Exhibit 10.20
OFFICE PARK
COMMERCIAL LEASE
AND SERVICE AGREEMENT
BETWEEN THE UNDERSIGNED:
PROMOPOLE, S.E.M.L., with headquarters in Montigny Le Bretonneux, at 00, xxxxxx
xxx Xxxx - XX 000 - 00000 Xxxxx-Xxxxxxx Yvelines CEDEX, represented by Xx. Xxx
XXXXXXXXX, acting in his capacity as President,
Hereinafter the "lessor,"
AND
EMBEDDED SUPPORT TOOLS CORP. - EUROPE (E.S.T.), S.A.R.L., capitalized to FF.
250,000, registered in the Commercial Registry of VERSAILLES under number B 390
362 762, with its corporate headquarters at 12, avenue des Pres - BL 219 -
MONTIGNY LE BRETONNEUX, 78059 Saint-Xxxxxxx Yvelines CEDEX, represented by it
manager, Mr. Stephane OILLIC, residing at 000, xxxxxx xx Xxxxxxxxxx 00000 XXXXX
X'XXXXX,
Hereinafter the "lessee."
ARTICLE 1
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The Partially State-Owned Company based in Saint-Xxxxxxx Yvelines [PROMOPOLE,
S.E.M.L.], hereby:
1. Grants in lease, in accordance with the provisions of decree No. 53-960 of
September 30, 1953, to the company E.S.T., which accepts, the real property
defined hereinafter, located at 00, xxxxxx xxx Xxxx - 00000 XXXXXXXX LE
BRETONNEUX, [consisting of] office space of 155 m2 and designated by Lot: VE 12.
The lessee represents that it is familiar with the property as it exists in its
current condition, having visited it in consideration of this lease.
2. Agrees to provide the following services to the lessee who agrees to accept
them throughout the term of the lease: to make available to the lessee a set of
shared services such as: copying, fax, telex, word processing, reception,
continuous telephone service, the proper management of the use of the common
areas, the operation and coordination of the PROMOPOLE structure as well as the
management of the staff providing all said services.
ARTICLE 2: TERM
---------------
This lease is granted and accepted for a term of 9 full and consecutive years
beginning on August 1, 1998 and ending July 31, 2007.
In accordance with the provisions of article 3 of the decree of September 30,
1953, the lessee shall be authorized to serve notice of termination at the end
of each three-year period; the lessor shall be authorized in the same fashion if
it intends to make use of the provisions of article 10.13 and 15 of said decree,
in order to build or rebuild the existing property, to raise the height thereof
or to perform works stipulated or authorized within the framework of a real
property restoration project.
The party wishing to terminate the lease in either of the cases set forth above,
shall serve notice thereof to the other party by means of extra-judicial notice
at least six months prior to the expiration of the three-year period underway.
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ARTICLE 3: USE
--------------
The property hereby leased shall be used exclusively for the activity defined in
the bylaws, to wit: All operations related to equipment and media, software and
hardware and related activities.
ARTICLE 4: RENT AND FEES
------------------------
4.1 Rent
a) Rent
In addition, this lease is granted and accepted by means of an annual rent, not
including tax, of an amount of FF. 108,500 (ONE HUNDRED EIGHT THOUSAND FIVE
HUNDRED FRANCS) which the lessee agrees to pay in advance and on a quarterly
basis, as well as the charges set forth in Article 5, section 7, and the fees
set forth in article 4.2, by bank check drafted to the order of the Partially
State-Owned Company based in Saint-Xxxxxxx Yvelines [PROMOPOLE, S.E.M.L.].
The first payment shall be made on August 1, 1998, with the knowledge that it
has already been billed to E.S.T. with the invoice for the third quarter for the
prior provisional lease, since no change of location will take place. The next
quarterly invoice shall be for October 1, 1998.
All payments shall be made at the domicile of the lessor or at any other
location determined thereby.
b) Rent Indexing
The parties set forth that the amount of the rent was determined by taking the
national index of construction costs determined for the first quarter of 1998 by
the National Institute of Statistical and Economic Research (INSEE) as a base
index, which is 1058 on the basis of 100 as of the 4th quarter of 1953.
The parties expressly agree:
1. That the rent for the first year shall be applied without
modification.
2. That the rent shall be reevaluated on June 1 of each year, effective
for the entire year, for the first time on August 1, 1999 as a
function of the positive or negative variation of the national index
of construction costs.
