Contract
Exhibit
10.16
INCUBATOR-CONTRACT NO.: BMA-B2/A — INC. 1 &
6-05.001.
THIS LEASE AGREEMENT (“THE LEASE”) IS ENTERED INTO
BY AND BETWEEN VESTA BAJA CALIFORNIA S. DER.L. DE C.V.
(“VESTA”) REPRESENTED BY XXXXXXXXX XXXXXXX XXXX, IN
HIS CAPACITY AS LEGAL REPRESENTATIVE HEREINAFTER REFERRED TO AS
THE “LANDLORD”, AND ON THE OTHER HAND BLOCK MEDICAL DE
MEXICO S.A. DE C.V. REPRESENTED BY XX. XXXXX XXXXXXXX, IN HIS
CAPACITY AS LEGAL REPRESENTATIVE HEREINAFTER REFERRED TO AS THE
“TENANT”; AND I-FLOW CORPORATION., AS GUARANTOR,
REPRESENTED BY XX. XXXXX DAL PORTO, VICE-PRESIDENT, IN
ACCORDANCE WITH THE FOLLOWING STATEMENTS AND CLAUSES:
STATEMENTS:
| I. | LANDLORD REPRESENTATIVE STATES |
A) That on February 8, 2005, under Public Instrument
No. 71,759 Book 1,484 executed before Lic. Xxxxxxxxx Xxxxx
Xxxxxxxx Notary Public No. 62 for the city of Mexico City,
Distrito Federal, “Vesta” was incorporated, and that
such company incorporation is at the Public Registry of Property
in registration process.
B) That within the property, LANDLORD is the owner of and
built the Industrial Building identified on Exhibit
“A” as B-2 Suite A Incubator #1 of
3,321 square feet and Incubator #6 of
3,321 square feet, making a total of surface
6,652 square feet. The location, distribution, measurements
and characteristics are described on Exhibit “B”
attached hereto, (exhibits that are duly signed by the parties
hereof). The building includes the following leasehold
improvements that are deemed part of the building and are paid
for in the rent of such building, as follows:
| • | Electrical capacity of 300 AMP/220V, 3 phased 4H, with possibility to grow. |
| • | General lighting. |
| • | No charge for non productive water consumption. |
| • | Shared restrooms. |
| • | 2 dock doors, truck high loading. |
The land upon which the building is situated and the
building itself, are hereafter collectively referred to herein
as the “Leased Premises”.
C) That the LEASED PREMISES have water, sewage and water
reservoir, with power and service. TENANT directly contract
telephone lines.
D) That the LEASED PREMISES are available to TENANT for the
industrial use sought by TENANT, due to its nature and to its
location in accordance to the Internal Rules and Regulations of
LA MESA INDUSTRIAL PARK, included herein as Exhibit
“C”, which duly signed form an integral part of this
agreement.
E) LANDLORD has obtained all legal permits required for the
operation of the building as intended by TENANT under Mexican
laws.
| II. | TENANT’S REPRESENTATIVE STATES: |
A) That TENANT is a corporation legally incorporated in
accordance to the applicable laws of the Republic of Mexico,
with legal capacity to enter and bind itself by this Lease, as
stated in Public Instrument No. 42,289 executed before Lic.
Xxxxxxx Xxxxxxx Xxxxxx, Public Notary No. 7, for the city
of Tijuana, Baja California, which was duly recorded at the
Public Registry of Property and Commerce of Tijuana, Baja
California.
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CLAUSES
| FIRST. | LEASE OBJECTIVE |
Under the terms and conditions stated herein, LANDLORD hereby
leases to TENANT the “Leased Premises”.
LANDLORD declares that during the term of this agreement, it has
all property rights over the LEASE PREMISES, and warrants that
TENANT shall have the peaceful use and enjoyment of the same.
| SECOND. | TERM |
The initial term of this Lease, shall be of 15 (fifteen) months,
commencing on
May 15th,
2005 and ending
August 14th,
2006.
Notwithstanding the starting date of this Lease, TENANT shall
have right to access the LEASED PREMISES, in order to install
accessories and equipment, at any time, after the execution
hereof.
