Dated the 4th day of April 1997
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BENEFIT PLUS COMPANY LIMITED
AND
PHYSICAL HEALTH CENTRE HONG KONG LIMITED
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TENANCY AGREEMENT
OF
Whole of 10th Floor, 11th Floor and
Portion of 12th Floor and Storeroom on 6th Floor,
PRESTIGE TOWER, Nos. ▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
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Term : 3 years
Commencing : 11th Floor: 20th January 1997
10th Floor: 10th April 1997
(with right to postpone to lst June 1997
and further postpone to lst August 1997)
Commencing : 11th Floor, Portion of 12th Floor
Rent and Storeroom on 6th Floor : HK$316,638.00
10th Floor : HK$213,738.00
THIS LEASE is made the 4th day of April 1997
BETWEEN BENEFIT PLUS COMPANY LIMITED whose registered office is at 21st
Floor, ▇▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ (hereinafter called "the Landlord" which
expression shall where the context so admits include its successors and
assigns) and the party named in the First Schedule (hereinafter called "the
Tenant").
WHEREBY THIS LEASE NOW WITNESSES as follows:-
1. The Landlord hereby demises unto the Tenant ALL THOSE the premises more
particularly described in the Second Schedule ("the said premises") Together
with the use in common with the Landlord and all others having the like
right of the entrances staircases landings lobbies passages of the building
now known as "PRESTIGE TOWER" ("the said building") in so far as the same
are necessary for the proper use and enjoyment of the said premises And
Together Also with the use in common as aforesaid of the lifts (whenever the
same shall be operating) for such term and at such rent payable in such
manner as are all more particularly described in the Third Schedule.
2. The Landlord shall have the right (without prejudice to any other right
or remedy hereunder) to charge interest at the rate of two per cent per
month in respect of any payment to be made by the Tenant to the Landlord
under this Lease as shall be more than fifteen days in arrears and such
interest shall be payable by the Tenant from the date upon which any such
payment in arrears shall fall due.
3. The Tenant covenants with the Landlord as follows:-
(a) To pay the said rent on the days and in manner provided in the
Third Schedule and in banknotes if so demanded.
(b) To pay and discharge all rates taxes assessments duties charges
impositions and outgoings of an annual or recurring nature now or hereafter
to be assessed imposed or charged by the Government of Hong Kong or other
lawful authority upon the said premises or upon the owner or occupier
thereof (Crown rent and Property Tax only excepted).
(c) To pay all charges for electricity and water consumed in the said
premises and the sewage charges. All such payments shall be made through
the Landlord should the Landlord so require and the Tenant shall produce to
the Landlord the receipt or other evidence of payment whenever required by
the Landlord.
(d) To keep all the interior of the said premises and the Landlord's
fixtures therein
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(including all doors windows and electric wiring installations and internal
decorations) in good clean tenantable substantial and proper repair and
condition and to maintain the same at the expense of the Tenant and deliver
up the same to the Landlord at the expiration or sooner determination of the
said term in the like condition. The Tenant particularly agrees to replace
all broken or damaged windows whether the same be broken or damaged by the
negligence of the Tenant or owing to circumstances beyond the control of the
Tenant. The Tenant further agrees if any damage is caused to the Landlord
or to any other person directly or indirectly through the defective or
damaged condition of any part of the interior of the said premises
(including doors windows electric wiring installations and other Landlord's
fixtures) the Tenant shall be wholly responsible therefor and shall make
good the same by payment or otherwise and shall fully indemnify the Landlord
against all claims demands actions and legal proceedings whatsoever made
upon the Landlord by any person in respect thereof. The Tenant further
agrees to take all reasonable precautions to protect the interior of the
said premises from damage threatened by an approaching storm or typhoon.
(e) To give notice in writing to the Landlord or its agent of any
damage that may be suffered to the said premises or to persons thereon and
of any accident to or defects in the water pipes gas pipes electrical wiring
or fittings fixtures or other facilities provided by the Landlord.
(f) To pay on demand to the Landlord any cost incurred by the
Landlord in making good any damage or in cleaning and clearing any of the
drains of the said premises or the said building choked or stopped up owing
to carelessness or negligence of the Tenant.
(g) The Landlord shall not be under any liability whatsoever to the
Tenant or to any other person in respect of any damage sustained by the
Tenant or such other person caused by or through or in any way owing to the
overflow of water from any premises in the said building or caused by the
negligence of any tenant of such premises. The Tenant shall fully indemnify
the Landlord against all claims demands actions and legal proceedings
whatsoever made upon the Landlord in respect of any damage to any person
caused by the negligence of the Tenant or by or through or in any way owing
to the overflow of water from the said premises.
(h) To permit the Landlord its architects, surveyors, agents and
workmen and any other persons authorized by the Landlord at all reasonable
time to enter upon and view the
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condition of the said premises. The Landlord can give notice to the Tenant
of all defects and want to repair there found for which the Tenant is
responsible and the Tenant shall forthwith upon receipt of any such notice
sufficiently repair and make good such defects and want of repairs. If
within one month after the service of such notice the Tenant should not
proceed with the execution of such repairs, the Landlord may enter upon the
said premises and execute the same and the cost thereof shall be paid by the
Tenant.
(i) Not to make or permit any alterations to the said premises or the
said building NOR to pull down alter or remove any portion of the internal
arrangements or Landlord's fixtures or make any alterations or additions to
the electrical installation thereof without the previous consent in writing
of the Landlord.
(j) Not without the previous written covenant of the Landlord to
install any plant equipment apparatus or machinery including any safe or
other object which improves a weight on any part of the flooring of the said
premises in excess of that for which it was designed.
(k) To use the said premises for commercial/office purpose only under
the Business Name as described in the First Schedule in so far as it is
compatible with the Crown Lease, the occupation permit of the said building
and other relevant ordinances and regulations and for no other purpose
whatsoever.
