Exhibit 10.17
Financial Property Lease Contract no. 21136
between
ING Lease (Italia) S.p.A. with registered offices in Bolzano, Corso Italia 13
and administrative headquarters in Brescia, Via Rodi 17/19, share capital L.
10,000,000,000, registered in the Companies Register of the Court of Bolzano,
Fiscal Code no. 03322380175, VAT number 01586440214, henceforth also called
""Lessor"
and
the company VILLA SISTEMI MEDICALI S.p.A., Fiscal Code and VAT number
10022080153, registered offices in Xxx Xxxxx Xxxxxx xx. 0 xx Xxxxxxxxxx (XX)
henceforth also called "User", in the person of its legal representative
XXXXXXXXX XXXXXXX GIUSEPPE born in Reggio Calabria (RC) on 25/05/47 in his
capacity as Managing Director, who declares, assuming every personal
responsibility for said declaration, that he retains all the necessary powers
for signing this contract.
WHEREAS:
- the User has asked ING Lease (Italia) S.p.A. to receive a property on a
financial lease basis, with the intention of using said property for its
activity, attributing to him, upon payment of a periodic amount, a personal and
exclusive right to use the property for a certain period, and assuming every
responsibility risk and care concerning the same and every connected right and
obligation, with the right to purchase the property at the end of the regularly
executed relationship, if, on the other hand, he does not opt for terminating
the same or if the same is not renewed at the conditions agreed;
- the Lessor is a leasing company that exclusively performs financial leasing;
- the User has identified the property, described in greater detail in schedule
"A" that forms an integral and essential part of this contract:
- the Lessor has committed itself to purchasing the property mentioned above
with a notarial act and the User has committed itself to reimbursing all the
costs incurred by ING Lease (Italia) S.p.A. for the purchase of said property;
- the User has ascertained that the promised property is free of persons and
things, constraints, registrations or transcriptions and liens and that the
seller has full and quiet disposal of it;
- if the declaration made above should not be true, this may give grounds for
the termination of this contract; the User shall, in any case, be responsible
for the effects and the Lessor will be exonerated from any responsibility
relating to such a situation;
- explicitly exonerating the Lessor from any responsibility, the User declares
that the property will be set up and that it is authorized for industrial use;
in virtue of licenses and authorizations and specific town-planning regulations
issued by the Municipality or, in any case, by the competent authority;
- the User has explicitly asked the Lessor to be able to have use of the
property through a financial property lease contract;
- that in selecting and identifying the property, the User declares, with
unconditioned promise, that the works carried out or to be carried out on it,
and that are built or are to be built, have not given rise nor will give rise to
breaches of any regulations, right or existing legitimate interest in favor of
third parties, even as far as the protection of so-called intangible assets, the
result of intellectual creation (such as, amongst others, patents, utility
models, etc) are concerned and the discipline of competition, with regard
therefore to projects, building techniques, special plants, installation
procedures and in general everything connected to the assets;
- the User is well aware of and approves the conditions according to which, on
the basis of negotiations carried out up until this time, ING Lease (Italia)
S.p.A. will be able to purchase the property;
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- the User has already familiarized itself, through concise notices and analyses
prepared by the Lessor under law no. 154 of 17th February 1992 (the so-called
transparency law) of the general conditions practiced by the Lessor with its own
clientele and has verified observance of the conditions applied to this
contract;
on the basis of these conditions and information on the juridical, economic and
patrimonial situation, supplied by the user, THE FOLLOWING IS AGREED:
A) PREMISE
The parties confirm the above premise that constitutes an integral and essential
part of this contract. The parties shall endeavor to fulfil each performance and
supplementary act, in order to make it possible and easy to implement the
contract illustrated below and that they stipulate from now.
B) ASSETS THAT ARE THE OBJECT OF THE CONTRACT
ING Lease (Italia) S.p.A. grants on a financial lease basis, to the User, who
accepts, the property described in greater detail in schedule "A" under the
general conditions of schedule "C" (that constitutes an integral and essential
part of this contract).
C) DURATION AND PAYMENT
Duration of the financial lease: 132 months.
Total payment of the financial lease: Lire 7,625,400,000 plus VAT to be paid:
- upon stipulation of this contract Lit. 300,000,000 plus VAT as a payment on
signature;
- the remaining amount divided into 132 periodic payments divided up as follows:
- 12 periodic payments each for the amount of Lire 41,500,000 plus VAT
- 12 periodic payments each for the amount of Lire 44,200,000 plus VAT
- 12 periodic payments each for the amount of Lire 45,800,000 plus VAT
- 36 periodic payments each for the amount of Lire 49,100,000 plus VAT
- 60 periodic payments each for the amount of Lire 66,330,000 plus VAT
to be paid monthly starting from the first day of the month following the
property's deed of purchase.
The financial lease payment has been agreed on the basis of the basic cost to be
incurred by the Lessor for purchasing the property and/or property complex
estimated at Lire 6,000,000,000 plus VAT.
The financial lease payment is indexed to the "EURIBOR" rate - Euro Interbanking
3 months letter, as in schedule "B", that forms an integral and essential part
of this contract.
Method of payment of periodic payments:
- permanent bank transfer order for the first periodic payment
- RID (electronic bank debit) for remaining payments
Bank chosen by the User: Banca Commerciale Italiana - Corsico Agency account no.
