Contract
Exhibit
10.1
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SALE
BY THE
COMPANY
“SES
SOCIETE
D’ENERGIE
SOLAIRE SA”
TO
THE COMPANY
“LOC-INVEST
SA”
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KM/RL
1747
IN THE YEAR TWO THOUSAND TEN, ON
THE TWENTY-FOURTH AND THIRTIETH OF SEPTEMBER.
Before Xx. Xxxxx XXXXXXX, Esq.,
the undersigned notary of Geneva.
THERE APPEARED THE
FOLLOWING:
The corporation [société anonyme] “SES
SOCIETE D’ENERGIE SOLAIRE SA,” with registered offices at route xx
Xxxxx-Xxxxxx 000, Xxxx-xxx-Xxxxxx (GE), duly registered in the Trade
Register of Geneva and published in the Swiss Official Trade
Journal.
Represented here
by:
- Xx. Xxxxxxxx XXXXXXXXXX,
manager of the aforementioned company, domiciled in Geneva, a citizen of
France;
- Xx. Xxxxxx XXXX XXXX,
director/secretary and representative of the aforementioned company,
domiciled in Bernex (canton of Geneva), a citizen of
France;
- Xx. Xxxxxxx XXXXXXX,
director/chairman of the aforementioned company, domiciled in Xxxxxxxxxx
(canton of Vaud), born in the City of Geneva.
Fully authorized for the purposes
of this agreement by virtue of the publication made in the aforementioned
Journal.
Hereinafter referred to as:
“the
seller.”
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[initials]
And:
The corporation [société anonyme] “Loc-lnvest
SA,” with future registered offices at xxxxxx xx xx Xxxxxxx 00, Xxxxxx,
x/o “J.R.D. Immobilier SA,” whose registration in the Trade Register of Geneva
is currently in progress.
Represented here
by:
Xx. Xxxxxxx XXXXX, sole
shareholder of the aid company, domiciled at Pregny-Chambésy (canton of Geneva),
a citizen of France.
Fully authorized for the purposes of
this agreement by virtue of the record of incorporation of this
company.
Hereinafter referred to as: “the
purchaser.”
Hereinafter referred to jointly as: the
“Parties”).
The parties recite as
follows:
1. Purpose of the
agreement
The corporation “SES SOCIETE D’ENERGIE
SOLAIRE SA,” described above, declares that it is selling, in particular
pursuant to the letter of irrevocable undertaking signed by the parties dated
the fifteenth of September two thousand ten (15 September 2010), to the company
“Loc-lnvest
SA,” described above, which shall acquire:
I. The property hereafter
referred to the Land Register of Geneva, located in the Municipality of
PLAN-LES-OUATES, constituting in the land register of the aforementioned
municipality the right to leasehold improvements for the duration of the
specific property lease [droit
de superficie distinct et permanent, DDP] that confers the following
parcel, which is the property of the State of Geneva:
[initials]
- 2
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Parcel
6708 hereinafter designated:
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Descriptive summary of
the real property
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Municipality:
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Plan-les-Ouates
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Real
property no.:
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6708
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Local
name:
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ZIPLO
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Area:
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7,100
m2, Official Survey
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Building(s):
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Factory
incorporated in the DDP 36/6786,
no.
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4764,
3,317 m2
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Chemin
du Champ-des-Filles 36,
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1228
Plan-les-Ouates
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Observation(s):
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Pursuant
to 16387B
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4850
dated 04/05/2005
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Notes
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06/04/1993
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Preemption
in favor of State of Geneva
(LGZDI),
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1477
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ID.2004/065985
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Easements
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14/03/2001
2037 C
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(Type
A) Prohibition to build, ID.2004/048350,
48583
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In
favor of STATE OF GENEVA, state,
GENEVA
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14/03/2001
2037 C
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(Type
B) Plantation, ID.2004/048445,
48661
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In
favor of STATE OF GENEVA, state,
GENEVA
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14/03/2001
2037 C
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(Type
F) Public services use (occasional), ID 2004/048446,
48662
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In
favor of STATE OF GENEVA, state,
GENEVA
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27/02/2007
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DDP
(Type A) from 01/07/2006 to
01/07/2066
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2007/1997 C
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(60-Year),
ID.2007/007571,
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In
favor of Plan-les-Ouates/6786
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Land
costs
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None
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Annotations
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27/02/2007
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Elimination
of right of legal preemption of the
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2007/1997/0
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superficiary,
ID.2007/007569
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27/02/2007
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Special
conditions for reversion,
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2007/1997/0
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ID.2007/007570
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[initials]
- 3
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Charges on immovable
property
None
The aforementioned leasehold
improvements for the duration of the specific property lease for a term of sixty
(60) years, starting on the first of July two thousand six (1 July 2006) are for
the following Parcel:
Parcel
6786 hereinafter designated:
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Descriptive summary of
the real property
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Municipality:
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Plan-les-Ouates
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Real
property no.:
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6786
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DDP:
27/02/2007
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DDP (Type A) from
01/07/2006
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2007/1997/0
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to 01/07/2066
(60-Year),
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ID.2007/007571,
72012
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Responsibility
of Plan-les-Ouates/6708
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Local
name:
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ZIPLO
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Area:
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7,100 m2, Official
Survey
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Building(s):
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Factory,
no. 4764, 3,317 m2
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Chemin
du Champ-des-Filles 36,
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1228
Plan-les-Ouates
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Notes
None
Easements
None
Land
costs
None
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Annotations
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27/02/2007
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Elimination
of right of legal preemption of the
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2007/1997/0
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superficiary,
ID.2007/007569
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27/02/2007
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Special
conditions for reversion,
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2007/1997/0
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ID.2007/007570
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01/10/2008 C
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Lease
at 30/06/2033, ID.2008/005634
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2008/10565/0
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In
favor of SERVICES INDUSTRIELS DE GENEVE, a public corporation,
GENEVA
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Charges on immovable
property
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27/02/2007
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Priority
1, Nominal legal mortgage
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[initials]
- 4
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2007/1997/0
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CHF
216,195.00, LR [land registry] no. 1997, 27/02/2007, Revenue from
DDP. ID.2007/002958
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Creditor
STATE OF GENEVA, state, 27/02/2007
GENEVA
2007/1997/0
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14/12/2007
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Priority
2, Bearer mortgage note
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2007/13698/0
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CHF
9,000,000.00, LR no. 13698, 14/12/2007, Max. interest 12%,
Annotations: Mortgage assigned higher priority.
