DATED 24th October 2023
LAND SUBLEASE AGREEMENT
For the sublease of the Lot No. [C6]
an aggregate area of [13,602] m2
located in
Bangladesh Special Economic Zone
BETWEEN
Bangladesh SEZ Ltd.
AND
[NICCA BANGLADESH CO., LTD.]
LAND SUBLEASE AGREEMENT
This Land Sublease Agreement (“Agreement”) is made on this [24th] day of [October] 2023 by and between:
(1) BANGLADESH SEZ LTD., a company incorporated with limited liability under the laws of the Bangladesh having incorporation no. C-157516/2019 with its registered office at Sonpara, Panchrukhi Via Rupganj Araihazar, Narayanganj-1460, Bangladesh, hereinafter referred to as “BSEZ” or “Lessor”.
AND
(2) NICCA BANGLADESH CO., LTD., a company incorporated under the laws of the Bangladesh having incorporation no. C-191386/2023 with its registered office at Lot No. C6, Bangladesh Special Economic Zone (BSEZ), Sonpara, Panchrukhi Via Rupganj Araihazar, Narayanganj-1460 Bangladesh, hereinafter referred to as “Lessee”.
(each, a “Party” and, collectively, the “Parties”).
RECITALS:
Pursuant to the Development Agreement dated 16 March 2022 executed between the Lessor and Bangladesh Economic Zones Authority (“BEZA”) in compliance with the provisions of the Bangladesh Economic Zones (Appointment of Developer) Rules, 2020, the Lessor has been appointed by BEZA as the Developer for developing the Bangladesh Special Economic Zone.
The Lessor is the registered, lawful and primary leaseholder of Bangladesh Special Economic Zone, subject to the Land Lease Agreement.
The Lessee is willing to sublease the Land from the Lessor in accordance with the terms and conditions of this Agreement.
[NICCA BANGLADESH CO., LTD.], or its related company, has executed a Reservation Agreement with Lessor on [30th November], 2022 for the sublease of Lot No. [C6], with an aggregate area of [13,602] m2 located in Bangladesh Special Economic Zone, in order that the Lessee may sublease the said Land.
The Lessor (upon authority from BEZA) agrees to grant a leasehold interest in the Land by sublease to the Lessee in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, the Parties hereby agree as follows:
INTERPRETATION
1.1. In this Agreement:
“Agreement”
means this land sublease agreement, as may from time to time be amended or varied in writing by mutual consent and agreement by the Parties.
“Applicable Laws”
mean the the Bangladesh Economic Zones Act, 2010 and any other law or legislation, codes or procedures, regulations, directives, rules, industry policies and other similar measure or interests having the force and effect of law in Bangladesh and applicable to the subject matter of this Agreement including all notifications, orders, ordinances, directive, procedures, policies, customs and usages of any government department, authority or ministry in Bangladesh.
“Approvals”
means government and/or regulatory permissions, consents, validations, ratifications, confirmations, licenses, permits, approvals and other authorizations required to be obtained in order to give effect to the terms and conditions of this Agreement, whether required from or by any Governmental Authority or any other body or person.
“Bangladesh Special Economic Zone”
means the special economic zone in Araihazar, Narayanganj, Bangladesh
“BDT”
means Bangladeshi Taka
“BEZA”
means Bangladesh Economic Zones Authority which is a statutory body formed under the auspices of the Bangladesh Economic Zones Act, 2010 having its registered office at Level Level 7,8,9, Biniyog Bhaban, Plot#E-6/B, 1207 W Agargaon, Dhaka-1207.
“Business”
means the conduct of the [Selling textile chemicals?] in Bangladesh Special Economic Zone.
“Commencement Date”
means the date of execution of this Agreement.
“Development Agreement”
means the agreement dated 16th March 2022 made and entered into between BEZA and the Lessor for development, design, engineering, financing, procurement, construction, completion, operation and maintenance of Bangladesh Special Economic Zone.
“Extended Term”
shall have the meaning ascribed to it in Clause 3.2.
“Force Majeure”
means acts or circumstances beyond the reasonable control of a Party (in case of Lessor, including BEZA), including but not limited to rebellion; insurrection; riots; civil disturbances or unrest; actual or threatened hostilities, war or insurgency; actual or threatened acts of terrorism; acts of governments (including, without limitation, adverse changes in legislation, policies and practices); blockade; sabotage; strike; lockout; labour disputes; disease and epidemics; earthquake; storm, flood or other adverse weather conditions; natural phenomena or calamities; explosion; fire; accidents; or acts of God (each a “Force Majeure Event”).
“Governmental Authority”
means any foreign, domestic, federal, national, provincial, territorial, state or local governmental authority, quasi-governmental authority, court, governmental or self-regulatory organization, commission, tribunal, organization or any regulatory, administrative or other agency, or any political or other subdivision, department or branch of any of the foregoing, as the context or the terms of this Agreement may require.
“Initial Term”
Shall have the meaning ascribed to it in Clause 3.1.
“Land”
means Lot No. [C6] with an area of [13,602] m2 more or less situated in Bangladesh Special Economic Zone, and more specifically described in the attached First Schedule.