0000000 01 08
D) LACK OF PERMITS AND/OR AUTHORIZATION, VARIATIONS, DELAYS, EXTRA CHARGES AND
COSTS
If, for any reason whatsoever, the authorizations, licenses and permits
necessary for using the property for the usage envisaged in the premises should
not be obtained or, at a later date, repealed and/or cancelled, the Lessor will
be released, by explicit agreement between the parties, from any obligation
resulting from stipulation of this contract and will be entitled to withhold any
sum, received for any reason from the User, that, from this time, he undertakes
to:
- succeed in contractual relations;
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- pay in cash following the request of the Lessor any amount paid by the latter
and/or to be paid for any reason in relation to the properties that are the
object of this contract;
all of the above plus the management expenses incurred and interests calculated
at the rate agreed in point F) below for overdue interest, for the period
between the time of the individual payments until they are reimbursed by the
User. Still holding good reimbursement of any further charge, cost and expenses
in addition to compensation for further damages. After collecting the above, the
Lessor will transfer every right and/or claim relating to the property to the
User.
E) PRICE FOR PURCHASE OF ASSETS ON EXPIRY OF CONTRACT
The price for purchase of the assets, that may be exercised according to the
provisions of the general conditions, is established at Lire 1,500,000,000 plus
tax.
F) OVERDUE INTEREST, INTEREST RATE FOR INDEXING AND ACCESSORY CHARGES
Overdue interest: 10 points over the current ABI prime rate, applied for the
whole period of the delayed payment, starting from the date of each individual
deadline until the time of the relative payment.
Interest rate for indexing: Contracts expressed in currencies belonging to the
EMU area: EURIBOR rate - Euro Interbanking 3 months letter in force at the time
the contract is stipulated minus two percentage points. Contracts index-linked
to foreign currencies not belonging to the EMU area: Interbanking rate 3 months
letter on Euro-currencies, in force at the time the contract is stipulated minus
two percentage points, for the main banking operators published in the Sole 24
Ore.
Other accessory charges and general applicable conditions (net of VAT):
Administrative expenses and valuation: Lire 1,500,000 to be signed on
signature of this contract
Costs for collecting each RID: Lire 5,000
Costs for each communication: Lire 50,000
Costs for return of dishonored payment: Lit. 50,000
Costs for managing fines and sanctions Lit. 100,000 plus re-debit of the same
Costs for changing bank debit details: Lit. 30,000
Where not explicitly indicated, the general conditions published in the
information sheets sent to the clients, in force on the date this contract is
signed, will be applied.
The costs mentioned above and any others indicated in the contract or in the
relative additional agreements, equivalent to those currently published in the
special information notices sent to the clients, must be understood throughout
the contract as modified to comply with the amounts which, at the time of their
applicability, will be indicated in the above-mentioned notices.
The Lessor reserves the right to ask the User for further costs, that cannot be
quantified today, for special fulfillments not envisaged in the contract and
that might be agreed with the User further to an explicit request made by the
same, or resulting from legal or administrative provisions.
SCHEDULE "A": description of property IN PARTIAL DEROGATION OF THAT INDICATED
SCHEDULE "B": index-linking of payments IN THE SPECIAL CONDITIONS IT IS ESTABLISHED
SCHEDULE "C": general conditions THAT THE PERIODIC PAYMENTS START FROM 15/04/2000
Brescia, 30th March 2000
/s/ Xxxxxxxxx Xxxxxxx Xxxxxxxx
ING Lease (Italia) S.p.A. THE USER
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Schedule "A" to the Financial property lease contract no. 21136
Supplier: VILLA E C. S.R.L. - Xxxxx Xxxxxxxx Xxxxxx, 0 - 00000 Xxxxx (XX) - VAT
no. 00857710156
DESCRIPTION OF ASSET
In the Municipality of Buccinasco (MI), Xxx xxxxx Xxxxxx, 0, xxxxxxx of property
equipped with area in exclusive usage composed of:
- factory building located on the ground floor of approx. 4900 m2.
- building containing changing rooms, canteen and offices located on the ground
floor measuring a total of approx. 580 m2
- offices on first floor measuring approx. 470 m2
- arcade of about 247 m2
The whole building is illustrated in the Nuovo Catasto Edilizio Xxxxxx (New
Cadastral Building Register) of said Municipality under lot 1006362, sheet 15,
map 175, subsection 0, Xxx xxxxx Xxxxxx, Category D/1, yield 80,680,000.
Supplier: VARIOUS SUPPLIERS
DESCRIPTION OF THE ASSET
Re-modernization works
ING. Lease (Italia) S.p.A. THE USER
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Schedule "B" to the Financial property lease contract no. 21136
INDEX-LINKING OF PAYMENTS AT "EURIBOR" - EURO INTERBANKING 3-MONTH LETTER
The amount of the periodic payment envisaged by the contract will be modified
according to the trend in the cost of money during the period of the contract.
The EURO INTERBANKING - 3-MONTHS LETTER, EURIBOR quotation, referred to at a
specific date, as quoted, with value date on the date of recording, and
published in "IL Sole 24 Ore" will be taken as the parameter for calculating the
cost of money. Should there be no publication, or if such a publication should
be clearly wrong, the first available quotation prior to this date will be used
as long as it is not earlier than 7 days.
