof thereof,
pertaining to the projected extensions and their cost, its own means
of financing which it proposes to employ for this purpose, the
methods of financing which have been proposed to it, and the
amortization plan,
o NIVELLEASE shall benefit from a period of three months, from deposit
of said documents and proof, in order to exercise its preferential
right, itself or though any other company in which it might have a
holding or links of affiliation.
o Should NIVELLEASE not exercise its preferential rights, it shall
grant to NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. or to the
organization which is assuming the financing, a right over the area
whose duration shall be up to the termination of the lease, in
addition to the transferability of the purchase option.
These methods shall not be able to reduce the rights of NIVELLEASE
resulting from this document, and in addition, it shall have,
failing the exercise of the purchase option, the option to buy back
the extensions for which it shall have waived the right of access;
at their market value without being able to exceed their cost price
less amortization recognized by the tax authorities. In the event of
a difference of opinion with respect to this value, it shall be set
by an expert certified by the courts, chosen by the parties, or
failing this, by the president of the commercial court within the
jurisdiction of the leased premises.
Any amount which may be due for this item by NIVELLEASE to NUR
ADVANCED TECHNOLOGIES (EUROPE) S.A. shall automatically be offset
against any amounts which it would owe to NIVELLEASE by virtue of
any of the provisions of this contract, and its subsequent
amendments.
Article 12 - Subletting - Transfer of Lease
NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. is forbidden to sublet all or part of
the leased premises, or to transfer its lease, other than with the prior written
consent of NIVELLEASE, which shall only refuse its consent for justified and
objective reasons.
In return for the joint liability of NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. and
its sublessor or transferee, for all commitments resulting from this contract,
NIVELLEASE shall accept the subletting or transfer of the lease at the
initiative of NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. insofar as it itself
continues to occupy and utilize at least fifty-one percent of the built-up area
of the leased premises, including, all extensions. The subletting or transfer
(partial) of the lease may not result in modifying the purpose or allocation of
the premises.
In the event of a merger or takeover of NUR ADVANCED TECHNOLOGIES (EUROPE) S.A.,
the new company, or the company which is taking over, shall, in compliance with
ordinary law, be subrogated to the rights and obligations of the company which
has been merged or taken over, with the exception of the right of NIVELLEASE to
demand separation of assets.
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NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. Leasing Agreement
Article 13 - Insurance - Destruction of Buildings
Throughout the duration of this contract, the leased premises are, as expressly
agreed by the parties, entirely at the risk of NUR ADVANCED TECHNOLOGIES
(EUROPE) S.A. which stands surety vis-a-vis NIVELLEASE for their loss,
deterioration, deprivation of possession (including that which results from
flaws in construction), partial or total destruction, whatever the cause, even
if it is the result of an accident or force majeure.
NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. therefore undertakes to maintain a
permanent insurance policy, "for the account of NIVELLEASE", which covers the
leased premises for civil liability with respect to buildings, against risks of
fire, lightning, explosions, implosions, tempests, falling aircraft, water
damage, broken glass and related risks, for the costs of reconstruction, claims
from neighbors, preservation, fire department and clearing, and closure of the
property for at least one year.
NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. shall, upon any demand, prove regular
payment of the premiums.
The policy shall stipulate that the company is prohibited from suspending its
effectiveness without having warned NIVELLEASE at least three months in
advance. An original copy of the policy and of its amendments shall be
transmitted to NIVELLEASE by the insurance company.
For its own property, NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. is obliged to take
out "waiver of appeal" insurance vis-a-vis NIVELLEASE.
These policies shall specify that in the event of disaster, the compensation,
insofar as it directly concerns the property and the execution of this
agreement, shall be directly acquired by NIVELLEASE which shall subsequently
allocate it, at the expense of NUR ADVANCED TECHNOLOGIES (EUROPE) S.A., to
necessary repairs, to the reconstruction of buildings, to the continuation of
payment of the quarterly fee, and to the settlement of all rental charges due,
according to their nature, from NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. to
NIVELLEASE by priority right, before any compensation for the damage it has
incurred from it, a subtenant, transferee or third party.
