Exhibit 10.9
THIS LEASING AGREEMENT IS MADE AND ENTERED INTO BY THE BUSINESS ENTITY,
DESARROLLO INMOBILIARIO XXXXXXX XXXXXXXX, S.A. DE C.V., REPRESENTED BY LIC.
XXXXXXX XXXXX XXXXXXXX DE CIMA (HEREINAFTER, "THE LESSOR") AND BY THE BUSINESS
PARTNERSHIP, NUPRO INNOVATION DE MEXICO, SA DE CV., REPRESENTED BY XXX. XXXX
XXXXXXXXXXX (HEREINAFTER "THE LESSEE") UNDER THE FOLLOWING RECITALS AND
STIPULATIONS:
RECITALS
I "THE LESSOR" DECLARES:
1) THAT IT IS A MEXICAN BUSINESS ENTITY INCORPORATED IN ACCORDANCE
WITH THE GENERAL LAW FOR BUSINESS PARTNERSHIPS, BY PUBLIC DEED NUMBER 6501,
VOLUME 203, DATED OCTOBER 18, 1994, PROTOCOLIZED BY LIC. XXXXXXX XXXXX XXXXXX,
NOTARY PUBLIC #10, AND RECORDED IN THE PROPERTY AND COMMERCE PUBLIC REGISTRY IN
GUAYMAS, SONORA, ON OCTOBER 21, 1994, RECORD NUMBER 950, BOOK 1, VOL. 5,
COMMERCE SECTION.
2) THAT IT IS IN MATERIAL AND LEGAL POSSESION OF A REAL STATE
PROPERTY, CURRENTLY ENTITLED DESARROLLO INMOBILIARIO XXXXXXX XXXXXXXX, S.A. DE
C.V., LOCATED AT XXXXXXXXX XXXXXXXXXXXXX XXXXXXXXX 0000-00 XXXXXX NORTE, IN
GUAYMAS, SONORA, REAL ESTATE PROPERTY PURCHASED BY PUBLIC DEED NUMBER 8.919,
VOL. 263, ON JULY 15TH, 1998, PROTOCOLIZED BY NOTARY PUBLIC NUMBER 10, LIC.
XXXXXXX XXXXX XXXXXX, RECORDED IN THE REAL ESTATE PROPERTY PUBLIC REGISTRY,
RECORD NUMBER 53410, VOLUME 444, DATED OCTOBER 6, 1998.
II "THE LESSEE" DECLARES:
1) THAT IT IS A MEXICAN BUSINESS ENTITY, INCORPORATED PURSUANT TO
PUBLIC DEED NUMBER 4.239, VOLUME 182, ON NOVEMBER 10, 1998, PROTOCOLIZED BY
NOTARY PUBLIC NUMBER 00, XXX. XXXXXX XXXXXX XXXXX, REGISTERED IN THE PROPERTY
AND COMMERCE PUBLIC REGISTRY IN GUAYMAS, SONORA, IN THE COMMERCE SECTION, BOOK
1, RECORD NUMBER 1989, VOL. 50, ON NOVEMBER 25, 1998.
2) THAT IT WISHES TO LEASE THE REAL STATE PROPERTY DESCRIBED BY THE
LESSOR IN HIS RECITALS, PARAGRAPHS 1 AND 2 OF THE PRESENT AGREEMENT.
THE PRECEEDING RECITALS HAVING BEEN ACCEPTED, THE PARTICIPANTS UNANIMOUSLY AGREE
TO THE FOLLOWING ARTICLES:
1
ARTICLES
FIRST: LEASING.- "THE LESSOR" GIVES AND "THE LESSEE" ACCEPTS IN LEASING THE
PROPERTY DESCRIBED IN THE RECITAL 1 OF THIS AGREEMENT, THE SAME THAT IS LOCATED
IN GUAYMAS, SONORA.
SECOND: USE OR DESTINATION OF THE LEASED PROPERTY.- "THE LESSEE" WILL USE THE
LEASED BUILDING FOR THE FABRICATION, TRANSFORMATION OR ASSEMBLY OF DIFFERENT
MATERIALS.
