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EXHIBIT 10.4
DATED THE 12TH DAY OF JANUARY 1999
INDUSTRIAL DEVELOPMENT AGENCY (IRELAND)
One Part
With
CAMBRIDGE DIAGNOSTICS IRELAND LIMITED
OTHER PART
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LONG LEASE
UNIT ID MERVUE, GALWAY
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KENNEDY MCGONAGLE BALLAGH
SOLICITORS
20 NORTHUMBERLAND ROAD
DUBLIN 4
(IDA/CAMB.LEASE/RPM/P)
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THIS INDENTURE made the 12th day of January 1999 BETWEEN INDUSTRIAL DEVELOPMENT
AGENCY (IRELAND) having its Principal Office at Wilton Park House, Wilton
Place, Dublin 2 (hereinafter called "the IDA") of the one part and CAMBRIDGE
DIAGNOSITCS IRELAND LIMITED having its registered office at Unit ID Mervue
Industrial Estate, Galway (hereinafter called "the Lessee" which expression
shall include its successors and permitted assigns) of the other part.
WITNESSETH:
1. In consideration of the sum of IR (pound)495,000.00 paid by the Lessee
to the IDA (the receipt of which he hereby acknowledge) the IDA hereby
demisES to the Lessee ALL THAT AND THOSE the premises described in the
First Schedule hereto (the "demised premises") TO HOLD the same unto
the Lessee for a term of 999 years from the date hereof subject to the
yearly rent set out in the First Schedule hereto and to the terms and
conditions set out in the Second and Third Schedules hereto.
2. The Lessee hereby covenants with the IDA that it will observe all the
terms and conditions contained in the First, Second and Third
Schedules hereto as if each term and condition applicable to the
Lessee was incorporated as a separate covenant with the IDA.
3. The IPA covenants with the Lessee that it will observe all the terms
and conditions contained in the First, Second and Third Schedules
hereto insofar as the same are binding upon the IDA as if each term
and condition applicable to the IDA was incorporated herein as a
separate covenant with the Lessee.
FIRST SCHEDULE
PREMISES
1. ALL THAT AND THOSE part of the lands of Ballybaan Beg in the County of
Galway more particularly described in the map annexed hereto and
thereon surrounded by a red verge line being part of the lands
comprised in Folio 54151 of the Register County Galway containing 0.75
acres approximately together with the factory erected thereon.
1.1 TOGETHER WITH
1.1.1 A right of way (in common with the IDA and all other
persons having similar rights) for the Lessee, its
servants, agents, invitees and licensees for all
purposes to pass and repass with or without a means
of transport
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over the estate roads serving the demised premises
coloured yellow on the map annexed hereto.
1.1.2 The free passage and running to the demised premises
of water, gas, electricity, telephone signals, oil
and heating fuels and other services through all
pipes, services, mains, ducts, conduits, cables and
wires now in, under or over, or at any time within
21 years from the date hereof to be in, under or
over the IDA Industrial Estate of which the demised
premises form part.
1.2 EXCEPTING AND RESERVING unto the IDA its successors and
assigns and all persons having the like right:
1.2.1 the free and uninterrupted passage and running of
water, soil, effluent, drainage, gas, oil and
electricity, steam, telephone or any other service
or supply to and from the other buildings and lands
the property of the IDA and its tenants adjoining or
near to the demised premises through the sewers,
drains, watercourses, conduits, pipes, wires and
cables which now are nor may hereafter within the
period of 21 years from the date of this Lease
during the term hereby granted be in over under or
upon the demised premises;
1.2.2 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 neighboring lands and to use
the same as it may think fit;
1.2.3 the full and free right and liberty 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
sewer, drain, main, pipe, wire, cable, watercourse,
channel, conduit or subway including the provision
of a water meter and to erect, construct or lay in,
over, under or across the demised premises not build
upon including without prejudice to the generality
of the foregoing the route coloured orange on the
map annexed hereto any sewers, drains, mains, pipes,
wires, cables, poles, structures, fixtures or other
works for the drainage of or for the supply of
water, gas, electricity, oil, telephone, telex,
heating, steam, radio and television signals and
other services to other premises for the IDA causing
as little inconvenience as possible to the Leases
and the IDA making good any damage to the demised
premises thereby occasioned;
1.2.4 all rights easements and privileges now belonging to
or enjoyed by any adjoining property.
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MINING RIGHTS
2. All mines, minerals, mining rights, quarries and royalties whatsoever
in or under the demised premises during the term of the demise are
expected and reserved out of the demise.
RENT AND GALE DAYS
3. The rent of the demised premises shall be payable in advance without
any deductions whatsoever on the 1st day of January in each year with
the exception of the first installment which shall be paid on the
execution hereof. In the first to the fifth year inclusive of the term
of the demise the annual rent shall be IR(pound)10 per annum. From the
commencement of the sixth year of the term of the demise and for the
residue of the term hereby created the annual rent shall be determined
as specified in the Third Schedule hereto.
SECOND SCHEDULE
1. The Lessee shall pay the rent hereby reserved without any deductions
whatsoever on the dates hereinbefore provided for.
