Exhibit 10.3
Dated 25th day of April 1996
HING SENG PLASTIC FACTORY LIMITED
and
ISE LABS (HK) LIMITED
--------------------------------
TENANCY AGREEMENT
of
Unit C, 22nd Floor, Southeast
Industrial Building, Nos.611-619
Castle Peak Road, Tsuen Wan,
New Territories.
--------------------------------
--------------------------------
Registered in the Land Registry
by Memorial No. 6622208
on 25 May 1996
P. Land Registrar
--------------------------------
[SIGNATURE APPEARS HERE]
AN AGREEMENT made this 25th day of April
One thousand nine hundred and ninety-six
PARTIES
- -------
BETWEEN the parties described in Part 1 of the Schedule.
WHEREBY IT IS AGREED as follows :-
LETTING
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1. The Landlord lets and the Tenant takes ALL THOSE the premises described in
Part 2 of the Schedule (hereinafter referred to as "the said premises")
which premises form part of the development described in Part 2 of the
schedule (hereinafter referred to as "the said development") which
development is erected on the land described in Part 2 of the Schedule
(hereinafter referred to as "the said land") Together with the Landlord's
fixtures and fittings (including those described in Part 4 of the Schedule)
in the said premises (hereinafter referred to as "the said fixtures") and
together with the use in common with the Landlord and all others having the
like right of the common areas and of the equipment serving the said
premises or intended for the common use of the owners or occupiers of the
said building or the said land for the term (hereinafter referred to as "the
said term") and at the rent (hereinafter referred to as "the said rent")
described in Part 3 of the Schedule.
TENANT'S AGREEMENTS
- -------------------
2. The Tenant to the intent that the obligation shall continue throughout the
said term hereby agrees with the Landlord as follows:-
[HONG KONG STAMP DUTY PAID APPEARS HERE]
[DUPLICATE OR COUNTERPART STAMP APPEARS HERE]
(a) Rent management charge and rates
--------------------------------
(i) To pay the said rent as provided in Part 3 of the Schedule.
(ii) To pay the monthly management charge payable in respect of the
said premises by the Landlord in its capacity as owner of the
said premises under the Deed of Mutual Covenant but excluding
any part or element of such charge with represents payment of or
a contribution to payment of costs expenses or other outgoings
of a capital or non-recurring nature or which represents a
contribution to a sinking fund or a contingency fund.
(iii) To pay the rates and all other outgoings and impositions of an
annual or recurring and non-capital nature assessed in respect
of the said premises by the government of Hong Kong.
(b) Utilities
---------
To pay and discharge all charges for telephone services, gas,
electricity and water consumed by the Tenant in the said premises.
(c) Repair
------
To keep all the interior of the said premises including the floor
coverings and the finishes to interior walls, ceilings, windows and
doors in the said premises and, if and to the extent the same are
damaged by the act or neglect of the Tenant, the said fixtures in
good, clean and tenantable repair and condition (fair wear and tear,
any damage or destruction of the sort referred to in sub-clause 4(i),
any damage, defect or want of repair which subsists at the
commencement of the said term or which is of a latent, inherent or
structural nature all excepted) and to deliver
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up the same to the Landlord at the ending of the said term in such
repair and condition.
(d) Installations
-------------
Not without the previous written consent of the Landlord to erect or
install any wall, partitioning or other such erection in the said
premises.
(e) Injury to premises
------------------
Not to cut or deface any door, window, structural wall, beam or
structural member of the said premises nor any of the plumbing or
sanitary apparatus or installations installed therein Provided that
without breach of this Sub-Clause or any other provision of this
Agreement the Tenant may after consultation with the Landlord carry
out such works to the said premises and the fixtures and fittings
therein as the Tenant reasonably considers necessary for the purpose
of fitting-out the said premises to the standard required by the
Tenant.
