Exhibit 10.5
THIS INDENTURE made the 24th day of August 2001 BETWEEN INDUSTRIAL
DEVELOPMENT AGENCY (IRELAND) having its Principal Office at Wilton Park
House, Wilton Place in the City of Dublin (hereinafter called "▇▇▇" which
expression shall include its successors and assigns) of the one part and
Genzyme Ireland Limited having its registered office at c/o A&L Goodbody,
North Wall Quay, IFSC, in the City of Dublin ("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 lR(Pound) 2,076, 100-00 paid
by the Lessee to ▇▇▇ (the receipt of which is hereby acknowledged)
▇▇▇ demises to the Lessee ALL THAT AND THOSE the premises described
in the First Schedule hereto (hereinafter referred to as "the
demised premises") TO HOLD the same unto the Lessee for a term of
999 years from the 1st day of January 2001 subject to the 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 ▇▇▇ 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 ▇▇▇.
3. ▇▇▇ 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 ▇▇▇ as if each term and
condition applicable to ▇▇▇ was incorporated herein as a separate
covenant with the Lessee.
FIRST SCHEDULE
PREMISES
1. ALL THAT AND THOSE part of the lands at Waterford Industrial Estate
situate at IDA's Industrial Estate in the County of Waterford
comprising an area of 15.97 acres or thereabouts statute measure
more particularly described on the map annexed hereto and thereon
surrounded by a red verge line being part of the lands comprised in
Folio 4917 of the Register County of Waterford.
TOGETHER WITH the free and uninterrupted passage and running of
water, soil, and effluent, drainage, gas, water, oil, electricity,
steam, telephone or any other services supplied to or from the
demised premises, in common with ▇▇▇, it's successors and assigns,
over the lands the property of ▇▇▇ through sewers, drains, water
courses, conduits, pipes, wires and cables which now or hereafter
within the period of 21 years from the date of this lease during the
term hereby granted may be in or over, under or upon the said lands
the property of ▇▇▇ together with full
and free right and liberty for the lessee, its servants and agents
of ▇▇▇, to enter upon the said lands the property of ▇▇▇ for the
purpose of connecting, laying, inspecting, repairing, cleaning,
maintaining, altering, replacing or renewing the installations,
structures, fittings or any other works providing the said services
of any of them and other services to the demised premises causing as
little inconvenience as possible to ▇▇▇, it's successors and
assigns, and the lessee making good any damage thereby occasioned.
EXCEPTING AND RESERVING unto ▇▇▇, its successors and assigns:
1. (a) the free and uninterrupted passage and running of water, soil
and effluent drainage, gas, water, oil, electricity, steam,
telephone or any other service or supply to and from the other
buildings and lands the property of ▇▇▇ and its tenants adjoining or
near to the demised premises through the sewers, drains,
watercourses, conduits, pipes, wires and cables which now are or may
hereafter within the period of 21 years from the date of this Lease
during the term hereby granted be in or over, under or upon the
demised premises;
1. (b) 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 land and to use the same
as it may think fit;
1. (c) 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 sewer
drain, main, pipe, wire, cable, watercourse, channel, conduit or
subway and to erect, construct or lay in, over, under or across the
demised premises not built upon any sewers, drains, main, pipes,
wires, cables, poles, structures, fixtures or other works for the
drainage of or for the supply of water, gas, electricity, oil,
telephone, heating, steam, radio and television signals and other
services to other premises of ▇▇▇ causing as little inconvenience as
possible to the Lessee and ▇▇▇ making good any damage thereby
occasioned;
1. (d) all rights, easements and privileges now belonging to or enjoyed
by any adjoining property.
MINING RIGHTS
2. 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.
RENT AND ▇▇▇▇ 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) 175-00 per hectare (or part
thereof) 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 ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
or any other description which may now or at any time hereafter be
assessed, charged or imposed on the 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, to 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
upkeep (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:
3. (A) In the case of a completed estate the total gross floor areas of all
the industrial units in the estate and
3. (B) 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 services have been provided to undeveloped areas of the
estate, the gross floor area of buildings in 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. To 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 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. (i) The Lessee shall on or prior to the 31st day of March 2003 have
substantially commenced to build and erect upon the demised premises
a factory premises in accordance with plans and specifications first
approved of in writing by ▇▇▇ and in accordance with all statutory
requirements, regulations and bye-laws applicable thereto. For the
purpose of this Clause "substantially commenced" shall mean the
pouring of foundations and the erection of the main structure
support for the said factory premises;
5. (ii) If the Lessee fails to fully and completely comply with this
Clause ▇▇▇ shall be entitled to repurchase at the expense of the
Lessee the demised premises including any partially erected
buildings thereon for the sum of IR(Pound) 2,076,100-00 free
from encumbrances;
5. (iii) The Lessee hereby irrevocably constitutes and appoints the Secretary
for the time being of ▇▇▇ to be the Attorney of the Lessee for it
and on its behalf and in its name and as its act and at its expense
to re-assign or surrender this Lease from the name of the Lessee,
its successors or permitted assigns to ▇▇▇;
5. (iv) The Lessee shall do and execute all acts, instruments and things
which ▇▇▇ considers necessary or expedient for reassigning or
surrendering the demised premises as aforesaid;
5. (v) ▇▇▇ may from time to time in writing under hand or seal substitute
and appoint any person or persons to act under or in place of the
said Attorney in all or any of matters aforesaid and from time to
time revoke any such substitution and appointment;
5. (vi) The Lessee shall not be entitled to erect any buildings on the site
demised other than those referred to in the approved plans and
specifications as mentioned in Clause 5 (i) hereof without the prior
consent in writing of ▇▇▇ 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 ▇▇▇ or by the Lessee and
immediately after the receipt of any notice requiring such works to be
carried out the Lessee shall send a copy thereof to ▇▇▇.