“Lease Tenure”
means the duration of the sublease of the Land by the Lessor to the Lessee, and this “Lease Tenure” will, where the context so requires, also mean and include any further extensions of the duration of the sublease beyond the initial Lease Tenure as contemplated under Clause 3 or as may otherwise be agreed between the Parties and permitted by relevant Governmental Authorities.
“Land Lease Agreement”
means the agreement dated 16th March 2022 made and entered into between BEZA and the Lessor, through which BEZA granted to the Lessor a leasehold right over Bangladesh Special Economic Zone.
“Rent”
has the meaning given to it in Clause 5 below.
“Retained Works”
means the works and structures that are not removed at the end of the Lease Tenure.
“USD”
means United States Dollars.
Any reference to “law” includes common law and any constitution, decree, judgement, legislation, order, ordinance, regulation, statute, treaty or other legislative measure in any jurisdiction or any present or future directive, regulation, request or requirement (in each case, having the force of law).
References to “Clause” are to the clauses of this Agreement, references to “Schedules” are to exhibits to this Agreement. The Schedules shall be an integral part of this Agreement.
Any reference to this Agreement or any other agreement or deed or document shall be construed as a reference to this Agreement or, as the case may be, such other agreement or deed or document as the same may be or have been or may from time to time be amended, modified, varied or supplemented.
(a) unless the context otherwise requires, references to the singular number shall include references to the plural number and vice versa, references to natural persons shall include bodies corporate, and the use of any gender shall include all genders;
(b) “including” and “in particular” and similar expressions are not and must not be treated as words of limitation; and
(c) the words “hereof”, “herein” and “hereunder” and words of similar import, when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.
No provision of this Agreement will be construed adversely against a Party solely on the ground that the Party was responsible for the preparation of this Agreement or that provision.
The Recitals to this Agreement shall be taken, read and construed as essential parts of this Agreement.
The headings and sub-headings to the sections in this Agreement shall not be taken into consideration in the interpretation or construction thereof or of this Agreement.
Any covenant by the Lessee not to do an act or thing shall be deemed to include an obligation (to use reasonable endeavours) not to permit or suffer such act or thing to be done by another person.
Where two or more persons are included in the expression "Lessee" all covenants, agreements, terms, conditions and restrictions shall be binding on and applicable to them jointly and severally, and shall also be binding on and applicable to their personal representatives and permitted assigns respectively jointly and severally.
2. LEASE
Subject to the provisions of this Agreement, the Lessor hereby grants to the Lessee during the Lease Tenure a leasehold right over the entirety of the Land for the conduct of the Business by the Lessee, under the terms and conditions of this Agreement including all the Schedules and Applicable Laws and Approvals.
3. DURATION OF LEASE TENURE
3.1 The Lease Tenure shall commence on and from the Commencement Date to 15th March 2072 (the “Initial Term”). Only to the extent that the Lessor extends its lease to Bangladesh Special Economic Zone by exercising its option under the Land Lease Agreement, the Lessee may have the option to extend the Lease Tenure.
3.2 In the event that the Lease Tenure is extended, the terms and conditions herein, save for the provision on the amount of total consideration under Clause 5.1, will continue to apply to such extended term (the “Extended Term”); provided, however, that at least one year prior to the expiry of the Initial Term, the Lessee shall notify the Lessor in writing of its intention to exercise the foregoing option for the extension of the term of the Lease Tenure and thereafter the Parties shall mutually agree upon the corresponding rental payments applicable to such Extended Term as set forth in Clause 5.2, subject to the approval of BEZA
4. HANDOVER OF THE LAND
4.1 Subject to full payment made under Clause 5.3, the Lessor shall complete handover of the Land to the Lessee.
4.2 Before the handover of the Land, upon the request from the Lessor, the Lessee shall conduct the joint survey with the Lessor by the nominated professional third-party company in order to determine the four corner points of the Land and mark them with pillars or similar materials. For the avoidance of doubt all the costs and expenses with related to the abovementioned joint survey shall be borne by the Lessee.
5. RENT, FEES AND CHARGES
5.1 The total consideration payable by the Lessee to the Lessor for the sublease of the Land for the Initial Term has been agreed by the Parties to be fixed at USD75 per m2, for a total aggregate payment of USD1,020,150 (hereinafter referred to as the “Rent”). For the avoidance of any doubt, the Rent does not include any applicable taxes or charges. In case the Rent is legally required to be paid in BDT, the conversion rate shall be the ruling TTS (High) rate of Bangladesh Bank on one (1) business day before issuance date of the invoice for the Rent from BSEZ and the Parties shall take the addendum of this Agreement upon the request by the Lessor. In addition, in case the Fees and Charges are legally required to be paid in BDT, the conversion rate will be the ruling TTS (High) rate of Bangladesh Bank on the specific date which shall be officially notified by the Lessor in advance with each kind of payment.
5.2 The consideration payable for the sublease of the Land for the Extended Term, including any subsequent extensions thereto or pursuant to Clause 3.2 of this Agreement, as well the manner by which such consideration is to be paid, shall be agreed upon by the Parties prior to the expiration of the then existing term
5.3. The Rent, applicable taxes, duties and other payable fees, costs and expenses (including, without limitation, withholding taxes, commercial taxes, stamp duties, and/or bank charges if any) shall be paid by the Lessee to the Lessor within ten (10) calendar days from the date of execution of this Agreement. For avoidance of doubt, the consideration payable for the sublease of the Land for the Extended Term, shall be payable within ten (10) calendar days from the date upon which the parties agree upon the term and amount of consideration payable.