(f) Drains
------
To pay the Landlord on demand all reasonable costs properly incurred
by the Landlord in cleansing or clearing any of the drains or water
pipes in the said premises choked or stopped up owing to the improper
use of the same by the Tenant.
(g) Protection of interior
----------------------
To take reasonable precautions to protect the interior of the said
premises against damage by storm, typhoon or other adverse weather
condition.
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(h) Nuisance
--------
Not to do in the said premises any act which constitutes a nuisance to
the Landlord or to the owners of other premises in the said
development or in buildings in the neighborhood of the said
development.
(i) Crown Lease and insurance
-------------------------
Not to do in the said premises any act which is not expressly or by
implication permitted or contemplated by this Agreement and which
constitutes a breach of any of the negative or restrictive terms and
conditions of the Crown grant under which the said land is held from
the Crown nor to do in the said premises any act which is not
expressly or by implication permitted or contemplated by this
Agreement whereby any insurance effected by the Landlord on the said
premises against loss or damage by fire for the time being in force is
rendered void or voidable or whereby the premium thereon is increased
Provided that the Tenant shall have no liability under this Sub-Clause
unless prior to the commission of any breach by the Tenant of the
provisions of this Sub-Clause the Landlord has supplied the Tenant a
copy of the fire policy or policies in force at the time of the
breach.
(j) Combustible or hazardous goods
------------------------------
Not to keep or store or permit or suffer to be kept or stored in the
said premises any arms ammunition gunpowder saltpetre kerosene or
other explosive or combustible or hazardous goods in contravention of
the Dangerous Goods Ordinance Cap.295.
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(k) Use
---
(i) To use the Premises as provided in Part 4 of the Schedule
hereto; and in the event of the permitted user as stated in Part
4 of the Schedule being non-domestic, at the Tenant's expense to
obtain all licenses or permits necessary for carrying on the
Tenant's business on the Premises and which under any Ordinance
the Tenant as lessee has the obligation to obtain.
(ii) Not to use the said premises or any part thereof or permit or
suffer the same to be used for any illegal or immoral purpose
nor to carry on or permit or suffer to be carried on therein or
on any part thereof any offensive, noisome, noxious, noisy or
dangerous trade, business manufacture or occupation whatsoever.
(iii) Not to permit any person other than staff of the Tenant who
occasionally have to do overtime work in relation to the
Tenant's business to remain in the said premises overnight
without the written permission of the Landlord such permission
only to be given to enable the Tenant to post watchmen to look
after the contents of the said premises which shall not be used
as sleeping quarters or as domestic premises within the meaning
of any Landlord and Tenant (Consolidation) Ordinance or any
amendments thereto or substitution therefor for the time being
in force.
(l) Signs
-----
Not to affix or display or permit or suffer to be affixed or displayed
on the exterior of the said premises any signboard, sign, poster,
picture or other such thing whether illuminated or not;
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(m) Common areas
------------
Not to encumber or obstruct or permit to be encumbered or obstructed
with any of the Tenant's boxes, packaging or other things any of the
common areas and not to leave any of the Tenant's rubbish in the
common areas except those parts of the common areas designated for
such purpose.
(n) Ordinances and Deed of Mutual Covenant
--------------------------------------
Not to do in the said premises any act which is not expressly or by
implication permitted or contemplated by this Agreement and which
constitutes a breach of any ordinance relating to the use of the said
premises by the Tenant nor to do in the said premises any act which is
not expressly or by implication permitted or contemplated by this
Agreement which constitutes a breach of the restrictive or negative
covenants which affect the said premises in the Deed of Mutual
Covenant.
(o) Alienation
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Not to assign, sub-let, underlet, mortgage or charge the said
premises.