(1) Not to use the said premises for the storage of goods or
merchandise other than in small quantities consistent with the nature of the
Tenant's trade or business NOR to keep or store or permit or suffer to be
kept or stored on or in the said premises any arms ammunition gunpowder
saltpetre kerosene or other explosive or combustible goods or any hazardous
goods within the meaning of the Dangerous Goods Ordinance and the
Regulations thereunder or any statutory modification or re-enactment
thereof.
(m) Not to do or produce or suffer or permit to be done or produced
any music noise (including sound produced by broadcasting from television
radio and any apparatus or instrument capable or producing or reproducing
music and sound) or other acts or things in or on the said premises which
is/are or may be a nuisance or annoyance to the Landlord or to the tenants
or occupiers of adjacent or neighbouring premises.
(n) Not to install additional locks bolts or other fittings to the
entrance doors of the said premises (without the prior express written
consent of the Landlord) or in any way to
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cut or alter the same.
(o) To obey and comply with and to indemnify the Landlord against the
breach of all ordinance regulations bye-laws rules and requirements of any
Governmental of other competent authority relating to the use and occupation
of the said premises AND not to do or permit or suffer to be done any act
deed matter or thing whatsoever which amounts to a breach of any of the
terms and conditions under which the said building is held from the Crown.
The Tenant shall not cause permit or suffer any part of the said premises to
be used for gambling or religious gatherings or for any illegal immoral or
improper purpose or so as to cause nuisance annoyance inconvenience or
damage to the occupiers of adjacent or neighbouring premises.
(p) To be responsible for any act default or negligence of its agents
or employees in respect of the use of the said premises and to indemnify the
Landlord against any claim demands or actions by any third party in
connection therewith.
(q) Not without the previous written consent of the Landlord to
assign underlet or otherwise part with the possession of the said premises
or any part thereof in any way whether by way of sub-letting lending sharing
or other means whereby any person or persons not a party to this Lease
obtains the use or possession of the said premises or any part thereof
irrespective of whether any rental or other consideration is given for such
use or possession. This lease shall be personal to the Tenant named in this
Lease and without in any way limiting the generality of the foregoing the
following acts and events shall, unless previously approved in writing by
the Landlord, be deemed to be breaches of this sub-Clause :-
(i) in the case of a tenant which is a sole proprietorship or
partnership, any change in the sole proprietor thereof or the taking in of
one or more partners or new partners whether on the death or retirement of
an existing partner or other-wise;
(ii) in the case of a tenant who is a corporation, any
reconstruction amalgamation merger voluntary liquidation or change in the
person or persons who owns or own a majority of its voting shares;
(iii) the giving by the Tenant of a Power of Attorney or similar
authority whereby the donee of such Power obtains the right to use possess
occupy or enjoy the said premises or any part thereof or does in fact use
possess occupy or enjoy the same; or
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(iv) the change of the Tenant's business name.
(r) Not to allow the preparation of food in nor delivery of food to
the said premises or without the Landlord's prior permission in writing
permit any person to remain therein overnight. Such permission shall only
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 the Landlord & Tenant
(Consolidation) Ordinance for the time being in force.
(s) Not to place or leave at the entrances or any of the staircases
passages or landings of the said building used in common with other tenants
of the Landlord any boxes furniture or rubbish or otherwise encumber the
same.
(t) Not without the prior written approval of the Landlord to exhibit
or display within or on the exterior of the said premises any writing sign
or other device whether illuminated or not which may be visible from outside
the said premises.
(u) Not to exhibit display or affix any writing sign or other device
whether illuminated or not at the entrance of or at any part of the said
premises without the Landlord's prior consent in writing Provided always
that the Tenant may display its company name at the entrance of the said
premises designated by the Landlord in such form, size, position and design
as the Landlord may at its absolute discretion thinks fit.
(v) Not to do or permit to be done any act or thing whereby the
policy or policies of insurance on the said premises against damage by fire
or against claims by third parties for the time being subsisting may become
void or voidable or whereby the rate of premium or premiums thereon may be
increased, and to repay to the Landlord on demand all sums paid by the
Landlord by way of increased premium or premiums thereon and all expenses
incurred by the Landlord in and about any renewal of such policy or policies
rendered necessary by a breach of this term.
(w) Not to take delivery of furniture or fixtures or bulky items of
goods in and out of the said building during normal office hours and under
no circumstances to use passenger lifts for delivery purpose at any time.
(x) Not to use the said premises or any part thereof for retail
business NOR to allow any goods or merchandise to be sold on the said
premises by retail or otherwise.
(y) To keep at the expenses of the Tenant the lavatories and water
apparatus therein when used exclusively by the Tenant in a good clean and
tenantable state and in proper repair
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and condition at all times during the said term to the satisfaction of the
Landlord.
(z) Upon the expiration or earlier determination of this lease to
deliver up possession of the said premises forthwith to the Landlord in good
and tenantable repair and condition and to deliver all keys of the said
premises to the Landlord. The Tenant shall also remove (if so required by
the Landlord or its agent) all or any fittings improvements and additions
affixed by the Tenant with or without the written consent of the Landlord
from the said premises or any part thereof or any part of the said building
or reinstate (if so required by the Landlord or its agent) the said premises
or any part thereof or any part of the building to their original state as
they are first handed-over to the Tenant and shall make good any damage thus
caused to the said premises to the satisfaction of the Landlord at the
expenses of the Tenant.
(aa) Not to install any air-conditioning facilities in the said
premises or any part thereof without the prior written consent of the
Landlord.
(ab) To obey and comply with the Deed of Mutual Covenant (if any), any
House Rules or regulations as may from time to time made by the Landlord or
its agent regarding the management of the said building and the services and
facilities and the common area of the said building.
(ac) To effect and maintain during the said term insurance cover in
respect of the following:-
(i) Third Party
In respect of liability for loss injury or damage to any
person or property whatsoever caused through or by any act neglect default
or omission of the Tenant.