TENANT has the option to renew the term of this lease for 2
(two) additional periods of 3 (three) years each, through
written notice to LANDLORD for such purposes at least one
hundred and twenty (120) calendar days prior to the
termination of the initial term or any of its renewals.
| THIRD. | LEASE RATE |
Both parties agree that monthly “Base Rent” for the
Leased Premises shall be equal to that amount in Mexican Pesos
required to purchase $2,670.08 Dollars (Two thousand six hundred
and seventy dollars 08/100 U.S. Cy.) Base Rent shall be
payable in advance on the
15th day
of each calendar month at LANDLORD’S domicile located at
Calle E No. 4, Fraccionamiento Rubio, La Mesa, in
Tijuana, Baja California. Notwithstanding the foregoing, TENANT
at its sole option may elect to pay Base Rent in
U.S. Dollars and for purposes of this lease, payment of
Base Rent shall be deemed to be in Mexican Pesos.
LANDLORD hereby acknowledges receipt of an amount in Mexican
currency equivalent to the amount of $2,670.08 Dollars (Two
thousand six hundred and seventy dollars 08/100 U.S. Cy.),
as payment for the first installment of Base Rent, and issues
hereby the broadest receipt available by law.
Base Rent shall increase on the one year anniversary of the Rent
Commencement Date, and each subsequent anniversary, by the same
percentage increase in the Consumer Price Index for Los Angeles,
California (“C.P.I”), over the previous year as
published by the U.S. Department of labor Statistics;
provided however, that Base Rent shall not be increased by less
than 3% or more than 5% at the time of the increase.
Both parties agree that in the event of late payment of Base
Rent, TENANT shall pay 3% monthly penalty, starting the
6th day
as from the date on which the Base Rent is due and payable;
provided that LANDLORD has sent TENANT written notice by
reputable overnight courier (i.e. Federal Express or DHL), of
such delay and TENANT has thereafter failed to make payment
within 2 (two) business days.
| FOURTH. | SECURITY DEPOSIT. |
Upon signature of this Lease, TENANT shall deliver to LANDLORD
the amount in Mexican currency that is necessary to purchase the
amount of $2,670.08 Dollars (Two thousand six hundred and
seventy dollars 08/100 U.S. Cy.), as security deposit, in
whole or in part, as the case may be, for the compliance of each
of the provisions binding TENANT, arising from this Lease. The
aforementioned amount of deposit shall be returned to TENANT
upon termination of this Lease, or of the individual options of
the extension exercised, provided there is no balance due to
LANDLORD and that TENANT returns the LEASED PREMISES in good
condition, taking into consideration the normal deterioration of
the same due to its use. TENANT shall not be entitled to receive
interests from LANDLORD on such deposit.
Upon signature of this Lease, TENANT shall deliver to LANDLORD
the amount in Mexican currency that is necessary to purchase the
amount of $750.00 Dollars (Seven hundred and fifty 00/100) as
security deposit for the electric power consumption, which will
be credited on the last electric receipt.
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| FIFTH. | USE OF THE LEASED PREMISES |
TENANT shall have the right to use the Leased Premises for its
non-polluting industrial activities, mainly those related to
warehousing, in accordance with applicable environmental
legislation and will not generate odors, gases, smoke,
vibrations, dust, nor noises, which constitutes a nuisance, or
is damaging to LANDLORD or to third parties.
Both parties bind themselves to the Interior Rules and
Regulations of LA MESA INDUSTRIAL PARK, which is enclosed as
Exhibit “C”.
| SIXTH. | RENT ABATEMENT |
In the event that the LEASED PREMISES are damaged or destroyed,
by any cause, not attributable to TENANT, and that such damage
hinders the use of the LEASED PREMISES for the intended lease
purpose, LANDLORD shall determine within the next thirty
(30) days following LANDLORD’s acknowledgement of said
damage or destruction, if the LEASED PREMISES can be restored or
rebuilt within the next six (6) months, and shall notify
TENANT of this determination. If LANDLORD resolves that the
LEASED PREMISES cannot be restored or rebuilt within the six
(6) months period, both LANDLORD and TENANT shall be
entitled to terminate this Lease through written notice to the
other party.
If LANDLORD determines that the LEASED PREMISES can be restored
or rebuilt within the next six (6) months following the
date of notice of the casualty, LANDLORD at its own expense,
will proceed to rebuild or restore the LEASED PREMISES, waiving
the right to receive rental fees during the period of
reconstruction provided that the cause is not attributable to
TENANT.
