EXHIBIT 4.12
English Translation of:
This Commercial Lease Agreement is entered into in Seville this 25th day of
February 2005, BY AND BETWEEN:
XX. XXXXX XXXX XXXXXX XXXXX, of legal age, married, resident in Seville,
domiciled for the purposes of this agreement at Xxxxx Xxxxxxxxx Xxxxx, 00,
Xxxxxxx, with National Identity Card (D.N.I.) number 2617733-B, and acting on
behalf of PREVISION ESPANOLA, SOCIEDAD ANONIMA DE SEGUROS Y REASEGUROS with
T.I.N. A-41003864, as well as on behalf of SUR, S.A. DE SEGUROS Y REASEGUROS
with T.I.N. A-41003906 and registered address at Xxxxx xx Xxxxxxxxx xx Xxxxx,
00, as its legal representative.
AND:
XX. XXXXXXX XXXXXXXXX XXXXXXXXX acting on behalf of TELVENT SERVICIOS
COMPARTIDOS, S.A., whose registered address is Xxxxxxxxx, 0, Xxxxxx and with
T.I.N. A-83048553 as its legal representative by virtue of the power of attorney
granted before the Notary Public of Madrid, Mr. Xxxx Xxxxxxx-Sala Xxxxxxx, with
the number 3,484 of his protocol files.
Both parties do hereby mutually recognize their sufficient legal capacity to
enter into this agreement and freely,
WITNESSETH:
A) WHEREAS, PREVISION ESPANOLA, S.A. de Seguros y Reaseguros and SUR, S.A. de
Seguros y Reaseguros (hereinafter the "Landlord") are the owners of modules 101
to 106 and modules 201 to 226 of the Terfa Building located at Xxxxx xx
Xxxxxxxxxxx, 00, Xxxxxxx. The aforementioned modules are comprised of the
following surface areas:
Module 101 has a total surface area of 268.41 m(2); Module 102 has a total
surface area of 83.38 m(2); Module 103 has a total surface area of 118.34 m(2);
Module 104 has a total surface area of 150.66 m(2); Module 105 has a total
surface area of 176.28 m(2); Module 106 has a total surface area of 252.68 m(2);
Module 201 has a total surface area of 305.50 m(2); Module 202 has a total
surface area of 83.38 m(2); Module 203 has a total surface area of 118.34 m(2);
Module 204 has a total surface area of 150.66 m(2); Module 205 has a total
surface area of 175.55 m(2); Module 206 has a total surface area of 184.53 m(2);
Module 207 has a total surface area of 190.87 m(2); Module 208 has a total
surface area of 190.87 m(2); Module 209 has a total surface area of 182.14 m(2);
Module 210 has a total surface area of 178.16 m(2); Module 211 has a total
surface area of 273.39 m(2); Module 212 has a total surface area of 237.05 m(2);
Module 213 has a total surface area of 297.37 m(2); Module 214 has a total
surface area of 133.24 m(2); Module 215 has a total surface area of 131.49 m(2);
Module 216 has a total surface area of 140.65 m(2); Module 217 has a total
surface area of 271.06 m(2); Module 218 has a total surface area of 179.67 m(2);
Module 219 has a total surface area of 171.93 m(2); Module 220 has a total
surface area of 167.40 m(2); Module 221 has a total surface area of 169.67 m(2);
Module 222 has a total surface area of 182.48 m(2); Module 223 has a total
surface area of 377.47 m(2); Module 224 has a total surface area of 254.58 m(2);
Module 225 has a total surface area of 132.17 m(2); and Module 226 has a total
surface area of 196.22 m(2).
B) WHEREAS, TELVENT SERVICIOS COMPARTIDOS, S.A. (hereinafter the "Tenant") is
interested in leasing the aforementioned modules.
NOW, THEREFORE, LANDLORD AND TENANT DO HEREBY COVENANT, CONTRACT AND AGREE AS
FOLLOWS:
1.- The premises leased shall be solely and exclusively destined for the offices
of Telvent Servicios Compartidos, S.A.; Telvent Energia y Medio Ambiente;
Telvent Outsourcing; and Abencor, and shall be directly used by Tenant. Any
insurance activity is expressly forbidden hereby, and any changes of activity
shall not be permitted without the owners' authorization.
Landlord, nonetheless, hereby authorizes the use of said premises by companies
belonging to Abengoa, considering as such any companies in whose capital Abengoa
may hold a stake, including temporary joint
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Servicios Compartidos, S.A.
ventures. Should this be the case, Landlord hereby waives its legal entitlement
to a rent rise, without it being construed as unauthorized assignment,
subleasing or conveyance.
Tenant undertakes to perform the activities to be carried out in the premises
pursuant to the provisions set forth in prevailing legislation, as well as in
Municipal and Regional Authority (Comunidad Autonoma) Ordinances.