The policy of insurance shall be effected with a reputable insurance company
and shall be endorsed to show the Landlord as registered owner of the said
premises and shall be in an amount of not less than HKS1,000,000.00 payable
on each claim and shall contain a clause to the effect that the insurance
cover thereby effected and the terms and conditions thereof shall not be
cancelled modified or restricted without the prior written consent of the
Landlord. The Tenant hereby further undertakes to produce to the Landlord
as and when required by the Landlord such policy of insurance together with
a receipt for the last payment of premium and a certificate from the
insurance company that
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the policy is fully paid up and in all respects valid and subsisting.
(ii) Glass
All glass now or hereafter on or in the said premises for
its full replacement value.
(iii) Water Damage
Against damage to stock fixtures and fittings for the full
insurable value occurring in respect of the use or misuse of the toilet
facilities and the fire fighting installation installed within the said
premises or the incursion of water therein.
(iv) Fixtures and Fittings
The fixtures fittings goods personal effects stock and
equipment within the said premises against fire and extraneous perils for
their fail replacement value.
4. The Landlord covenants with the Tenant as follows:-
(a) To pay the Crown rent and Property Tax payable in respect of the
said premises and all expenses of a capital nature other than those caused
by the breach by the Tenant of any of the Tenant's obligations hereunder.
(b) To keep during the said term at its own cost the structure and
main drains of the said premises together with all staircases landings
corridors lifts and all public portions of the said building including
lavatories used in common with other tenants in a clean and tenantable state
and to provide lighting thereto Provided that any repairs required are not
caused by the Tenant.
(c) To display the name in English and Chinese (if any) of the Tenant
in the Tenant's Directory for the whole building and the Tenant's Directory
on the floor landing of the said premises. The cost of lettering shall be
paid by the Tenant.
(d) That the Tenant paying the rent hereby reserved and observing the
terms on the Tenant's part herein contained shall peaceably hold and enjoy
the said premises during the said term without any interruption by the
Landlord or any person rightfully claiming under or in trust for the
Landlord PROVIDED THAT if the Landlord shall carry out any repair,
renovation or refurbishment in relation to any part of the said building,
the Tenant shall let the Landlord or his agents or workmen enter the said
premises for carrying out such work.
(e) To handover the said premises to the tenant in a bare shell
condition upon the lease
7
commencement date. The wall shall be white wash finished and the floor
shall be finished in cement sand screeding (except for the area marked in
brown as shown on the floor plans annexed hereto which shall be of marble
flooring).
(f) To remove the self-constructed raising platform at the rear
portion of 12th Floor of the said building.
(g) To arrange for electricity supply to the premises at 800 A TPN no
later than 30th February 1997 at the landlord's own cost or if the landlord
provides town gas to the said premises, then the electricity supply to the
premises shall be 700 A TPN.
(h) To construct the followings at the tenant's cost which shall not
exceeding HK$220,000.00.
i) A 400 gallons water tank and two 5-horse power water pumps
at the store room on 6th Floor of the said building.
ii) A 400 gallons water tank and two 5-horse power water pumps
at the area as marked "X" on the attached 12th floor plan.
iii) A set of incoming water pipe of 50 mm width connected to
11th Floor of the said building.
iv) A set of drainage sewage pipe of 100 mm width connected from
the said premises to ground level man hole.
5. It is hereby expressly covenanted and declared as follows:-
(a) If the rent or any part thereof shall be unpaid (whether formally
demanded or not) for more than fifteen days after any of the days on which
the same ought to have been paid or if there shall be any breach or non-
performance of any of the conditions herein contained and on the part of the
Tenant to be observed or performed OR if the Tenant shall become bankrupt or
being a corporation go into liquidation (save for the purpose of
amalgamation or reconstruction) OR if the Tenant shall suffer execution to
be levied upon the said premises or otherwise on the Tenant's goods, THEN in
any such case it shall be lawful for the Landlord at any time thereafter to
re-enter the said premises or any part thereof and thereupon this Lease
shall absolutely determine but without prejudice to any right of action by
the Landlord in respect of any outstanding breach by the Tenant of any of
the terms of this Lease. All costs and expenses incurred by the Landlord in
demanding payment of the rent and other charges arising out of this Clause
shall be paid by the Tenant and shall be recoverable from it as a debt or be
deductible
8
by the Landlord from any deposit held by the Landlord hereunder.
(b) A written notice served by the Landlord on the Tenant to the
effect that the Landlord exercises the power of re-entry herein contained
shall be a full and sufficient exercise of such power without actual entry
on the part of the Landlord.
(c) Acceptance of 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 breach non-observance or non-performance by the Tenant of any
of the conditions herein contained and on the Tenant's part to be observed
and performed.
(d) The Landlord shall not be under any liability to the Tenant or to
any other person in respect of any loss or damage to any person or property
sustained by the Tenant or any such other person owing to the overflow of
water or the escape of fumes smoke fire or any other substance or thing from
anywhere within the said building. The Tenant shall fully indemnify the
Landlord from and against all claims and demands made against the Landlord
by any person in respect of any loss damage or injury owing to the overflow
of water or the escape of fumes smoke fire or any other substance or thing
from the said premises OR to the neglect of default of the Tenant OR to the
defective or damaged condition of the interior of the said premises (where
such defective or damaged condition arose from a breach by the Tenant of the
Tenant's obligations hereunder) or any fixtures or fittings for the repair
of which the Tenant is responsible hereunder. The Tenant shall also fully
indemnify the Landlord against all costs and expenses incurred by the
Landlord in respect of any such claim or demand.
(e) For the purposes of this Lease any act default neglect or
omission of any guest visitor contractor servant agent or licensee of the
Tenant shall be deemed to be the act default neglect or omission of the
Tenant.
(f) The Landlord may at such time as it considers appropriate
renovate redecorate and redesignate the common parts of the said building to
promote and maintain its fitness and suitability as a first class commercial
building. The said renovation redecoration and redesignation shall be
carried out discreetly and speedily causing the least inconvenience and
annoyance to the Tenant. To facilitate the said renovation redecoration and
redesignation the Landlord shall be entitled to close any part of the said
building and to prohibit restrict or limit entry thereto by members of the
public at such time or times and for such period or periods as the Landlord
shall at its own
9
absolute discretion deem fit. The Landlord shall not be held liable for any
loss (whether of profit, goodwill or otherwise) howsoever arising to the
Tenant by reason of the said renovation redecoration and redesignation.