ID.2008/000404
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14/12/2007
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Priority
3, Xxxxxx mortgage note
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2007/13698/0
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CHF
1,000,000.00, LR no. 13698.1, 14/12/2007, Max. interest 12%,
Annotations: Mortgage assigned higher priority.
ID.2008/000405
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13/10/2008
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Priority
4, Bearer mortgage note
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2008/11041/0
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CHF
5,000,000.00. Max. interest 12%, Annotations: Mortgage assigned
higher priority. ID.2008/002511
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25/02/2010
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Priority
5, Bearer mortgage note
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2010/1899/0
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CHF
430,000.00, Max. interest 12%, Annotations: Mortgage assigned
higher priority. ID.2010/000941
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With all premises and outbuildings, and
integral and auxiliary parts, without any exception or reservation.
II. All rights and obligations
of the building authorization no. DD 99459-4, issued 27 May 2005, for the
additional authorization to build no. DD 99459/3-4 issued 5 October 2009 by the
Department of Construction and Information Technology, and the conditions for
the application of development zone standards approved by the Council of State
Decree of 11 May 2005, which shall remain attached hereto (Schedule
no.1).
CONSTRUCTION
AREA
The aforementioned Parcel 6708 in
Plan-les-Ouates is located in an agricultural zone for industrial and artisanal
development.
[initials]
- 5
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2. Sale price and submittal of
mortgage notes
2.1. Purchase price and payment
terms
The sale price of the real property
covered under this agreement is fixed at a lump sum of:
— TWENTY-FIVE
MILLION FRANCS EXCLUDING TAXES —
— (CHF
25,000,000.—) —
which amount the purchaser paid prior
to this agreement, to the consignment account of the undersigned the undersigned
notary at the “Banque Cantonale de Genève,” Geneva.
- FOR WHICH FINAL RECEIPT IS DULY GIVEN
WITHOUT RESERVATION -
2.2.
Deductions
The undersigned notary undertakes to
credit the account indicated by the seller as soon as the formalities of
registration by the Land Registry Office are completed, all without interest,
minus:
[initials]
- 6
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a) the payment by the
undersigned notary of the various mortgage debts under public or private law
owed by the seller and related to the real property covered under this
agreement, including any arrears on any tax whatsoever, such as additional
property tax for past years and the current year, the tax on real property
profits and gains, the tax formalities relating thereto, outstanding fees owed
to the State of Geneva, accepted, disputed, or withheld invoices, estimates or
final invoices indicated in the attached summary (Schedule No. 2), loans and
interest
to the “Banque Cantonale de Genève,” State of Geneva, etc., in particular, the
balance of the equipment tax due to the State of Geneva of ONE HUNDRED FORTY
THOUSAND FIVE HUNDRED FORTY-FOUR FRANCS (CHF 140,544.00) payable to the “Geneva
Foundation for Industrial Land” [Fondation pour les terrains
industriels de Genève] (FTI), in the name and on behalf of the State of
Geneva, and the revenue from the right to leasehold improvements for the
duration of the specific property lease for the period from the first of July to
the thirtieth of September two thousand ten (1 July to 30 September 2010) of
EIGHTEEN THOUSAND SIXTEEN FRANCS AND THIRTY-FIVE CENTIMES (CHF 18,016.35), and
the debt from ScanE in the amount of SEVEN MILLION THREE HUNDRED FIFTY-SEVEN
THOUSAND ONE HUNDRED EIGHTY-SEVEN FRANCS AND FORTY-EIGHT CENTIMES (CHF
7,357,187.48) as at the thirtieth of September two thousand ten, including
interest.
b) a maximum amount of FIVE
HUNDRED THOUSAND FRANCS (CHF 500,000.00) which shall remain blocked in the
accounts of the undersigned notary, as a reserve for a maximum period of six (6)
months. This reserve will be used to:
ba) pay all debts of the
seller in connection with the property now being sold that were incurred before
the signature of this agreement but are unknown at the time
thereof;
bb) pay all costs and expenses
related to potential civil liability proceedings of the seller in connection
with the property now being sold that were incurred before the signature of this
agreement but are unknown at the time thereof;
bc) in the event of a
potential debit by the seller in connection with the purchaser-seller accounting
mentioned below;
[initials]
- 7
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It is further stated that the balance
available on the aforesaid amount of FIVE HUNDRED THOUSAND FRANCS (CHF
500,000.00) will be paid to the seller upon the expiration of the aforesaid
period of six (6) months, unless certain disputes are still unresolved; in this
case, the corresponding amounts will remain consigned at the Offices of the
undersigned notary, until resolution is reached.
c) costs arising from consent
of the State of Geneva to the waiver of preemptive rights and the transfer of
the agreement for the right to leasehold improvements for the duration of the
specific property lease, as will be set forth below.