5.4 All applicable fees and charges specified in the SECOND SCHEDULE (Fees and Charges) (the “Fees and Charges”) (including any additional taxes and/or bank charges for making the remittance but not limited to these service charges at the local bank, correspondent bank and main bank) shall be for the account of and paid by the Lessee.
5.5 Any fees or charges required by BEZA to the Lessor, including any additional taxes for the use of Bangladesh Special Economic Zone, may be levied by Lessor on all tenants/lessees (including the Lessee) in Bangladesh Special Economic Zone in a manner that proportionately distributes such fees and charges according to the land area, lease/service use, or business activity of each tenant/lessee (including the Lessee). Such fees or charges shall be considered as part of the Fees and Charges and Clause 5.4 shall be applied in the same manner.
5.6 The Fees and Charges are subject to review by the Lessor and the Lessor may change at its sole absolute discretion, depending on the overall economic conditions, inflation rates, any extraordinary expense that may be incurred, or upon any addition to amenities, infrastructure, utilities and facilities in or surrounding Bangladesh Special Economic Zone. Especially, the Maintenance and Administration Charge can be raised 3.0% per each five (5) financial years from the first year of commencement of BSEZ’s commercial operation at the Lessor’s absolute discretion. Upon the Lessor’s prior written notification of the increase given to the Lessee no later than three (3) months before the effective date of such increase, the Lessee shall be liable to pay at such increased rate. The notification given by the Lessor certifying the amount of the increase in the Fees and Charges, and the effective date of such increase, shall be accepted by the Lessee as conclusive and binding with respect to the matters save in the case of manifest error.
5.7 Any payment due and payable by the Lessee to the Lessor under the provisions of this Agreement shall be made to the account designated by the Lessor in a method directed by the Lessor. Especially, the Lessee shall take all necessary actions to pay the Water Charge, the Sewage Treatment Charge, the Administration Fee for Power Supply based on the quantity of industrial water, sewage treatment and power consumed in each month to the Lessor thorough the direct debit method nominated by the Lessor.
5.8 In case of its delinquency in the payment of Rent and/or Fees and Charges, the Lessee shall pay the Lessor a penalty of two per cent (2%) per month or otherwise the maximum rate permitted by the law of Bangladesh of the amount due starting from the date of delinquency until full realization.
5.9 Without prejudice to Clause 5.8, if such delinquency in the payment of any part of Rent and/or Fees and Charges (i) continues for sixty (60) calendar days from the date such payment was originally due and payable or (ii) occurs in three consecutive times, the Lessor may terminate this Agreement in accordance with Clause 11.1.
5.10 All payments made by the Lessee under this Agreement shall be made without set-off or counterclaim and shall be free and clear of and without deduction for or on account of any present or future taxes unless the Lessee is compelled by the Applicable Laws to make payment subject to any such tax. Should any such payment be subject to any tax, the Lessee shall pay to the Lessor such additional amounts as may be necessary to ensure that the Lessor receives a net amount equal to the full amount which it would have received had payment not been made subject to such tax except withholding taxes (if any).
6. INDEMNITY
6.1 The Lessee shall indemnify and keep indemnified the Lessor from and against:
all claims, demands, writs, summonses, actions, suits, proceedings, judgments, orders, decrees, damages (including, without limitation, loss of life, personal injury and/or damage to property), costs, losses and expenses of any nature whatsoever (collectively, “Losses”) which the Lessor may suffer or incur in connection with loss of life, personal injury and/or damage to property arising from or out of (i) any occurrence in, upon or at the Land, (ii) the use of the Land or any part thereof by the Lessee or by any of the Lessee's agents, employees, contractors, visitors, licensees or otherwise or (iii) the breach or inaccuracy of any representation or warranty made by the Lessee in this Agreement or (iv) the breach or failure by the Lessee to comply with any of its covenants or agreements contained in this Agreement;
all the Losses to the Land and any part of Bangladesh Special Economic Zone, and to all property therein, caused whether directly or indirectly by the Lessee or the Lessee's agents, employees, contractors or visitors and in particular but without limiting the generality of the foregoing caused whether directly or indirectly by the use or misuse, waste or abuse of water, fire or electricity or faulty fittings or fixtures of the Lessee; and
All the Lessor's reasonable legal costs and fees incurred by the Lessor in consulting solicitors and/or in enforcing any provision of this Agreement in the event of a breach by the Lessee of any of the provisions hereof.