(g) For the purpose of Part III of the Landlord and Tenant
(Consolidation) Ordinance relating to distress for rent and of this Lease
the rent payable in respect of the said premises shall be and be deemed to
be in arrear if not paid in advance at the times and in manner hereinbefore
provided for payment thereof.
(h) To the extent that the Tenant can lawfully do so the Tenant
hereby expressly agrees to deprive itself of all rights to protection
against eviction or ejectment afforded by any existing legislation or any
amendments thereof applicable to the said premises or to this lease. The
Tenant agrees to deliver up vacant possession of the said premises to the
Landlord on the expiration or sooner determination of the lease hereby
created notwithstanding any rule of law or equity to the contrary.
(i) To permit the Landlord during 3 months immediately proceeding the
determination of the tenancy to affix and retain without interference upon
any part of the demised premises a notice of letting or selling the same and
during the said 3 months to permit all persons with written authority from
the Landlord or his agent at reasonable times of the day upon appointment
made to view the said premises.
(j) Any notice if required to be served on the Tenant hereunder shall
be sufficiently served if addressed to the Tenant and sent by prepaid post
to or delivered at the said premises or the Tenant's last known place of
business or residence in Hong Kong and if required to be served on the
Landlord shall be sufficiently served if addressed to the Landlord and sent
by prepaid post to or delivered at Landlord's registered Office.
6. If the said premises or any part thereof shall at any time during the
lease be destroyed or damaged by fire so as to be rendered unfit for
habitation and use or if any time during the continuance of this tenancy the
said premises shall be condemned as a dangerous structure or a demolition
order or closing order shall become operative in respect of the said
premises or the said building, the happening of which is not attributable to
the act default neglect or omission of the Tenant, then the rent hereby
reserved or a fair proportion thereof according to the nature and extent of
the damage sustained or order made shall after the expiration of the then
current month be suspended until the said premises shall again be rendered
fit for habitation and use or such order shall be revoked Provided Always
that should the said premises not have been rendered fit for habitation and
use or such order not have been revoked
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in the meantime either the Landlord or the Tenant may at any time after the
expiration of three months from the occurrence of such damage or destruction
or condemnation or order (as the case may be) give to the other of them one
month's notice in writing to determine this present lease and thereupon the
same and everything herein contained shall cease and be void as from the
date of the expiration of such notice but without prejudice to the rights
and remedies of either party against the other in respect of any antecedent
claim or breach of covenant or of the Landlord in respect of the rent herein
reserved until the coming into effect of the suspension. In the event of
any disagreement between the parties on the application of this clause, then
the matter shall be referred to a single Chartered Surveyor appointed by
mutual agreement or failing agreement to a single arbitrator for settlement
nominated by the Chairman for the time being of the Royal Institution of
Chartered Surveyors (Hong Kong and China Branch) on the application of
either party in accordance with the provisions of the Arbitration Ordinance
and such arbitrator's decision shall be final and binding.
7. (a) The Tenant shall on the signing hereof deposit with the Landlord
a continuing Bank Guarantee issued by a reputable Bank in a form approved by
the Landlord guaranteeing payment of an aggregated amount HK$1,203,628.80
representing two (2) months' rental, management fee, air-conditioning charge
during the term of this Lease and which shall only expire one month after
the expiry of this Lease.
(b) In addition to the Bank Guarantee mentioned in Clause 7(a)
herein, the Tenant shall on the signing hereof deposit and maintain with the
Landlord the sum of HK$601,814.40 representing 1 month's rental, air-
conditioning charges and management fee to secure the due observance and
performance by the Tenant of the conditions herein contained and on the
Tenant's part to be observed and performed. The said deposit shall be
retained by the Landlord throughout the said term free of any interest to
the Tenant and the Landlord (without prejudice to any other right or remedy
hereunder) is entitled to deduct therefrom the amount of any costs expenses
loss or damage sustained by the Landlord as the result of any non-observance
or non-performance by the Tenant of any such condition. Subject as
aforesaid, the said deposit shall be refunded to the Tenant by the Landlord
within thirty days after the expiration or sooner determination of this
Lease and the delivery of vacant possession to the Landlord OR within thirty
days of the settlement of the last outstanding claim by the Landlord against
the Tenant in respect of any breach non-observance or non-performance of any
of the conditions herein contained and on the part of the Tenant to be
observed and performed,
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whichever is the later.
(c) The amount of the deposit and bank guarantee shall be increased
following each and any increase in the said rent, management fee or air-
conditioning charges to an aggregate sum equal to THREE months' rent,
management fee and air-conditioning charges at the rate payable after the
increase in question and the Tenant shall make payment to the Landlord of
such additional sum as shall be required to bring the deposit up to
appropriate amount within fifteen days of each rent increase.
8. (a) The Landlord shall not in any circumstances be liable to the
Tenant or any other person:-
(i) in respect of any loss or damage to person or property
sustained by the Tenant of any such other person caused by or through or in
any way owing to any defect in or breakdown of the lifts fire and security
services equipment air-conditioning plant and other facilities of the said
building;
(ii) in respect of any loss or damage to person or property
sustained by the Tenant or any such other person caused by or through or in
any way owing to any failure malfunction explosion or suspension of the
electricity gas or water supply to the said building or the said premises;
(iii) in respect of any loss or damage to persons or property
sustained by the Tenant or any such other person caused by or through or in
any way owing to fire or the overflow or leakage of water from anywhere
within the said building or the influx or rain water or sea water into the
said building or the said premises or the activity of rats or other vermin
in the said building, or
(iv) for the security or safekeeping of the said premises or any
person or contents therein nor shall the rent or maintenance and air-
conditioning charges or surcharge or any part thereof ▇▇▇▇▇ or cease to be
payable on account thereof.