Article 14
In the event of disaster during the period of the lease of the property, the
rights and obligations between the parties shall be settled as follows:
o NIVELLEASE shall subrogate, without guarantee, NUR ADVANCED
TECHNOLOGIES (EUROPE) S.A. in all the rights and lawsuits which it
shall be able to assert, owing to or on the occasion of a disaster,
with respect to contractors, architects, supervisory offices, etc.
o NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. waives the right to appeal
against NIVELLEASE. This waiver of appeal also applies to any
occupant of the property.
o NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. assumes the burden, so that
NIVELLEASE is neither concerned by this matter nor pursued with
respect thereto, of any liability resulting from Article 1384, 1386
and 1721 of the Civil Code.
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NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. Leasing Agreement
o The quarterly fee and other charges pertaining to the building are
owed by NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. to NIVELLEASE,
irrespective of the period during which the property remains closed,
until it becomes fully functional.
o NIVELLEASE shall be bound to allocate the compensation it shall
receive to the above-mentioned purposes, so as to enable the leased
premises to be made available to NUR ADVANCED TECHNOLOGIES (EUROPE)
SA. within the shortest possible time.
o The compensation relating to the equipment, furniture, inventories
or other damages incurred by NUR ADVANCED TECHNOLOGIES (EUROPE) S.A.
shall be directly paid to it by the insurer.
Article 15 - Ten-Year Guarantee
In the matter of a ten-year guarantee, (Articles 1792 and 2270 of the Civil
Code), NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. shall warn NIVELLEASE of any
action liable to involve the liability of the architects and contractor, and
shall avoid any initiative which would reduce or suspend the application of this
legal guarantee. In the event of a construction flaw covered by said guarantee,
NIVELLEASE shall subrogate, without guarantee, NUR ADVANCED TECHNOLOGIES
(EUROPE) S.A. in all the rights and lawsuits which it could consequently assert
with respect to contractors, architects, supervisory offices, etc., on condition
that it allocates this compensation to the necessary repairs.
Article 16 - Expropriation
From the moment when one of the parties is informed that expropriation
proceedings, or more generally, any administrative decision liable to restrict
use or allocation of the leased property, is instituted, it is required to
advise its co-contracting party thereof, and to keep it informed of negotiations
in progress and proposals made.
In the event of expropriation for reasons of public interest, or any similar act
of a public authority which would assign the possession of the leased property,
NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. shall have no appeal against NIVELLEASE,
and shall be obliged to claim compensation for the damage it has incurred
directly from the expropriating Authority. The compensation owing to it shall
not, however, reduce that which is due to NIVELLEASE. This provision in no way
prevents the parties from acting jointly against the expropriating party and
from agreeing, depending on circumstances, to divide the compensation to be
received.
Article 17 - Taxes and Charges
NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. shall bear, instead of NIVELLEASE, all
taxes, costs or fees which usually pertain to a leased property. It shall also
bear Value Added Tax owed as a result of quarterly fee or fees for which it is
responsible vis-a-vis NIVELLEASE.
NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. shall not be permitted to rescind any
contract for subscription to public services (water, electricity, gas,
telephone, telex, cable TV broadcasts, etc.) with which the leased property
shall be equipped, and shall be obliged to pay the charges and fees on every
due date.
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NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. Leasing Agreement
All subscriptions signed by NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. concerning
this property shall automatically be transferred to NIVELLEASE upon termination
of the lease, unless the property shall be repurchased by NUR ADVANCED
TECHNOLOGIES (EUROPE) S.A.
All charges, rights and fees relating to or resulting from the execution of this
agreement, such as charges for legal fees or costs, declaration of debt,
registration of pledge or lessor rights, shall be borne and paid for by NUR
ADVANCED TECHNOLOGIES (EUROPE) S.A. which expressly commits thereto, and may be
recovered therefrom, plus penalty interest at the lawful rate plus twenty
percent.
Article 18 - Bank Guarantee
A first-class bank shall issue, upon the demand and at the expense of NUR
ADVANCED TECHNOLOGIES (EUROPE) S.A. a bank guarantee payable upon first demand,
in favor of NIVELLEASE, for an amount equal to one quarterly fee payment.
This guarantee shall be provided within two weeks of temporary acceptance of the
buildings.