2.3. Real
wages
The seller hereby freely assigns and
immediately remits to the purchaser, who accepts, the four (4) mortgage notes
(Land Register numbers ID.2008/000404, ID.2008/000405, ID.2008/002511, and
ID.2010/000941) that currently confer the aforementioned right to leasehold
improvements for the duration of the specific property lease, free of any pledge
or other restriction of the right to alienate, and the purchaser thus becomes
the sole debtor for the aforementioned mortgage-backed securities as of this
date.
All fees, interest, or payments that
would remain due to creditors due to these waivers and early releases remain the
sole responsibility of the vendor, who accepts.
It is further understood that the
purchaser is hereby fully aware of the amounts and the terms and conditions of
the aforesaid mortgage notes, insofar as they are mentioned above.
[initials]
- 8
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Consequently, the purchaser expressly
exempts the undersigned notary from restating the aforementioned registrations
of mortgages more fully in this agreement.
It is further stated that the aforesaid
right to leasehold improvements for the duration of the specific property lease
is also covered in the Land Registry for the following registration of a
mortgage, namely:
Attachment
1997 dated 27 February 2007 (ID no. 2007/002958): A registered legal
mortgage to the benefit of the “State of Geneva,” which was mentioned above, as
a guarantee for the revenue from the right to leasehold improvements for the
duration of the specific property lease, in the total amount of TWO HUNDRED
SIXTEEN THOUSAND ONE HUNDRED NINETY-FIVE FRANCS (CHF 216’195.00), which has the
highest priority.
The undersigned notary is authorized by
delegation of powers, upon the filing of this agreement with the Land Registry,
to have the change of debtor and the adaptation of the securities for the
aforesaid bearer mortgage notes recorded, on behalf and at the expense of the
purchaser.
Finally, it is noted that the
aforementioned parcel 6708 in Plan-les-Ouates is, as such, not required by the
Land Registry to register any mortgage whatsoever.
2.4. Easements, notes, and
annotations
The purchaser declares that it has been
informed of the exercise of all easements of interest to the aforesaid parcel
6708 in Plan-les-Ouates, the scope of the annotations for the elimination of the
right of legal preemption by the superficiary, the special conditions of the
reversion of the right to leasehold improvements for the duration of the
specific property lease, and the rental lease to the benefit of Services
Industriels de Genève SIG, which was entered into the Land Registry and
mentioned above and hereby expresses no reservations whatsoever.
[initials]
- 9
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In addition, the purchaser declares
that it has been properly informed about the scope of the note of Preemption in
favor of the State of Geneva (General Law on Industrial Development Areas)
registered for parcel 6708 in Plan-les-Ouates on 6 April 1993 under number
ID.2004/065985 and expressly releases the undersigned notary from any liability
whatsoever in this regard.
It is further stated that the aforesaid
right to leasehold improvements for the duration of the specific property lease
is not covered in the Land Registry through the registration of any note
whatsoever.
Finally, the purchaser declares that it
has received prior to this agreement a statement of the aforesaid easement
registrations, notes, and annotations and the supporting documents relating
thereto.
3. General provisions of the
contract of sale
3.1. Taking possession and
repossession
The entry into possession and transfer
of risks, profits, and expenses related to the real property sold will take
place on the first of October two thousand ten (1 October 2010) at the latest,
provided that the State of Geneva, having subsequently intervened, has given its
consent to this transfer on the thirtieth of September two thousand ten (30
September 2010), unless the taking of possession and transfer of risks, profits,
and expenses will coincide with the date of possession indicated
below.
[initials]
- 10
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With regard to the taking of possession
(transfer of ownership), this will occur on the date of registration of this
agreement at the Land Registry.
3.2. Condition and
Guarantee
3.2.1 The building shall be
sold in its current state, as the seller owns it and enjoys it, and the
purchaser declares that it has full knowledge of it, having seen and visited it,
with its legal integral and auxiliary parts, without exception or reserve, free
of any fees or charges other than those mentioned above, except for the rental
leases discussed below, with the understanding that no other guarantee from the
seller, apart from the guarantees that it has in respect of various trades that
have undertaken any title whatsoever for the construction works and without the
guarantee of the areas indicated, which are those of the Official Surveying
Service.
It is further noted that the aforesaid
building no. 4764 is new and not yet complete as regards the improvements on the
rough surfaces and light work on the aforesaid building.
In this matter, it is expressly agreed
between the parties that it is the purchaser who will perform at its own expense
and under its sole responsibility, in accordance with the building
authorizations mentioned above and according to the rules of the trade, all
improvements on the rough surfaces, alterations, light work, and additional work
that would be necessary for the compliance of the aforementioned building no.
4764, for which the seller relinquishes responsibility, such that the seller may
not be worried or bothered about this issue.
