EXHIBIT 10.16
[field for revenue stamp]
revenue stamp (1)
Milan, July 3, 2000
1) With this private deed (2) FINISOLA SPA, with headquarters in Milan, Via
Bistolfi no. 35, registered in the regular section of the corporate register
c/o C.C.I.A.A. [Chamber of Commerce for Industry, Agriculture and Handicraft]
of Milan [stamp] tax ID number 07487290152 as no. 234927 in the person of its
president and CEO, Mr. LUIGI FARE', born in Milan, 02/25/1946 hereby leases to
(2) NUVERA FUEL CELLS EUROPE SPA, with headquarters in Milan, Via Bistolfi no.
35 in the person of its legal representative Mr. FRANCO LADAVAS, born [stamp]
tax ID number 12910180152 in Milan, 08/05/1942
who accepts, the real estate unit consisting of OFFICES (309 square meters),
LABORATORIES (360 square meters), pertaining COMMON AREAS and OPEN AREAS in
MILAN via BISTOLFI no. 35 to be exclusively used for an INDUSTRIAL
ESTABLISHMENT
to conduct
business which does not entail direct contact with the user and
consumer public.
2) The term of the lease is 6 (six) years and --- months.
that is, from 07/01/2000 to 06/30/2006
3) The annual rent is hereby fixed as 121,000,000 lire + VAT
(one hundred twenty one million)
in addition to --- for expenses and services on account, except for
equalization, which will be determined on the basis of the actual expenses,
etc. in the amount of
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121,000,000 lire + VAT, to be paid to lessor's domicile
in 4 (four) equal advance installments of 30,250,000 lire + VAT, due 01/01,
04/01, 07/01, 10/1.
4) The lessee formally pledges to accept the conditions set down by lessor
except for the provision of art. 10
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Law 392/1978, the supply of heat, and to reimburse all expenses according to
local customs and practices. - 5) Failure to pay or partial payment, within the
legal terms and conditions, of a rent installment or of the shares of
additional costs, as well as a change in the use of the premises, shall ipso
jure result in the cancellation of the contract by lessee's action and fault
pursuant to art. 1456 Civil Code. -6) Reserved. - 7) Lessor reserves the right
not to provide a security service on the janitor's non work days, absence, and
vacations and during holidays during the work week, and to eliminate the
janitor service, by replacing it with adequate mechanical means. - 8) Reserved.
- 9) Lessee declares that he has examined the entire premises and all of the
facilities and that he has found them to be in a well maintained condition
according to art. 1575 Civil Code and shall therefore forfeit every right of
grievance unless such is produced within eight days of the commencement of the
lease, and he pledges not to make any changes to the premises or to the
facilities without prior written consent from lessor. All improvements or
additions, shall become lessor's property at the termination of the lease,
without compensation of any kind, except for lessor's right to demand the
premises be restored to their original condition for which lessee is liable and
at his expense. - 10) The repairs as per articles 1576 and 1609 Civil Code and
every other [repair] relating to the facilities of the rented premises and,
more precisely, electrical (bells, wiring, intercom system, etc.), plumbing
(faucets, tubs, sinks, pipes, radiators, etc.), frames, rolling gates, Venetian
blinds (including belts, rollers, hinges, panes, etc.) are lessee's
responsibility. Lessor reserves the right to visit the rented premises or have
[them] visited during the lease and to undertake both inside and outside,
changes, repairs, facilities, and work in general, without any obligation to
compensate even if it takes more than twenty days to perform the work performed
and such work is not urgent, the tenant thereby waiving the
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provision of articles 1582, 1583, 1584 Civil Code. - 11) Starting on the day on
which notice is communicated or in the event in which the owner wishes to sell
the building or the rented real estate unit, lessee must permit the premises to
be visited by applicants from 2:00 pm to 4:00 pm on working Mondays,
Wednesdays, and Fridays, under penalty of paying damages. - 12) Where during
the lease a part or all of the premises are declared uninhabitable or
unsuitable
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to the contractual use, should the contract thereby be terminated, lessor must
return only the portion of the rent paid to him in advance proportionate to the
loss of use, excluding all other compensation and all reasons for damages, also
in the eventuality specified in paragraph 2 of art. 1578 Civil Code. - 13)
Lessee is appointed caretaker of the rented premises and expressly releases
lessor from all responsibility for direct and indirect damage due to malicious
or culpable acts, omissions or negligence by the janitor, tenants or by third
parties, and specifically for theft with or without burglary, and for any
damage which might occur to the premises due to dampness, water flooding, or
seepage, and sewers backing up. Lessor is also released from all responsibility
for any shortage or lack of water, gas, or electricity and for failure to
supply any of any service, including heat, elevator, and intercom, even if
these are due to defective equipment or lateness in repairing same. - 14) For
all effects of this contract, including the serving of executions and for the
purposes of legal jurisdiction, lessee declares that he has elected domicile,
in all cases, at the rented property. - 15) With the exception of the provision
as per art. 8 of Law 392/1978, the costs of this contract and any renewal
thereof, as well as taxes, stamp surtaxes, and collection and receipt costs,
shall be borne by lessee. - 16) Lessee declares that he knows and accepts as an
integral part of this contract all of the conditions contained in the "General
Regulations for Tenants" (3) of which he has a copy, and those conditions
contained in the building's regulations, if any. Infraction of the rules
contained in the Regulations, if lessee receives objections [to same] at least
twice by registered letter, shall give lessor the right to request cancellation
of the contract with all legal consequences. - 17) Reserved. - 18) The parties
acknowledge that they hereby exclude any encumbrance of appurtenance or other
link between the unit which is the subject of this contract and other premises
used as a dwelling or a use other than the one envisioned in other contracts by
and between these parties, currently in force or in the future. -
19) If one of the contracting parties has not notified the other of termination
via legal document or by certified letter sent by the Post Office 6 (six)
months prior to expiration of the lease, although valid for a limited term, the
contract will be deemed
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renewed under the same agreements and conditions, except for what is agreed in
item 6 concerning the rent amount.