In the event of total non-availability of a quotation of the parameter, the last
available quotation will be used. If this non-availability should last for more
than one quarter, ING Lease (Italia) S.p.A. will ask a "super partes" authority
to index-link an alternative parameter and will also ask for the rules for using
such a parameter in order to safeguard the spirit and economic validity of that
provided by this schedule.
The User shall, now as then, accept anything that may be established in
compliance with the procedure defined above.
The extent of the adjustment made to the periodic payment will be established as
follows:
- the "EURIBOR" - Euro Interbanking 3-months letter rate, equal to 3.80% (three
point eighty per cent) established on common accord is assumed as the base
index. This base index is agreed between the parties irrespective of today's
quotation of such a type of pre-selected rate since it is the reference
parameter used for formulating the financial schedule of the contract;
- for the sole purposes of calculating the extent of the adjustment to the
payment, the term "residual capital" refers to residual capital, calculated
according to the so-called "French method", of a loan that has the same duration
as this contract, with identical reimbursements and deadlines as the periodic
payments stipulated in this contract (to this end the purchase option is
considered the equivalent of one payment), and having as allocated capital the
difference between the value of the assets that are the object of this contract
and the payment made at signature;
- the amount of the adjustment of each periodic payment will be calculated by
multiplying the average residual capital existing in the period prior to the
adjustment by the average difference, weighted for the period in question,
between the base index and the value of the EURIBOR - Euro Interbanking 3 month
letter rate of interest during the period;
The algebraic sum of the adjustments will be invoiced at the end of each
calendar quarter, with 30-day payment deadlines. After the payment deadline,
overdue interest will be applied at the rate stipulated in this contract.
In the event of a credit, ING Lease (Italia) S.p.A. will issue a credit note
and, if the User does not owe other amounts, him will remit the adjustment by
bank transfer within 30 (thirty) days.
No debits or credits will be issued for amounts of less than Lire 50,000; such
amounts will be carried forward and invoiced only when the total minimum limit
of Lire 50,000 is exceeded, or at the end of the contract.
ING Lease (Italia) S.p.A. THE USER
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Schedule "C" to Financial property lease contract no. 21136
GENERAL CONDITIONS
Art. 1 - GRANTING OF ASSETS AND STARTING DATE
ING Lease (Italia) S.p.A. grants the User, who accepts, at the conditions
indicated in the contract, the assets described in the same on a leasing basis.
The lease period will start with transfer of the assets that will take place at
the same time as the deed of purchase is stipulated. The User is obliged to
check at the time of transfer, that will be made in its direct favor, if the
assets correspond exactly to those requested and due, and to refer without
hesitation to the Lessor, giving its approval, if there are no objective
grounds, the soundness of which will be the User's responsibility, that prevent
the definition of relations with the seller.
Art. 2 - DURATION, PAYMENT AND CHARGE OF PAYMENTS
The lease contract will have the same duration as that provided in point C) of
the contract. When the above-mentioned period expires the lease contract will
cease by right, without the need for any cancellation. The total value of the
lease, indicated in point C) of the contract, must be paid as indicated in the
same point, plus the relative VAT rates, and/or any other tax duty due and
collection expenses. In particular, the first periodic payment will be due on
the 1st day of the period following the date on which this contract starts. The
User must immediately make provisions within the contractual and legal terms, to
pay each sum due, pending disputes or litigation between the parties or with
third parties. If the User holds more than one obligation, the Lessor will be
free to establish to which of these obligations the payments that the User will
make should be attributed, including any obligations possibly deriving from
different relationships than the current one. The User will give permanent
authorization to a financial institution of his choice to debit the amount due
to the Lessor to his own account using the RID (electronic bank debit)
procedure. However, the Lessor's right to unilaterally decide different payment
methods remains. In the case of delays in such payments, it is the
unquestionable right of the Lessor to insist that the User pays a daily overdue
interest as provided in point F) of this contract, without the need for any
further notice of establishing arrears procedures, retaining the right, after a
tolerance period of 30 days from maturity of the payment due and maintaining
accruement of overdue interest, to cancel the relationship "ipso jure", as well
as the others under art. 17 above. The payment does not include costs for water,
electricity, sewage, etc. and for connections of the same, that are in any case
at the complete charge of the User. It is agreed in any case that the Lessor may
never be considered responsible for failed provision of the supplies that are
the object of such utilities, whatever the cause may be.
Art. 3 - DISCIPLINE SUMS PAID ON SIGNATURE OF THE CONTRACT
Should execution of the relationship never start, the sums paid by the User at
the time of the request shall be credited to him, net of reimbursements due to
the Lessor, for example for administration and valuation expenses, at their
nominal amount, without any interest or other accessories. Said credit will also
include the VAT tax paid by the User, as long as the Lessor is allowed the
detraction under the provisions of current law. Given the credit discussed in
the previous sub-section, the Lessor's power to withhold, in any case, these
sums for credit, or any other in his hand, in compensation, as guarantee for any
possible reason, even if referring to obligations that have not yet matured or
are outstanding is explicitly recognized and confirmed, until final verification
of the same.