It is set forth that the index of reference to be used annually to calculate the
revised rent shall be the index known on the date of the revision.
The indexing shall take effect without requiring any prior modification by the
parties.
In the event that the lessee fails to make payment for the rent and charges
within the terms set forth above, for any reason whatsoever, it shall pay to the
lessor or to its beneficiaries on a monthly basis and in arrears, an indemnity
equal to 6% of the amounts due in lump sum, irreducible payments.
4.2 Fees
All fees and charges arising from services rendered, after deduction of the
share of the salaries and charges for time spent by the person responsible for
receiving rent payments, shall be divided between the tenants on a prorated
basis according to the space leased.
The lessee agrees to pay a provision for access to the shared services
referenced in Article 1. This provision shall be claimed by the lessor at the
same time as rent payments and other charges.
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ARTICLE 5: CHARGES AND CONDITIONS
---------------------------------
This lease is granted and accepted subject to standard charges and conditions
and those set forth by law, and is also subject to the following, which the
lessor agrees to perform, without being able to demand any indemnity or decrease
of the rent set forth below:
1) Condition of the property:
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a) The lessee shall take possession of the property in its current
condition.
b) During the month when possession is taken, a statement of condition
shall be drafted by both parties, at the expense of the lessee,
otherwise the lessee shall be considered to have received the property
in perfect condition.
2) Maintenance:
-----------
The LESSEE shall maintain the leased property in a good state of repair for
rental purposes or by minor maintenance and shall return them in good condition
upon expiration of the lease. Major repairs are defined in article 606 of the
Civil Code and shall be borne exclusively by the LESSOR.
It shall bear the cost of all repairs which become necessary either due to
failure to perform rental repairs or minor maintenance, or due to damages caused
by it, its personnel or clients.
3) Works:
-----
The LESSEE shall not undertake any demolition or construction in the leased
property without the express written authorization of the LESSOR. In the event
that the authorization is requested, it shall be accompanied by the statement of
the building's architect in justification and the authorized works shall be
performed under the supervision thereof. The corresponding fees shall be borne
by the lessee.
All improvements [or] modifications work or any new work shall remain part of
the property and shall not imply any indemnity by the LESSOR, unless the LESSOR
prefers to demand that the property be returned to its original condition at the
expense of the LESSEE.
The LESSEE may not place any sign on the property, as set forth in the
regulations.
4) Repairs:
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The lessee shall permit all repairs, reconstruction, improvements, increases in
height and any work which the LESSOR has carried out on the leased property, and
it may not request any indemnity or decrease in rent, regardless of the scope or
term thereof, even when same exceeds forty days.
It shall also permit all work performed in public areas or by neighbors,
regardless of the inconvenience this may cause, except in cases where it may
have justified recourse against a party.
It shall notify the LESSOR immediately of any damage or wear to the leased
property which may give rise to repairs to be borne by the LESSOR.
5) Occupation - Enjoyment:
----------------------
a) The lessee shall enjoy the lease property in a prudent manner, in
accordance with its use.
It shall ensure that no action or omission is taken or made that may
disrupt the enjoyment of other tenants, in particular with respect to
noise, odors and smoke, and in general, shall not engage in any abuse of
said enjoyment.
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The lessee shall fulfill all municipal payment obligations and sanitation,
water, hygiene health or insurance regulations so that the lessor is never
concerned or sought out in this regard, and shall justify such fulfillment
to the lessor upon its request.
b) The lessee shall take no action nor allow [such] to be taken that may
damage the leased property and shall, under pain of personal liability,
provide the lessor with immediate written notice of any action taken
against its property and of any damage or wear which is caused to or arises
in the leased property and which would require work to be performed by the
lessor.
c) The lessee shall decorate the leased property and shall maintain same with
furnishings and equipment sufficient in value and quantity to cover the
exact payment of the rent and fulfillment of the charges under this lease.
As a measure of cleanliness, the cleaning of carpeted floors shall be
performed at the expense of the lessee at the end of its occupation of the
property.
6) Assignment - Subletting:
-----------------------
a) The lessee may not sublet the leased property in whole or in part, without
the express written authorization of the lessor, or lend the leased
property, even temporarily to third parties.
b) The lessee may not assign its right to this lease, except to a buyer of its
business and by remaining guarantor and jointly responsible with the
assignee.