9. The Tenant acknowledges that no fine premium key money or other
consideration has been paid by the Tenant to the Landlord for the grant of
this lease.
10. This Lease sets out the full agreement reached between the parties and
no other representations have been made or warranties given relating to the
Landlord or the Tenant or the said building or the said premises. If any
such representation or warranty has been given or implied the same is hereby
waived.
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11. The Landlord reserves the right to name the said building with any
such name or style as it in its sole discretion may determine and at any
time to change alter substitute or abandon any such name and without
compensation to the Tenant PROVIDED THAT the Landlord shall give the Tenant
and the postal and other relevant Government Authorities not less than three
months' notice of its intention so to do.
12. Unless the context otherwise requires, works herein importing the
masculine gender shall include the feminine and neuter and words herein in
the singular shall include the plural and vice versa.
13. The legal costs and disbursements incidental to the preparation this
Lease shall be borne by the parties in equal shares. If the Tenant shall
instruct another firm of solicitors to act on its behalf, then each party
shall bear its own legal costs.
14. The stamp duty and registration fee payable on this Agreement and its
counterpart shall be paid by the Landlord and the Tenant in equal share.
15. (a) The Landlord or its agent shall provide management services for
the said building and air-conditioning services to the said premises.
(b) The Tenant shall pay to the Landlord or its agent the monthly
surcharge of HK$42,649.20 for 11th Floor and 12th Floor of the said
building; and HK$28,789.20 for 10th Floor of the said building during the
said term for the said management services and air-conditioning services to
be paid at the same time as payment of rent is required to be made herein.
(c) The Landlord has the right from time to time to revise the rate
of the surcharge and to increase the surcharge payable by the Tenant in
respect thereof. The Landlord shall give one month's notice in writing to
the Tenant of the amount of the revised surcharge which shall be and become
substituted for the amount hereinbefore referred to and the Tenant shall be
and become liable to make payment in accordance with such written notice.
(d) Subject to mechanical breakdown in the air-conditioning plant;
the air-conditioning services shall operate during the hours from 8:00 a.m.
to -6:00 p.m. from Monday to Friday and from 8:00 a.m. to 2:00 p.m. on
Saturday except public holidays but may be varied at the discretion of the
Landlord. The Tenant shall keep all the windows and doors closed while the
air-conditioning ventilation is in operation and the Landlord shall have the
right to send a representative to close the same for the Tenant should it be
found that the Tenant does not comply with the notice to that effect of the
Landlord.
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The persistent breach by the Tenant of this clause is a breach justifying
the Landlord to exercise the rights of re-entry or other remedies hereunder.
PROVIDED ALWAYS that the Landlord shall in no case be held responsible for
the suspension and or breakdown of the air-conditioning service which is due
to causes beyond its control and that the Tenant shall not be entitled to
claim any compensation or damages or an abatement of the said surcharge by
reason of such suspension or breakdown.
(e) If the Tenant shall require air-conditioning services to be
supplied to the said premises outside the hours specified in (d) above, the
same shall whenever possible be provided by the Landlord on the Tenant
giving to the Landlord advance notice of the Tenant's requirement and on
payment of the charges specified from time to time by the Landlord therefor.
(f) If the Tenant commits to use extra air-conditioning continuously
throughout the lease term as per the described hours specified in the First
Column hereunder, the Landlord agrees to charge the Tenant at the
concessionary rate specified in the Second Column hereunder for the first
year of the lease term herein created and further providing that the
increase thereafter (if any) shall not exceed the annual inflation rate:-
Extra Hours Concessionary Rate
----------- ------------------
Every weekdays (except Saturday & Sunday)
from 7:00 a.m. to 8:00 a.m.
from 6:00 p.m. to 11:00 p.m. HK$480.00 per day per floor
Every Saturday
from 7:00 a.m. to 8:00 a.m.
from 2:00 p.m. to 10:00 p.m. HK$720.00 per day per floor
Every Sunday
from 7:00 a.m. to 6:00 p.m. HK$880.00 per day per floor
16. Lift service will be provided between the hours of 8:00 a.m. to 8:00
p.m. on Mondays to Saturdays together with a restricted service at all times
up to 12:00 mid-night daily including Sundays save that the Landlord may
suspend the service at any time if such action is necessary (through
breakdown of machinery power cut or any cause necessitating stoppage.
14
17. The Tenant shall follow the provisions in the Fourth Schedule in
respect of any fitting-out work.
18. The Tenant hereby declares and confirms that it has duly inspected the
said premises and is satisfied with the current state and condition of the
said premises and the fixtures and finishes therein. The said premises will
be demised unto the Tenant by the Landlord in the state and condition as at
the date of the signing of this Lease and no warranty or representation
whatsoever has been given or is made by the Landlord or its agents regarding
the user of the said premises and the Tenant shall satisfy itself or shall
be deemed to have satisfied itself that they are suitable for the purpose
for which they are to be used. The Tenant hereby agrees that it will at its
own expense apply for any requisite licence or licences permit or permits
from all Government or Public Authorities in respect of the carrying on of
the Tenant's business therein and shall execute and comply with all
ordinances, regulations orders, notices or rules made by all competent
Government or Public Authorities in connection with the conduct of such
business by the Tenant in the said premises. In the event that the
Government and/or the competent authority and/or the management office of
the said building from the opinion that the use of the said premises by the
Tenant infringes the user restriction in the Crown Lease, or occupation
permit or other relevant ordinances or the Deed of Mutual Covenant or the
House Rules of the said building, the Tenant shall discontinue such
infringed user immediately. The Tenant further agrees to indemnify the
Landlord in respect of any breach by the Tenant of the aforesaid. In
particular but without limitation no warranty or representation is made by
the Landlord or its agents regarding :-
(a) the fittings and finishes or the installations and appliances (if
any) in the said premises and/or the Building.
(b) the state and condition of the said premises or the said building
and the user thereof,
or
(c) the composition of the said building.