2. In addition to the said rent the Lessee shall pay and discharge all
taxes, rates, duties, charges, assessments and impositions whatsoever
including value added tax whether Parliamentary, Municipal, County,
Union, District or any other description which may now or at any time
hereafter be assessed, charged or imposed on the demised premises or
any part thereof or the rent payable thereout and whether payable by
owner or occupier.
3. As the demised premises are situate upon an Industrial Estate, the
Lessee shall bear with the owners or occupiers of each other unit in
the said industrial estate the cost and expense of all necessary
maintenance, repair and up-keep (and operating cost where applicable)
of access roads, foot-paths, 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:
3.1 in the case of a completed estate the total gross floor areas
of all the industrial units in the estate and;
3.2 in the case of a non-completed or part completed estate the
total gross floor areas of all the completed units in the
estate and where roads and/or services have been provided to
un-developed areas of the estate, the gross floor area of
buildings in the course of erection and proposed buildings
fronting onto such roads and/or services until such time as
the same shall have been taken in charge by the Local
Authority.
4. The Lessee shall bear with the owners or occupiers of each other unit
in the said industrial estate the cost and expense of all necessary
estate security in the same
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proportion as the gross floor area of the buildings erected on the
demised premises bears to the gross floor areas of all the completed
units in the said estate.
5. Save as provided for in Clause 6 below the Lessee shall not construct
any buildings or carry out any other works (including without
prejudice to the generality of the foregoing floodlights or
illuminated signs) on the demised premises without the prior written
consent of the IDA such consent not to be unreasonably withheld.
LOCAL AUTHORITY REQUIREMENTS
6. The Lessee shall execute all such works which any County or District
Council or other Local or Public Authority may require to be carried
out in respect of the demised premises either by the IDA or by the
Lessee and immediately after the receipt of any notice regarding such
works to be carried out the Lessee shall send a copy thereof to the
IDA.
7. Without prejudice to the generality of Clause 6, the Lessee shall:
7.1 on receipt of any notice, order or request pursuant to
provisions of the Local Government (Planning and Development)
Acts 1963 to 1994 and Building Control Act 1990 or any Act or
Acts amending extending or replacing the same or any
Regulation or Order made thereunder forthwith notify the IDA
of this fact and furnish the IDA a copy of any such notice,
order or request;
7.2 indemnify the IDA from and against all actions, claims,
suits, demands, penalties or fines for or in respect of any
failure to satisfactorily and completely comply with the
requirements of such notice, order or request.
REPAIRS
8. The Lessee will at all times well and sufficiently repair, maintain,
cleanse and keep the entire of the demised premises in good and
substantial repair, condition and state of exterior decoration. The
Lessee's obligations under this Clause shall include all fences,
drains, sewers or other conveniences and appurtenances belonging to
the demised premises. The Lessee shall keep and maintain the lands of
the demised premises not covered by buildings in a neat and tidy
condition in a manner satisfactory to the IDA.
MAINTENANCE OF SERVICES
9. During the term of this lease or until they are taken in charge by the
Local Authority (whichever is the lesser period) the IDA shall
construct and maintain in good order, repair and condition the roads
and footpaths coloured yellow on the map annexed hereto and shall
maintain the sewers, drains and watermains (outside the perimeter of
the demised premises) which serve the demised premises until the same
have been taken in charge by the Local Authority.
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USE OF PREMISES
10. The Lessee shall use the demised premises only for manufacturing and
ancillary purposes.
11. The Lessee shall not discharge or permit to be discharged into the
sewers serving the demised premises any liquid matter or thing which
is or may be liable to set or congeal at average sewer temperature or
is capable of giving off any inflammable or explosive gas or any acid,
alkali or other substance in sufficient concentration to cause
corrosion to sewer pipes, penstocks, gratings and sewer fittings.
12. The Lessee shall not discharge or permit to be discharged any effluent
into the surface water drainage system.
13. The Lessee shall not do or permit to be done any act or thing which
might be or grow to be a nuisance or to the annoyance, damage or
inconvenience of the neighbourhood or the property adjoining or near
to the demised premises or of the owners or occupiers of any such
property.
INSURANCE
14. The Lessee shall keep the demised premises insured against loss or
damage by fire, storm, tempest, flood, explosion, aircraft or other
aerial devices or articles dropped therefrom. The insurance shall be
for the sum of money sufficient to cover the full cost of reinstating
the demised premises including architects' fees in the event of total
destruction thereof and the IDA shall be noted therein as an
interested party.
15. If the demised premises or any part thereof shall at any time during
the term be destroyed or damaged by any of the risks mentioned in
Clause 14, the Lessee shall apply all monies received in respect of
such insurance with all reasonable speed in building, repairing and
otherwise reinstating the premised according to the original plan or
elevation thereof or as otherwise agreed with the IDA. Any deficiency
in such monies shall be provided by the Lessee out of its own funds.
16. The Lessee shall not carry on any business on the demised premises or
store any material thereon which might render any such insurance void
or voidable.
