Exhibit 10 iii
DATED 5 April 2001
(1) DERRAGLEN TRADING LIMITED
(2)PEMSTAR IRELAND LIMITED
AND
(3) PEMSTAR INC.
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LEASE
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XXXXXXXX XXXXXX XXXXXXXX
SOLICITORS
00 XXXXXXX XXXXXX
XXXXXX 0
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THIS LEASE made the 5th day of April 2001 BETWEEN
(1) DERRAGLEN TRADING LIMITED having its registered office at Lismullen
Gaslow Cross, Navan (hereinafter called "the Lessor" which expression
shall unless otherwise stated include its successors and assigns)
(2) PEMSTAR IRELAND LIMITED having its registered office at 00 Xxxxxxx
Xxxxxx, Xxxxxx 0 (hereinafter called "the Lessee" which expression
shall unless otherwise stated include its successors and permitted
assigns)
AND
(3) PEMSTAR INC. a body corporate incorporated under the laws of Minnesota,
having its principal office at 0000 Xxxxxxxxxx Xxxxx, Xxxxxxxxx 00000,
Xxxxxx Xxxxxx of America (hereinafter called "the Guarantor" which
expression shall unless otherwise stated include its successors and
permitted assigns).
WITNESSES as follows:
1. In consideration of the rents covenants and conditions hereinafter
reserved and contained and on the part of the Lessee to be paid
observed and performed and at the request of the Guarantor the Lessor
HEREBY DEMISES unto the Lessee ALL THAT AND THOSE the premises more
particularly described in the Schedule hereto TOGETHER WITH:-
1.1 the factory and other buildings erected thereon and the
Lessor's fixtures fittings and equipment therein or thereon
(all which said land buildings fixtures fittings and equipment
are hereinafter collectively called the "demised premises")
and;
1.2 full and free right of access in common with the Lessor and
all other persons who now have or shall hereafter have the
like right at all reasonable times over the roads coloured
yellow on the Plan annexed hereto for the purposes of
pedestrian and vehicular access to and egress from the demised
premises
1.3 the free and uninterrupted passage and running of water soil
gas electricity oil telecommunications heating steam radio and
television signals effluent drainage electricity and any other
service or supply (the "Services") to and from the demised
premises through the sewers drains watercourses conduits pipes
wires and cables (the "Conduits") which now are or may
hereafter within the term of this Lease be in or over under or
upon the other buildings and lands the property of Industrial
Development Agency (Ireland) (the "Superior Landlord") and its
tenants adjoining or near to the demised premises (the
"Adjoining Premises");
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1.4 the full and free right and liberty to the Lessee its servants
and agents to enter (after at least two days notice except in
the case of emergency) upon the Adjoining Premises at all
reasonable times for the purpose of connecting, laying,
inspecting, repairing, cleaning, maintaining, altering,
replacing or renewing any Conduit including the provision of a
water meter and to erect, construct or lay in, over, under or
across the demised premises not built upon any Conduits,
cables, poles, structures, fixtures or other works for the
Services to and from the demised premises causing as little
inconvenience as possible to the occupiers of the Adjoining
Premises and the Lessee making good any damage to the demised
premises thereby occasioned, but not being liable for any
compensation;
2. EXCEPTIONS
EXCEPTING AND RESERVING unto the Lessor:
2.1 the free and uninterrupted passage and running of Services to
and from the other buildings and lands the property of the
Lessor and its tenants adjoining or near to the demised
premises through the Conduits which now are or may hereafter
within the term of this Lease be in or over under or upon the
demised premises;
2.2 at any time hereafter and from time to time full right and
liberty to execute works services and erections and buildings
upon or to alter or rebuild any of the erections services and
buildings erected on its adjoining and neighbouring lands and
to use the same as it may think fit provided that the Tenants
rights of and access to light and air are not materially
adversely affected and provided that such works do not
materially interfere with the ability to conduct the business
which will be undertaken in the demised premises;
2.3 the full and free right and liberty to the Lessor its servants
and agents to enter (after at least two days notice except in
the case of emergency) upon the demised premises at all
reasonable times for the purpose of connecting, laying,
inspecting, repairing, cleaning, maintaining, altering,
replacing or renewing any Conduit including the provision of a
water meter and to erect, construct or lay in, over, under or
across the demised premises not built upon any Conduit for the
drainage of or for the supply of Services to and from the
Adjoining Premises causing as little inconvenience as possible
to the Lessee and the Lessor making good any damage to the
demised premises thereby occasioned, but not being liable for
any compensation and provided that such works do not
materially interfere with the ability to conduct the business
which will be undertaken in the demised premises;
2.4 all rights easements and privileges now belonging to or
enjoyed by any adjoining or neighbouring property
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2.5 all mines, minerals, quarries and royalties whatsoever in or
under the demised premises during the term of the demise are
excepted and reserved out of the demise.