Tenant shall therefore be solely responsible for obtaining any permits and
authorizations that may be required by such regulations. Should this not be the
case, this agreement shall be terminated upon Landlord's or Tenant's request. In
either case, (should one party or the other request termination), Tenant shall
be entitled to charge for any monthly rent due up to that moment, as set forth
in Clause 3, in addition to three additional months' rent as compensation for
damages.
Tenant hereby states that it is aware of the Legal situation and prevailing Town
Planning Regulations that are applicable to the property, as well as of the
characteristics and state of upkeep of the premises and the administrative uses
which are allowed.
Tenant hereby states that it has received the aforementioned premises in perfect
state of use and that the fixtures and fittings inherent to it, such as glazing,
locks, door knobs, etc., are in normal working order. Tenant likewise states
that existing connections to utilities, along with their piping/wiring with
which the building is equipped are in normal working order.
Tenant shall be held solely liable for any damages caused to people or property
that may directly or consequentially result from the performance of its
activities or arise from the improper use of facilities. Compensation for
consequential damages and loss of profit shall be expressly excluded.
2.- This agreement shall have a term of 6 years, starting from January 1, 2005
and ending on December 31, 2010, the day in which the premises must be handed
over free and unoccupied to the owners.
Notwithstanding the foregoing, the agreement shall be construed to have been
extended for additional one-year periods for up to a maximum of two years if six
months' prior notice thereof is given by either of the parties.
Should Tenant vacate the premises before the end of the first four years of the
agreement's term, it shall be obliged to pay Landlord the outstanding monthly
rent up to the end of the first four years, that is to say up to December 31,
2008, as compensation for damages.
3.- The rental price is hereby set at 5.50 euros per square meter. Consequently,
the annual rent is hereby set at FOUR HUNDRED FOUR THOUSAND THREE HUNDRED AND
SIXTY-TWO EUROS AND NINETY-TWO CENTS, which amounts to THIRTY-THREE THOUSAND SIX
HUNDRED AND NINETY-SIX EUROS AND NINETY-ONE CENTS per month.
The rent, legal rises and increases and the building's costs and services shall
be paid one month in advance, within the first five days of each month.
This lease is subject to V.A.T. and, as a result, the corresponding amount of
V.A.T. due according to the legally prevailing rate at any one time shall be
automatically added to the rent. This amount shall be broken down from any other
items, and each monthly rent receipt shall serve as an invoice.
A standing order shall be set up in the Tenant's name to pay for the monthly
rent at the BSCH (0049) Xxxxxxxxx Xxxxxx, 2, Alcobendas (Madrid) branch (1812),
DC (80), account number: 0000000000.
Tenant shall incur any bank charges resulting from returned rental payments.
Tenant shall duly notify Landlord should any changes be made to the standing
order.
The rent shall be reviewed to adjust it to any variations in the consumer price
index as set by the National Institute of Statistics (Instituto Nacional de
Estadistica) or a similar Official Agency once two years have elapsed, that is
to say on January 1, 2007, and on the same day in succeeding years. The rent
shall be
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Servicios Compartidos, S.A.
increased or reduced, as the case may be, and in order to do so, issuing an
invoice with the new amount shall be deemed sufficient.
The review shall take effect as of the same month even though the review or the
publication of the official indexes may be delayed. The reviewed rent of the
previous period shall be taken as the basis of any successive rent reviews,
unless legal provisions should establish otherwise. Under no circumstances shall
a delay in applying a rent review be deemed as a waiver or expiry thereof.
4.- Tenant shall be obliged to pay the whole amount of Property Tax (Impuesto
sobre Bienes Inmuebles) corresponding to the leased premises. Should the tax
liability not be broken down, it shall be divided in proportion to the surface
area of each dwelling or premises. Tenant shall likewise pay for the
proportional part of any rates, duties, taxes and increases thereof it may be
responsible for, as well as for any new taxes that the State, Regional
Authority, Provincial Authority, Local Authority or any other Official
Corporation may levy on the property or on the leased premises, or that may
affect them.
5.- Tenant shall pay for the proportional part of the cost of using and
repairing the building's common facilities, elements and services that form part
of the leased premises, including the costs of maintaining a xxxxxx should there
be one, which are hereby excluded from the rent agreed upon herein. Such costs
must be paid over and above the rent. Not paying the aforementioned costs and
other services and supplies shall generate the same effects as not paying the
rent. The settlement of said costs shall be done in the month of January.
Tenant expressly waives the provisions set forth in Article 30, in relation to
Article 21 of the Urban Leases Law (Ley de Arrendamientos Urbanos) and therefore
undertakes to make any repairs that may be needed to maintain the premises in an
state fit enough to serve for the uses agreed upon herein. Additionally, Tenant
shall not be entitled to suspend the agreement or withdraw from it while such
repairs are being executed, neither shall it be entitled to any compensation,
nor to reduce or stop payment of the rent.