The lessee shall notify the lessor by registered letter, return receipt
requested, within one month of the event, of any change in its civil
status, if it is an individual, or of any change in the form, headquarters,
name, administration of the corporate lessee, throughout the term of this
lease or its extensions, if it is a legal entity. In the event of the death
of the lessee, its heirs or representatives shall be jointly and severally
responsible for the payment of rents and accessories, as well as for the
performance of the conditions of the lease.
7) Taxes and Miscellaneous Charges:
-------------------------------
a) The lessee shall pay personal, property, professional and rental taxes and
any other taxes for which it is personally liable or which are related to
its activities, to which tenants may be subject.
b) The lessee shall pay waste removal fees, sewage fees, cleaning fees, new
taxes, municipal and other taxes and tax increases which may be imposed on
tenants, of any type or classification whatsoever, and shall reimburse the
lessor for any sums which it may pay in advance in this regard, in
particular, its share of the property tax and any charges related to the
incorporation of the property into any legal entity.
c) Rental charges: the lessee agrees to pay to the lessor or its
representative, in advance, a provision corresponding to the general and
specific charges and in particular the fees related to the use, maintenance
and repair of the structure and equipment therein, as well as the
building's shared and private accessories, it being understood that these
accessories are inseparable from the lease agreement, including the
following list, without limitation:
- labor and products necessary for cleaning the common and private areas,
- maintenance of green spaces pertaining to the building and parking lots,
- fees for clearing, cleaning or draining the water pipes and drains,
- the share of the insurance premium engaged by the lessor as set forth herein
in the "Insurance" section,
- security, if such a service exists,
- water and electricity for common areas,
- fees for the annual required inspection of electrical installations.
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This provision shall be claimed by the lessor at the same time as the rent
and other charges.
In addition, it is set forth that the amount of the provisions for charges
shall be modified at the same time as the rent and under the same
conditions.
However, it may be decreased or increased in consideration of the level of
charges for the preceding fiscal year (or the potential modification of the
rates for public utilities, water, electricity, etc.).
A statement shall be drafted and issued to the lessee annually for all
expenses for the fiscal year which are shared among the tenants on a
prorated basis according to the leased space.
8) Insurance:
---------
a) The lessee shall be required to contract with one or more insurance
companies represented in France, for one or more insurance policies
covering the following risks:
. Fire, any explosions, lightning, electrical damages,
. Water damage,
. Broken windows and similar damages,
. Theft, vandalism.
This shall cover the property, furnishings and fixtures pertaining thereto
(furnishings, equipment, merchandise, etc.) as well as any build-outs,
improvements and installations which it owns and/or of which it has custody
for any purpose whatsoever, at its real value.
In addition, the policies set forth above shall specifically include the
following guarantees in sufficient amounts:
. Lessor's liability as set forth in articles 1732 et seq. of the Civil
Code.
. Loss of rent suffered by joint lessees.
. Loss of enjoyment for the amount corresponding to two years of its own
rent.
. Remedy against neighbors and third parties.
In addition, the lessee shall execute an insurance policy covering its
civil liability for legal representatives, associates, employees salaried
or otherwise, and for its property or such property of which it has custody
for any reason whatsoever.
The lessee shall justify the existence of this insurance and the regular
payment of the corresponding premiums upon any request from the lessor or
its representatives.
b) In the event that the lessee's activity gives rise to an increase in the
insurance rates paid by the owner to cover the building, the lessee shall
be required to reimburse the lessor for the additional premium amounts.
c) The lessee may in no case hold the lessor responsible for any theft which
may occur on the leased property. It may not claim any indemnity or damages
from the lessor in this regard and shall take personal responsibility for
the control and oversight of its space.
d) It may not claim any decrease in rent or indemnity in the event of
temporary elimination or reduction of common services, in particular for
water, gas, electricity and telephone.
e) The lessee shall waive all liability-related remedies against the lessor.
f) The lessee shall immediately inform its insurer of any event which may
cause damages to it or to others, regardless of its significance and even
if it does not result in apparent damages, failing
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which it shall be held liable for any complications which may result from
its silence. Said notification shall also be confirmed with the lessor
within 48 hours.