HABENDUM AND REDDENDUM
TO HOLD the same unto the Lessee for the term of fifteen years from 1 October
2000 (the "Term") subject to the covenants terms and conditions hereinafter
contained YIELDING AND PAYING unto the Lessor during each of the first five
years of the term the initial yearly rent of IR(pound)125,875(One Hundred and
Twenty Five Thousand Irish Pounds Eight Hundred and Seventy Five Irish Pounds)
(hereinafter when specifically referred to called "the first reserved rent") and
thereafter a rent to be determined as provided in Clause 3 hereof (hereinafter
when specifically referred to called "the reviewed rent") such rent to be paid
without any deduction in advance on every 1st day of October, 1st day of
January, 1st day of April and 1st day of July in every year the first payment to
be made on the execution hereof and to be in respect of the period from 1
October 2000 AND YIELDING AND PAYING by way of additional rent all sums due by
the Lessee by way of insurance premiums pursuant to Clause 4.2.2 and all
services charges (if any) due by the Lessee pursuant to Clause 4.7.1.
3. Rent Review
3.1 In this Clause the following expressions shall have the following
meanings respectively:
3.1.1 "Review Date" shall mean the fifth anniversary of the term
commencement date and every fifth anniversary of that date
throughout the Term;
3.1.2 "Current Market Rent" shall mean the gross full market rent
without any deduction whatsoever at which the demised premises
might reasonably be expected to be let at the nearest Review
Date in the open market without fine or premium as between a
willing Lessor and a willing Lessee and with vacant possession
for a term (commencing on the Review Date) equal to the
greater of fifteen years or the residue then unexpired of the
term hereby granted and on the same terms and conditions in
all other respects as this present Lease (other than the
amount of rent hereby reserved but including the provision for
five yearly rent reviews) and upon the supposition (if not a
fact) that the covenants on the part of the Lessee herein have
been fully performed and observed and that in the event of the
demised premises having being destroyed or damaged by any of
the insured risks the same shall then have been fully rebuilt,
repaired or reinstated (as the case may be) in a good and
substantial manner there being disregarded:
3.1.2.1 any effect on rent of the fact the Lessee has been in
occupation of the demised premises and any goodwill
attached to the demised premises by reason
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of the carrying on therein of the business of the
Lessee;
3.1.2.2 any effect on rent of any improvement (whether or not
within the meaning of the Landlord and Tenant Acts,
1931 to 1994 or any Acts amending or extending or re
enacting the same) of the demised premises or any
part thereof carried out by the Lessee with the
licence of the Lessor at the Lessee's own expense
(otherwise than in pursuance of any obligation to the
Lessor) and carried out prior to or during the
currency of this Lease including (without limitation)
any mezzanine installed in the Demised Premises by
the Lessee with the consent of the Lessor;
3.1.2.3 any diminution of the rental value of the demised
premises caused by works carried out thereon by the
Lessee its sub-tenants or predecessors in title
during the term.
3.2 The Rent for the time being payable by the Lessee hereunder
shall be subject to increase in accordance with the following
provisions of this Clause;
3.3 The Lessor its servants or agents shall be entitled by notice
in writing given to the Lessee its servants or agents not
earlier than twelve months before and not more than twelve
months after a Review Date to call for review of the rent
payable by the Lessee to the Lessor at the Review Date
specified in the notice and if upon any such review it shall
be ascertained or determined that the Current Market Rent of
the demised premises at the Review Date is greater than the
rent payable hereunder immediately prior to such Review Date
as from that Review Date the yearly rent payable hereunder
shall be increased to the Current Market Rent so ascertained
PROVIDED ALWAYS that if the Lessor shall not serve such notice
as aforesaid for the review of rent prior to or within twelve
months after any Review Date it shall nevertheless be entitled
to do so at any time prior to the following Review Date upon
the same terms and conditions as are hereinbefore provided for
save that the expression "Current Market Rent" shall be deemed
to be the Current Market Rent on the immediately preceding
Review Date and in such event such reviewed rent shall be
payable by the Lessee from the xxxx day preceding the date of
the said notice up to the following Review Date or until it is
further reviewed in accordance with the foregoing provisions
PROVIDED FURTHER that in no circumstances shall the rent
payable hereunder following such review be less than the rent
payable by the Lessee immediately prior to the Review Date;
3.4 Every such review as aforesaid shall in the first instance be made by
Lessor and Lessee or their respective surveyors in collaboration but if
no agreement as to the amount of the Current Market Rent at the Review
Date shall have been reached between the parties hereto or their
surveyors within three months or such extended period as may be agreed
by the Lessor and the
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Lessee after the date of the Lessor's notice calling for such review
then the question of the amount of the Current Market Rent of the
demised premises at the Review Date shall be referred to the decision
of a single Chartered Surveyor who shall act as an independent Valuer
(acting as an expert) such Chartered Surveyor to be nominated by the
Lessor by notice in writing to the Lessee and if the Lessee shall
reject such nomination or fail or neglect to agree within one month of
the Lessor's notice such Chartered Surveyor shall be appointed on the
application of the Lessor by the Chairman or acting Chairman for the
time being of The Society of Chartered Surveyors in the Republic of
Ireland which term shall include any other body established from time
to time in succession or substitution or carrying on the function
currently carried out by the same and in default of any such
appointment any reason within one month of such application by a
Chartered Surveyor to be nominated by the Lessor;
3.5 If the Chartered Surveyor shall fail to determine the new rent within
three months of his appointment or if he shall relinquish his