It is hereby established, that in case of partial destruction of
the LEASED PREMISES, from causes not attributable to TENANT, the
rent shall be partially abated to which TENANT is affected in
the use of the LEASED PREMISES. This binds TENANT to provide
written notice to LANDLORD no later than one (1) working
day following the acknowledgement by TENANT of the damage.
| SEVENTH. | GUARANTOR |
I-Flow Corporation, through its representative Xx. Xxxxx
Dal Porto, at 00000 Xxxxxxx Xx., Xxxx Xxxxxx, Xxxxxxxxxx
00000 — USA, constitutes itself as TENANT’s
guarantor, guaranteeing all TENANT’s obligations hereunder,
and this obligation shall not cease until LANDLORD receives to
its satisfaction the LEASED PREMISES.
Accordingly Xxxxx Xxxxxx, Inc. agrees to execute the
“Absolute Guaranty of Lease” which is attached hereto
as Exhibit “D”.
EIGHTH. ALTERATIONS BY TENANT
TENANT shall be entitled to make interior alterations to the
LEASED PREMISES, at its sole and exclusive expense, as long as
such alteration do not affect its structural integrity or
exterior appearance. Thus, TENANT agrees not to make any
alteration that could affect the structural integrity or
exterior appearance, without prior consent by LANDLORD. The
request for such alterations shall be shown on a set of drawings
or blue prints and specifications submitted to LANDLORD for its
authorization. If LANDLORD does not opposes during a period no
longer than ten (10) days to such alteration, it shall be
understood that LANDLORD has granted its authorization. TENANT
agrees to return the LEASED PREMISES to LANDLORD in the
conditions and with the characteristics it has to the date of
execution of this Lease, except for the deterioration it may
suffer from the normal use, being obligated to pay for losses or
damages that LANDLORD may suffer for the removal of said
improvements in order to return the LEASED PREMISES to its
original state.
| NINTH. | UTILITIES OF THE LEASED PREMISES |
TENANT agrees to pay, the periodic costs of the utilities that
are available or will be available for the LEASED PREMISES, such
as electricity, water, telephone, etc.
| • | Electricity: TENANT shall pay to LANDLORD the cost of electricity on a monthly basis, in accordance to the consumption on their power meter at the same rate charged by the electric company. |
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| • | Water: LANDLORD provides water for restrooms. Any other water consumption, LANDLORD will charge to TENANT. |
| • | Telephone: TENANT shall deal directly with contract the telephone service and agrees to pay the periodic cost of this utility. |
| TENTH. | MAINTENANCE OF THE LEASED PREMISES BY LANDLORD |
LANDLORD shall keep in good working order during the term of
this Lease, the roof, exterior walls, exterior doors, floors and
other structural components of the LEASED PREMISES, including
water storage systems and associated piping. Repairs thereto
necessary for their good functioning shall be completed promptly
and at LANDLORDS expense, including reasonable preventive
maintenance.
| ELEVENTH. | MAINTENANCE OF THE LEASED PREMISES BY TENANT |
TENANT will maintain the electrical and plumbing systems
(including bathrooms) and the hydrophneumatic pump (excluding
water storage systems and related piping), the interior painting
and carpeting, non structural walls, partitions and ceilings,
ventilation and air conditioning systems and ducts, doors and
windows, in good order and condition at all times, and will make
all necessary repairs thereto at its own expense, including
reasonable preventive maintenance. TENANT shall not permit undue
accumulations of garbage, trash, rubbish and other refuse,
inside, outside or in the loading and unloading zones. TENANT
will not use the roof as a storage area.