Art. 4 - REVISABILITY OF PAYMENT
The criterion in force is that the amount of the payment is compared with the
economic-financial cost of the entire operation during the validity of the
contract. It is confirmed that the amounts reported in point C) of the contract
have been calculated on the basis only of known cost elements or cost elements
that can be approximated and indicated as the purchase value in schedule A). All
further costs and charges concerning the property, including tax costs, in
particular the main and supplementary registration tax and also notary costs,
commissions, expenses and any other charges deriving from the payment procedures
agreed with the seller, future contingent expenses of any kind, fiscal or not,
deriving from events, laws and provisions of any Authority, that have occurred
or were initially not considered or known, incurred by the Lessor after
stipulation of this document, must be reimbursed by the User to the Lessor
itself, as accessory charges, within 10 days of a request being made by the
latter; in the event of a delay, the User must pay overdue interests as
stipulated in point F) of the contract on these sums, without the need for any
injunction.. The costs and charges indicated in the previous sub-section must be
understood as including not only every type of tax but also the relative
interests, surtaxes and monetary penalties that may be due to the offices of the
Finance Administration.
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Art. 5 - ASSUMPTION OF RESPONSIBILITY AND AUTHORIZATION TO ACT
The parties point out, as far as it may be necessary, that, considering the
nature of the contract and the principles to which it is subject, the User will
not make or be able to enforce, as a result of the explicit waiver made, any
action or objection against the Lessor, if any of the following circumstances
should occur, even if they should result in failed or reduced enjoyment of the
asset for a period of more than one sixth of the duration of the entire
relationship whatever the cause may be as long as it is independent of an action
of the Lessor (such as person, events, even if by a fortuitous event or force
majeure, etc.) and whatever the extent of its consequences, and therefore even
if it resulted in the absolute unsuitability of the asset for the use provided
by the User:
a) delays in handing over the assets or other non-fulfillments, on the part of
the person who has transferred or supplied the assets or associated plants to
the Lessor or who has contributed to their construction or manufacture, or by
any other third party;
b) irregularity with respect to the building licenses or permits and to building
authorizations or permissions to build or to use, or their default;
c) manifestation of obvious or concealed faults in the leased assets, at the
beginning or at a later date, faults in construction, quality or functioning;
d) damages, deterioration, destruction (except for that provided for in the
article below), the need for maintenance, substitution, repairs, etc;
e) every other case in which the User is unable to dispose of the asset
immediately and to use it thereafter for any reason (including therefore
strikes, occupation of the building, third party actions or claims, provisions
by the Judiciary or Administrative Authorities and for any other reason even if
deriving from fortuitous circumstances or acts of God). In such cases and in any
other similar case, the obligation to pay the periodic payments will remain in
force, as already stipulated, and the other obligations already charged to the
User, and the latter will assume, by explicit and essential agreement, every
hazard and risk concerning this. All of this irrespective of the implementation
of actions to protect the rights concerning the assets, the obligations to
return the property to its original condition, maintenance and anything else the
User is obliged to do, as established in other articles. This does not effect
the power of ING Lease (Italia) S.p.A. to cancel any supply contracts at its
exclusive initiative in the event of failed or delayed fulfillment by the
supplier, with, in this case, automatic cancellation of the financial property
lease contract. Similarly, ING Lease (Italia) S.p.A. reserves the right to
cancel, even partially, the supply contract, with automatic partial cancellation
of the financial property lease contract, limited to that asset or those assets
in relation to which the supply has not been carried out, for any reason, in
compliance with all the procedures stipulated in any of its purchase orders or
promises. The User declares that the fiscal and other data are those illustrated
above and shall immediately inform the Lessor if any changes are made to its own
company name or structure, the persons and organs that have the power to
represent him, its corporate structure, address and fiscal data (fiscal code/VAT
number).
Art. 6 LOSS OF ASSETS
If anything that is the object of the financial lease should be destroyed the
contract will be considered to be cancelled effective from that moment. In such
a case, the User shall be obliged to exonerate the Lessor, paying him a sum
equal to the difference between:
a) the value, indexed to the Rate indicated in point F) of the contract, of the
payments that are not yet matured at that time and the price agreed for the sale
of the asset at the end of the relationship, plus interests at the same rate as
overdue interest from the date on which the contract was cancelled until the
date of final settlement. In the case of an index-linked contract, the amount
deriving from the indexing adjustment must also be paid.
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b) any amount received by the Lessor as compensation from third parties, plus
that possibly obtained from the sale of his property right or any other right of
a real nature on that which remains of the property, without prejudice to
anything else stipulated, in relation to the hypothesis considered in the
previous art. 3. Similarly, each party may withdraw from this relationship, with
application, in this case, of the agreements illustrated above, if any other
event or circumstance should occur, also including the provisions of any
Judicial Authority or Administration that may make it impossible to enjoy the
asset. This, however, without prejudice to the Lessor's right to ask for
compensation for further damages if the facts mentioned above can be attributed
to the responsibility, even objective, of the User, his employees or assignees
for any reason. Every sum, asset or performance that the User may obtain from
rights enforced for compensation or others, from Public or private Bodies or
private individuals, must be directly used, firstly, to satisfy any possibly
non-fulfilled obligations that the User may have as a result of the financial
property lease contract.