appointment or die or if it shall become apparent that for any reason
he will be unable to complete his duties hereunder a new Chartered
Surveyor shall be appointed in his place in accordance with sub-clause
3-4 above;
3.6 If upon any such review the amount of any increased rent shall not be
ascertained or determined prior to the Review Date the Lessee shall
continue to pay rent at the yearly rate payable immediately prior to
the Review until the xxxx day next following the ascertainment or
determination of any increased rent whereupon, subject to the first
proviso to Clause 3.3 hereof, there shall be due as a debt payable by
the Lessee to the Lessor on demand a sum equal to the amount by which
the rent for the period since the Review Date calculated at the
increased rate exceeds the rent for that period calculated at the
previous rate together with interest thereon calculated at the rate of
4% per annum over three month euribor from the date upon which the
increased rent became due until the date of payment or if there shall
be no such rate the aforesaid sums shall bear interest at the rate of
12% p.a.;
3.7 Upon each such review as aforesaid there shall be added to the Current
Market Rent thereby determined or agreed a further sum of (pound)0.20p
per square foot. This shall constitute the new rent up to the next
review date and the Lessee shall (if required by the Lessor) forthwith
complete and sign a written memorandum or if the Lessor shall so elect
execute a deed of record recording the increased rent thenceforth
payable and the Lessee shall pay the Stamp Duty (if any) payable on
such memorandum or deed of record;
3.8 In the event of the Lessor being prevented or prohibited in whole or in
part from exercising its rights under this Clause and/or obtaining an
increase in the rent on any of the Review Dates by reason of any
legislation Government Order or decree or Notice (increase in this
context meaning such increase as would be obtainable disregarding the
provisions of any such legislation and otherwise as aforesaid) then the
date at which the review would otherwise have taken effect shall be
deemed to be extended to permit and require such review to take place
on the first date thereafter upon which such right or increase may be
exercised and/or obtained in whole or in part and when in part on so
many occasions as shall be necessary to obtain the
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whole increase (meaning the whole of the increase which the Lessor
would have obtained if not prevented or prohibited as aforesaid) and if
there shall be a partial prevention only there shall be a further
review on the first date or dates aforesaid notwithstanding the rent
may have been increased in part on or since the date of review but in
no instance shall the increase in rent be dated back to exceed the
statutory controls on increases of rent laid down by law.
LESSEES COVENANTS
4. The Lessee hereby covenants with the Lessor as follows:
Payment of Rent
4.1.1 to pay the said yearly rents at the times and in the manner aforesaid
clear of all deductions and by way of Standing Banker's Order if
required by the Lessor;
4.1.2 If the Lessee shall fail to pay the rent hereinbefore reserved or any
other sum reserved or made payable hereunder within 14 days of the day
and in the manner herein prescribed for the payment of same every such
unpaid rent or sum shall bear interest at the rate of 4% over 3 month
euribor from the date on which the rent or other sum became due until
the actual date of payment or if there shall be no such rate the
aforesaid sums bear interest at the rate of 12%.
Payment of Outgoings
4.2.1 to bear pay and discharge all rates taxes assessments duties charges
outgoings and impositions whatsoever whether imposed by statute or
otherwise and whether of a national local character which now are or
during the said term shall be charged assessed or imposed upon the
demised premises or any part thereof or upon the owner or occupier in
respect thereof;
Insurance Premium
4.2.2 to pay to the Lessor annually a sum or sums of money equal to the
amount which the Lessor may expend or require to expend in effecting or
procuring and maintaining or procuring the maintenance of insurance of
the demised premises against the insured risks as defined in Clause 5
hereof to their full reinstatement cost and two years' loss of rent
such sum or sums to be paid without any deduction in every year upon
the Lessor's demand the first payment (or a proportionate part thereof)
to be made on the execution hereof;
Compliance with Enactments
4.3 at all times during the said term to observe and comply in all respects
with the provisions and requirements of any and every enactment the
time being in force or any orders or regulations
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thereunder for the time being in force and to do and execute or cause
to be done executed all such works as under or by virtue of any such
enactment or any orders or regulations thereunder for the time being in
force are or shall be properly directed or necessary to be done or
executed or in respect of the demised premises or any part thereof
whether by the owner, landlord, lessee, tenant or occupier and at all
times to keep the Lessor indemnified against all claims demands and
liability in respect thereof and without derogating from the generality
of the foregoing to comply with the requirements of any local or other
statutory authority and the order or orders of any court of competent
jurisdiction and immediately after the receipt of any Notice requiring
works to be carried out by any local or statutory authority or by order
of any court of competent jurisdiction, the Lessee shall send a copy
thereof to the Lessor;
Fire Precautions
4.4 at all times during the said term to comply with all the
recommendations or requirements of the appropriate authority relation
to fire precautions and safety whether notified or directed to the
Lessor or the Lessee and to indemnify the Lessor against any or
expenses in complying with any such requirement or recommendation and
not to obstruct the access to or means of working any fire precaution
or safety apparatus or appliance for the time being installed in the
demised premises;
Housekeeping
4.5 to keep such part of the land forming part of the demised premises as
is from time to time undeveloped and the grass gardens and any trees
shrubs and xxxxxx in proper and neat order and condition and any
ditches streams culverts and watercourses properly cleared and cleaned
and the banks thereof in proper repair and condition and particular not