7. EXCLUSION OF LESSOR’S LIABILITY
7.1 The Lessor and its officers, servants, employees or agents shall not be liable or in any way responsible:
for any damage to property (whether belonging to the Lessee or to others) entrusted to the Lessor's officers, servants, employees or agents, or otherwise in Bangladesh Special Economic Zone (including the Land);
for any injury or damage to persons or property (including the Land) or any consequential loss resulting from any problem related to utility systems provided by the Lessor, including not but limited to short circuit of electrical wiring, explosion, falling plaster, steam, gas, electricity, telecommunication, water supply, fire hydrant, rain, plumbing or other pipe and sewerage system, leaks from any part of Bangladesh Special Economic Zone (including the Land), the roof, street, sub‑surface or any other place, dampness, or any appurtenances being out of repair;
for any damage caused by other lessees or persons in Bangladesh Special Economic Zone (including the Land) or by buildings or other operations in the neighbourhood;
to pay compensation to the Lessee nor shall the Rent and the Fees and Charges abate for any delay in supplying, for failure to furnish, or for any limitation, curtailment, rationing, restriction or interruption of service of any water, gas, electricity, telecommunication or other utilities serving the Land, Bangladesh Special Economic Zone or for interruption of use of any equipment in connection with the supplying of any of the aforesaid services or utilities.
to the Lessee or others in respect of any act, omission or negligence of any porter, attendant or other servants, employees, agents or contractors of the Lessor in or about the performance or purported performance of any duty relating to the provision of the services or obligations under this Agreement;
for any diminution or obstruction of the light, air or view by any structure which may be erected on lands within or adjacent to Bangladesh Special Economic Zone.
7.2 The exclusion of the Lessor’s liability specified in Clause 7.1 above shall not apply to a case of gross negligence, in bad faith or wilful misconduct of the Lessor or its officers, servants, employees or agents.
8. LESSOR’S COVENANTS
The Lessor hereby covenants with the Lessee that the Lessor shall observe the covenants set out in the THIRD SCHEDULE (Lessor’s Covenants).
9. LESSEE’S COVENANTS
9.1 The Lessee hereby covenants with the Lessor that the Lessee shall observe the agreements and obligations in this Agreement and the covenants set out in the FOURTH SCHEDULE (Lessee’s Covenants).
9.2 The Lessee shall upon the written request of the Lessor immediately rectify anything it may have done in contravention of the agreements and obligations in this Agreement and the covenants set out in the FOURTH SCHEDULE (Lessee’s Covenants).
9.3 If the Lessee shall fail to comply with the Lessor's written request under Clause 9.2, the Lessor may in addition to any other remedy available to it enter upon the Land and do such acts and things as may be required to remedy such breach at the Lessee's expense without being liable to the Lessee for loss.
10. WARRANTIES AND REPRESENTATIONS
10.1 The Lessor represents and warrants as of the date of this Agreement that:
it is a legal entity duly incorporated, validly existing and in good standing under the laws of Bangladesh, has the right, power and authority and has obtained all relevant internal corporate consents to enter into and perform this Agreement;
it is the lawful and primary leaseholder of the Land and is permitted to sublease the Land under the Land Lease Agreement;
the entry into and performance of this Agreement will not give rise to a breach of any Applicable Laws or any contract, to which it or its assets is bound;
there are no actual or threatened to the knowledge of the Lessor, actions, suits, proceedings or investigations, pending, that will have an adverse effect on its ability to fulfil its obligations under this Agreement;
the Land is free from any and all encumbrances or liens.
10.2 The Lessee represents and warrants that:
it is a legal entity duly incorporated, validly existing and in good standing under the laws of Bangladesh, has received an investment permit from Bangladesh Economic Zones Authority and has the right, power and authority and has obtained all relevant internal corporate consents to enter into and perform this Agreement;
the entry into and performance of this Agreement will not give rise to a breach of any Applicable Laws or its memorandum and clauses of association or any contract, to which it or its assets is bound;
there are no actual or threatened, actions, suits, proceedings investigations or pending, that will have an adverse effect on its ability to fulfil its obligations under this Agreement; and
it will use the Land only for the purposes of the Business under compliance in accordance with Applicable Laws.
there are no bankruptcy, reorganization or arrangement proceedings pending against, being contemplated by or, to the knowledge of the Lessee, threatened against the Lessee.
10.3 The Lessor does not expressly or impliedly warrant that the Land is now or will remain suitable or adequate for all or any of the purposes of the Lessee and all warranties (if any) as to suitability and adequacy of the Land implied by law are hereby expressly negated. For avoidance of doubt, the Lessee shall take the land on an “as is, where is” basis.
11. TERMINATION
11.1 This Agreement may be terminated before the expiry of the Lease Tenure:
Upon mutual written agreement of the Parties;
By the Lessor, for failure to make any payment of Rent or Fees and Charges as per Clause 5.9;
By the non-defaulting Party, upon material breach by the other Party of the terms and conditions of this Agreement (other than as payment defaults by the Lessee under clause 5), including, for avoidance of doubt, the SEVENTH Schedule (Internal Regulations for Bangladesh Special Economic Zone), which is not capable of remedy, or, if capable of being remedied, is not remedied within ninety (90) calendar days from written notice thereof; or
By either party, if the other Party provided false information, declarations or representations in this Agreement.
By either Party, by notice to such effect to the other Party, if (i) bankruptcy, insolvency, reorganization or rehabilitation proceedings, or other proceedings analogous in nature or effect, are instituted by or against such other Party, (ii) such other Party is dissolved or liquidated, whether voluntarily or involuntarily, (iii) a receiver or trustee is appointed for all or a substantial part of assets of such other Party, (iv) such other Party makes an assignment for the benefit of creditors, or generally suspends payment of its debts when the same become due;
11.2 Where the Approval from any Governmental Authority is required under any Applicable Laws for the termination of the sublease of the Land, such termination will only be effective after receipt of the required Approval.