If, as a result of the foregoing paragraph, it may be necessary to make any
modifications to either the general facilities of the building or the facilities
that are specific to the leased premises, the cost of such modifications shall
be wholly incurred by Tenant and it shall request Landlord to grant it the
relevant authorization.
The upkeep, repair and replacement of the services, facilities and utilities,
especially all the drains, blockages, piping, fixtures, fitting, etc. shall
always be the sole responsibility of Tenant, who must request Landlord for the
relevant authorizations to effectuate such actions. Tenant shall also be held
liable for any damages that may be caused to the premises it leases.
Concerning refurbishment works, Tenant shall be obliged to bear with the
execution of such works pursuant to Article 22 of the Urban Leases Law.
The rent shall not include the costs arising from the consumption of
individualized utilities such as water, gas, electricity, telephone etc., which
must be wholly paid for by Tenant to the utility companies. Tenant shall pay for
all consumption, expenses and outlays such utilities may generate, as well as
for any acquisition, registration, maintenance, repair, replacement or
cancellation costs of their corresponding metering devices.
6.- Tenant may execute any works that may be necessary to perform it activities
within the premises. For any other kind of works, Tenant must obtain Landlord's
authorization. In any event, any works thus authorized, along with their
corresponding licenses shall be the sole responsibility of Tenant and shall be
to the benefit of the property, without Tenant being entitled to receive
compensation or to claim for them.
Likewise, Tenant shall be held liable for any damages caused to the property or
to third parties resulting from the works authorized by this clause;
consequential damages and loss of profit are expressly excluded.
Pursuant to Article 6 of the Terfa Office Building's Articles of Condominium,
Tenant shall facilitate the execution of refurbishment works needed for the
service elevator located between pillars E, F, 28 and 29
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Servicios Compartidos, S.A.
to reach the second floor, as long as they do not weaken the nature and
resistance of the building materials used.
Furthermore, the owner of the aforementioned service elevator, situated in the
adjoining building, has granted the following easements:
- Permanent easement for the passage of people, vehicles and goods
from the outside of the building to the service elevator's entry
point through the hypermarket's goods courtyard.
- Permanent easement for the use of the service elevator to the goods
and accompanying personnel areas.
Telvent Servicios Compartidos, S.A. shall have to leave the corresponding part
of the works in their original state upon termination of the agreement.
7.- Upon the termination of this agreement, Tenant undertakes to return the
leased modules with the dividing walls and facilities so that each of them may
be used on an individual basis.
Notwithstanding the foregoing paragraph, the parties hereby agree that all the
reusable goods installed by Tenant to perform its activities may be removed by
Tenant once the agreement has terminated, including but not limited to the
telephone system, air-conditioning devices, infrastructure security systems,
data network and access controls.
8.- Tenant expressly waives the provisions set forth in Article 32 of the
prevailing Urban Leases Law and is therefore prohibited from subleasing the
premises, either wholly or partly, or from transferring or ceding the leased
premises without having received Landlord's irrefutable prior written consent.
The breach of this clause by Tenant shall be sufficient cause for the
agreement's termination.
9.- The placing of fluorescent signs or advertising either on the facade or
inside the building facing the street is prohibited. Nonetheless, a plaque may
be placed on the wall next to the offices' access door, but never on the wooden
door.
10.- Landlord reserves the right to visit the premises, either personally or
through people it may designate or who represent it, whenever it may deem fit to
ensure that the terms and conditions set forth herein are being performed and to
determine whether any works may be necessary.
11.- Tenant delaying the payment of any amounts arising from this agreement will
generate the obligation of paying interest in favor of Landlord amounting to
1.5% per month from the date such payments should have been made until the
outstanding amounts are actually paid out. The foregoing shall be without
prejudice to any legal action Landlord may take, and Tenant shall be held liable
for any legal costs arising thereof - including attorneys' and procurators' fees
- should such action be successful.
12.- Tenant hereby waives all the benefits granted to it by the prevailing Urban
Leases Law concerning its right of redemption or pre-emption, and its right to
contest. Tenant likewise waives its right to any possible compensation it may be
entitled to pursuant to the provisions set forth in Article 34 of the
aforementioned Law.
13.- Tenant hands over to Landlord the amount of SIXTY-SEVEN THOUSAND NINE
HUNDRED AND THREE EUROS AND EIGHTY-TWO CENTS, equivalent to two months' rent as
a security deposit, upon the execution of this agreement pursuant to the
provisions of the prevailing Urban Leases Law. Said deposit shall be returned to
Tenant upon termination of this agreement once it has performed the stipulations
arising from this agreement to Landlord's satisfaction and to which it is bound.
Tenant shall lose the right of recovering said security deposit should Landlord
for any reason bring eviction proceedings against it as remedy for damages.
IN WITNESS WHEREOF, both parties have hereunto set their hand in duplicate in
the place and at the date first mentioned above.
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Telvent
Servicios Compartidos, S.A.
LANDLORD TENANT
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Telvent
Servicios Compartidos, S.A.