19. The Tenant hereby declares and confirms that the Landlord's fixtures
and fittings stated in the Fifth Schedule are incorporated into the said
premises and it has duly inspected the same and is satisfied with their
current state and condition.
20. The Landlord and the Tenant agree that the terms set out in Sixth
Schedule (if any) shall apply to this Lease and shall be incorporated as an
integral part of this Lease.
21. (a) This Lease shall be subject to written consent being obtained
from the existing Mortgagee, The Hongkong and Shanghai Banking Corporation
Limited. In the event that such consent is not given within a reasonable
time from the date hereof, this
15
Agreement shall automatically determine and the deposit paid hereunder shall
be returned to the Tenant but without interest or compensation. The Tenant
shall immediately vacate the said premises and deliver up vacant possession
thereof to the Landlord and shall have no claim or right of action against
the Landlord for damages or otherwise. The Landlord may deduct from the
said deposit any reasonable amount for damage or loss suffered by the
Landlord in connection with any breach by the Tenant of any provisions
hereunder without prejudice to any right of action that the Landlord may
have against the Tenant. In the event that such consent is given, all
expenses and costs, if any, incurred in obtaining the said consent shall be
borne by the Landlord.
(b) The existing Mortgagee, in giving consent to this Lease, may
request that certain provisions be inserted herein or that certain
provisions herein contained by amended (it being understood that such
provisions mainly deal with the exemption of liability on the part of the
Mortgagee for the performance of the Landlord's covenants herein or for the
refund of the deposit paid hereunder at the expiration or sooner
determination of the tenancy). The parties hereto shall agree to any
reasonable provisions or amendments which the Mortgagee may request to be
made hereto. In case the Mortgagee shall request the Tenant to sign any
Undertaking/Acknowledgement exempting the Mortgagee's liability to refund
the said deposit paid hereunder at the expiration or sooner determination of
the lease, the Tenant shall whenever requested sign or give such
Undertaking/Acknowledgement.
22. The marginal note and headings are intended for guidance only and do
not form a part of this Lease nor shall any of the provisions of this Lease
be construed or interpreted by reference thereto or in any way affected or
limited thereby.
16
FIRST SCHEDULE
--------------
("the Tenant")
Tenant: PHYSICAL HEALTH CENTRE HONG KONG LIMITED whose
registered office is situate at
Business Name: PHYSICAL LADIES CLUB
SECOND SCHEDULE
---------------
("the said premises")
The whole of 10th Floor, 11th Floor and Portion of 12th Floor and Storeroom
on 6th Floor of Prestige Tower ("the said building"), ▇▇.▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ (as shown and coloured pink on the typical floor
plans annexed hereto for identification purpose) TOGETHER with the right to
use the front and rear staircases as coloured green on the said floor plans
and TOGETHER with the right to upgrade the finishing of the said staircases
subject to ▇▇▇▇▇▇▇▇'s approval at the Tenant's own costs and subject to
compliance with relevant government regulations.
THIRD SCHEDULE
--------------
("Term & Rental")
(1) 11th Floor & Portion of 12th Floor and Storeroom on 6th Floor of the
said
-------------------------------------------------------------------------
building (referred to in this Clause as "the First Distinctive Premises")
-------------------------------------------------------------------------
At a monthly rental of HK$316,638.00 commencing on 20th January 1997 and
expiring on 31st January 2000 exclusive of rates, management fee, air-
conditioning charge and all outgoings.
(2) 10th Floor of the building (referred to in this Clause as "the Second
----------------------------------------------------------------------------
Distinctive Premises")
---------------------
(a) At a monthly rental of HK$213,738.00 commencing, SUBJECT to
repossession by the
17
Landlord, on 10th April 1997 and expiring on 31st January 2000 exclusive of
rates, management fee, air-conditioning charge and all outgoings;
(b) In the event that the Landlord fails to repossess the Second
Distinctive Premises and deliver vacant possession thereof to the Tenant on
10th April 1997, the commencement date of the lease in respect of the Second
Distinctive Premises shall be postponed to no later than 1st June 1997 and
the Tenant shall claim no compensation from the Landlord;
(c) In the event that the Landlord is unable to deliver vacant
possession of the Second Distinctive Premises to the Tenant on 1st June
1997, the commencement date of the lease in respect of the Second
Distinctive Premises shall be further postponed to no later than lst August
1997 PROVIDED THAT the Landlord shall grant an additional one month's rent-
free period in respect of the Second Distinctive Premises to the Tenant;
(d) In the event that the Landlord is unable to deliver vacant
possession of Second Distinctive Premises to the Tenant on lst August 1997,
the lease in relation to the Second Distinctive Premises shall become
absolutely null and void. Upon such event the Landlord shall refund to the
Tenant a sum of HK$242,527.20 (being the due proportion of the deposit paid
for the Second Distinctive Premises) but without interests and reduce the
Bank Guarantee to an aggregate amount not exceeding HK$718,574.40. Neither
the Landlord nor the Tenant shall be entitled to claim any compensation and
damages against the other party.
3. For the avoidance of doubt, the Landlord's failure to deliver vacant
possession of the Second Distinctive Premises to the Tenant on or before 1st
August 1997 thus rendering the lease in relation to the Second Distinctive
Premises null and void pursuant to Clause 2(d) above shall not invalidate
the lease in relation to First Distinctive Premises. In the event that the
lease in relation to the Second Distinctive Premises shall become null and
void, this Lease shall be construed as two severable distinctive leases,
namely, the First Distinctive Premises and the Second Distinctive Premises,
and upon such event, the lease in relation to the First Distinctive Premises
shall continue to be valid and subsisting subject to the terms and
conditions as set out in this Lease to the extent that the same are
applicable.