to deposit or permit to be deposited any rubbish or refuse nor without
the consent in writing of the Lessor (and then only on such parts of
the said land and subject to such conditions as Lessor may stipulate or
impose) to store stack or lay out any material used for the purpose of
manufacture or otherwise on any part of the said land;
Repairs
4.6 at all times during the said term to repair (and in the case of
fixtures, fittings and equipment to replace or renew as may from time
to time be necessary) maintain, rebuild, replace and renew and keep in
good and substantial repair and condition the whole of the demised
premises and all additions thereto constructed or placed thereon and
the Lessor's fixtures fittings and equipment therein and all pipes
drains, wires, cables, metres, channels, sewers, sanitary and water
apparatus, glass, pavings, walls, fences and railings vaults and
appurtenances in good and substantial repair and working order and
maintained paved cleansed and amended in every respect (damage by any
of the insured risks excepted) PROVIDED THAT the policy or policies of
insurance shall not have been vitiated or payment of the policy monies
withheld or
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refused in whole or in part by reason of any act neglect or default of
the Lessee or the servants agents licensees or invitees of the Lessee;
Estate Charges
4.7.1 if the demised premises are situate upon an Industrial Estate, (the
"Estate") to bear with the owners or occupiers of each other unit in
the Estate the cost and expense all necessary maintenance, repair and
up-keep (and operating cost where applicable) of access roads,
footpaths, common areas, drainage and water services and public
lighting in the same proportion as the gross floor area of the
buildings erected on the demised premises bears to:
(A) In the case of a completed Estate the total gross
floor areas of all the industrial units in the Estate
and
(B) In the case of a non completed or part completed
estate the total gross floor areas of all completed
units in the Estate and where roads services have
been provided to un-developed areas of the Estate,
the gross floor area of buildings the course of
erection and proposed buildings fronting on to such
services until such time as same are taken in charge
by the Local Authority;
4.7.2 to bear with the owners or occupiers of each other unit the Estate the
cost and expense of all necessary estate security in the same
proportion as gross floor area of the buildings erected on the demised
premises bears to the gross floor areas of all the completed units in
the Estate;
Statutory Requirements
4.8 Without prejudice to the generality of Clause 4.4 hereof, in all
respects to comply with all the provisions of the Factories Acts, Local
Government (Planning and Development) Acts, Building Control Act, The
Local Government (Water Pollution) Acts 1977 to 1990, The Air Pollution
Act, 1987, The Environmental Protection Agency Act, 1992 and the Public
Health Acts and of all regulations thereunder and with any other
obligations imposed by law in regard to the demised premises and the
carrying on of the trade or business for the time being carried on upon
the demised premises and to indemnify the Lessor against all liability
in respect of any contravention's of any such requirements;
Permitted Entry
4.9 to permit the Lessor or its duly authorised agents and all proper
parties at all reasonable times on reasonable notice in writing being
given to the Lessee to enter the demised premises and examine the state
of repair and condition thereof (and in particular for all necessary
purposes of providing inspecting maintaining and repairing the Services
and to check and take inventories of the Lessor's fixtures fittings and
equipment therein) and to repair and make good all defects
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decays and wants of repair thereto of which notice in waiting shall be
given by the Lessor to the Lessee and for which the Lessee may be
liable hereunder within three calendar months after the giving of such
notice PROVIDED that in case of default by the Lessee the Lessor may
make good such defects decays and wants of repair and the cost of the
same shall be a debt recoverable from the Lessee by Lessor on demand;
Permitted Works
4.10 to permit the Lessor and all persons authorised by it and its
respective surveyors agents and workmen at all reasonable and
convenient times in the daytime on reasonable notice being given in
writing to the Lessee or at any time in the case of emergency to enter
on the demised premises or any part thereof for the purpose of
repairing or building on any adjoining premises as occasion shall
require and for the purpose of making repairing, maintaining,
cleansing, lighting and keeping in order and good condition all ways,
roads, Services, watercourses, ditches, culverts, fences, xxxxxx or
other conveniences which shall belong to or be used for the demised
premises in common with other premises and also for the purpose of
laying down maintaining repairing and testing Conduits or for other
similar purposes the Lessor or such persons as aforesaid making good
any damage occasioned thereby to the demised premises and provided that
the exercise of these rights does not materially interfere with the
ability to conduct the business which will be undertaken in the demised
premises;
Alterations
4.11.1 not to make any alterations or additions to the demised premises or
erect any new buildings thereon without the prior written consent of
the Lessor (such consent not to be unreasonably withheld or delayed)
and the approval of the Lessor to the plans and specifications thereof
(such approval not to be unreasonably withheld or delayed) and if such
consent and approval is given to make such alterations or additions in
conformity with such plans and specifications in a good and workmanlike
manner and in accordance with good building practice with good and
suitable materials and in accordance with all necessary planning
permissions and building regulations;
4.11.2 if the demised premises are altered (whether pursuant to a consent
given under Clause 4.11.1 hereof or otherwise) the Lessee will on the
termination of this Lease forthwith restore the demised premises at the
Lessee's own expense, to their original condition at the date of this
Lease save for those alterations which are agreed to be permanent
alterations and will make good all damage in want of repair and
decoration caused by the original alterations or restoration work.