17. The Lessee shall not do or permit to be done upon the demised premises
anything which may render the IDA or the owner or occupier of
adjoining premises liable to pay any increased or penal premium in
respect of any insurance policies effected by the IDA or the owner or
occupier of any adjoining premises or which might render such
insurance policies void or voidable or in any way prejudice the right
of or increase the responsibility of the IDA or the owner or occupier
of adjoining premises under any such insurance policies.
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TERMINATION
18. Notwithstanding anything hereinbefore contained it is expressly agreed
by the Lessee and declared that if the rent herein reserved or any
part thereof shall at any time be in arrears and unpaid for twenty-one
days after it shall become due (whether the same shall have been
lawfully demanded or not) or if the Lessee shall be guilty of any
breach of the covenants or conditions of this Lease and fail to make
good any such breach within a reasonable time it shall be lawful for
the IDA to enter upon the demised premises or any part thereof in the
name of the whole and peaceably to hold and enjoy the demised premises
thenceforth as if these presents had not been made without prejudice
however to any claim of the IDA against the Lessee arising out of any
antecedent breach of any condition of this Lease.
QUIET ENJOYMENT
19. On the Lessee paying the Rent hereby reserved and performing and
observing the conditions and agreements of this Lease, the Lessee
shall and may peaceably hold and enjoy the demised premises during the
term of the Lease without interruption by the IDA or any person
lawfully claiming under or in trust for it.
ASSENT TO REGISTRATION
20. The IDA hereby assents to the registration of this Lease and the
rights hereby granted as burdens on Folio 54151 County Galway and
consents to the use of the Land Certificate of the said Folio for the
purposes of such registration.
THIRD SCHEDULE
1. The yearly rent payable by the Lessee shall be subject to adjustment
at the end of the first period of five years and at the end of the
second period of five years of the term of this Lease in the manner
hereinafter provided and after the first adjustment the Lessee shall
pay the amount of the rent as so adjusted in respect of the next
following five year period of the said term and thereafter the yearly
rent so adjusted for the residue of the said term PROVIDED THAT the
yearly minimum rent payable by the Lessee throughout the said term
shall be IR(pound)10 per annum and no adjustment made under the
provisions of this Schedule shall take effect so as to reduce the said
rent below the said figure.
2. Subject to the provisions of this Schedule, the said adjustment at the
end of each of the said periods of five years hereinbefore mentioned
shall be calculated by reference to the change in the cost of living
as indicated by the Consumer Price Index ("the Index") issued by the
authority of the Central Statistics Office of Ireland and at present
officially published in the Irish Statistical Bulletin and shall be
made by increasing the yearly rent payable at the end of the said
periods of five years in proportion to the rise or fall in the
respective Index figures current on the first day of each of the said
periods of five years compared with the Index figures current on the
last day of each of the said periods.
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3. For the purpose of this paragraph, the Index figure current on the
date aforementioned shall be that published on either of the said
dates in the Irish Statistical Bulletin or other official publication,
or if not published on either of the said days, then last published in
the said Bulletin or publication immediately before either of them.
4. If during the said periods of five years, the basis of the Index shall
be changed by substituting a new basic or starting Index figure or
otherwise the adjustment of the rent to be paid for the period
following the expiration of the said periods of five years shall in
default of agreement between the parties be determined by a
Professional Valuer to be nominated by the President for the time
being of the Irish Auctioneers & Valuers Institute and his
determination shall be that of an Expert and not of an Arbitrator and
shall be binding upon the parties and in making his determination the
said person shall have regard to any official publication relating to
the change in the cost of living during the said period issued by the
authority of the Government of Ireland or by any responsible
organisation PROVIDED THAT the adjustment in the rent to be made at
the end of the said periods of five years during which the basis of
any new or revised Index remains unchanged shall continue to be made
in accordance with the provisions of Paragraphs 1 and 2 hereof and
FURTHER PROVIDED that notwithstanding anything hereinbefore provided
the amount of any adjustment in Rent shall not exceed ten percent of
the rent payable immediately prior to such adjustment.
IT IS HEREBY CERTIFIED 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 hereto have been complied with.
IT IS HEREBY FURTHER CERTIFIED for the purposes of the stamping of this
instrument that this is an instrument to which the provisions of Section 112 of
the Finance Act 1990 do not apply for the reasons that it is a Lease of an
industrial site.
IT IS HEREBY FURTHER CERTIFIED that no part of the consideration for the sale
is attributable or deemed to be attributable to residential property.
IN WITNESS whereof the above-named parties have executed these presents the day
and year first herein written.
PRESENT when the Common Seal of
INDUSTRIAL DEVELOPMENT
AGENCY (IRELAND) was affixed hereto:
/s/ [Signature illegible]
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AUTHORISED OFFICER
/s/ [Signature illegible]
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AUTHORISED OFFICER
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PRESENT when the Common Seal of
CAMBRIDGE DIAGNOSTICS IRELAND
LIMITED was affixed hereto:
/s/ Conor O'Shea
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Secretary
/s/ Kenneth Legg
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Director
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Annex I
[A map of the property is included.]
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