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 1999
and the Planning and Development ▇▇▇ ▇▇▇▇ or any Act or Acts
amending, extending or replacing the same or any regulation made
thereunder forthwith notify ▇▇▇ of this fact and furnish to ▇▇▇ a
copy of any such notice, Order or Request;
7-2 indemnify ▇▇▇ 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 ▇▇▇.
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) ▇▇▇ shall construct and
maintain in good order, repair and condition the roads and footpaths and
shall maintain the sewers, drains and water mains (outside the perimeter
of the demised premises) which serve the demised premises unless and until
the same have been taken in charge by the Local Authority.
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 sewer
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, ▇▇▇▇▇, ▇▇▇▇▇▇▇, 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 premises
including architects' fees in the event of total destruction thereof and
▇▇▇ shall be noted therein as an interested party.
15. If the 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 the building, repairing and otherwise reinstating
the premises according to the original plan or elevation thereof or as
otherwise agreed with ▇▇▇. 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. No clause.
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 21 days after it
shall become due (whether the same shall have been lawfully demanded or
not) or shall be guilty of any breach of the conditions of this Lease and
fail to make good any such breach within reasonable time it shall be
lawful for ▇▇▇ 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 ▇▇▇ against the Lessee arising out of any
antecedent breach of any condition of this Lease.
THIRD SCHEDULE
1. The yearly rent payable by the Lessee shall be subject to adjustment at
the end of the first period of 5 years and at the end of the second period
of 5 years of the term of this Lease in the manner hereinafter provided
and
after the first adjustment the Tenant shall pay the amount of the Rent as
so adjusted in respect of the next following 5 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 Tenant
throughout the said term shall be IR(Pound)l0 per acre 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 the said periods of 5 years hereinbefore mentioned shall be calculated
by reference to the change in the cost of living as indicated by the
Consumer Price Index (hereinafter referred to as "the Index") issued by
the authority of the Central Statistics Office of the Republic 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 5 years in proportion to the rise or fall in the respective
Index Figures current on the 1st day of each of the said periods of 5
years compared with the Index figures current on the last day of each of
the said periods.
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 5 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 5 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 and 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 the Republic 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 5 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 I and 2 hereof and FURTHER PROVIDED that notwithstanding anything
hereinbefore provided the amount of any adjustment in Rent shall not exceed 10%
of the Rent payable immediately prior to such adjustment.
QUIET ENJOYMENT
5. 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 ▇▇▇ or any person lawfully claiming under or in
trust for it.
▇▇▇ hereby assents to the registration of this Lease and the rights hereby
granted as a burden on Folio 4917 of the Register County Waterford and consents
to the use of the Land Certificate of the said Folio for the purposes of such
registration.
IT IS HEREBY FURTHER 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 thereto have been complied with.
IT IS HEREBY FURTHER CERTIFIED that the consideration (other than rent) of the
Lease is wholly attributable to property which is not residential property.
IT IS HEREBY FURTHER CERTIFIED that Section 53 (Lease Combined With Building
Agreement For Dwellinghouse /Apartment) of the Stamp Duties Consolidation Act
1999 does not apply to this Instrument.
IN WITNESS whereof the above named parties have hereunto set their hands and
affixed their Seals the day and year first herein written.
PRESENT when the Seal of
INDUSTRIAL DEVELOPMENT AGENCY
(IRELAND) was affixed hereto:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
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Authorised Officer AUTHORIZED OFFICER
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------
Authorised Officer AUTHORIZED OFFICER
PRESENT when the Common Seal
Of GENZYME IRELAND LIMITED.
was affixed hereto:
[ILLEGIBLE]
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
Dated the day of 2001
INDUSTRIAL DEVELOPMENT
AGENCY (IRELAND)
One Part
Genzyme Ireland Limited
Other Part
999 YEAR LEASE
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▇▇▇▇▇▇▇▇▇ SHATTER,
Solicitors,
▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇.
Genzyme 999 lease/▇▇▇ dir