User
4.12 to use the demised premises for manufacturing and ancillary offices and
not to use the demised premises or suffer or permit the same to be used
for any other purpose whatsoever except with
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the previous written consent of the Lessor such consent not to be
unreasonably withheld or delayed;
Nuisance
4.13 not to do or permit to be done upon or in connection with the demised
premises or any part thereof any act matter or thing whatsoever which
may be or grow to be a nuisance annoyance disturbance or inconvenience
or cause damage to any neighbouring adjoining or adjacent property or
the owners or occupiers thereof and to pay to the Lessor all costs
charges and expenses which may be incurred by the Lessor in abating a
nuisance in respect of the demised premises and to execute all such
works as may be necessary for abating such nuisance in obedience of a
notice lawfully served by a local or public authority or pursuant to
any court order;
Signs
4.14 not to exhibit on any part of the undeveloped or unbuilt upon lands
comprised in the demised premises or on the outer walls or roofs of any
building or structure thereon any signboard placard lettering or
lighting of any kind except such as may previously have been approved
by the Lessor in writing such approval not to be unreasonably withheld
or delayed and in default or on the Lessor taking objection the Lessor
may enter and remove the same at the Lessee's cost PROVIDED however
that the Lessee shall be entitled to erect a sign displaying the name
of the Lessee in such position and of such form colour and design as
may be first approved by the Lessor such approval not to be
unreasonably withheld or delayed;
Furnaces
4.15 to ensure that every furnace employed in the working of engines by
stream or other motive power and every other furnace employed in any
building or erection on the demised premises is constructed so as
substantially to consume or burn the smoke arising therefrom and not to
use or suffer to be used negligently any such furnace so that the smoke
arising therefrom is not substantially consumed or burnt and not to
cause or permit any grit or noxious or offensive effluvia to be omitted
from any engine furnace chimney or other apparatus on the demised
premises without using the best practicable means preventing or
counteracting such emission and in all aspects to comply with the
provisions of all relevant statutes and statutory regulations and with
the requirements of any notice of the local or other authority served
thereunder;
Effluent
4.16.1 to take such measures as may be necessary to ensure that any effluent
discharged into the drains or sewers which belong to or are used for
the demised premises in common with other premises will not be
corrosive or in any way harmful to the said drains or sewers or cause
any obstruction or deposit therein;
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4.16.2 not to discharge or allow to be discharged any solid matter from the
demised premises into the drains or sewers as aforesaid nor to
discharge or allow to be discharged therein any fluid of a poisonous or
noxious nature or of a kind calculated to or that does in fact destroy
sicken or injure the fish or contaminate or pollute the water of any
stream or river and not to do or omit or allow or suffer to be done or
omitted any act or thing whereby any land or the waters of any stream
or river may be polluted or the composition thereof so changed as to
render the Lessor liable to any action or proceedings by any person
whomsoever;
Vibration and Overloading
4.17 not to do or permit or bring in or upon the demised premises anything
the use of which would cause damage by vibration or otherwise to the
demised premises or any adjoining premises or which might throw on the
demised premises or on any adjoining premises any weight or strain in
excess of that which such premises are capable of bearing with due
margin for safety and in particular not to overload the floors the
hoists or the electrical installations or the other services of in or
to the demised premises nor suspend any excessive weight from the
ceilings or walls stanchions the hoists or the structure thereof. The
Lessee shall seek professional advice at the Lessee's own expense to
ensure that there shall not be an infringement of this covenant;
Alienation
4.18.1 not to assign or underlet the demised premises or any part thereof or
grant any licence in respect of the demised premises or any part
thereof nor part with or share the possession or occupation thereof or
any part thereof without making prior application in writing to the
Lessor for consent (such consent not to be unreasonably withheld or
delayed) such application to give all reasonable information concerning
the proposed assignee as the Lessor may reasonably require and no such
assignment shall take place prior to the written consent of the Lessor
being granted;
In the case of an under-lease of the entire or part of the demised
premises such under-lease shall reserve the full rack rent then payable
(pro rata in the case of an underletting of part and at no time less
that rent payable under this Lease pro rata) of the demised premises
and if required by the Lessor the under-Lessee shall enter into a
direct covenant with the Lessor to perform and observe all of the
covenants (other than that for the payment of the rents hereby
reserved) and conditions herein contained;
4.18.2 within fourteen days of every assignment assent transfer underlease
assignment of underlease or mortgage of or relating to the demised
premises or any part thereof to give notice thereof in writing with
particulars thereof to the Lessor's Solicitor and produce to him such
instrument or other evidence of devolution and to pay the Lessor's
Solicitor any costs incurred by the Lessor relating thereto.