FORTH SCHEDULE
--------------
("Fitting-out")
1. The Tenant shall fit out the interior of the said premises at the
Tenant's expense in accordance
18
with such plans and specifications as shall have been first submitted by the
Tenant to be approved in writing by the Landlord in a good proper and
workmanlike fashion using good quality materials and in all respects in a
style appropriate to a first class commercial/office building and so to
maintain the same throughout the said term in good and substantial repair
and condition to the satisfaction of the Landlord Provided That no such
approval shall make the Landlord be responsible for any damage or claims
arising from defects in the design or quality of the fitting out or
otherwise. The Tenant will not cause or permit to be made any variation to
the approved fitting out plans and specifications or to the interior design
or layout of the said premises without the previous approval in writing of
the Landlord (such approval shall not be unreasonably withheld or delayed).
2. For the purpose of fitting out or redecorating or renovation the said
premises the Tenant shall observe and comply with the following procedures
and stipulations namely :-
Approval Of Plans (a) The Tenant shall at its own cost prepare and
submit to the Landlord for approval suitable drawings and specifications of
the works proposed to be carried out by the Tenant (the "Tenant Works")
together with schematic drawings illustrating the design and layout proposal
of such proposed works and any equipment (the "Tenant's Plans").
The Tenant's Plans shall :-
Content Of Plans (i) include detailed drawings, plans and
specifications of any changes in the electrical wiring and installations
and/or air-conditioning piping ducting and vents and/or fire services
installation and/or other services;
(ii) include details of all lighting
features; and
(iii) comply with all relevant Ordinances,
regulations and bye-laws from time to time in force in Hong Kong.
Acceptance Of Plans (b) The Landlord will consider the Tenant's Plans
and may accept or reject the Tenant's Plans or require modifications thereof
or any part of them as the Landlord may in its absolute discretion think fit
within 21 days from the date of submission of the Tenant's Plans to the
Landlord.
Fees For Approval (c) The Tenant shall pay a vetting fee in the
amount of HK$21,648.00 in respect of the involvement of the Landlord's
consultants in the review and approval of the Tenant's Plans.
19
Compliance With Regulations (d) The Tenant shall comply with applicable
statutes codes ordinances licences and other regulations for all work
performed by or on behalf of the Tenant on the said premises. The
Landlord's agents or consultants' approval of plans or of the Tenant's Works
shall not constitute any implication representation or certification by the
Landlord that the Tenant's Works are in compliance with the said statutes
codes ordinances licences or regulations. When several sets of requirements
must be met the standard set by the Landlord's consultants shall also apply.
Permission For Commencement (e) The Tenant will not commence the
Tenant's Works until permitted in writing so to do by the Landlord (such
permission shall not be unreasonably withheld or delayed) and as soon as
possible after the date of such permission the Tenant shall commence such
work and complete it expeditiously.
Approved Contractors for fire Service Work
(f) No fire service works shall be carried
out by any contractor other contractors designated by the Landlord or such
contractors approved by the Landlord in writing Provided always that the
Landlord shall not be responsible or liable in any way for the works carried
out by or the performance of such designated or approved contractors. As
for other fitting out work or decoration work, the Tenant shall employ its
own contractor.
Information On Contractors (g) The Tenant shall submit to the Landlord
by hand or via registered post at least three (3) days prior to the
commencement of construction, the following information:-
(i) the name(s) and address(es) of
the general contractor(s) and other contractors the Tenant intends to engage
in the construction of the Tenant's Works, and
(ii) the actual commencement date of
construction and the estimated date of completion of construction work and
date of projected opening.
Compliance With Landlord's Instructions
(h) In carrying out any approved work, the
Tenant shall cause his servants agents employees contractors licensees and
workmen to cooperate with
20
the Landlord and/or the Manager and all servants agents and workmen of the
Landlord and/or the Manager and with other tenants or contractors carrying
out any work in the Building. The Tenant shall comply with and cause his
servants agents employees contractors licensees and workmen to obey and
comply with all reasonable instructions and directions which may be given in
connection with the carrying out of such work by the Landlord or its agents
or servants.
Electricity Charges For Fitting Out
(i) The Tenant shall be solely responsible
for all electricity and other charges arising out of fitting out the said
premises. The Landlord however is not responsible for the provision of
electric power for such fitting out works.
Fitting Out Deposit (j) The Tenant shall observe and comply
with the provisions set out herein and the House Rules in the execution of
such fitting out works. As security for the due observance and compliance by
the Tenant and its agent servants and/or contractors of the House Rules in
the fitting out of the Premises, the Tenant shall place a fitting out
deposit of HK$150,000.00 with the Landlord before commencing to fit out the
said premises. The said fitting out deposit shall be returned within 14 days
after the said premises shall have been fitted out in accordance with the
approved plans without interest to the Tenant subject to any deduction
thereform necessary to make good any damage loss or injury to the said
premises or the Building or suffered by the Landlord or the Manager as a
result of any breach by the Tenant of the House Rules in fitting out the
said premises.
FIFTH SCHEDULE
--------------
("the Landlord fixture")
1. Central air-conditioning system (supply and return air ductings
excluded).
2. New emulsion painted wall finishes.
21
3. Cement sand screed concrete floor.
4. Standard marble floors and walls at the typical lift lobbies on 1O/F
and 11/F.
SIXTH SCHEDULE
--------------
("Special Terms")
1. Rent-Free Period
----------------
(a) 11th Floor Portion of 12th Floor and Storeroom on 6th Floor of
the said building
----------------------------------------------------------------------------
The Tenant shall be entitled to a rent-free period from 20th January 1997 to
19th May 1997 (both date inclusive). During the said rent-free period, the
management and air-conditioning charges, rates, utility and all other
charges shall be payable by the Tenant.
(b) 10th Floor of the said buildings
--------------------------------
The Tenant shall be entitled to a rent-free period of four calendar months
from the date on which vacant possession is delivered to the Tenant Provided
that an additional one-month rent-free will be granted if vacant possession
cannot be delivered to the Tenant on or before 1st June 1997.