11.3 If the termination is made by the Lessor pursuant to Clause 11.1hereof, the Lessee shall have no right to claim a refund from the Lessor of the Rent and any other payments made in favour of the Lessor, including all applicable Fees and Charges, and shall return the Land to the Lessor in accordance with Clause 13.2.
12. THE LESSOR’S RIGHTS
12.1 The Lessor has the free rights to transfer the Lessor’s right and obligations on this Agreement to the third party such as but not limited to Bangladesh Economic Zones Authority or any other Government Authority at the Lessor’s sole discretion.
12.2 For the avoidance of any doubt, transfer of this Agreement pursuant to Clause 12.1 hereof shall not be considered as a fault of the Lessor, and the Lessor in any event has no obligation:
(a) To refund the Rent and the Fees and Charges; and
(b) To indemnify the Lessee from any loss, damage, claim or liability incurred by the Lessee due to the transfer pursuant to Clause 12.1 hereof.
12.3 In addition to this Clause, the Lessor hereby reserves the right set out in the FIFTH SCHEDULE (Rights Reserved To The Lessor).
13. THE LESSEE’S RIGHTS
The Lessee hereby reserves the right set out in the SIX SCHEDULE (Rights Granted To The Lessee).
14. REVERSION OF LEASED PROPERTY
14.1 The Lessee shall be responsible for the care, maintenance, upkeep, repair and improvement of the Land during the Lease Tenure and shall bear all costs and expenses relating thereto.
14.2 At the end of the Lease Tenure, the Lessee shall return leasehold interest in the Land by sublease of the Land to the Lessor and remove all of its movable properties and immovable properties (including without limitation, fixtures, furnishings and fittings) from the Land, provided that in case the Lessor and/or BEZA and/or other relevant Government Authority accepts to leave the Retained Works, the Parties shall discuss and agree upon equitable consideration.
15. FORCE MAJEURE
15.1 If a Party is unable, wholly or partly by a Force Majeure Event, to perform its obligations under this Agreement, the Party that is so affected shall give notice to the other Party within fourteen (14) days after the occurrence of the Force Majeure Event, providing full particulars in writing of such Force Majeure Event. The duties of the Party that are affected by such Force Majeure Event shall be suspended during the continuance of the Force Majeure Event, provided that the Parties shall exercise their commercially reasonable efforts to eliminate the Force Majeure Event as soon as practicable. Neither Party shall be responsible for any delay, damage, payment or loss caused by a Force Majeure Event.
15.2 As soon as practicable upon the elimination or non-continuation of such Force Majeure Event, the affected Party shall commence performance of the obligations that were suspended.
16. Tax and Duty
16.1 The Lessee shall be responsible for the payment of all the tax, duties and other applicable charges and fees arising under Applicable Laws in connection with the entry into this Agreement.
16.2 The Lessee shall carry out all formalities, procedures and other requirements under Applicable Laws relevant to the registration of this Agreement and/or the sublease of the Land as may be required for the validity, enforceability or legality of this Agreement.
16.3 The Lessee shall forthwith upon signing of this Agreement by the Lessor and Lessee, promptly and expeditiously take all necessary steps to apply for exemption/ remission of the tax, duties and other applicable charges and fees payable in Bangladesh on this Agreement in accordance with applicable law and regulations (including applicable guidelines, orders, notifications and instructions). If the Lessee fails to secure exemption/remission of such tax, duties and other applicable charges and fees payable as aforesaid, any tax, duties and other applicable charges and fees payable on this Agreement (including any penalty for late payment) shall be borne by the Lessee.
17. MODIFICATION OF AGREEMENT
17.1 The parties hereby agree that this Agreement constitutes the entire and only agreement and no modification change or amendment of this Agreement shall be binding upon the parties except the amendment and modification of the Second Schedule and/or Seventh SCHEDULE described 17.2 in this Clause or by mutual express agreement in writing.
17.2 For the avoidance of doubt, The Lessor shall have the right to amend and/or modify the Second SCHEDULE and / or SEVENTH SCHEDULE by the sole discretion of the Lessor, and the latest amended revision of the Second and SEVENTH SCHEDULE which is announced by the Lessor shall be deemed as a part of this Agreement.
17.3 In the event that any situation or condition arises due to circumstances not envisaged in this Agreement and amendments have to be made to this Agreement, the Parties shall enter into negotiations in good faith with a view of making the necessary amendments.
18. NOTICE
18.1 A notice given under this Agreement shall be in writing in the English language and shall be delivered by hand or by pre-paid first class post or by electronic mail or (if the notice is to be served by post outside the country from which it is sent) by airmail addressed and sent to the Party to be served at the addresses specified in Clause 18.2 or from time to time notified by such Party in accordance with the provisions herein.