Article 19 - Early Rescission of the Property Leasing Contract
Should NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. default on any of its obligations
to NIVELLEASE, which result from this agreement or from its continuation, it
shall have the right to seek, at the expense of NUR ADVANCED TECHNOLOGIES
(EUROPE) S.A., a court-ordered rescission of the property leasing contract.
This shall especially be the case:
o If the information provided by NUR ADVANCED TECHNOLOGIES (EUROPE)
S.A. with a view to setting up this agreement is recognized as false
or inexact.
o If during the conversion of the building, NUR ADVANCED TECHNOLOGIES
(EUROPE) S.A. takes initiatives, or signs contracts containing
clauses which are opposed to the legitimate interests of NIVELLEASE
with contractors or subcontractors, or does not immediately inform
NIVELLEASE of agreements signed with these professional entities.
o If NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. is in arrears for more
than four quarterly fees, if its credit is undermined, or if it is
declared bankrupt or wound-up.
o If, with the exception of the merger or takeover of NUR ADVANCED
TECHNOLOGIES (EUROPE) S.A., it sells the goodwill of the business
conducted in the leased property without the prior consent of
NIVELLEASE; NIVELLEASE states that this goodwill is pledged.
In all instances whereby the property leasing contract is canceled through fault
of NUR ADVANCED TECHNOLOGIES (EUROPE) S.A., NIVELLEASE shall have the right to
compensation, especially covering charges for the re-letting and closure of the
property, which shall be calculated, pursuant to the following principle: number
of quarters that property remains vacant (where the maximum is the number of
quarters still to run until the conclusion of the agreement) multiplied by the
current quarterly fee linked to the index in accordance with Article 7 of this
contract.
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NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. Leasing Agreement
Should NUR ADVANCED TECHNOLOGIES (EUROPE) S.A., upon termination of the lease,
fail to carry out the maintenance and repairs required to restore the premises
to good condition, all failures to meet its contractual obligations shall result
in compensation to be paid by them for the amount of the repairs to be carried
out and the period that the premises remain closed as a result thereof.
Article 20 - Preferential right in case of sale of the property
Should NIVELLEASE sells the leased property, within the duration of the lease to
be concluded in compliance with Article 6.3, NUR ADVANCED TECHNOLOGIES (EUROPE)
S.A. shall have a preferential right to purchase the property under the same
conditions and for the same fees as those agreed with a third party.
In order to exercise this right, the parties agree to consult the provisions of
the law with respect to preemptive rights in favor of buyers of rural
properties, including the right to exercise the preemption by a third party to
be chosen by NUR ADVANCED TECHNOLOGIES (EUROPE) S.A.
In law, the sale of the property neither concludes nor suspends any of the
provisions of this agreement, since the purchaser, on the assumption that NUR
ADVANCED TECHNOLOGIES (EUROPE) S.A. has not preempted, is purely or simply
subrogated to the seller vis-a-vis NUR ADVANCED TECHNOLOGIES (EUROPE) S.A.
Article 21 - Competent Jurisdiction
Any dispute arising from this contract, from its interpretation or its
execution, shall fall within the competence of the courts and tribunals of the
district in which the leased property is located.
Article 22
For execution of this contract, the parties elect domicile: for NIVELLEASE - its
registered offices, and NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. - the leased
property.
The parties may however use the real headquarters of the other party in order to
serve notice or communicate legitimately.
Automatic Exemption from Registration
Provided that contractual registration is made, in order to guarantee the
obligations stipulated for NUR ADVANCED TECHNOLOGIES (EUROPE) S.A. up to the
amount of BF 5,000,000, a registration which would only be valid on the date of
the contract, NIVELLEASE exempts the registrar of mortgages concerned from
automatically registering this agreement.
Issued at Court-Saint-Etienne, November 25, 1996 in two copies, of which one for
each party.
For NIVELLEASE S.A. For NUR ADVANCED TECHNOLOGIES
Signatory of the first part (EUROPE) S.A.
Signatory of the second part
Ph. Remy Xxxxx Xxx-Xxxxx
Executive Director Director
X. Xxxxxxx Gevaert Xxxxxx Xxxxxx
President of the Executive Committee Director
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