THIRD: SUBLETTING.- "THE LESSEE" DOES NOT HAVE THE RIGHT TO SUBLET THE PROPERTY
DEALT WITH IN THIS AGREEMENT, AS A WHOLE OR IN PART, WITHOUT PREVIOUS
AUTHORIZATION FROM "THE LESSOR"
FOURTH: LEASING PRICE.- THE MONTHLY RENT THAT "THE LESSEE" WILL PAY WITHIN THE
FIRST FIVE DAYS OF EACH MONTH IS $3,621.00 (THREE THOUSAND SIX HUNDRED AND
TWENTY ONE DOLLARS) PLUS IVA TAX, OR IT CAN BE PAID IN PESOS AT THE EXCHANGE
RATE PUBLISHED BY THE LOCAL BANK.
FIFTH: LATE CHARGES.- IN CASE OF LATE PAYMENT OF RENT, THERE WILL BE AN INTEREST
CHARGED IN FAVOR OF "THE LESSOR" AND PAID BY "THE LESSEE" EQUAL TO MULTIPLYING
THE FEDERAL TREASURY CERTIFICATES PLUS FIVE POINTS, DURING ALL THE LATE TIME.
SIXTH: TAXES AND UTILITIES.- "THE LESSEE" WILL BE RESPONSIBLE FOR ALL THE
EXPENSES INCURRED INTO IN THE LEASED BUILDING, SUCH AS WATER, ELECTRICITY,
TELEPHONE AND OTHER NECESSARY UTILITIES, AND WILL NOT BE RESPONSIBLE FOR ANY
OTHER TAX THAT LEGALLY CORRESPOND TO "THE LESSOR", WHO WILL BE RESPONSIBLE FOR
THEM.
SEVENTH: MAINTENANCE.- THE RESPONSIBILITY CONCERNING MAINTENANCE, REPAIRS AND
REPLACEMENTS WILL BE RULED BY THE FOLLOWING STIPULATIONS:
1) "THE LESSEE" WILL MAINTAIN AND REPAIR AT HIS EXPENSE THE LEASED AREA,
INCLUDING THE SERVICE FACILITIES OF THE BUILDING.
2) "THE LESSEE" IS ALLOWED TO PLACE AT HIS EXPENSE ON THE EXTERIOR OR THE
INTERIOR OF THE LEASED BUILDING, THE SIGNS AND AWNINGS REQUIRED FOR A BETTER
DEVELOPMENT OF HIS BUSINESS, SUBJECT TO THE OBLIGATION OF REPAIRING ANY DAMAGE
CAUSED BY THE INSTALLATION OR REMOVAL OF THEM.
EIGHTH: REMODELING.- "THE LESSEE" WILL NOT BE ABLE TO CHANGE THE STRUCTURE OR
THE BASIC SERVICES, AND WILL NOT MAKE ANY CHANGES WHATSOEVER WITHOUT A WRITTEN
AUTHORIZATION FROM "THE LESSOR". ALL THE PERMANENT IMPROVEMENTS THAT "THE
LESSEE" MIGHT MAKE AND THAT COULD NOT BE SEPARATED FROM THE BUILDING WITHOUT
AFFECTING ITS NATURE, WILL BECOME "THE LESSOR"S PROPERTY AT THE END OF THE
AGREEMENT.
2
NINETH: INSURANCES.- "THE LESSEE" IS UNDER THE OBLIGATION OF KEEPING HIS
FURNITURE AND EQUIPMENT INSURED DURING THE EFFECTIVE TIME OF THIS AGREEMENT.
TENTH: TERM OF ENFORCEMENT.- THIS AGREEMENT WILL BE IN FORCE FOR FIVE YEARS ON
BOTH PARTIES, STARTING ON THE FIRST OF MAY, 2001 AND ENDING ON THE 30TH OF
APRIL, 2006.
AT THE END OF THE FIVE YEARS STATED ABOVE, "THE LESSEE" COULD LEASE THE BUILDING
FOR FIVE MORE YEARS, PROVIDED THE LESSEE IS CURRENT WITH THE RENT PAYMENTS.