Art. 7 - USE OF ASSETS AND RESULTING RESPONSIBILITIES
For the whole duration of the relationship, the following will be the exclusive
responsibility of the User, who must therefore exonerate the Lessor for the
same:
- damages and prejudices that, whatever the occasion or reason may be (and
therefore, for example, even if caused by construction faults or faults in
materials, failure to carry out maintenance and, in any case, fortuitous acts or
acts of God, carried out legitimately or illegitimately also by third parties)
may occur to persons or things as a result of the leased assets and their usage,
up until the time the property is handed over at the end of the contract,
subject to any action against third parties;
- responsibilities and costs concerning the leased items (including those for
monitoring fulfillment of the obligations that may concern them as far as third
parties are concerned) until their return, also in the case of early
cancellation:
- responsibilities and costs connected to the use, ordinary and extraordinary
maintenance (in its wider sense, therefore including roofs, external and
internal parts, windows and doors, plants) safekeeping and conservation of the
leased assets, are the sole responsibility of the User who must provide for them
with diligence. And this in derogation of any other regulation also entails for
the User the obligation to return the property to its original condition in the
event of even partial destruction of the assets (except for the intents and
purposes of the provisions of article no. 6) the obligation to make the
necessary repairs following fortuitous circumstances and acts of God or due to
normal wear and tear, as well as the obligation to carry out any other work or
modification even if prescribed by future legal or administrative provisions
necessary so that the assets may, totally or partially, be used by the User
himself. Finally the User will be solely responsible and must exonerate the
Lessor from, any costs and contributions concerning the property and its use
(such as, for example, for the building and ordinary and extraordinary
maintenance of roads and such like), whomever they are due to (and therefore to
public administrations, consortia, private bodies etc), and in the same way, for
any other responsibility linked to this.
Art. 8 - PREVENTION OF ACCIDENTS
The User confirms that he is well aware of the characteristics of the properties
and plants that are the object of the contract, including their compliance with
the regulations governing accidents on the work place. Therefore, in every case,
he pledges to check, in the future also and, if necessary, to update on his own
responsibility and costs, compliance with current or future regulations
governing this matter. If updating should entail a change, this must be
previously authorized by the Lessor, as under article 9 below, except for cases
where actions cannot be objectively deferred, for which notification must be
given simultaneously to the Lessor. Equally, the User shall observe and
guarantee observance of the regulations issued in this area concerning the use
of the assets, assuming the responsibility and cost of obtaining promptly all
authorizations and licenses that may be necessary. Also as far as the
obligations considered with this article are concerned, the User assumes every
direct responsibility, also remaining obliged to exonerate the Lessor from any
harmful consequence which, for any reason, may be suffered by him due to
failure, by anyone, to observe them.
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Art. 9 - CONSERVATION OF THE ASSETS
The User must keep the assets in a
good state of conservation and functioning and, as far as their nature is
concerned, if during the financial lease period any modifications, additions or,
in any case, variants, should be made with respect to the current state and
extent of the property without the written consent of ING Lease (Italia) S.p.a.,
the latter, without prejudice to any other right, may claim the elimination, at
the cost of the User, and the return of the property to its original state. If
the Lessor, again without prejudice to any of his other rights, should prefer to
keep the changes mentioned about, these remain acquired by him without giving
any entitlement to payments or indemnities of any kind for compensation. The
Lessor may always have the assets inspected, to checks observance of all the
obligations assumed today (or that may be assumed in the future) by the User,
without the need for any particular formalities or prior notice. If requested,
the User must exhibit any appropriate documentation. The User must give
immediate notification to the Lessor, in a registered letter, of the
establishment (and the co-related immediate declaration to the builder or other
responsible body) of faults in the leased assets, lack of quality, operating
faults in plants or such like, and also of irregular deterioration, damage,
destruction of material or any damages suffered; and also of any damage or
accident suffered by third parties as a result of the things themselves or their
usage, and finally, any claim from third parties about which it may be aware.
And in general, as far as the leased assets and their usage are concerned, the
User must inform the Lessor immediately of any other act or event that may cause
any inconvenience to him, even if limited only to the Lessor himself.
Art 10. - PROTECTION AND RIGHTS CONCERNING THE ASSETS
It is always agreed that the User, in protection of any other interest also if
in common with the Lessor, must take and cultivate every appropriate initiative,
on his own behalf and at his own responsibility and cost, even in court, so that
the rights or reasons that have as their object the leased assets, their
availability and enjoyment, or deriving initially from the use of them, are
protected immediately with regard to any third party; nor may the User ask that
the Lessor be responsible for this. This, on condition that the User, by law or
as a result of negotiations reached with anyone, has the power to exercise the
same right directly for any reason. If he should not have said power, but if ING
Lease (Italia) S.p.A. should grant him it by proxy or any other negotiation,
these obligations will remain equally the responsibility of the User. It is
pointed out, however, as far as the User is concerned, that he may not assume
without the intervention or the consent of the Lessor, attitudes or promote
actions in or out of court that may reflect on the integrity and range of the
rights on the leased asset, their content and the extent of the assets
themselves. The User must keep the Lessor informed about any other activity
carried out immediately. The above is agreed with reference to any fact, act or
event, even if it started prior to this contract; i.e. with regard, amongst
other things, to any right connected to the purchase of the assets, their
construction and transfer even if already carried out, by the builders and
vendors, to inspections, rights deriving from any faults, lack of quality,
operating defects in the plants (with the obligation to make the relative
declarations within the prescribed times), to actions to be carried out further
to damages or, in any case, prejudices to the assets and to the rights and
reasons linked to them, and with regard, finally, again as an example, to the
defense against claims from third parties about damages about which they
complain whose actual or claimed origin can be connected in any case to the
assets and their use. With regard to the situation considered above, the Lessor
keeps the right to take any autonomous or non-autonomous action on his own
behalf. The parties agree that where, as a result of non-fulfillment on the part
of the User or a lack of power on the part of the latter, the Lessor carries out
at his own responsibility and cost any of the activities mentioned now instead
of the User, the relative cost must be charged to the latter.