20) This contract is subject to VAT and shall be registered at a fixed rate in
case of use.
21) The present contract is understood to be without security deposit.
22) The rent will be updated and adjusted each year based on the annual change
in ISTAT index, staring 07/01/2001.
23) Subletting and gratuitous loan for use are permitted if communicated in
writing.
[stamp] FINISOLA S.p.A. [stamp] NUVERA FUEL CELLS EUROPE S.p.A.
/s/ Luigi Fare /s/ Franco Ladavas
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Luigi Fare Franco Ladavas
President and CEO President and CEO
LESSOR LESSEE
In compliance with articles 1341 and 1342 Civil Code, the parties, by reading
each clause and rereading clauses 4, 5, 7, 9, 10, 12, 13, 15, 18, 20,
21, 22, 23 hereby declare their express approval thereof.
[stamp] FINISOLA S.p.A. [stamp] NUVERA FUEL CELLS EUROPE S.p.A.
/s/ Luigi Fare /s/ Franco Ladavas
-------------------------------- ----------------------------------------
Luigi Fare Franco Ladavas
President and CEO President and CEO
LESSOR LESSEE
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[notes in left margin]
(1) Cancel prior to signature pursuant to art. 12 Law 10/28/1972 no. 642; for
recording, form 69 must also be attached containing the contracting
parties' personal and tax particulars and annexed form 8, list of
documents (2) Specify personal particulars, tax ID number, and domicile,
and in the case of a company, the corporate name, registered office, name
of the legal representative, and to the above, place and date of birth (3)
By the Milan Real Estate Association registered in Milan 8/1/1973 as no.
A/7/1/1980.
[right margin]
Served to the local Highway Patrol authority (Form 11 - Turri) on (date) by
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F I N I S O L A
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ORONZIO DE NORA GROUP
NUVERA FUEL CELLS EUROPE SPA
Via Bistolfi, 35
MILAN
Milan, July 4, 2000
SUBJECT: Lease contract dated 7/3/2000 regarding the real estate units located
in Milan at Via Bistolfi No. 35
With regard to the referenced contract, an Explanatory Note is annexed
hereto having to do with the management of the real estate by FINISOLA S.p.A.--
in particular, with the parameters adopted for determination of the rental rate
and the respective General Expenses and for the treatment of Ordinary
Maintenance. Said Explanatory Note must be considered an integral part of the
lease contract itself. Insofar as Special Maintenance, upon our authorization
following your request, it will be performed by us and charged to you at cost
plus 10% as an all-inclusive reimbursement of expenses and the respective
service, and will be invoiced quarterly and payable when due.
If you are in agreement with the above, kindly return a countersigned copy
hereof in acceptance.
Cordially,
IN ACCEPTANCE FINISOLA S.p.A.
NUVERA FUEL CELLS EUROPE SPA THE PRESIDENT
THE PRESIDENT /s/ Luigi Fare
/s/ Franco Ladavas
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Management of industrial real estate used by the Companies belonging to the ODN
Group
Via Bistolfi:
De Nora Impianti S.p.A.
Nuvera Fuel Cells S.p.A.
Norfin S.p.A.
Finisola S.p.A.
Flynor Jet S.p.A.
Oronzio De Nora Foundation
Via dei Canzi:
De Nora Elettrodi S.p.A.
De Nora Impianti S.p.A.
Nuvera Fuel Cells S.p.A.
Cologno Monzese
De Nora Elettrodi S.p.A.