ELEVENTH: CONVENTIONAL PENALTIES.- IN CASE ANY OF THE PARTIES BREACHES ANY OF
HIS RESPONSIBILITIES UNDER THIS AGREEMENT, THEREFORE CAUSING A BREACH OF THIS
CONTRACT, HE WILL HAVE TO PAY THE OTHER PARTY AS A CONVENTIONAL FINE, AN AMOUNT
EQUAL TO TWELVE TIMES THE LAST MONTHLY RENT PAID AT THE MOMENT OF BREACH.
INDEPENDENT FROM THIS PROVISION, THE PARTIES EXPRESELY AGREE TO THE FOLLOWING
CONTRACTUAL PENALTY: IN THE EVENT "THE LESSEE" DOES NOT VACATE THE BUILDING AT
THE TIME OF THE END OF THIS AGREEMENT, HE IS OBLIGATED TO PAY "THE LESSOR" THE
MONTHLY RENT PLUS AN AMOUNT EQUAL TO 100% UNTIL THE BUILDING IS VACATED.
TWELVETH: VACATING THE PREMISES.- ON THE LAST DAY OF THIS LEASE CONTRACT, OR ON
THE DAY OF AN ANTICIPATED TERMINATION, "THE LESSEE" WILL HAVE TO VACATE THE
PREMISES AND RETURN THEM TO "THE LESSOR" WITHOUT DELAY, IN GOOD ORDER AND IN THE
SAME CONDITION AS THEY WERE RECEIVED, EXCEPT FOR THE DETERIORATION CAUSED BY
TIME AND NORMAL WEAR AND TEAR. ALL THE SIGNS, INSCRIPTIONS AND AWNINGS INSTALLED
BY "THE LESSEE", AFTER WRITTEN NOTICE TO "THE LESSOR", WILL BE REMOVED BEFORE
VACATING THE BUILDING, AND "THE LESSEE" MUST REPAIR ALL DAMAGES OR DEFECTS
CAUSED BY THEIR INSTALLATION OR REMOVAL.
THIRTEENTH": RIGHT TO BID.- "THE LESSEE" WILL HAVE THE RIGHT OF PREFERENCE FOR
BIDDING, IN THE EVENT "THE LESSOR" DECIDES TO SELL THE BUILDING REFERRED TO IN
THIS LEASING CONTRACT, UNDER THE FOLLOWING CLAUSES AND STIPULATIONS:
1) THIS RIGHT FOR BIDDING CAN BE EXERCISED ONLY IF "THE LESSEE" HAS
COMPLIED WITH EACH AND EVERY ONE OF HIS MONETARY OBLIGATIONS UNDER THIS
CONTRACT.
3
2) THE RENT PAYMENTS OR THE IMPROVEMENTS MADE TO THE BUILDING BY "THE
LESSEE" WILL NOT BE CONSIDERED AS PART OF THE PRICE TO BE PAID UNDER THIS RIGHT
OF PREFERENCE.
3) WHEN "THE LESSOR" RECEIVES AN OFFER, HE WILL INFORM "THE LESSEE" IN
WRITING ABOUT ITS TERMS AND CONDITIONS, AND "THE LESSEE" WILL HAVE SIXTY WORKING
DAYS TO ANSWER IN WRITING TO "THE LESSOR". IN THE EVENT OF A NEGATIVE ANSWER, OR
IN CASE NO ANSWER IN WRITING WITH ACKNOWLEDGEMENT OF RECEIPT IS RECEIVED WITHIN
THE TIME MENTIONED HEREWITH, "THE LESSOR" WILL BE FREE TO SELL THE PROPERTY. IN
CASE THE ANSWER IS AFFIRMATIVE, "THE LESSEE" WILL PAY UNDER THE SAME TERMS OF
THE PROPOSED OFFER, WITH THE OPTION TO BUY SHARES REPRESENTATIVE OF THE CAPITAL
OF THE COMPANY, UNDER AN AGREEMENT WITH THE SHAREHOLDERS.
4) THIS RIGHT OF PREFERENCE FOR BIDDING CANNOT BE GIVEN, ASSIGNED, SOLD OR
TRANSFERRED TO ANY OTHER PERSON, OR ENTITY.