(p) Entry
-----
To permit the Landlord and all persons bearing the written authority
of the Landlord at all reasonable times and upon prior appointment
having been made with the Tenant to enter and view the state of the
said premises and, during the last three months immediately preceding
the expiration of the said term to show the said premises to
prospective tenants or purchasers of the said premises provided that
in exercising its rights under this Sub-Clause the Landlord shall
cause and shall ensure that all persons entering the said premises
pursuant to this Sub-Clause cause the least possible inconvenience to
the occupier of the said premises
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and shall forthwith make good any damage, injury or loss caused by or
as a consequence of entry on to the said premises, to the Tenant, the
occupier of the said premises, the said premises or any thing in or
affixed to the said premiums.
(q) Yield up
--------
At the ending of the said term quietly to yield up the said premises
in a condition consistent with performance by the Tenant of its
obligations under Sub-Clause [2(e)] -
LANDLORD'S AGREEMENTS
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3. The Landlord hereby agrees with the Tenant as follows:-
(a) Payments
--------
To promptly pay the Crown Rent, Property Tax and all expenses of a
capital or non-recurring nature attributable to or payable in respect
of the said premises.
(b) Quiet enjoyment
---------------
That the Tenant paying the rent hereby reserved and observing and
performing its obligations under this Agreement shall peaceably hold
and enjoy the said premises the said fixtures and the rights granted
in Clause 1 without any interruption by the Landlord or any person
claiming under or in trust for the Landlord or by virtue or title
paramount.
(c) Deed of Mutual Covenant
-----------------------
To exercise and enforce its rights under the Deed of Mutual Covenant
against each and every other person who is bound by such Deed of
Mutual Covenant.
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(d) Repair
------
To the extent that the same is not the obligation of the Tenant under
Sub-Clause [2(e)] to keep the said premises and the said fixtures and
the equipment serving the said premises in good, clean and tenantable
repair and condition.
(e) Building
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To use its reasonable endeavours keep or procure that there is kept
in good, clean and tenantable repair and condition the equipment, the
said development and the common areas.
FURTHER PROVISIONS
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4. IT IS HEREBY FURTHER AGREED that the parties will be obliged and bound by,
and will have rights and powers in accordance with the following
provisions:-
(a) Re-entry
--------
If the said rent or any part thereof shall be unpaid for 15 days after
service of a written notice calling upon the Tenant to make payment of
the same or if the Tenant shall fail to observe and perform any of its
obligations under this Agreement or if the Tenant shall become
bankrupt or shall go into insolvent liquidation or make any
composition with its creditors or shall suffer any successful
prosecution in respect of the non-payment of any money due from it to
the Hong Kong Government in respect of the said premises then and in
any such case it shall be lawful for the Landlord at any time
thereafter to re-enter on the said premises or any part thereof in the
name of the whole whereupon this Agreement shall determine but without
prejudice to any right or claim of either party in respect of any
antecedent breach of this Agreement or to the right
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of the Tenant to the return of the said deposit in accordance with
clause 6.
(b) Notice sufficient
-----------------
A notice served by the Landlord on the Tenant in manner hereinafter
mentioned to the effect that the Landlord thereby exercises the power
of re-entry herein contained shall be a full and sufficient exercise
of such power without actual physical re-entry on the part of the
Landlord.
(c) No waiver
---------
Acceptance of the said rent by the Landlord shall not be deemed to
operate as a waiver by the Landlord of any right to proceed against
the Tenant in respect of any consistent breach of the Tenant's
obligations under this Agreement.
(d) Indemnity
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The Tenant shall indemnify the Landlord from and against all
proceedings taken against the Landlord by any person in respect of any
damage or injury caused to such person by the overflow from the said
premises of water the origin of which is in the said premises or the
escape from the said premises of fumes, smoke, fire or other substance
or thing the origin of which is in the said premises owing in any case
to the negligence of the Tenant.
(e) Premises
--------
The Landlord warrants to the Tenant that the said premises are
authorised for use and occupation as provided for under this
Agreement.