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Art. 11 - TRANSFER OF THE CONTRACT
The User may not transfer this contract, even if the company is
sold/transferred, without the written consent of the Lessor. In any case, the
User remains responsible, as far as the Lessor is concerned, jointly with the
transferee, for non-fulfillment of the obligations deriving from this contract.
He must also, immediately warn the Lessor, in a registered letter, if any
changes take place in his own company name or in the persons or organs that have
the power to represent it. Moreover, the assets may not be given in enjoyment or
granted to third parties for any reason. The Lessor may cede the contract and
all or part of the rights deriving from it, notifying the User who accepts from
this time.
Art. 12 - USAGE
The leased assets must be used by the User exclusively for carrying out his own
business. The User declares that he is authorized to carry out such usage by
virtue of municipality licenses and authorizations and in relation to specific
town-planning regulations or regulations, in any case, issued by the competent
authorities and the current condominium regulations. This usage may not be even
partially changed without the written consent of the Lessor.
Art. 13 - RENEWAL, EXTENSION OF THE CONTRACT
Once the contract has reached its agreed expiry date, it may be renewed by
appropriate negotiations based on the agreements and conditions that will be
indicated in a new financial lease contract the criteria of which will be
established in relation to the financial conditions in force at that time; as an
alternative to the above, the parties also agree the possibility of an extension
to the contract at the same conditions, except for the installment payments that
will be established, in this case also, in relation to the financial conditions
in force at that time.
Art. 14 - DEFAULT OF PURCHASE OPTION
At the end of the relationship, also in the case of early cancellations, the
leased assets must be returned to the Lessor, unoccupied by people or things, in
good maintenance condition, except for deterioration caused by normal wear and
tear, and in such conditions that they may be used immediately. The parties also
agree that, as an alternative to that provided above, the User, having reached
the end of this relationship, and on condition that this has been carried out
fully in a regular manner, will have the option to purchase the assets, subject
to a payment, in all cases, by the User himself, of the sum indicated as the
"Price for possible purchase of the assets at expiry of the contract " under
point E) of the contract, plus taxes. In order to be able to exercise this
option, the User must notify his intention to the Lessor in a registered letter
with return receipt, that must arrive, under penalty of nullity, at least 60
days before expiry of the contract or its extension. It is stated that,
irrespective of sending the notification above, the relationship will be
cancelled only with full payment, within the stipulated deadlines, of the
indicated sum. If this payment reaches the Lessor, fully or partially, beyond
the above-mentioned deadline, the same will have the option to withhold the sum
received, including that part of it possibly paid before the contract expired,
as payment of future financial lease fees and other payments of any kind that
are the responsibility of the User. The contracting parties must reach the
necessary agreements for transferring the ownership right to the User within 90
days of the final deadline of the financial lease stipulated in the contract. If
the purchase option is exercised, the relative deed of sale will be stipulated,
with costs charged to the User, with the Notary indicated by the Lessor. Before
such negotiations, the ownership right must result free from any real
constraints, that do not exist at the time the Lessor became its holder, or
registered at a later date in agreement between the Lessor and User or imposed
by legal obligations.
Art. 15 - ENCUMBRANCES LINKED WITH THE CONTRACT
All expenses, and any charges and depreciation of any kind and nature, even
fiscal, that result, for any reason or occasion, from the formation of this
relationship and its execution, will be charged exclusively to the User, who
must exonerate the Lessor, at first request, without prejudice to the latter's
right to add the relative amounts to the rental fees as provided in article no.
5. The charges resulting from the established relationship, assumed by the User,
also include any real taxes, including ICI (Municipality Property Tax) and any
other property tax charged to the owner that may be due on the asset composed of
the assets that are the object of the financial lease, as long as the
attribution of the relative charge to third parties is not forbidden by law, as
well as all expenses and dues deriving from the acts relating not only to the
act of purchase or to that of the financial lease, but also to acts that may
occur if, at the end of the relationship, the assets are transferred in favor of
the User, according to the option given to him, including, therefore the
registration tax due, principally, complementarily and supplementally.