All leasehold improvements mentioned in statement I-D hereof,
shall be maintained by TENANT.
| TWELFTH. | RIGHT TO SUBLETTING |
TENANT shall be entitle to sublease in whole or in part the
LEASED PREMISES for industrial purposes, in accordance to the
applicable environmental legislation, only with previous written
authorization by LANDLORD, in the understanding that TENANT
shall be liable for the obligations contained hereunder.
| THIRTEENTH. | TERMINATION OF THE LEASE BY TENANT |
TENANT shall be entitle to terminate the Lease at any time, in
the event of any circumstance of force majeure, fortuitous
accident or acts of Government that substantially hinder or
prevent TENANT’S industrial use of the LEASED PREMISES. In
the case that TENANT exercises this right, TENANT shall notify
LANDLORD in writing sixty (60) days prior to effective
termination date.
| FOURTEENTH. | INSURANCE |
During the term of this Lease Agreement TENANT shall pay
LANDLORD yearly on the anniversary date of the Lease Agreement
the amount of $730.62 Dollars (Seven hundred and thirty dollars
62/100 U.S. Cy.) as payment of adequate insurance policies,
against any damage caused to the LEASED PREMISES by: fire,
lighting, explosions, airplane collisions, smoke, storms,
collisions of any type of vehicle, strike, popular or student
disturbances, acts of vandalism and flood, and acts by
TENANT’S employees, workmen, contractors, vendors, clients,
visitors and officers. This policy does not include
building’s contents.
| FIFTEENTH. | PAYMENT OF VALUE ADDED TAX |
The Value Added Tax caused by this Lease shall be paid by TENANT
and declared by LANDLORD.
| SIXTEENTH. | PARK ASSOCIATION FEES. |
TENANT is responsible for paying LANDLORD in a yearly basis, the
amount of $664.20 Dollars (Six hundred and sixty four dollars
20/100 US Cy.) for maintenance and security fees.
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SEVENTEENTH.
DOMICILE
For all legal effects arising from this Lease, the Parties
designate the following domiciles:
THE LANDLORD
Bosque de Ciruelos 304 Piso 7
Col. Bosques de las Lomas
Delegación Xxxxxx Xxxxxxx
México, D.F. C.P. 11700
Bosque de Ciruelos 304 Piso 7
Col. Bosques de las Lomas
Delegación Xxxxxx Xxxxxxx
México, D.F. C.P. 11700
THE GUARANTOR
00000 Xxxxxxx Xx. Xxxx
Xxxxxx, XX 00000
XXX
00000 Xxxxxxx Xx. Xxxx
Xxxxxx, XX 00000
XXX
THE TENANT
Ave. Noruega D-l Bldg.
La Mesa Industrial Park
Paseo Reforma No. 8141 Xxxxx. Xxxxx
Xxxxxxx, X.X. Xxxxxx 00000
Ave. Noruega D-l Bldg.
La Mesa Industrial Park
Paseo Reforma No. 8141 Xxxxx. Xxxxx
Xxxxxxx, X.X. Xxxxxx 00000
Any notices to be given hereunder shall be in writing and shall
be delivered personally to the other party, or sent by certified
mail or specialized mail (DHL, UPS, Fed-Ex, etc.), to the
domicile mentioned above, in which case the corresponding notice
shall be deemed delivered fourteen (14) days after the
mailing date therefrom.
| EIGHTEENTH. | ASSIGNMENT BY LANDLORD; SUBORDINATION |
LANDLORD may assign its rights under this Lease to a Lending or
Banking Institution, whether it be national or foreign, or any
other legally incorporated Corporation or individual, provided
that the assignee or purchaser of said rights agrees not to
disturb the possession of the LEASED PREMISES or any other right
of TENANT derived from this Lease, provided TENANT continues to
comply with the obligations herein. In the event of acquisition
of the LEASED PREMISES, said assignee shall be bound to accept
TENANT under the terms of this Lease Agreement and to comply
with the provisions imposed upon LANDLORD hereto, TENANT agrees
to recognize said assignee or any other individual who acquires
the property of the LEASED PREMISES.
Exclusively for the aforementioned purposes TENANT and Guarantor
shall provide LANDLORD with a copy of the last Financial
Statements published and any other documentation needed by
TENANT such as the Dun & Xxxx Street Report, within
the 10 (ten) days following the reception of the corresponding
notice.