[initials]
- 11
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The seller shall transfer, at the date
of the taking of possession, to the purchaser, who agrees, all guarantees of
construction and installation from which it benefits, in its capacity as project
manager, with regard to contractors and craftsmen who participate in any
capacity in the construction and improvement of the aforesaid building in its
current state.
The seller shall, however, remain bound
by the guarantee, in accordance with Article 219, paragraph 3, of the Swiss Code
of Obligations, in the event that the purchaser should not succeed in the
exercise of any rights that have been transferred to it.
In this regard, the seller certifies
that:
a) all work that was performed
by the seller under its responsibility was done according to SIA standards and
the laws and regulations in force on the filing date of the building permits,
with the understanding that the directives or standards that have been published
since then have not been considered without any limitation or waiver of
guarantee having been concluded, and the purchaser shall therefore have all
usual guarantees covering visible defects and hidden flaws from the receipt of
the property by the seller;
b) supplies conform to SIA
standards and the laws and regulations in force on the filing date of the
permit(s), with the understanding that the directives or standards that have
been published since then have not been considered;
[initials]
- 12
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c) all technical installations
(elevators, heating, electricity, ventilation, windows, etc.) performed by the
seller under its responsibility, i.e., the areas located on the ground floor and
second floor of the aforesaid building no. 4764, are in perfect working
order;
d) the air flow distribution
system (hot air, cold air) for the building is expected to supply all of the
current premises of the building without there being any need for the purchaser
to have to conduct any additional improvements to the aforesaid premises,
provided that the work necessary to complete the improvements of the rough
surfaces of the aforesaid building and other work indicated above and to serve
future premises are the responsibility of the purchaser;
e) periods of coverage for
devices such as elevators, fans, pumps, burners, and any motorized device, are
those given by their manufacturers;
f) these devices shall be
covered by a guarantee as if they were under a special maintenance
agreement.
It is further stated that, under
Article 371, paragraph 2, of the Swiss Code of Obligations, action against the
contractors, architects, and engineers must be initiated within five (5) years
of receipt of the work.
[initials]
- 13
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3.2.2
Leases, rental income,
and statements
3.2.2.1. The seller attests that the
building is empty of any occupant, other than the premises occupied by itself,
and free of any lease, except those covered by the annotation of the rental
lease agreement for Services Industriels de Genève SIG mentioned above and
concerning the roof of the aforementioned building no. 4764.
The seller declares that:
- the aforesaid lease agreement is
concluded for a period of twenty-five (25) years starting 1 July
2008;
- rental income relating to such lease
is ONE FRANC (CHF 1.00) per year.
The parties exempt the undersigned
notary from describing the aforesaid leasing agreement in more detail and
attaching it to this agreement, as they have full knowledge of it.
However, a copy of a certificate from
Services Industriels de Genève dated 24 August 2010 shall remain annexed hereto
(Schedule No. 3).
3.2.2.2. The seller confirms to the
purchaser that as of this date, there is no written or oral convention or
agreement with the tenant other than the leasing agreement
concluded.
In addition, the seller guarantees to
the purchaser that the current leasing agreement is not subject as of this date
to any termination.
3.2.2.3. For the remainder, the
purchaser declares that it has full knowledge of this rental report and that no
rental guarantee will not be transferred to it.
[initials]
- 14
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The seller confirms that no dispute is
pending as of this date for both before either the Rent Tribunal or the
Conciliation Commission.
The aforesaid existing rental lease
shall be assumed by the purchaser with all the rights and obligations attached
thereto.
3.2.2.4. It is further noted that the
seller and purchaser signed immediately before this agreement a leasing
agreement, a copy of which shall remain deposited at the Firm of the undersigned
notary.
The parties expressly exempt the
undersigned notary from describing the aforesaid leasing agreement in more
detail and attaching it to this agreement, as they have full knowledge of
it.
3.2.2.5. Moreover, the seller
guarantees to the purchaser that:
a) there is currently no
litigation or proceedings (pending, closed with a period of enjoinment, in
progress, or announced) in relation to all existing contractual relationships
with the real property sold, other than those listed in the terms of this
agreement and provisioned for these purposes above, under clause 2.2., letter
b);
b) no proceedings respecting
the civil liability of the seller are in progress on this date in connection
with the building currently being sold;
otherwise, the seller agrees to assume
full liability for such proceedings, with the purchaser being fully discharged
of all liability.
[initials]
- 15
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4.1.
Environmental
conditions and concentration of asbestos fibers
4.1.1. Environmental
conditions
In reference to the legislation
respecting environmental protection, the vendor certifies that it is not aware
of any pollution, nor has it caused any.
It is noted that this parcel is not
listed in the register of polluted sites for the canton; this has been confirmed
by a simple historical audit conducted by the engineering consulting firm “DE
CERENVILLE GEOTECHNIQUE SA” on 7 June 2010 and in a document from the Department
of Geology, Soil, and Waste of the Republic and Canton of Geneva dated 7
September 2010, copies of which shall be attached to this agreement. (Schedule
No. 4).
For the remainder, the provisions of
the Federal Law on Environmental Protection remain applicable.
4.1.2. Concentration of asbestos
fibers
If within two (2) years after taking
possession, a concentration of breathable asbestos fibers is found on the
premises covered under this agreement that exceeds the guidelines recommended by
the Federal Commission for Coordination of Workplace Safety and that the cause
of this concentration of asbestos is obviously due to aspects of the building or
its equipment that were already present during the taking of possession, the
corresponding costs of removal will be paid by the seller.