18.2 The addresses for service of notice are:
A. The Lessor
Address: Sonpara, Panchrukhi Via Rupganj Araihazar, Narayanganj-1460 Bangladesh
For the attention of: Mr. Taro Kawachi
Tel. No.: +880-1-844-5830-65
E-mail: taro.kawachi@bangladeshsez.com
B. The Lessee
Address: Lot No. [C6], Sonpara, Panchrukhi Via Rupganj Araihazar, Narayanganj-1460 Bangladesh
For the attention of: [Mr. Kotaro Takeuchi]
Tel. No.: [+880-1-735-9014-17]
E-mail: [ko-takeuchi@niccachemical.com]
18.3 Each notice, request or demand shall be deemed effective:
(a) if by personal delivery, when received;
(b) if by mail, on the date ten (10) days after being deposited in the post office, by pre-paid first-class post (airmail, if international); and
(c) if by facsimile or electronic mail, when transmitted, in each case addressed as specified herein.
Any email shall be confirmed in writing within five (5) calendar Days of dispatch, but the failure in any instance to so confirm shall not render the email notice defective.
19. CONFIDENTIALITY
19.1 Except as provided in Clause 19.2, each Party will treat as confidential the provisions of this Agreement and other information it has received or obtained relating to the other Party as a result of entering into and the performance of this Agreement (collectively, the “Confidential Information”).
19.2 The Party, receiving the Confidential Information (the “Receiving Party”) from the other Party (the “Disclosing Party”) shall not disclose or release to third parties except the shareholders of each Party any Confidential Information without prior written approval from the Disclosing Party. Confidential Information does not include information which:
is required to be disclosed by operation of law or any stock exchange regulations or any binding judgment or order, or any requirement of a competent authority;
is reasonably required to be disclosed in confidence to a party’s professional advisers for use in connection with the execution of this Agreement and/or matters contemplated herein; or
is or becomes within the public domain (otherwise than through the default of the Receiving Party).
20. MISCELLANEOUS
20.1 No failure or waiver of any right under this Agreement shall be effective unless in writing. Unless expressly stated, a waiver shall be effective only in the circumstances for which it is given.
20.2 No delay or omission by any Party in exercising any right or remedy provided by law or under this Agreement shall constitute a waiver of such right or remedy.
20.3 The single or partial exercise of any right or remedy under this Agreement shall not limit any other or restrict any further exercise of any such right or remedy.
20.4 The rights and remedies provided in this Agreement are cumulative and do not exclude any rights or remedies provided by law.
20.5 If one or more of the provisions of this Agreement shall be held invalid, illegal or unenforceable, the remaining provisions contained herein shall remain and shall be given full force and effect.
20.6 This Agreement may be executed in one or more counterparts, each of which shall be an original and all of which taken together will constitute one and the same agreement.
20.7 Nothing in this Agreement shall confer on the Lessee any right to enforce any covenant or agreement relating to other portions of Bangladesh Special Economic Zone subleased by the Lessor to others or to limit or affect the right of the Lessor to deal with any such other premises and impose and vary such terms and conditions in respect thereof in any manner as the Lessor may think fit.
20.8 The Lessor shall not be prejudiced by or be responsible to the Lessee for the non‑observance or breach of any sublease by another lessee in Bangladesh Special Economic Zone, or otherwise.
21. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with Bangladesh law.
22. ARBITRATION
22.1 Any dispute, controversy or claim of whatever nature arises under, out of or in connection with this Agreement, including any question regarding its existence, validity or termination or any non‑contractual obligations arising out of or in connection with this Agreement which the Parties do not resolve amicably within a period of 20 days, shall be referred to and finally resolved by arbitration in the venue of Singapore, according to the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC”). for the time being in force, which rules are deemed to be incorporated by reference in this clause.
22.2. There shall be one or more arbitrator(s) appointed by the agreement of the Parties, or failing such agreement, the said arbitrator(s) shall be appointed in accordance with the rules of the SIAC.
22.3. The language to be used in the arbitration shall be English. The resulting arbitral award shall be final and binding, and judgment upon such award may be entered in any competent court having jurisdiction thereof. The Parties are entitled to avail themselves of any treaties and laws for the time being in force allowing for the reciprocal enforcement of arbitration awards granted in any jurisdiction in which arbitration proceedings are taken hereunder, as though express reference is made in this Agreement to such treaties and laws.
22.4. Any monetary award issued by the arbitrator(s) or arbitration body shall be expressed in and payable in U.S. Dollars immediately and shall provide for payment of interest at the date of the arbitral award on the amount of the arbitral award to the date of payment.
22.5. All costs arising from the arbitration proceedings shall be borne by the losing Party.
23. ANTI-CORRUPTION
23.1 With respect to any of the matters which are the subject of this Agreement or in connection with this Agreement, each Party undertakes and warrants that it and its Affiliates:
have not given, made, offered, or received (or agreed to give, make, offer or receive); and
will not give, make, offer or receive (nor agree to give, make, offer or receive), any payment, gift or other advantage which: (i) would violate any applicable laws; (ii) was intended to, or did, influence any person to act or reward any person for acting in breach of an expectation of good faith, impartiality or trust, or which it would otherwise be improper for the recipient to accept; (iii) was made to or for a Public Official with the intention of influencing them and obtaining or retaining an advantage in the conduct of business; or (iv) which a reasonable person would otherwise consider to be unethical, illegal or improper, (a "Corrupt Act").