2. Option for Renewal
------------------
(a) And it is hereby agreed that If the Tenant shall wish to take a
further term of three (3) years from the expiration of the said term and
shall at least six months prior to the expiration of the said term give to
the Landlord written notice to that effect and shall have paid the rent and
other charges hereby reserved and performed and observed the term and
conditions on its part therein contained up to the expiration of the term
then the Landlord will let the said premises to the Tenant for a further
term of three (3) years ("First Extended Period") from such expiration at
the market rent to be determined in Sub-Clause (c) hereunder and so far as
are applicable subject to the same terms conditions as are contained in this
Lease save and except this clause for renewal and the clause for rent-free
period PROVIDED the rent payable for the Final Extended Period shall not in
any event exceed 25% increase of the previous rental but not less than the
previous rental.
(b) Notwithstanding anything to the contrary hereinbefore contained
it is hereby further expressly agreed and declared that the Tenant shall
have the option to renew this Lease for another further term of 3 years upon
the expiration of the First Extended Period
22
subject to the terms of renewable described herein but otherwise in the same
terms and conditions as provided in this Lease save for this clause for
renewal and rent-free period. If the Tenant shall be desirous of taking a
lease term of the said premises for a further term of 3 years from the
expiration of the First Extended Period it shall not later than 6 months
before the expiration of the First Extended Period give to the Landlord
notice in writing of such desire and if the Tenant shall have paid the rent
hereby reserved and shall have performed and observed the several covenants
hereinbefore contained and on its part to be observed and performed up to
the expiration of the lease term hereby created then the Landlord shall let
the said premises to the Tenant for such further term of 3 years
(hereinafter called "the Second Extended Period") from the expiration of the
First Extended Term at the then open market rent to be determined in
accordance with sub-clause 2(c) hereunder.
(c) The market rent to be paid for the First Extended Period and the
Second Extended Period shall be the market rent determined as follows:-
(i) by agreement between the parties hereto; or
(ii) failing agreement as in (i) above, then by an independent
professional valuer or firm of professional valuers ("valuer") to be jointly
appointed by the parties hereto not later than one month before the
expiration of the Term;
(iii) failing such a joint appointment as in (ii) above, then by
a valuer to be appointed on the application of either party by the chairman
(or in his absence, a Vice-Chairman) for the time being of the Royal
Institution of Chartered Surveyors (Hong Kong Branch);
(iv) in the event that the rent for the further term has not
been determined as hereinbefore provided before the expiration of the Term,
the Tenant shall continue to pay to the Landlord the rent then payable for
the period immediately preceding the further term until the new rent has
been so determined. The rent for the further term shall then be adjusted
retrospectively to the date of the commencement of the further term and the
rent having been so determined shall be paid and accounted for accordingly
within 21 days of such determination;
(v) the valuer shall act as an expert and not as an arbitrator
and shall be required to determine the sum which in his opinion represents
the open market rent for
23
the Premises as if the same were being let with vacant possession on the
open market for a term equal to the further term without reference to any
other adjustment of rent during the said term but otherwise having regard to
all issues which in the sole opinion of the valuer appear relevant subject
to subclause (vi) immediately following;
(vi) the valuer shall determine the open market rent
disregarding:-
(a) any effect on rent of the fact that the Tenant may
have been in occupation of the said premises;
(b) any goodwill attach to the said premises by reason of
its use by the Tenant;
(c) any effect on rent of any authorized improvement
addition alteration or other work made or carried out by the Tenant at its
own expense otherwise than under any obligation to the Landlord whether
under this "seet" or otherwise;
(d) any abatement of rent under the special terms hereof
but on the following assumptions (if not facts):-
a) that all the terms and conditions herein
contained have been fully observed and performed at all times;
b) that on the commencement date of the further
term the said premises are fit for immediate occupation and use and that no
addition alteration or other work has been made or carried out by the Tenant
during the Term which has diminished the rental value of the said premises;
(vii) the costs and expenses of the valuer shall be borne by the
Landlord and the Tenant in equal shares;
(viii) the decision of the valuer shall be final and binding upon
both parties and shall determine the rent for the first further term as if
it had been expressly provided for and stated herein.
3. Sale and Redevelopment during Second Extended Period
----------------------------------------------------
Notwithstanding anything herein contained, if the Landlord shall enter into
a contract for the sale of the said building or any part thereof of which
the said premises form part during the Second Extended Period mentioned in
Clause 2(b) above to a purchaser other than any
24
subsidiary or holding company (as respectively defined in the Companies
Ordinance) of the Landlord or if the Landlord shall resolve to redevelop the
said building or any part thereof whether wholly by demolition and
rebuilding or otherwise, or partially by renovation, refurbishment or
otherwise (which intention shall be sufficiently evidenced by a copy of the
Resolution of its Board of Directors certified by its Secretary to be a true
and correct copy), then in any such event the Landlord shall be entitled to
give not less than 6 months' notice in writing at any time to terminate this
lease. Immediately upon the expiration of such notice this lease shall
terminate but without prejudice to the rights and remedies of either party
against each other in respect of any antecedent claim or breach of any of
the conditions herein contained.
4. First Right of Refusal
----------------------
The Tenant shall have the first right of refusal to let whole of the Ninth
Floor of the building in the event that the floor is available for letting
within the term of this Lease.
25
AS WITNESS the hands of the parties hereto the day and year first above
written.
SEALED with the Common Seal )
and SIGNED by )
for and on behalf of the Landlord ) /S/ Authorized signatory
in the presence of:- )
/S/ Authorized signatory
SEALED with the Common Seal )
and SIGNED by ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ) For and on behalf of
for and on behalf of the Tenant ) PHYSICAL HEALTH CENTRE HONG KONG
LTD.
in the presence of:- ) /S/▇▇▇▇ ▇▇▇▇▇ ▇▇▇
/S/ ▇▇▇▇▇▇ ▇▇▇ Director/Authorized Signatory
RECEIVED the day and year first above )
written of and from the Tenant the sum of )
HK$601,814.40 in form of cheque and ) /S/Authorized signatory
HK$1,203,628.80 in form of Bank Guarantee )
being the security deposit )
26