9) Site Inspection:
---------------
a) The lessee shall allow the lessor, its architect, any contractors and
workers, and any parties authorized by the lessor to enter the leased
property in order to verify its condition whenever the lessor deems such
action appropriate.
b) It shall allow inspections of the property by the lessor or potential
future lessees, or in the event of termination, for a period of six months
prior to the expected date of departure of the lessee, it shall allow the
posting of signs and indications in the locations deemed appropriate by the
lessor during said term.
ARTICLE 6: TERMINATION CLAUSE
-----------------------------
It is expressly agreed that failing payment of a single installment by its exact
due date or failing to perform a single clause, one month after a simple order
for payment or performance, noting this clause and without effective remedy,
this lease shall be terminated by operation of law at the option of the lessor,
without requiring any legal action.
In the event that the lessee or any tenant in its own right should refuse to
relinquish the leased property, eviction may take place immediately upon simple
summary court order issued by the Presiding Judge of the Regional Court of
Versailles which shall be enforceable notwithstanding recourse to appeal.
ARTICLE 7: REPRESENTATIONS OF THE LESSOR
----------------------------------------
The lessor represents:
. That there is no restriction on the use of the leased property defined
above resulting from the provisions of articles 340 et seq. of the Urban
Planning and Residential Code.
. And that to its knowledge, the leased property is not subject to any
current expropriation measures, that this property is not located in a
renovation sector and more generally, that no current town planning
measures exist which may jeopardize the enjoyment arising from this lease.
ARTICLE 8: REPRESENTATIONS OF THE LESSEE
----------------------------------------
For its part, the lessee represents being aware of the provisions of articles
340 et seq. of the Urban Planning and Residential Code, as well as articles L
520-1 et seq. of the Urban Planning Code.
It also acknowledges being informed of the services applicable to the leased
property's status in terms of urban planning.
ARTICLE 9: GUARANTEE DEPOSIT
----------------------------
In order to guarantee the performance of the obligations incumbent upon the
lessee, the lessee shall deposit with the lessor, the sum of FF. 27,125 (TWENTY-
SEVEN THOUSAND ONE HUNDRED TWENTY-FIVE FRANCS) corresponding to three months'
rent.
By express agreement between the parties, the following is agreed: this sum
shall be held by the lessor throughout the term of the lease until the final
payment in full of any indemnity whatsoever which the lessee owes to the lessor
upon the expiration of the lease. Thus, the lessee may in no case attribute the
amount of the last rent installment to this guarantee deposit. Finally, this sum
is turned over to the lessor as a security deposit and shall bear no interest.
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In the event of termination of this lease due to nonperformance of one of the
conditions or for any cause attributable to the lessee, the guarantee deposit
shall remain in the possession of the lessor as initial damages, without
prejudice to any others.
It is expressly agreed that in the event of modification of the rent by virtue
of the clause set forth above or any other legal modification, the sum paid as
the guarantee deposit shall be increased in the same proportion as the new rent.
Consequently, the lessee shall pay the sum required to complement this guarantee
deposit at the time of the first increase.
ARTICLE 10: ENTIRE AGREEMENT
----------------------------
The parties acknowledge that they have only entered into this agreement due to
the fact that the lease agreement is combined with a service agreement and that
in no case shall they be bound by only one of these agreements without the
existence of the other.
Consequently, the breach by either party or by the actions of either party of
either of these agreements shall result ipso facto in the breach of the other
contract, subject to all damages and losses.
ARTICLE 11: VALUE-ADDED TAX
---------------------------
In application of article 260-1-5e of the General Tax Code, the lessor affirms
election of subjection to value-added tax on the rent resulting from this lease.
Consequently, the rents are exempted from the tenant's right to lease, and the
lessee shall pay the lessor, in addition to the rent, the value-added tax
applicable at the time of payment.
ARTICLE 12: FEES
----------------
All fees and charges for this document and any amendments hereto shall be borne
by the lessee who agrees thereto, including those expenses incurred by the
lessor to enforce performance of the lease conditions.
ARTICLE 13: DOMICILE
--------------------
For the performance of this lease and any amendments hereto, the parties elect
their domiciles at the leased property.
ARTICLE 14: JURISDICTION
------------------------
For any dispute arising between the parties, the competent jurisdiction shall be
that of the Regional Court of Versailles.
Executed in two counterparts
In Montigny on 7/17/98
For the Lessor For the Lessee
The President of the SEML The Manager of E.S.T.