[initials]
- 16
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The purchaser undertakes to immediately
notify the seller of any asbestos-related problem once it becomes known. The
seller has an exclusive right to the choice and extent of measures to be taken
to conduct the necessary removal in compliance with the legal requirements in
this matter.
4.2. Ordinance regarding low
voltage electrical installations
The purchaser’s attention is drawn to
the ordinance regarding low voltage electrical installations of 7 November 2001,
which refers to the obligation of every property owner to verify, by a
professional as defined by section seven of that ordinance, the compliance of
low voltage electrical installations in its building after each transfer of
property, provided that the last inspection date was not more than five (5)
years ago.
The costs of any restoration shall rest
solely with the purchaser, with the seller being completely released from any
responsibility.
4.3. Radon
With regard to the Federal Ordinance
Respecting Protection from Radiation of 22 June 1994, the seller confirms that
is not aware of the existence of any radon exposure in the real property now
bring sold and that no measurement of radon has been conducted, and the
purchaser accepts without reservation.
[initials]
- 17
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The attention of the parties is drawn
by the undersigned notary to the website xxx.xx-xxxxx.xx,
which is maintained by the Federal Office of Public Health and contains
information about radon risks in each municipality in Switzerland.
4.4. Confirmations by the
seller
The seller confirms that all
indications that were given to the purchaser and/or its agents and/or the person
conducting the review of the real property currently being sold correspond to
the current condition of the building. There has been no omission of any
material information for a correct assessment and evaluation of the aforesaid
building.
4.5. Purchaser-seller
accounting
A prorated purchaser-seller accounting
shall be prepared separately and apart from this contract concerning all
recurring services such as claims of public law, energy costs, taxes, insurance
premiums, rents, heating and operation costs, et cetera.
The accounting shall be prepared by the
seller within a period of thirty (30) days maximum from
the taking of possession and transfer of profits and risks and provided without
charge to the purchaser.
The accounting shall be recognized as
accurate if not disputed within thirty (30) days maximum in
writing following its receipt. Any balance due shall be acknowledged within
fifteen (15) days
maximum after the preparation of the accounting.
[initials]
- 18
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4.6. Income tax and real estate
gains
Income tax or real estate gains or any
other tax that shall be owed subsequent to this agreement shall be the
responsibility of the seller, who accepts.
As long as the undersigned notary does
not obtain an exemption from recording the aforementioned taxes and in order to
comply with the provisions of Article 86A of the General Law on Public
Contributions, the seller shall give irrevocable instructions to the undersigned
notary to record, for the sale price stated above, this amount at his Firm,
without interest, and remit it to the tax authorities, upon the entry into force
of the tax statement.
The seller certifies moreover that all
the federal, cantonal, and municipal taxes relating to the aforesaid building
have been paid or will be paid by it until the day of the taking of
possession.
An attestation by the cantonal tax
authority in this regard is attached hereto (Schedule No. 5).
The purchaser waives any claim of all
other guarantees, in knowledge of the analysis carried out by its agents and
point 4.10 below.
4.7. Documents
The seller agrees to immediately return
to the purchaser all documents relevant to the real property covered under this
instrument, including all leases, building descriptions, technical data,
building plans if they are in the possession of the seller and/or if they exist,
maintenance and others contracts, to the extent that these documents are not
already in the possession of the purchaser. Rights of guarantee that are still
valid shall be transferred by the seller to the purchaser.
[initials]
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4.8. Legal mortgages under public
law and private law
The attention of the purchaser is drawn
to the fact that the claims under cantonal public law of the State,
municipalities, corporations, and institutions under public law relating to a
building are secured by a legal mortgage under public law where a special law so
provides. These mortgages may be hidden.
In this regard, the parties reiterate
the mortgage taken out in favor of the superficiary and indicated
above.
The seller certifies that as of this
date it is not a debtor on any claim may give rise to such mortgages, and it
undertakes to duly discharge any obligations not yet mature that are susceptible
to such a guarantee, if a legal mortgage were to confer the property, the seller
undertakes to do everything in its power to immediately relieve it at its own
expense (through payment of debt or provision of collateral) and, if the
purchaser discharged the debt itself, to repay it immediately.
The parties appearing, who have been
informed about this matter, release the undersigned notary from any
responsibility in this regard.
[initials]
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4.9. Administration, service and
janitorial agreements, and architect’s terms of reference
The seller shall directly inform the
tenant of a change of ownership.
The architect’s terms of reference
shall not be resumed by the purchaser, with the understanding that the relevant
agreement was terminated prior to this agreement. Any claims arising out of this
agreement shall be the responsibility of the seller.
Conversely, the purchaser shall assume
at its expense all service agreements and janitorial agreements still in force.
The seller shall transfer all rights and obligations therefrom to the purchaser,
and the seller shall be fully discharged from them, subject however to the
denial of transfer of these agreements by the other party.
4.10. Insurance
The purchaser shall succeed to all
insurance policies and all subscriptions and pay the premiums from the date that
possession is taken.
Pursuant to Article 54 of the Federal
Law on Insurance Policies, the seller’s insurance policy passes to the
purchaser, subject to the right to terminate it within thirty (30) days
following the transfer of ownership in the Land Registry.