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4.18.3 PROVIDED ALWAYS that the Lessee shall be free to share occupancy of the
demised premises with other member companies of the Pemstar group
without having to obtain Landlord's consent provided that no such
occupier shall be permitted to acquire renewal rights under Landlord
and Tenant legislation.
Insurance
4.19 not to knowingly do or permit or suffer to be done anything whereby the
policy policies of insurance on the demised premises or any adjoining
or neighbouring premises may not be renewed or may become void or
voidable or whereby the rates of premium thereon may be increased and
to repay to the Lessor all sums paid or payable by way of increased
premiums and all expenses incurred by it in or about the renewal of
such policy or policies rendered necessary by a breach of this covenant
and all such payments shall be made immediately on demand;
Storage of Combustible/Offensive Substances
4.20 without prejudice to any other clause herein, not to keep or allow to
be kept on the demised premises any substance or material of
combustible or offensive nature the keeping whereof may require a
licence/consent of any local or public authority unless the Lessee
obtains such a licence/consent and complies with the terms and
conditions thereof. The Lessee shall inform the Lessor in writing of
any application for and of the issuing of such a licence/consent;
Conveyancing Act Notices
4.21 to pay all reasonable and proper costs and charges and expenses
(including solicitor's costs and surveyor's fees) incurred by the
Lessor for the purpose of or incidental to the preparation and service
of any notice under Section 14 of the Conveyancing Act 1881 (or any
statutory modification or re-enactment thereon, requiring the Lessee to
remedy a breach of any of the covenants hereinbefore contained
notwithstanding forfeiture for such breach may be avoided otherwise
than by relief granted by the court;
Stamp Duty and VAT
4.22 to pay any Value Added Tax lawfully imposed upon and added to any fee,
charge, cost or expense for which the lessor may be liable under this
Lease and to pay the stamp duty and registration fees on this granting
of this Lease PROVIDED THAT the Lessor shall co-operate with the Lessee
in availing of the procedure provided for in S.4A VAT Act 1972 (as
amended).
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Yielding Up
4.23 at the expiration or sooner determination of the said term quietly to
yield up the demised premises together with all the Lessor's fixtures
fittings and equipment now or which during the said term shall be
affixed or fastened thereto in such good and substantial repair and
condition as shall be in accordance with the covenants on the part of
the Lessee herein contained and in case any of the said fixtures
fittings or equipment shall be missing broken damaged or destroyed
forthwith to replace them with others of a similar kind and of equal
value, fair wear and tear excepted, and to make good any damage caused
to the demised premises by the removal of the Lessee's fixtures,
fittings and furniture and effects (damage by any of the insured risks
excepted if and so long only as the policy or policies of insurance
shall not have been vitiated or payment of the policy monies withheld
or refused in whole or in part by reason of any act neglect or default
of the Lessee or the servants, agents licensees or invitees of the
Lessee).
Use of Demise
4.24 not at any time to use the demised premises or any part thereof or
allow the same to be used for any entertainment or for any dangerous
noisy or noxious or offensive trade business manufacture or occupation
whatsoever or for a residence or for any illegal or immoral purpose nor
permit any sale or auction to be held on the demised premises;
Superior Lease
4.25 to comply in so far as the same are applicable to the demised premises
with the covenants of and conditions (other than the covenant for
payment for rent and other payments) contained in a Lease of the
demised premises dated 8 December 2000 and made between (1) the
Superior Landlord and (2) the Lessor (the "Superior Lease") under which
the demised premises are held by the Lessor;
Indemnity
4.26 to fully and effectually indemnify the Lessor against the breach, non
performance or non-observance by the Lessee of any of the covenants and
conditions on the Lessee's part herein contained or of the provisions
or stipulations herein contained and intended to be performed and
observed by the Lessee and against any actions, costs, claims, expenses
and demands whatsoever or howsoever arising in respect of or as a
consequence (whether direct or indirect) of any such breach,
non-performance or non-observance as aforesaid.