In the event of such assignment, LANDLORD shall notify TENANT in
writing of such assignment and TENANT shall have the obligation
to make all rental payments thereafter at the domicile of the
Credit Institution, Corporation or individual to which this
Lease was assigned to, provided said payments do not violate
applicable fiscal and exchange control laws and regulations.
| NINETEENTH. | GOOD FAITH, AUTHORITY AND INTENTIONS |
Both parties declare, that in the execution hereof, there has
not been any error, violence or bad will against the other
party, and that they have sufficient authority which has not
been revoked, diminished or limited in any matter whatsoever.
| TWENTIETH. | NON-COMPLIANCE |
The parties covenant and agree, that non-compliance of any of
the provisions by a party, will originate in favor of the other
party the right to, either, request the forceful compliance or
the termination of this Lease.
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| TWENTIFIRST. | GOVERNING LAW |
The parties expressly agree that for the interpretation and
enforcement of this Lease they will submit themselves to the
jurisdiction of the courts of the city of Tijuana, Baja
California and to the applicable laws thereto waiving any other
jurisdiction that may be applicable for the reason of their
present or future domiciles.
The Spanish language version of this lease will prevail.
The Parties hereto, have read the contents of this Lease and are
aware of the legal consequences of all and each of the
provisions herein and agree to be bind at all times by them, and
signed this agreement before witnesses on May 13 2005, in the
city of Tijuana, Baja California.
|
LANDLORD VESTA BAJA CALIFORNIA, S. DE X.X. DE C.V. |
TENANT BLOCK MEDICAL DE MEXICO S.A. DE C.V. |
|
|
/s/ Lic.
Xxxxxxxxx Xxxxxxx Egea
|
/s/ Xx.
Xxxxx Xxxxxxxx
|
|
|
Lic. Xxxxxxxxx Xxxxxxx Egea Legal Representative |
By: Xx. Xxxxx Xxxxxxxx Legal Representative |
GUARANTOR
l-FLOW CORPORATION.
l-FLOW CORPORATION.
/s/ Xx. Xxxxx
Dal
Porto
By: Xx. Xxxxx Dal Porto
Vice-President
| WITNESS | WITNESS | |
| Ing. Xxxxx Xxxxxxx Xxxxxxx | Xx. Xxxxxx Xxxxxx Xxxxxxx Xxxx |
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EXHIBIT
“C”
LA MESA
INDUSTRIAL PARK
RULES AND
REGULATIONS
REGULATIONS,
USE AND PROTECTION RULES
Rules and complementary specifications to the Lease Agreements
made by VESTA BAJA CALIFORNIA. S. de X.X. DE C.V. in its role as
landlord, with its tenants for the use and protection of the
Leased Premises.
ARTICLE I. TERMS
AND DEFINITIONS
Words and terms used on this Rules and Regulations are the same
as those used on the Lease
Agreement Xx. XXX-X0/X-XXX.0&0-000000
dated May
13th,
2005.
| A. | Leased premises |
Applies to the portion of land over which one or more
industrial, or other activity, buildings exist (buildings
identified by number and letter).
| X. | Xx Xxxx Industrial Park |
Applies to the Property in which industrial and commercial
buildings are built.
| C. | Tenant |
Applies to the company or individual who occupies the building
as such.
| D. | Tenant improvements: |
Applies to the necessary modifications in the leased building
consisting of adapting instillations for the purpose of industry
or commerce thereto placed.
These improvements will only be carried out with the
authorization of landlord as referred to in the Provisions of
the Lease Agreement.
| E. | Landlord. |
Is the owner of the property subject matter of the Lease
Agreement, In this case de VESTA BAJA CALIFORNIA. S. de X.X. DE
X.X.
| X. | Access routes: |
Streets assigned to the public traffic of vehicles as well as
persons concerned to the La Mesa Industrial Park.
ARTICLE II. INDUSTRIAL
OR COMMERCIAL ACTIVITY PERMITTED.
A. Installation of industrial or commercial plants whose
activities are hurtful or offensive and could cause grievance or
damages to the other occupants are prohibited in LA MESA
INDUSTRIAL PARK, such as fumes affecting visibility, excessive
odor, gases, smokes, vibrations, contamination, dust,
luminosity, wastes or noises.
B. In coordination with the aforementioned paragraph A
the Tenant should limit the operations of their activity to a
light industry, offices, investigations, assembly plants or
processors, sales and purchases, intermediaries, ordinary
incidental uses of operation of a permitted special use. All
operations performed by the Tenant should comply with
La Mesa Industrial Park’s regulations.