[initials]
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4.11. Exclusion of all obligations
vis-à-vis third parties and rights of preemption
The seller confirms that there is in
relation to the real property being sold no administrative provision and no
formal requirement or agreement with third parties that could harm the value of
the real property being sold or the availability of the premises, or for which
the purchaser should incur significant additional costs.
Subject to what is stated below, the
vendor confirms in particular that there is no right of preemption under binding
agreements, in particular the leasing agreement. In all cases, the rights and
obligations specified in the Land Registry and below are reserved.
In this regard, the undersigned notary
has drawn the attention of the parties appearing to:
A) the legal right of
preemption in favor of the “State of Geneva” on the real property currently
being sold, pursuant to Article 10 of the General Law on Industrial Development
Zones of 13 December 1984, which was entered in Land Registry on 6 April 1993
under PJ 1477 (ID No. 2004/065985);
B) the legal right of
preemption in favor of the superficiary or the “State of Geneva” on the real
property currently being sold, pursuant to Article 682, paragraph 2, of the
Swiss Civil Code and related proceedings;
[initials]
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C) the fact that the transfer
of the right to leasehold improvements for the duration of the specific property
lease is subject to the consent of the “State of Geneva” in accordance with
Article 5, clause 2, of the agreement for the right to leasehold improvements
for the duration of the specific property lease, which was entered in Land
Registry on 27 February 2007 under PJ 1997 (ID No. 2007/007571) (RS
72012).
Furthermore, the purchaser declares
that it is fully aware of all clauses and conditions in the aforementioned
agreement for the right to leasehold improvements for the duration of the
specific property lease, a copy of which shall remain attached hereto (Schedule
No. 6), and declares that it has assumed all rights and obligations of a real and
personal nature attached thereto, and the seller (who so accepts) is
completely discharged of all responsibility, from the date of the taking of
possession.
It is recalled that the right to
leasehold improvements for the duration of the specific property lease currently
being sold is subject to the payment of an annuity to the “State of Geneva,
currently in the amount of SEVENTY-TWO THOUSAND SIXTY-FIVE FRANCS AND FORTY
CENTIMES (CHF 72,065.40).
The purchaser is already obliged to pay
the amount of the aforesaid annuity to the “State of Geneva,” from the date of
the taking of possession, according to the purchaser-seller accounting to be
prepared between parties on this occasion, instead of the seller, who accepts
and declares that it is discharged and relieved of any responsibility in this
regard.
[initials]
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CHANGES TO THE AGREEMENT FOR
THE RIGHT TO LEASEHOLD IMPROVEMENTS
Given
this transfer of the right to leasehold improvements, the parties hereby agree
in this agreement to repeal Article 4, paragraph 2); Article 6,
paragraphs 1) and 2); Article 8, paragraph 1); and Article 14 paragraph 1),
clause II., letter C), and replace it with the following new
provisions:
Article 4, paragraph 2) - Purpose of
the right to leasehold improvements
“The building is leased to users whose
activities are consistent with the status of the industrial and artisanal
development zone.
The superficiary shall make available
to a “cleantech cluster/incubator” an area of one thousand five hundred fifteen
square meters (1,515 m2) at no cost until the thirty-first of December two
thousand eleven (31 December 2011).
Starting on the first of January two
thousand twelve (1 January 2012), a leasing agreement shall concluded for a
minimum period of ten (10) years with the “cleantech cluster/incubator,”
represented by the State of Geneva, the FTI, or a third party for an area of one
thousand five hundred fifteen square meters (1,515 m2), under the terms of which
the superficiary states that it has full knowledge and has already accepted
prior to this agreement, in particular by a letter dated 14 September 2010 from
the “Fondation pour les terrains industriels de Genève (FTI).”
[initials]
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In the event that the “cleantech
cluster/incubator” should vacate the premises on the first of January two
thousand twelve (1 January 2012), the superficiary may freely dispose of the
area of one thousand five hundred fifteen square meters (1,515 m2).
In this matter, the managers of the
“cleantech cluster/incubator” undertake to confirm to the superficiary
conclusion of the leasing agreement mentioned above no later than the thirtieth
of June two thousand eleven (30 June 2011), otherwise the superficiary may
freely dispose of the area of one thousand five hundred fifteen square meters
(1,515 m2).”
Article 6, paragraphs 1) and 2) -
Annuity from leasehold improvements
“1) Starting on the first of October
two thousand ten (1 October 2010) until the thirtieth of June two thousand
eleven (30 June 2011), the date of maturity of the contractual indexation period
currently in progress, the superficiary is obliged to pay to the State of
Geneva, by m2 of land conferred by the right to leasehold improvements, a
leasehold improvement annuity amounting to TEN FRANCS AND FIFTEEN CENTIMESS (CHF
10.15) per year. As the total area of the parcel is of 7,100 m2, the annual
annuity is therefore SEVENTY TWO THOUSAND SIXTY-FIVE FRANCS (CHF 72,065.00),
rounded up to the 12th to SEVENTY-TWO THOUSAND SIXTY-FIVE FRANCS AND FORTY
CENTIMES (CHF 72,065.40).
Since the starting date of the right to
leasehold improvements is fixed at the first of July two thousand six (1 July
2006), the base indices are one hundred five point two (105.2) (May 2000 = 100)
for the Swiss consumer price index and three point five percent (3.5%) for the
top-priority mortgage interest rate determined by the Banque Cantonale de Genève
for industrial wages plus zero point five percent (0.5%), which corresponds to
the rate of return.