[signature] [signature]
X. XXXXXXXXX S. OILLIC
------------ ---------
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INTERNAL REGULATIONS
ARTICLE 1 Lessees may only use the space made available to them under the
terms of their lease agreements.
ARTICLE 2 Storage is prohibited in the common areas and outside. No hazardous
products shall be stored in the building.
ARTICLE 3 Lessees shall respect the safety regulations in use in the leased
industrial buildings. The emergency exits, hallways, and stairways
shall be maintained completely unobstructed. In the event of a
fire, advise the fire department immediately. While waiting for
assistance, use the fire extinguishers located on the posted map of
the building.
ARTICLE 4 No company operating in the building may compete with the services
of the Partially State-Owned Company.
ARTICLE 5 It is strongly advised that the maximum load limits not be exceeded
in the building. They are 1000 kg/m2 on the ground floor and 350
kg/m2 on the upper floors. The authorized load for the freight
elevator is 630 kg.
ARTICLE 6 Prior to leaving the property, lessees agree to ensure that the
lights are turned off and that the windows, interior and exterior
doors are closed.
ARTICLE 7 Notice must be given of any damage to or malfunctioning of the
equipment available in the common areas.
ARTICLE 8 Industrial waste is not removed by the Waste Removal Service. Each
lessee shall take personal responsibility for the removal of its
industrial waste including packaging (boxes, pallets, etc.)
ARTICLE 9 Tenants shall refrain from causing disruptions to the serenity and
safety of their neighbors. They are asked to use the property in a
peaceful manner and to maintain the common areas in good condition
through normal use. They shall ensure respect for the integrity of
the other lessees and neighbors.
ARTICLE 10 Lessees who wish to park in the parking lot must obtain a remote
control with a deposit of FF. 400. For security reasons, parking
next to the building is prohibited.
ARTICLE 11 Each lessee shall ensure the security of its space. However, the
owner may assign a security guard for supervision and maintenance
of common equipment.
ARTICLE 12 Only black and white colored blinds are permitted.
ARTICLE 13 Prior to posting adhesive signs or advertising, lessees must obtain
permission from the lessor.
ARTICLE 14 Failure to respect these regulations will jeopardize the security
and proper operation of the building. The termination clause in the
lease agreement may be enforced by the lessor in the event that the
parties cannot negotiate a resolution.
ARTICLE 15 Whenever a tenant vacates a space, a statement on the condition of
the space will be drafted and a carpet cleaning will be performed
at the expense of the departing tenant.
ARTICLE 16 Upon arrival, the lessee must install a sign, pay for it,
respecting the color and style of the panels, and update it in the
event of location changes.
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ARTICLE 17 The lessee shall be required to contract with an insurance company
for one or more insurance policies covering: fire, explosions,
lightning, electrical damages, water damage, broken windows and
similar damages, theft, and vandalism.
ARTICLE 18 Lessees shall ensure that access doors are constantly closed for
security reasons, in particular, after 6:00 p.m. and on weekends.
ARTICLE 19 Any electrical or wiring modifications shall be the responsibility
of the tenant.
ARTICLE 20 Any delay in payment of rent, charges and services shall result in
the systematic termination of services (photocopying, word
processing, cleaning, continuous telephone service, meeting rooms).
Montigny, 2/27/97
TRANSLATOR'S NOTE: There are illegible initials in the lower right margin of
each page of this document
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CERTIFICATE OF TRANSLATION ACCURACY
STATE OF FLORIDA )
) SS.
COUNTY OF MIAMI-DADE )
I, XXXX XXXXXXXX, duly accredited by the American Translators Association,
Alexandria, Virginia, in translation from the French language into the English
language (ATA No. 4614), hereby certify that the attached English translation of
the Lease and Service Agreement between PROMPOPOLE, S.E.M.L. and EMBEDDED
SUPPORT TOOLS CORPORATION -- EUROPE (E.S.T.), S.A.R.L. is a complete, accurate
and true translation from the original French version into English, to the best
of my knowledge and belief.
_______________________________________
XXXX XXXXXXXX
The foregoing instrument was acknowledged before me this 3rd day of
January, 2000, by Xxxx Xxxxxxxx who is personally known to me and who did not
take an oath.
_______________________________________
NOTARY PUBLIC
Notary Named Printed:
[SEAL]
My Commission Expires:
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