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(f) Acts of servants
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For the purpose of this Agreement any act, default, negligence or
omission of any visitor, servant or agent of the Tenant or of the
Landlord shall be deemed to be the act, default, negligence or
omission of the Tenant or (as the case may be) the Landlord.
(g) Distraint
---------
For the purposes of Part III of the Landlord and Tenant
(Consolidation) Ordinance, (Chapter 7) and of this Agreement, the said
rent shall be and be deemed to be in arrear if not paid in advance at
the times provided for payment thereof.
(h) Notices
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Any notice required to be served under this Agreement shall be in
writing and shall, if to be served on the Tenant, be sufficiently
served if addressed to the Tenant and sent by prepaid registered post
to or delivered at the Tenant's registered office in Hong Kong and, if
to be served on the Landlord shall be sufficiently served if addressed
to the Landlord and sent by prepaid registered post to or delivered at
the Landlord's registered office in Hong Kong.
(i) Rent cesser
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If at any time or times the said premises or any part thereof are
inaccessible, or if at any time or times the said premises or any part
thereof are destroyed or damaged owing to fire water storm wind
typhoon defective construction white ants earthquake subsidence of the
ground or any other cause whatsoever so as to render the said premises
or any part thereof unfit for habitation or use, or if at any time or
times any order is made or served under
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the Buildings Ordinance in respect of the said premises or any part
thereof, or if at any time or times the said premises or any part
thereof are for any reason unfit, unsuitable or unsafe for habitation
or use (which events are hereinafter referred to as "the calamity")
then the rent hereby reserved and all other sums payable by the Tenant
under this Agreement shall immediately be suspended and cease to be
payable until (as the circumstances may require) the said premises and
every part thereof (or is) are rendered accessible, or are reinstated
so as to be fit for habitation and use, or are fit, suitable and safe
for habitation and use or are free of any such order Provided that
should the said premises and every part thereof not (as the
circumstances may require) have been rendered accessible, reinstated
so as to be fit for habitation and use, become fit suitable and safe
for habitation and use or free of any such order in the meantime
either the Landlord or the Tenant may at any time after one month from
the calamity give to the other of them notice in writing to determine
this Agreement and thereupon the same and everything herein contained
shall determine as from the date of the calamity but without prejudice
to the rights and remedies of either party against the other in
respect of any antecedent claim or breach of this Agreement or of the
Tenant in respect of its right to the return of its deposit in
accordance with Clause 6 hereof.
(j) Stamp Duty and costs
--------------------
Each party shall bear its own legal costs and disbursements and other
expenses of or incidental to the preparation and completion of this
Agreement but the stamp duty on this Agreement and its duplicate shall
be borne by the parties hereto in equal shares.
KEY MONEY
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5. The Tenant declares that for the grant of the said term no key
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money or premium or other such consideration other than the consideration
referred to in this Agreement has been paid or will be payable by the
Tenant to the Landlord or to any person.
TENANT'S DEPOSIT
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6. (a) The Tenant shall on the signing of this Agreement deposit with
the Landlord the sum specified in Part 3 of the Schedule (in this
Agreement referred to as "the said deposit"). The said deposit shall
be held by the Landlord free of interest to the Tenant with power for
the Landlord to deduct from the said deposit the amount of any
monetary loss the Landlord suffers because of any breach by the Tenant
of its obligations under this Agreement but subject to this the said
deposit shall be returned to the Tenant within fourteen days after the
ending of the said term and the delivery of vacant possession of the
said premises.
(b) In the event of any transfer of the Landlord's interest in the said
premises, the Landlord shall at its own cost obtain upon such transfer
from the person to whom such transfer is made a legally binding
undertaking in favour of the Tenant to observe and perform the
obligations of the Landlord under this Agreement including the
obligations of the Landlord under this Clause 6 and upon such
undertaking being obtained and supplied to the Tenant the Landlord
shall transfer the said deposit to the person giving the undertaking.
(c) The Landlord hereby acknowledges receipt from the Tenant of the said
deposit.