[initials]
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Due to the leasing of more than fifty
percent (50%) of useful floor space to third parties, the annuity shall be
doubled starting on the first of October two thousand fifteen (1 October
2015).
2) At the end of each period of five
(5) years, the annuity from the right to leasehold improvements is determined
yet again by taking into account, in equal proportions:
- changes in the Swiss consumer price
index calculated by the Federal Office for Industry, Arts and Professions, and
Labor, as published in the Statistical Yearbook of Switzerland, or any other
official national index that may replace it;
- changes in interest rates or the
top-priority mortgage interest rate determined by the Banque Cantonale de Genève
for industrial wages and/or the reference interest rate issued by the Federal
Department of Economic Affairs plus zero point five percent (0.5%), which
corresponds to the rate of return.”
Article 8, paragraph 1) - Guarantee of
the annuity from the right to leasehold improvements
“1) The payment of the annuity from the
right to leasehold improvements is guaranteed by the registration to the right
of leasehold improvements of a legal mortgage as defined by Articles 779i and
779k of the Swiss Civil Code, for an amount equal to three (3) times the annual
annuity from the right to leasehold improvements, i.e., the amount of TWO
HUNDRED SIXTEEN THOUSAND ONE HUNDRED NINETY-SIX FRANCS AND TWENTY CENTIMES (CHF
216,196.20).
[initials]
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The legal mortgage is revised at the
same time and under the same conditions as the annuity from the right to
leasehold improvements.
The legal mortgage will be revised at
the doubling of the annuity from leasehold improvements in October two thousand
fifteen (October 2015).”
Article 14, paragraph 1), clause II,
letter C) -Consequences of the termination of the right to leasehold
improvements and compensation
“If the superficiary waives the renewal
of the right to leasehold improvements, ownership of all non-transportable
buildings and installations established under the right to leasehold
improvements shall pass to the State of Geneva, for their intrinsic value, given
their age and state of repair.
The clauses of this section relating to
compensation and restoration of the original state of the land shall be
annotated at the Land Registry.”
4.12. Value added tax
(VAT)
The parties confirm that the total
selling price of TWENTY-FIVE MILLION FRANCS (CHF 25,000,000.00) is distributed
in the following manner:
- For the land: ZERO FRANCS (CHF
0.00)
- For construction: TWENTY-FIVE MILLION
FRANCS (CHF 25,000,000.00).
[initials]
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The parties note that one hundred
percent (100%) of the sale price of the construction is used for operating
purposes.
This real estate transfer is, for the
purchaser, subject to the declaration procedure pursuant to Article 38 of the
Law Respecting Value Added Tax (LTVA) and Article 104 of the Ordinance
Respecting Value Added Tax (OTVA).
In this matter, it was agreed between
the parties that the declaration procedure shall be performed by the seller and
purchaser, the expenses of which shall be paid by the latter.
If the declaration procedure as defined
by Art. 38 LTVA should, for any reason whatsoever, not be applicable, the seller
shall opt to impose a transfer of the right to leasehold improvements for the
duration of the specific property lease covered under this agreement (tax option
as defined by Art. 22 LTVA). In such cases, the amount of VAT at the normal
corresponding rate (currently seven point six percent (7.6%)) will be payable by
the purchaser to the seller in addition to the sales price of the property
without the value of land, as stipulated in 2.1. of this agreement. Therefore,
if the declaration procedure is not applicable, VAT at the standard rate will be
levied on the amount of TWENTY-FIVE MILLION FRANCS (CHF
25,000,000.00).
In addition, the purchaser expressly
discharges the seller of any liability in the event of a request for a VAT
refund that the federal tax authorities would require following the above
declaration procedure or a change of use of the building in the
future.
[initials]
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4.13. Occupancy
Permit
It is emphasized that the seller has
already initiated procedure to obtain a permit to occupy the building with the
Department of Construction and Information Technology (DCTI), pursuant to an
attestation dated 10 September 2010 and sent the same day to the DCTI, a copy of
which shall remain deposited at the Firm of the undersigned notary.
Furthermore, the purchaser undertakes,
at its expense, risk, and peril, to perform any additional works to which the
issuance of final occupancy permit could be subject.
In this matter, the seller undertakes
to deliver to the purchaser the occupancy permit, upon receipt if the purchaser
were to receive it, given the fact that it has initiated the application process
relating thereto.
4.14. Xxx
Xxxxxx
The purchaser certifies that it is not
subject to the legal provisions, both federal and cantonal, respecting the
acquisition of real estate by persons domiciled abroad, be it at the behest or
on behalf of persons who have their domicile or registered offices abroad, that
its future acquisition is and shall not be financed by persons who have their
domicile or registered offices abroad to an extent exceeding the usual norms in
civil or commercial matters and undertakes to prove it to its rightful
owner.
[initials]
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In this regard, the purchaser
certifies, through its representative before the court, that the property to be
acquired is and shall be used in its entirety to exercise an economic activity
(stable establishment).
The undersigned notary notes that the
building currently being sold is fully allocated for industrial and artisanal
use.
The parties and the undersigned notary
further note that the reserve area of the property being sold is now less than
one third (1/3), with the understanding that this is confirmed by an “ad hoc”
certificate attached to this agreement (Schedule no. 7).
In addition, the purchaser agrees, also
through its representative before the court, not to build housing on the
aforesaid reserve area.