23.2 With respect to any of the matters which are the subject of this Agreement or in connection with this Agreement, each Party undertakes and warrants that it and its Affiliates have not and will not:
request any action, inaction or services that would violate any and all applicable laws; or
receive, agree or attempt to receive the benefits of or profits from a crime or any Corrupt Act or agree to assist any person to retain the benefits of or profits from a crime or any Corrupt Act.
23.3 Each Party warrants and represents that, to the best of its knowledge, neither it, nor any of its Affiliates has been investigated (or is being investigated or is subject to a pending or threatened investigation) or is involved in an investigation in relation to any Corrupt Act by any law enforcement, regulatory or other governmental agency or any customer or supplier; or has admitted to; or been found by a court in any jurisdiction to have engaged in, any Corrupt Act, or been debarred from bidding for any contract or business; or are public officials or persons who might otherwise reasonably be considered likely to assert a corrupt or illegal influence on behalf of itself. Each Party agrees that if it becomes aware that any of the warranties and representations set out in this Clause 23.3 is no longer correct, it will notify the other Parties of this immediately in writing.
23.4 Each Party undertakes to keep books, accounts and records that properly, fairly and accurately record and report all transactions, to comply with any and all applicable laws in relation to such record keeping requirements and keep such books, accounts and records for a period of at least 10 (ten) years following the period to which they relate. Each Party shall be entitled, having given reasonable notice, to have access to, inspect and audit all invoices and accompanying documents issued by, and the financial books and records of, the other Parties in order to verify compliance with this Clause 23.4.
23.5 Each Party undertakes that it will procure that the company and its officers, directors, employees, agents and its subcontractors shall comply with the Corrupt Acts, which includes adopting and implementing the code of business conduct and ethics, which shall comply with the Corrupt Acts.
23.6 Each Party undertakes that it and its Affiliates will report to the company and the other Parties, to the extent it is legally permitted to do so, any suspected violations of Corrupt Acts in connection with the Business of the company or the company itself.
23.7 Each Party undertakes to fully and effectively indemnify, keep indemnified and hold harmless each of the other Parties and their Affiliates from and against all actions and all costs which any of them may suffer or incur or which may be brought against any of them in any jurisdiction arising, directly or indirectly, out of, in respect of, or in connection with any alleged or actual violations of any Corrupt Acts.
23.8 Without prejudice to any other express remedies referred to elsewhere in this Agreement or any remedies available at law or in equity, in the event of a breach of any of the undertakings contained in this Clause X, the non-breaching Party/ies reserve(s) the right to take whatever action it/they deem(s) appropriate to ensure that it is/they are in compliance with the Corrupt Act.
[Signature page follows.]
IN WITNESS WHEREOF each Party has executed this Agreement by its duly authorised representatives.
For and on behalf of
Bangladesh SEZ LTD.
___________________________
Name: Taro Kawachi
Designation: Managing Director
For and on behalf of
[NICCA BANGLADESH CO., LTD.]
____________________________
Name: [Kotaro Takeuchi]
Designation: [Managing Director]
FIRST SCHEDULE
DESCRIPTION OF THE LAND
[INSERT DETAILS AND PARTICULARS OF THE LAND]
SECOND SCHEDULE
FEES AND CHARGES
THIRD SCHEDULE
Lessor's Covenants
1. The Lessor covenants with the Lessee that the Lessor shall at all times during the Lease Tenure:
allow leasehold interest in the Land by sublease by the Lessee during the Lease Tenure without any interruption or disturbance whatsoever by the Lessor or anyone claiming under, or through, or in trust for the Lessor, but always subject to:
the Lessee duly paying the Rent and the Fees and Charges, and observing and performing its several convents and stipulations herein contained;
Applicable Law and this Agreement;
observe and perform the terms and conditions of this Agreement and all Applicable Laws, and not do or omit to do anything which may render the Lessee or Lessor in breach of such terms and conditions or any Applicable Laws;
except where the termination of the Lease Tenure or this Agreement is made by the Lessor pursuant to Clause 11.1(b), (d) or (e), permit the Lessee at the earlier of the expiration or termination of the Lease Tenure or this Agreement, as the case may be, and subject to Clause 13.2, to remove all fixtures, furnishings and fittings and property whatsoever of the Lessee, where removal of the same does not cause material damage to the Land.
2. Provided that nothing in this Sixth Schedule or any provisions in this Agreement shall (a) require the Lessor to be obligated to do things which it has no power to do under Bangladesh Economic Zones Act, 2010 or (b) fetter the rights, powers, discretions and obligations of Bangladesh under (and any persons formed under) the Law or under any other laws or regulations of Bangladesh.