DELIVERY OF VACANT POSSESSION/REINSTATEMENT BY THE TENANT
- ---------------------------------------------------------
7. It is hereby expressly agreed that at the expiration of the said term or at
any time when the Tenant shall deliver up vacant possession of the said
premises to the Landlord the Tenant shall at the same time if so required
by the Landlord forthwith remove
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all fixtures, additions, fittings and improvements affixed, installed or
made by the Tenant at or to the said premises and make good any damage
caused to the said premises by such removal.
OPTION TO RENEW
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8. (a) Option
------
If the Tenant shall be desirous of renewing the tenancy created by this
Agreement for a further term of two (2) years from the expiration of
the said term and shall not less than three months before the
expiration of the said term give to the Landlord notice in writing of
such desire then the Landlord will let the said premises to the Tenant
for a further term of two (2) years from the day immediately following
the expiry of the said term at the New Rent and subject to this and
save and except for this provision for renewal on the same terms and
conditions as this Agreement.
(b) Rent
----
For the purposes of this Clause, the New Rent means the calendar
monthly rent at which the Premises might reasonably be expected to be
let in the open market on the day immediately following the expiry of
the said term ("the New Term Date") by a willing landlord to a willing
tenant without a premium but with vacant possession and subject to the
provisions of this Agreement (other than the amount of the said rent
and the provisions of this Clause) for a term of two (2) years
commencing on the New Term Date with there being disregarded any
goodwill attached to the Premises by reason of the carrying on there of
business by the Tenant and the fact that the Tenant has been in
occupation of the said premises.
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(c) Referral of disputes
--------------------
The Landlord and the Tenant shall endeavour to agree the New Rent but
if it has not been agreed by the day one month before the New Term
Date the question of the New Rent may at any time thereafter be
referred by the Landlord or the Tenant to the determination of a
referee acting as an expert.
(d) Referee
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(i) The referee (who is to have substantial recent experience of
the letting of property such as the said premises and in their
vicinity) may be agreed on by the Landlord and the Tenant or if
not agreed on by them within two weeks from the nomination in
writing of a referee by one part to the other is to be appointed
on the application of either party by the President for the time
being of the Royal Institution of Chartered Surveyors (Hong Kong
Branch).
(ii) If the referee relinquishes his appointment or dies or if it
becomes apparent that he will be unable or unwilling to complete
his duties the Landlord and the Tenant may agree upon or either
of them may apply to the President for a substitute in his place
which procedure may be repeated as many times as necessary.
(iii) If the President is unable or unwilling to make an appointment
at the time of application the appointment may be made by the
Vice-President or next senior officer of the Institution then
able and willing to make it or if no such officer is available
by such officer of such professional body as the Landlord
designates.
(iv) The referee shall afford the Landlord and the Tenant the
opportunity to make representations subject to such
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reasonable time and other limits as he may prescribe and he
shall have regard to any such representations but not be bound
by them.
(v) The fees and expenses of the referee including the cost of his
appointment shall be borne as the referee may direct.
(e) Shortfall
---------
If the New Rent has not been agreed or determined by the New Term Date
the Tenant shall continue to pay the said rent in accordance with this
Agreement and following the New Rent being agreed or determined:-
(i) if there shall be any shortfall between the said rent paid as
aforesaid and the New Rent for the period from the New Term
Date and the date on which the New Rent is agreed or determined
then the Tenant shall pay to the Landlord the amount of such
shortfall; or
(ii) if there shall be any excess between the said rent paid as
aforesaid and the New Rent for the period from the New Term Date
and the date on which the New Rent is agreed or determined then
the Landlord shall pay to the Tenant the amount of such excess.