FOURTEENTH: ECOLOGICAL RESPONSIBILITY.- "THE LESSEE" WILL BE RESPONSIBLE FOR THE
PROPER USE, STORAGE AND HANDLING OF DANGEROUS MATERIALS OR RESIDUES, AS THEY ARE
DEFINED IN THE FEDERAL, STATE OR MUNICIPAL LAWS, RULES AND REGULATIONS THAT
APPLY.
"THE LESSEE" WILL INDEMNIFY ANY THIRD PARTY THAT MAY BE AFFECTED AND WILL BE
RESPONSIBLE FOR ALL DAMAGES DERIVED FROM USAGE, STORAGE AND HANDLING OF SUCH
DANGEROUS MATERIALS AND RESIDUES.
"THE LESSEE" WILL RELEASE "THE LESSOR" FROM ANY CLAIM THAT COULD ARISE FROM THE
ABOVE MENTIONED SUPPOSSITIONS, INCLUDING PAYMENT FOR DAMAGES OR INDEMNIZATIONS
FOR DAMAGES CAUSED TO A PHYSICAL PERSON, TO PROPERTY OR TO THE ENVIRONMENT IN
GENERAL.
FIFTEENTH: TRANSFER OF RIGHTS.- ONLY AFTER WRITTEN CONSENT FROM THE OTHER PARTY,
WILL THE CONTRACTING PARTIES BE ABLE TO GIVE, SURRENDER, TRANSFER, ENCUMBER,
TRUST OR IN ANY OTHER WAY AFFECT THE RIGHTS THAT CORRESPOND TO THEM UNDER THIS
CONTRACT, SUCH CONSENT WILL HAVE TO BE OBTAINED IN WRITING PREVIOUS TO THE
IMPLEMENTATION OF THE RELATED LEGAL ACTION, WHICH, IF NOT, WILL BE ABSOLUTELY
NULL.
SIXTEENTH: MODIFICATIONS.- NO MODIFICATION OR WAIVING OF ANY OF THE STIPULATIONS
OF THIS CONTRACT WILL BE EFFECTIVE, EXCEPT WHEN AGREED TO IN WRITING AND SIGNED
BY BOTH PARTIES.
SEVENTEENTH: JURISDICTION.- THIS LEASING CONTRACT WILL BE MANDATORY FOR BOTH
PARTIES AND WILL BE SUBJECT TO THE LAWS APPLICABLE TO THE STATE OF SONORA, AND
IN CASE OF ANY CONTROVERSY, SUBJECT TO THE JUDGMENT OF A COURT OF LAW IN
GUAYMAS, SONORA.
4
EIGHTEENTH: NOTICES AND LEGAL ADDRESSES.- EVERY INFORMATION AND NOTIFICATION
WILL BE SENT IN WRITING WITH ACKNOWLEDGEMENT OF RECEIPT, TO THE LEGAL ADDRESSES
PROVIDED BY THE PARTIES, UNTIL EITHER OF THE PARTIES GIVES WRITTEN NOTICE OF ANY
CHANGE OF ADDRESS.
THE FOLLOWING SHALL BE CONSIDERED AS LEGAL ADDRESSES:
"THE LESSOR": ON XXXXXXX XXXXXXXX X. XXXXXXXXX 00 XXXXXXX, XXXXXXX 00 AND 22,
GUAYMAS, SONORA
"THE LESSEE: AT XXXXXXXXX XXXXXXXXXXXXX XX 0000-00, XXXXXX NORTE, GUAYMAS,
SONORA
"THE LESSOR" "THE LESSEE"
LIC. XXXXXXX XXXXX XXXXXXXX XXX. XXXX XXXXXXXXXXX
DE CIMA, DESARROLLO INMOBILIARIO NUPRO INNOVATION DE
XXXXXXX XXXXXXXX, S.A DE C.V. MEXICO, S.A. DE C.V.
WITNESSES:
C.P. XXXXX X. XXXXXXXX XXXXX X.X. XXXXXXXXX XXXXXX XXXXXXX