The parties confirm that this
acquisition does not require authorization from the competent cantonal
authority.
4.15. Law on demolitions,
alterations, and renovations of residential homes of 29 April 1996
(LDTR)
This sale is not subject to the
provisions of the Law on demolitions, alterations, and renovations of
residential homes of 25 January 1996 (LDTR) regarding the sale of commercial
premises.
[initials]
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4.16. Fees and
Charges
The costs of this instrument, or the
costs of its registration in the Land Register, transfer taxes, disbursements,
fees, and notary fees for the undersigned notary and the surveyor who prepared
Schedule 7 shall be paid by the purchaser.
In this matter, the aforesaid expenses
were duly accounted for before signing this agreement, as attested by the
undersigned notary.
The purchaser shall pay all taxes,
public contributions, and other annual expenses related to property sold, from
the date that possession is taken.
As for the additional property tax, the
purchaser will pay from 1 January of the year in
progress at the time of acquisition, pursuant to Article 76, paragraph 5,
of the General Law on Public Contributions.
In this matter, it is further stated
that with regard to the additional property tax, the seller undertakes to refund
to the purchaser the share of the tax due for the year at the time of
acquisition, prorated to the date that possession is taken, according to the
accounting that the parties will prepare in accordance with clause 4.7
above.
4.17. Partial invalidity (escape
clause)
Even though certain provisions of this
agreement should be invalidated, the validity of this agreement for the
remainder of the provisions would not be questioned. The contracting parties
will prepare, in this case, an agreement to replace the nullified provision by
an equivalent valid and economically feasible provision. This provision also
applies in the event of a deficiency in the agreement.
[initials]
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4.18. Validity of rights and
obligations of the parties
The parties agree that, without the
approval and signature of this agreement by the State of Geneva, within sixty
(60) days from the twenty-fourth of September two thousand ten (24 September
2010), they will be released from their mutual commitments under the terms of
this instrument, subject to a refund by the purchaser of the sale price listed
above.
4.19. Binding
commitments
The purchaser shall assume all
obligations stemming from this agreement and the supporting documents in the
Land Registry discharged by the seller. It undertakes to transfer these
obligations to all of its potential successors in law.
5. Final
clauses
5.1. Conditions
The filing of the deed of sale and
final purchase with the Land Registry will mean that the above conditions are
met.
5.2. Consent to
registration
The parties appearing authorize the
undersigned notary for the purposes of requesting the registration of this
agreement in the Land Registry.
5.3. Competent court of
law
The competent court of law for any
dispute arising from this agreement is conferred upon the court with
jurisdiction where the building is located.
5.4. Applicable
law
Swiss law shall be
applicable.
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5.5. Declaration of
sincerity
The parties certify that this
instrument indicates the full price and that it is not modified by any other
arrangement.
They further certify that they were
informed by the undersigned notary of the consequences incurred should this
statement be inaccurate:
a) Invalidity of the
instrument;
b) Criminal proceedings as
defined by Articles 252 and 253 of the Swiss Criminal Code.
5.6. Confidentiality
The Parties undertake to respect the
strictest confidence and not disclose to third parties any data or confidential
information concerning the partnership project and affairs of the other party.
This obligation of confidentiality also applies retroactively to all
confidential data or information that has already been disclosed by the parties
before the signing of this instrument.
5.7. Authenticated
copies
There shall be prepared four (4)
authenticated copies of this instrument, one (1) for the seller, one (1) for the
purchaser, one for the “Geneva Foundation for Industrial Land” (FTI), the
representative the State of Geneva, and one (1) for the Land
Registry.
PARTICIPANTS
The following parties participated in
this agreement:
[initials]
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THE “STATE OF
GENEVA.”
Represented here by:
Xx. Xxxxxxxx Xxx, head of the
administrative department of the State Chancellery.
With all powers for the purposes of
this agreement by virtue of an excerpt from the minutes of a meeting of the
Council of State of the Republic and Canton of Geneva, at Geneva on 29 September 2010, a copy of
which shall be attached hereto.
Which participant, after having
reviewed the instrument, stated through her representative appearing in court
that she approved the content without reservation, including:
- the transfer of right to leasehold
improvements and the resumption of payment annuities on the right to leasehold
improvements by the purchaser;
- new Articles 4, paragraph 2); 6,
paragraphs 1) and 2); 8, paragraph 1); and 14 paragraph 1), clause II., letter
C) of the contract law area;
- its waiver of its exercise of its
preemptive right (Article 682 of the Swiss Civil Code) and its preemptive right
based on Article 10 of the General Law on Industrial Development Zones of 13
December 1984.
The document
Concluded and signed at Geneva, in this
Firm, xxx xx Xxxxx 000, and at the State Chancellery, rue de l’Hôtel de Ville
2.
[initials]
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|
Approved
|
And
after reading the instrument, the parties appearing and
participant signed, with the notary, this original document, which they
approve.
|
|
[initials]
|
|
| mot nul |
For
“SES SOCIETE D’ENERGIE SOLAIRE SA” :
|
|
[signatures]
|
|
|
|
|
| [initials] | |
|
|
For
“Loc-lnvest SA”:
|
|
[signature]
|
|
|
For
the “STATE OF GENEVA”
|
|
|
[signature]
[cantonal stamp]
|
|
|
The
Notary
|
|
|
[signature]
|
[initials]
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