FOURTH SCHEDULE
Lessee's Covenants
1. The Lessee hereby covenants with the Lessor that the Lessee shall at all times during the Lease Tenure:
To obtain and maintain in force the investment license in Bangladesh Special Economic Zone issued by the authorities in the People’s Republic of Bangladesh;
To observe and perform the terms and conditions of this Agreement including all the Schedules and any Applicable Laws, and forthwith notify the Lessor of any material breach by the Lessee of any such terms and conditions or any Applicable Laws, provided that the Lessee shall not be liable for any breach which is attributable to any act or omission of the Lessor or any Government Authority or any other party;
To give notice in writing immediately to the Lessor of the occurrence of any damage to or within the Land and of any accident or damage caused to the pipes, electrical wiring, fittings, or other facilities within the Land provided by the Lessor;
To comply promptly with and observe at the Lessee's own expense all notices received from any Governmental Authority with respect to the Land;
To maintain all facilities, equipment, personal property, improvements, and fixtures and fittings it constructs on the Land;
To forthwith give notice in writing to the Lessor of any notice from any Governmental Authority with respect to the Land;
To not to obstruct or permit the obstruction of the public access roads or other common areas;
To permit security guards employed by the Lessor to search all incoming and outgoing goods and property whenever they deem it reasonably necessary;
To ensure that the Lessee, its employees, servants, visitors or agents who desire access to the Land identify themselves to the security guards as stipulated by the Lessor from time to time as access to the Land will otherwise be refused reasonably;
To observe such other rules and regulations as the Lessor may at its discretion make from time to time for the safety, security and cleanliness of the Land and for the preservation of good order therein upon notice thereof being given to the Lessee;
To make good from time to time any breakage defect or damage to Bangladesh Special Economic Zone or any part thereof caused by the Lessee or the Lessee's servants, agents, contractors or sub-contractors or other persons claiming through or under the Lessee or otherwise occasioned by any breach or default of the Lessee hereunder or under any laws, rules and regulations;
Not to disparage the goods or services of other lessees in Bangladesh Special Economic Zone;
Not to cause any change in the wiring, ducting or the pipe arrangements of the electricity, water, plumbing and sewerage installations, telecommunication connection without the prior consent of the Lessor;
permit the Lessor to use the Lessee’s name, logo, logotype, wordmark, trademark, symbol, design or any other related references for business/business promotional purposes, if the Lessor obtains the prior written consent of the Lessee and which consent shall not be unreasonably withheld/delayed;
not to engage in, or permit any of its agents, employees, invitees, or visitors to engage in, any unlawful use of the Land and shall not permit production to be conducted in the Land by anyone except the individuals who are employees, consultants, affiliates or contractors of the Lessee or its respective affiliates;
treat and dispose of or cause to be treated and disposed of all trade and other effluents in a manner which is in accordance with the standards prescribed by state bodies and to the satisfaction of BEZA, and any other regulatory authority;
not to hypothecate, charge or/and create other encumbrances on the facility and leasehold interest of the Lessee under this Agreement;
Not to sublet the Land without the written consent of the Lessor, which consent. Any attempted assignment or subletting without the written consent of the Lessor shall be void and unenforceable against the Lessor;
Not to assign or transfer, or cause to be assigned or transferred, its rights or obligations set forth in this Agreement to any third party, including any of its subsidiaries, affiliates, associates or representatives without a prior written consent of the Lessor. In case such assignment in writing is permitted, the assignee must sign and accept all the obligations contained in this Agreement. The Lessee shall pay five percent (5%) of the land contract price with assignee to Lessor.
FIFTH SCHEDULE
Rights Reserved to the Lessor
1. The right to the free and uninterrupted passage and running of water, sewage, electricity, telecommunication and other services or supplies from and to other parts of Bangladesh Special Economic Zone in and through the infrastructure which now are or may during the Lease Tenure be in on under or over the Land.
2. The right to construct and to maintain in, on, under or over the Land at any time during the Lease Tenure any infrastructure for the benefit of any other part of Bangladesh Special Economic Zone.
3. The right to erect scaffolding for the purpose of inspecting repairing or cleaning Bangladesh Special Economic Zone or any part thereof notwithstanding such scaffolding may temporarily restrict the access to or use and enjoyment of the Land.
4. Full right and liberty at any time after the date of this Agreement to alter the height of or rebuild any building or buildings in Bangladesh Special Economic Zone in such manner as the Lessor shall think fit.
5. The Lessor may in the event of invasion, mob, riot, public excitement or other circumstances rendering such action advisable in the Lessor's reasonable opinion prevent access to the Land or any part thereof including closing the entrances thereto during the continuance of such invasion, mob, riot, public excitement or other circumstances and for so long and in such manner as the Lessor deems necessary or appropriate.
SIX SCHEDULE
Rights granted to the Lessee
1. The right for the Lessee and all persons expressly or by implication authorised by it, in common with the Lessor and all other persons having a like right:
(a) To use the Land solely for the purpose of the Lessee’s Business and the Lessee shall not in any way deviate therefrom or permit the Land to be used for any purpose other than for the purpose of the Lessee’s Business without the prior consent of the Lessor; and
(b) To use the facilities provided by the Lessor for all proper purposes in connection with the use and enjoyment of the Land.
2. The right to the free passage and running (subject to temporary interruption for repair alteration or replacement) of water, sewage, electricity, telecommunication and other services or supplies to and from the Land.
SEVENTH SCHEDULE
INTERNAL REGULATIONS FOR BANGLADESH SPECIAL ECONOMIC ZONE
EIGHTH SCHEDULE
Amendments / Supplements to the Agreement