1. Rental rates and general expenses
Finisola, on its own behalf and on the tenants' account, directly manages the
aforesaid real estate using its own personnel and/or by availing itself of
outside companies. Listed below are the criteria for determination of the
payments to be charged to the individual tenants of the lease contracts.
1a. Determination of rental rates
The annual payments shall be established on the basis of the surface area in
paved m2 occupied by each individual tenant, and increased on the basis of a
percentage of surcharge related to the commercial parts that are non-paved,
common areas and accessories (uncovered areas, sheds, warehouses, cafeteria
areas, janitorial areas, file rooms, bathroom facilities, corridors and
hallways...). Said percentage of surcharge shall be calculated in proportion to
the area occupied.
In particular, the total leasable m2 shall be placed in a ratio to the total
covered accessories m2 and to the total uncovered m2 with surcharge
coefficients (obviously reduced for this last type).
It shall be Finisola's duty to keep the blue prints for the occupied area
up-to-date.
Any leasable areas that are not occupied by the individual operating companies
shall remain under Finisola's charge insofar as the relative surcharge
percentages are concerned.
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1b. Distribution of Expenses
Two categories of expenses shall be recognized:
A. General Expenses related to the real estate and under the direct control
of Finisola. It is noted that any contracts executed with third parties
must be transferred to the name of Finisola. Said expenses shall be
charged again at cost quarterly on a per share basis payable when due,
based on the same criteria referred to under item 1a, unless otherwise
indicated. Among these there are:
o Finisola's fixed structural cost;
o MTZ (Management) and ISA (Hygiene Security Environmental) Offices:
they shall continue to be controlled by Finisola, which shall furnish
their respective services to the other industrial companies;
o Insurance on real estate: for the part involving the buildings
(third-party civil liability, theft, fire); the topic shall be
reconsidered in the course of 2001;
o Heating and air conditioning: with personnel in charge thereof
centralized at Finisola;
o Utilities - water: such utilities shall be registered in Finisola's
name for the three industrial sites;
o Cleaning company: for all the real estate (poss. with invoicing
referring to each site);
o Guarding and alarms: as above;
o Janitorial services: Finisola shall only be responsible for via
Bistolfi, including the respective employees;
o Switchboard (with hardware and software): personnel in charge
centralized at Finisola;
o Telephony: centralized and charged to each individual company on a
usage basis for fixed telephones, faxes going through the
switchboard, Internet lines and data transmission lines;
o Miscellaneous contracts: elevators, de-ratting, extinguisher
maintenance; ...
o Urban solid waste: the garbage tax and any contracts with AMSA shall
be in Finisola's for all three of
the sites.
B. The following expenses shall remain the responsibility of the individual
companies, in terms of management as well as in bearing the respective
costs:
o Utilities - electricity and methane: for Bistolfi, they shall be in
the name of DNI, while for Canzi and Cologno, they shall be the name
of DNE. Said costs shall be charged to the companies using them at
each site based on the area occupied, as reported by Finisola;
o Cafeteria: De Nora Elettrodi shall manage the contract with the other
party; thus different invoices shall be issued in the name of the
individual companies (current criteria);
o Janitorial: De Nora Elettrodi shall only be responsible for via dei
Canzi, including the respective employees, and shall bill the
expenses;
o Telephony: contracts for cellular phones, telephone and fax lines not
going through the switchboard shall remain under the charge of the
company using them;
o Special waste: every company that produces industrial and laboratory
waste must have its own listing in a waste loading/unloading registry
(Bistolfi: DNI, DNFC; Canzi: DNE, DNFC, DNI; Cologno: DNE); said
activity shall be assisted by Finisola (ISA).
All the reimbursements referred to hereinabove are to be understood as being
invoiced quarterly.
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2. Maintenance
All the maintenance operations, whether of a regular or special nature, with
regard to the three industrial sites in Milan: via Bistolfi, via dei Canzi and
Cologno Monzese must go through Finisola. In order to aid the operating
companies, Finisola will handle outside companies: requesting and approving
estimates, coordinating the work, its execution, as well as supervising the
same. Finisola - the MTZ + ISA office - with the cooperation of those in charge
at the individual companies, acts as the party responsible for obtaining and
maintaining permits and licenses such as: against industrial accidents, against
fire, approval of electrical equipment, ASL certifications, waste standards....
2.1 Regular Maintenance
The operations in question shall be performed by Finisola, following a request
to be forwarded to Finisola by the specific company lessee. After approving the
request for an operation, the cost of the work shall be charged to the
requesting company under the following terms:
a. the amount will not be calculated if the work is carried out solely with
Finisola personnel because it is already included in the charge for
general expenses under the structural costs;
b. on the other hand, if it is carried out with the utilization of outside
resources (materials and labor), these shall be charged at cost plus 10%
with the respective quarterly invoice.
Operations in the common areas and accessories shall be managed by Finisola and
shall follow the same treatment set forth hereinabove.