INTERPRETATION DEFINITIONS
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9. In this Agreement unless otherwise specified:-
(a) any reference to a Clause, Sub-Clause or Schedule is a reference to a
clause, sub-clause or schedule of or to this Agreement;
(b) headings have been inserted for ease of reference only and shall not
affect construction or interpretation;
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(c) words importing the singular include the plural and vice versa and
words of one gender include all the other genders;
(d) "the ending of the said term" means the coming to an end of the said
term in any way including expiration, termination, surrender and
forfeiture;
(e) "the Landlord" means the person named in this Agreement as the
Landlord and the person for the time being entitled to the reversion
immediately expectant on the ending of the said term;
(f) "the common areas" means those parts of the said development and the
said land intended for the common use of the owners or occupiers of
the said development or the said land;
(g) "the Deed of Mutual Covenant" means the Deed of Mutual Covenant
registered in the Land Registry by Memorial No.3037693 and includes
such Deed as amended, modified or extended and includes any instrument
including any sub-deed of mutual covenant or management agreement
(including the Sub-Deed of Mutual Covenant registered in the Land
Registry by Memorial No.5461236) made under or pursuant to it;
(h) "the equipment" means the plant, machinery, apparatus, lifts, systems,
services, facilities, conduits and conductive media of or benefiting
the said development or the said land;
(i) a reference to a specific ordinance includes such ordinance as
amended, modified, consolidated, extended or re-enacted and includes
any subsidiary legislation, regulations, orders and instruments for
the time being made under or pursuant it or deriving validity from it;
(j) where a party consists of two or more persons the obligations of such
persons shall be joint and several.
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AS WITNESS the hands of the parties hereto the day and year first above
written.
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THE SCHEDULE
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Part 1
------
(PARTIES)
Landlord : Hing Seng Plastic Factory Limited whose registered office is
situate at Unit E, 8th Floor, Southeast Industrial Building, Castle
Peak Road, Tsuen Wan, New Territories ("the Landlord").
TENANT : ISE LABS (HK) Limited of Unit C, 22nd Floor, Southeast Industrial
Building, Castle Peak Road, Tsuen Wan, New Territories ("the
Tenant").
Part 2
------
(PREMISES, BUILDING, LAND)
THE SAID PREMISES: Unit C, 22nd Floor, Southeast Industrial Building,
Nos.611-619 Castle Peak Road, Tsuen Wan, New Territories.
THE SAID DEVELOPMENT: Southeast Industrial Building, Nos.611-619 Castle
Peak Road, Tsuen Wan, New Territories.
THE SAID LAND: Section A of Tsun Wan Inland Lot No.17 and the Extension
thereto; Section A of Tsun Wan Marine Lot No.7.
Part 3
------
(TERM, RENT, DEPOSIT)
THE SAID TERM : For the term of three (3) years commencing on 1st May 1996
and expiring on 30th April 1999.
THE SAID RENT : HK$23,984.00 per month payable monthly (and so in proportion
for any period less than a month) in advance on the 1st day
of each month during the said term.
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THE SAID DEPOSIT: HK$47,968.00
Part 4
------
(PERMITTED USE)
The Tenant shall have the right to use the said premises for non-domestic
purposes.
SIGNED by NG LUI YUEN, its )
Director, ) [SEAL OF HING SENG PLASTIC FACTORY
------------------------ LIMITED APPEARS HERE]
for and on behalf of the Landlord )
in the presence of:- )
Name: LEUNG KIN WING
Clerk to Messrs. Wat & Co., Solicitors, Hong Kong.
Address: 16th Floor, Fung House, 19 & 20 Connaught Road Central,
Hong Kong.
Signature: I hereby verify the signature of
Leung Kin Wing:-
JOHN NG HOI SANG
Solicitor, Hong Kong
SIGNED by: Larry Sannes ) /s/ Larry Sannes
)
for and on behalf of the )
Tenant in the presence of:- )
Name: Philip Ng
Address: 1-7F. Southeast Industrial Bldg. 611-619 Castle Peak Road, Tsuen Wan.
Signature: /s/ Philip Ng
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