C. The Tenant will not use the Park, and a restriction
exists, as a recovered objects yard; used materials storage and
yard sales. Neither will the Park be used for activities which
could cause excessive drainage or major draining that could
cause evacuation problems or for the manufacture, storage or
sales of explosives or similar products.
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ARTICLE III. EXTERIOR
PARKING PLACES AND UNLOADING ZONES
A. The Park provides the necessary parking space to the
Tenant, adequate for their customers, employees, vendors and
visitors. Parking on street and avenues is prohibited.
B. The Tenant should use the space assigned for loading and
unloading, and said space will not be part of the parking zone
referred on the aforementioned paragraph A.
C. Streets and avenues will not be used as loading zones or
trailer reception.
ARTICLE IV. GREEN
AREAS, MAINTENANCE STORAGE AND SECURITY.
A. Tenant is bound to maintain at all times, the Leased
Premises, subject matter of the Lease Agreement, completely free
of wastes, withered leaves, and any kind of sweepings.
B. Tenant is not permitted to storage materials, equipment,
or any production object of the industry or activity dedicated
to, on the exterior of the building.
C. Tenant is not permitted to perform within the building
any work which interferes or affects in any form the draining or
natural drainage of surface waters.
D. The Park will provide 24 hour/7 days a week
monitored security.
ARTICLE V. ADVERTISING
AND PUBLICITY SPACES.
The Tenant should obtain authorization form the Landlord to
install any type of sign on the Leased Premises. A request for
such installation should be submitted for authorization 30
(thirty) days prior to the installation date. Requests for
installation or change of signs are subject to the following
characteristics:
A. Signs should only identify the type of industry or their
products offered for sale, produced, manufactured or stored by
the Tenant.
B. Signs should not be of flashing light, pulsating or
rotating.
C. Signs should not be placed on the roof of the Leased
Premises.
D. Signs should not violate these regulations in any form.
ARTICLE VI. IMPROVEMENTS
A. Tenant will need authorization form Landlord to
carry out improvements or modifications on the Leased Premises,
attaching blue prints and specifications according to the
interpretations of the Architect or Engineer in charge of the
works, inclusive of a drawing showing the area on which the
improvement to be performed is located. This is to maintain the
uniformity and harmony with the existing structures and to
prevent damage to the adjacent buildings that might be caused by
the works to be performed as well as the use and operation of
the same.
B. Landlord will not be responsible, in any form, of
damages due to wrong performance of the works by a Tenant who
intends to make improvements without the proper authorized blue
prints.
C. Landlord should not detain authorization of blue prints,
subjected for his authorization, without reason. Lack of
authorization of blue prints in a period of 10 (ten) days after
request of approval by Tenant will be considered as authorized.
The authorized improvements should be performed as soon as
possible until completion in order to preserve the good
appearance of the property leased. Authorization for any
improvement should be in writing.
ARTICLE VII. REINFORCEMENT.
A. When approval from the Landlord is required for the
accomplishment of any improvement, a response to such requests
must be made within the following 10 (ten) days after receiving
the application and all blue prints, specifications and other
documents submitted. If the application is not approved,
specific objections should be submitted in writing by mail or
delivered to the requester within the aforementioned ten
(10) days, otherwise the
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application will be considered as authorized. All authorization
request or variations of the conditions herein described, should
be submitted in writing by registered mail to:
Ing. Xxxxx Xxxxxxx Xxxxxxx
Regional Director
Vesta Baja California, S. de X.X. de C.V.
At: Blvd. Agua Caliente No. 10611-1201
Col. Aviancio’n, Centro Corporativo Centura
Tijuana, B.C. 22420
Regional Director
Vesta Baja California, S. de X.X. de C.V.
At: Blvd. Agua Caliente No. 10611-1201
Col. Aviancio’n, Centro Corporativo Centura
Tijuana, B.C. 22420
B. Failure from Landlord to reinforce any provisions of the
Rules herein contained on a violation, should be considered as
desistance of it’s right to act on any subsequent violation.
C. Landlord reserves the right to change the rules and
provisions of these regulations in order to foresee a better
operation of the tenants activities.
D. The cancellation or nullification of any clause
and/or
paragraph of these Rules and Regulations by court command or
other means, should not affect in any form other provisions
herein, and said provisions will remain in force at all times.
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