Lessors Covenants
14
5. The Lessor hereby covenants with the Lessee in manner following that is
to say:
Insurance
5.1 Subject to reimbursement by the Lessee and insurance cover being
available against the risks hereinafter specified, the Lessor will
insure or procure the insurance of the demised premises and all
Lessor's fixtures fittings and equipment therein and thereon (other
than Lessee's and Trade fixtures) and keep the same insured to the full
reinstatement cost (to be reasonably determined by the Lessor or its
surveyor from time to time) against loss or damage by fire, explosion,
lighting, xxxxx, xxxxxxx, flood, impact by vehicles, earthquake,
aircraft, riot and civil commotion and malicious damage, bursting or
overflowing of water tanks, apparatus, drains, sewers or pipes and
including demolition and site clearance expenses, architects',
engineers' and surveyors' fees and value added tax and any other duty
exigible on any building contract as may be entered into relative to
the reconstruction, reinstatement or repair of the demised premises or
any part thereof resulting from the destruction, loss or damage thereof
or thereto or from any of the perils aforesaid and such other perils
expenses and losses as the Lessor in its sole discretion shall think
fit including two years loss of rent and notify to the Lessee in
writing (all such risks and perils being referred to as "the Insured
Risks") PROVIDED THAT the Lessor shall notify the Lessee of any
inability on its part to effect any such insurance as aforesaid;
5.2 In the event of the demised premises or any part thereof being
destroyed or damaged by any of the risks or perils in respect of which
the Lessor pursuant to the terms hereof is obliged to effect insurance
so as to render the premises unfit for occupation use or access then
and in such cases (unless the insurance of the demised premises shall
have been forfeited or made ineffective by any act neglect or default
of the Lessee its servants, agents, licensees or invitees) the rent
hereby reserved or a fair and just proportion thereof according to the
nature and extent of the damage sustained shall from and after such
destruction or damage and until the demised premises shall have been
rebuilt or reinstated and made fit for occupation use and access be
suspended and cease to be payable PROVIDED THAT if the demised premises
have not been rebuilt or reinstated and made fit for occupation use and
access within 15 calendar months of such destruction or damage the
Lessee may by notice in writing surrender this lease to the Landlord;
5.3 In case the demised premises or any part thereof shall be destroyed and
become ruinous and become uninhabitable or incapable of beneficial
occupation or enjoyment by for or from any of the Insured Risks the
Lessee hereby absolutely waives and abandons its rights (if any) to
surrender this Lease under the provisions of Section 40 of the Landlord
and Tenant Law Amendment Act, Ireland, 1860 or otherwise;
5.4 If the demised premises or any part thereof shall at any time during
the term be destroyed or damaged by fire or any of the Insured Risks as
aforesaid, then the Lessor shall with all reasonable speed rebuild,
repair and otherwise reinstate the demised premises to a factory
15
premises of the same square footage and utility as the demised premises
(subject to the Lessor obtaining all relevant statutory approvals),
unless the policy or policies of insurance shall have been vitiated or
rendered less than fully effective by any act neglect default or
omission of the Lessee its servants, agents, licensees or invitees;
5.5 In the event of the demised premises or any part thereof being
destroyed or damaged by any of the risks in respect of which the Lessor
pursuant to the term hereof is obliged to effect insurance at any time
during the term hereby created and the insurance money under any
insurance against the same effected thereon by the Lessor being wholly
or partly irrecoverable by reason solely or in part of any act or
default of the Lessee its servants, agents, licensees or invitees then
and in every such case the Lessee will forthwith (in addition to the
said rent) pay to the Lessor the whole or (as the case may require) a
fair proportion of the cost of completely rebuilding and reinstating
the same;
Quiet Enjoyment
5.6 That the Lessee paying the rents hereby reserved and performing and
observing the several covenants and agreements herein contained and on
the Lessee's part to be observed and performed shall and may peaceably
and quietly hold and enjoy the demised premises during the said term
without any interruption or disturbance from or-by the Lessor or any
person or persons rightfully claiming under or in trust for the Lessor.
Superior Lease
5.7 to comply in so far as the same are applicable with the covenants of
and conditions contained in the Superior Lease under which the demised
premises are held by the Lessor and to procure the performance by the
Superior Landlord of its obligations thereunder;
Option to Terminate
6.1 IT IS HEREBY AGREED between the Lessor and the Lessee that
notwithstanding anything contained in this Lease that on the Lessee :-
6.1.1 giving the Lessor at least 365 days (Three Hundred and Sixty Five)
prior notice in writing to expire on the last day of the seventh year
of the term hereby granted and paying a penalty of twelve calendar
months rent to the Lessor with the notice, the Lessee may surrender
this Lease to the Lessor on the last day of the seventh year of the
term hereby granted but without prejudice to any liability in respect
of antecedent breaches of the terms of this Lease by either party.
6.1.2 giving the Lessor at least 180 (One Hundred and Eighty) days prior
notice in writing to expire on the last day of the tenth year of the
term hereby granted and paying a penalty of six calendar
16
months rent to Lessor with the notice the Lessee may surrender this
Lease to the Lessor on the last day of the tenth year of the term
hereby granted but without prejudice to any liability in respect of
antecedent breaches of the terms of this Lease by either party.
Forfeiture
6.2 If the said Rent or any sum payable hereunder or any part thereof shall
be unpaid for 28 days after any of the days hereinbefore appointed for
payment whether same shall have been lawfully demanded or not; or
6.2.1 if any covenants on the Lessee's part herein contained shall not be
observed or performed and the due notice of the existence of such
breach having been given to the Lessee;
6.2.2 if the Lessee being an individual or firm shall become bankrupt or
compound or arrange with his or its Creditors or being a company shall
go into liquidation either compulsorily or voluntarily (except for the
purpose of a reconstruction or amalgamation); or
6.2.3 if the Lessee being a Company shall permit or suffer a Receiver to be
appointed over its assets;
then and in any of the said cases and at any time thereafter it shall
be lawful for the Lessor or any persons authorized by the Lessor
following the expiry of 14 days from the date of service by the Lessor
of a notice to quit to enter upon the demised premises or any part
thereof in the name of the whole and to re-possess the same and to
enjoy the same as if this Lease had not been executed but without
prejudice to any right of action or remedy by either party in respect
of any antecedent breach of any of the covenants by the other herein
contained.