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Art. 16 - INSURANCE COVERAGE
The User shall insure the property at his own expense, giving the Lessor copies
of the policies and the relative constraints, starting from the date of
stipulation of the notarial sale deed, with an Insurance company that meets the
approval of the Lessor, for civil liability and third party claim risks with a
maximum sum insurable of L. 3,000,000,000 and risks of fire and all other
material damage (lightening, explosions, blasts, aircraft crashes, fraud and
gross negligence, negligence on the part of the insured, smoke, water mains,
electrical phenomena, hurricanes, storms, tornadoes, snow, floods, etc). The
policies will be stipulated by the User in his own name, but on behalf of the
entitled person, under article 1891 of the C.C. and with the obligation in favor
of the Lessor for the sums corresponding to the actual reconstruction cost. All
the policies must be kept valid and efficacious for the whole duration of the
leasing contract, and the User shall send the Lessor a copy of receipts within
the expiry deadline of the premiums. Failing this, the Lessor will have the
right to take the place of the User as far as payment of the premiums due is
concerned, and the User will be obliged to reimburse the Lessor the expenses he
has incurred within ten days. Should the User consider, at any time, that the
insurance coverage does not offer sufficient or complete protection with respect
to the risks to which the asset may be exposed, or may suffer, and their
relative extent, he may widen insurance coverage increasing the maximum sums
insurable of the already existing policies or stipulating another or other
policies, with respect to which, the same rules agreed herein will be valid
between the parties, giving written notification of this to the Lessor. The User
declares from this moment that he has assumed all his obligations and that in
the future he will observe the conduct that the law and general and special
policy conditions consider to be the responsibility of the contracting party.
This applies, especially, for anything concerning the immediacy, form and
content of any declarations or communications sent to the Insurance Company, and
the fulfillment of all the various services and operations, concerning even
indirectly the ensured body and anything else that may condition the right to
indemnity and payment of the same. The User, when requested, will also assume
the same commitment with regard to the Insurance Company, in the ways and terms
that the latter will notify to the former. In spite of the agreed insurance
coverage the User will remain responsible in any verifiable hypothesis for all
damages and that part of them, actually suffered by the Lessor, that, for any
reason (therefore also due to the application of deductibles and any other
article stipulated in the insurance conditions) were not reimbursed or
completely reimbursed by the Insurance Company. Considering the complete
assumption of risks by the User with regard to the Lessor, and the specific
obligations deriving from them, it is confirmed that the indemnities paid by the
Insurance Company to the Lessors shall be credited to the User, net of the costs
sustained and without interests, subject to suitable demonstration by the latter
that he has regularly fulfilled the obligations charged to him under the
contract in relation to the event to which the indemnities refer, in particular,
amongst others, those under articles 6 and 7. As far as necessary, we state
finally that the Lessor will have the option of withholding the sums mentioned
above in even partial payment or guarantee of any credit.
Art. 17 - DEFEASANCE CLAUSE AND COMPENSATION FOR DAMAGES
If the User fails to fulfil the obligations deriving from articles 2, 8, 10, 11
and 16 fully and immediately and, i.e., also if non-fulfillment should concern
even only one of the relationships governed by this document, the Lessor will be
entitled to decide by right, and therefore with immediate effect, to terminate
the relationship, as in art. 1456 C.C., by sending a declaration to the User by
registered mail. The Lessor will also be entitled to terminate the contract in
advance, again by means of a communication sent by registered mail and without
the need to initiate arrears proceedings against the User in the following
cases:
- start of insolvency procedures against the User or termination of his
business;
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- discovery by the Lessor, after stipulation of the contract, of a reason that
justifies termination of the contract to purchase the assets concluded with
the vendor.
All of this, however, without prejudice to any other right attributed by the law
in cases of non-fulfillment (enforcement, prior invitation to perform, etc.). In
all cases, the User will have to return the assets that are the object of this
contract to the Lessor immediately, together with every accessory and
appurtenance in the way, place and terms indicated by the latter. Failure to do
so will authorize the Lessor to enter or send persons appointed by him into the
property that is the object of the contract; the User gives up his right from
now to make any objections or pleas to the contrary. The User will also have to
pay immediately any sum that has accrued at his charge for outstanding payments,
overdue interests, expenses, etc. up to the date on which the assets are
returned. These sums, together with any other amount paid for any reason by the
User, will be acquired definitely by the Lessor, also as a penalty. It will also
be the Lessors right to decide at his own discretion whether to claim from the
User also compensation for further damages. The amount of these damages, barring
further emergencies, will be established by calculating the current value, at
the interest rate for indexing indicated in point F) of the contract, of all of
the remaining contractual amount to be paid by the User, plus the amount
indicated in the contract for exercising the final right of option to purchase
the assets and minus the amount the Lessor has obtained, net of all costs
incurred, from the sale of the assets or for insurance indemnities or
compensation from third parties. In the event of a different utilization of the
property, the "cadastral value" will be deducted, again net of incurred costs.
In the case of an indexed contract, the amount deriving from the indexation
adjustment must also be acknowledged. Finally, the parties agree that if this
contract should be terminated before the asset that is its object is handed
over, for any reason whatsoever, the User will be obliged to exonerate the
Lessor from any charge incurred by the latter, paying him, amongst others, the
full amount of advances he may have paid the vendor, plus interests calculated
at the RIBOR 3 months letter rate plus 3 points, to be calculated from the date
of payment until the time the amount is repaid. Once he has received this
reimbursement, the Lessor will transfer to the User, his relative rights towards
anyone, if and to the extent at which they exist and can still be exercised, and
without providing any guarantee or assuming any responsibility with regard to
this.
Art. 18 - EXPIRY OF TIME LIMIT
In the event of: - failure by the User to pay more than one periodic payment of
the financial lease, or only one payment that is more than the eighth part of
the total amount of the financial lease; the start of insolvency procedures,
executive procedures, preventive proceedings, judicial mortgages at the charge
of the User, decrease in the guarantees given or failure to provide the
guarantees promised at the time this contract is stipulated:
Without prejudice to his right to declare the contract terminated in compliance
with art. 18 above with the appropriate notification sent by registered mail
with return receipt, the Lessor will be entitled to declare that the time limit
to which the User is entitled has expired and to demand immediate payment of the
periodic expiring payments, indexed to the rate indicated in the special
conditions, and the price agreed for the purchase option, plus any periodic
payments that have expired or are outstanding at the date of the declaration of
the expiry of the time limit together with the relative overdue interests and
overdue charges. Once the amounts mentioned above have been paid, the Lessor
will transfer ownership of the asset that is the object of the contract to the
User.
The Lessor, however, remains entitled to terminate the contract, even after the
declaration of the expiry of the time limit, in the event of failure to pay the
sum indicated in this declaration.
Art. 19 - NOTIFICATION TO DATABASES
The User explicitly confirms that he is aware of, and where necessary confirms
his own agreement, that the Lessor may notify information and data concerning
the User himself, this contract and the subsequent execution of the relationship
established today to Databases and Risks Offices to which ING Lease (Italia)
S.p.A. considers itself to belong.
Art. 20 - COMPETENT COURT
Any dispute connected to or deriving from the contract will be settled before
the competence of the Court of Brescia, with the exclusion of any other court.
If the Lessor is the plaintiff, he may, at his own discretion, appeal
alternatively to the magistrate of the place where he has even a subsidiary
office or the residence of the defendant, with the exclusion of any other. Any
changes to this contract must be made in writing.
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Art. 21 - INEFFICACY OF THE PURCHASE
The User who has negotiated the purchase of the asset, declares that the agreed
price is in line with market values and that the supplier is not in a state of
insolvency and that therefore there are no premises for an annulment action
under art. 2901 C.C. and subsequent articles or under art. 62 L.F. If an
annulment action should be moved against the sale or the payment that took place
between the Lessor and the Supplier, the User declares from now that he will
assume all charges and expenses related to opposing said action. If, at the end
of such an action, the negotiation should be declared invalid, the User shall
pay the Lessor in cash, as compensation for damages, the value of the purchase
option plus the sum corresponding to the current value of future payments, still
holding good regular payment of those amounts that have already matured or will
mature at the contractual indexing interest rate. On his part the Lessor shall
reimburse, after the above-mentioned payment has been made, any sums that he may
be paid further to the return of the asset following such an action. The above
applies, mutatis mutandis, if the Lessor proceeds with purchasing properties
located in neighboring areas or areas subject to the State protection constraint
under law no. 1089 of 1st June 1939, for which authorization from the competent
Military or civil Authorities is necessary, but had not yet been obtained at the
time the purchase was made.
Art. 22 BUSINESS ACTIVITY SERVICES
ING Lease (Italia) S.p.A. declares for all legal purposes that the services
covered by this contract are provided as part of its business activity (art. 4
DPR of 16.10.1972 no. 633) and that therefore, for the purposes of art. 1 of the
above-mentioned decree, it is subject to value added tax.
Art. 23 - EXCLUSION OF INTERPRETATION BY ANALOGY
Articles 1373 C.C. (unilateral withdrawal) - 1526 C.C. (termination of the
contract) - 1578 C.C. (faults of the leased thing) - 1579 C.C. (conventional
limitations of responsibility) - 1584 C.C. (Lessee's rights in the event of
repairs) - 1617 C.C. (Lessor's obligations) - 1621 C.C. (repairs) - 1622 C.C.
(losses caused by repairs) - 1627 C.C. (death of the tenant) will not be applied
to this contract even by analogy.
ING Lease (Italia) S.p.A. THE USER
For the effects and purposes of articles 1341 and 1342 of the C.C. the
provisions of the following clauses are specifically approved:
2 - (payment and charge of payments)
3 - (discipline sums paid on signature of the contract);
4 - (revisability of payment);
5 - (waiver of exceptions and assumption by the User of risks deriving from loss
of assets, damage, termination of the relationship and compensation at the
charge of the User),
7 - (assumption by the User of risks for damages and for third party
obligations; care, maintenance and costs relating to the leased assets);
8 - (prevention of accidents);
10 - (protection and rights concerning the leased assets);
11 - (ban on transfer etc.);
13 - (renewal, extension of the contract);
14 - (default of purchase option);
15 - (assumption of encumbrances linked with the contract);
16 - (obligations relating to insurance coverage);
17 - (defeasance clause, penalty and compensation for damages);
18 - (Expiry of time limit);
20 - (Competent Court);
21 - (inefficacy of the purchase);
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23 - (Exclusion of interpretation by analogy):
/s/ Xxxxxxxxx Xxxxxxx Xxxxxxxx
Xxxxxxx 30th March 2000 THE USER