6.3 If at such time as the Lessee has vacated the demised premises after
the determination of the term hereby granted either by effluxion of
time or otherwise any property of the Lessee shall remain in or on the
demised premises and the Lessee shall fail to remove the same within
seven days after being requested by notice in writing by the Lessor so
to do then and in such case the Lessor (without being obliged to do and
in any event without prejudice to such other rights as the Lessor may
have in that behalf) may as agent of the Lessee (and the Lessor is
hereby appointed by the Lessee to act as such agent and in its capacity
as such agent to act as the Lessor in its absolute discretion shall
think fit) sell such property and shall then hold the proceeds of sale
after deducting the costs and expenses of removal storage (including
loss of or reduction in rent received by the lessor on account of such
property remaining by way of storage pending sale in the demised
premises) and sale reasonably and properly incurred or suffered by it
to the order of the Lessee PROVIDED THAT the Lessee shall indemnify the
Lessor against any liability incurred by the Lessor to any third party
whose property shall have been sold by the Lessor in the bona fide
mistaken belief (which shall be presumed unless the contrary is proved)
that such property belonged to the Lessee and was liable to be dealt
with as such pursuant to this sub-clause;
17
Superior Lease
6.4 all reservations and exceptions herein in favour of the Lessor shall
enure for the benefit of the Superior Landlord (if any) of the Lessor
in relation to any covenant or obligation of the Lessor hereunder or
any consent required to be sought from the Lessor the term "the Lessor"
shall mean and include the Lessor and such Superior Landlord;
Notices
6.5 any notices requiring to be served hereunder shall be sufficiently
served on the Lessee if left addressed to at as the principal office of
the Lessee or forwarded to it by registered post or left at its last
known address in Ireland and shall be sufficiently served on the Lessor
if delivered to it personally or forwarded to it by registered post or
left at its registered office in Ireland. A notice sent by post shall
be deemed to be given at the time when it was delivered to the address
to which it is sent.
IT IS HEREBY CERTIFIED
(i) by the Lessee that it is the person becoming entitled to the
entire beneficial interest in the interest hereby created and
that all necessary consents under Sections 12 and 45 of the
Land Act 1965 have been obtained and that all conditions
attached thereto have been complied with.
(ii) that the consideration (other than rent) for the sale/lease is
wholly attributable to property which is not residential
property and that the transaction effected by this instrument
does not form part of a larger transaction or of a series of
transactions in respect of which the amount or value, or the
aggregate amount or value, of the consideration (other than
rent) which is attributable to property which is not
residential property exceeds (pound)5,000.
(iii) that section 29 (lease combined with building agreement for
dwellinghouse/apartment) of the Stamp Duties Consolidation
Act, 1999, does not apply to this instrument.
(iv) for the purposes of section 29 of the Companies Act, 1990 that
the parties are not connected with each other in a manner
which would require this transaction to be ratified by
resolution of either.
Guarantee
8.1 In consideration of this lease the Guarantor guarantees to the Lessor
for as long as Pemstar
18
Ireland Limited is the Lessee hereunder that it will duly pay the rent
herein reserved and perform and observe the covenants and agreements on
the Lessee's part herein contained and further that any forbearance or
giving of time to the Lessee shall not release the Guarantor from
liability hereunder.
8.2 The liability of the Guarantor hereunder shall cease on a valid
assignment of this lease or on the determination of the term hereby
created, but without prejudice to antecedent breaches by the Lessee of
any of the covenants and agreements on the Lessee's part herein
contained.
Registration
9 The Lessor hereby assents to the registration of the within lease as a
burden on the folio to be opened on the registration of a lease dated 8
December 2000 and made between (1) Industrial Development Agency
(Ireland) and (2) the Lessor and consents to the use of the land
certificate to such folio for the purposes of such registration.
19
IN WITNESS whereof the parties hereto have executed this Lease the day and year
first herein written.
PRESENT when the Common Seal
of THE LESSOR
was affixed hereto:-
/s/ X. XXXXX
-----------------------------
/s/ X. XXXXX
-----------------------------
PRESENT when the Common Seal
of THE LESSEE
was affixed hereto:-
/s/ X. XXXXXX
-----------------------------
/s/ XXXX XXXXXX
-----------------------------
PRESENT when the Common Seal
of THE GUARANTOR
was affixed hereto:-
/s/ XX XXXXXXX
-----------------------------
20
SCHEDULE
ALL THAT AND THOSE the land and premises situate in the Townland of Athlumney
and County of Meath being part of the lands comprised in Folio 28469F of the
Register County Meath as more particularly described on the plan annexed to
lease dated 8 December 2000 and made between (1) Industrial Development Agency
(Ireland) and (2) the Lessor and thereon outlined with a red verge line, and
which said premises are further identified on the map or plan annexed hereto and
thereon edged red excluding the portion of the premises outlined in blue on
which an ESB sub-station is located.
21
DATED 5/4/2001
(1) DERRAGLEN TRADING LIMITED
(2) PEMSTAR IRELAND LIMITED
AND
(3) PEMSTAR INC.
----------------------------
LEASE
----------------------------
XXXXXXXX XXXXXX XXXXXXXX
SOLICITORS
00 XXXXXXX XXXXXX
XXXXXX 0
22
