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EXHIBIT 10.11
DATED 5th March 1994
SHINE HILL DEVELOPMENT LIMITED
(Landlord)
and
SHINE BELT LIMITED
FAIR PAGE LIMITED
PANHY LIMITED
MAPLE COURT LIMITED
(Confirmors)
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ (ASIA) FINANCE
(Tenant)
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LEASE
of
The whole of 37th Floor
of Asia Pacific ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ Lot No. 8888
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Registered in the Land Registry by
Memorial No.
on
p. Land Registrar
▇▇▇▇▇▇▇ ▇▇▇▇▇
in association with
Mallesons ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Suite 801, Asia Pacific Finance ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Ref: SHIN2040-134 (HK1747)
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THIS LEASE is made this 5th day of March One Thousand Nine Hundred and
Ninety-Four
BETWEEN
(1) The party named and described as the Landlord in Part 1 of the First
Schedule hereto (hereinafter called the "Landlord" which expression shall
where the context admits include its successors and assigns);
(2) the party named and described as the "Confirmors" in Part 2 of the First
Schedule hereto (hereinafter called the "Confirmors"); and
(3) the party named and described as the "Tenant" in Part 3 of the First
Schedule hereto (hereinafter called "the Tenant").
WHEREBY IT IS AGREED as follows:-
1. DEFINITIONS
1.1 In this Lease, unless the context otherwise requires, the following
expressions shall have the following meanings ascribed to them.
"Buildings" the buildings erected on the Lot and more
particularly described in Part 1 of the Second
Schedule hereto.
"Deed of Mutual the Deed of Mutual Grant and Mutual Covenant
Covenant" and Management Agreement for the Lot and
the Buildings.
"Government" the Government of Hong Kong.
"House Rules" the rules governing or regulating the use,
operation and maintenance of the Buildings and the
services, facilities and amenities thereof and the
conduct of persons occupying, using or visiting the
same as may be prescribed by the Manager from time
to time in accordance with the Deed of Mutual
Covenant.
"Lot" All that piece or parcel of land registered in the
Land Registry as Inland Lot No.8888.
"Manager" the service company or agent for the time being
appointed as the Manager of the Lot and the
Buildings under the Deed of Mutual Covenant or the
Building Management Ordinance.
"Premises" All those premises more particularly described
[STAMP]
-----------------------------
DUPLICATE or COUNTERPART
Original Stamped with
[name]
-----------------------------
[STAMP] [STAMP]
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in Part 2 of the Second Schedule hereto.
"Rent" the rent more particularly described in Part 1 of
the Fourth Schedule hereto.
"Term" the term more particularly described in the Third
Schedule hereto.
1.2 References to Clauses and Schedules are references to clauses of or
schedules to this Lease.
1.3 The Index and the headings are for ease of reference only and do not form
part of this Lease or affect the construction thereof.
1.4 References to any Ordinance, regulation or other statutory provision include
references to such Ordinance, regulation or provision as modified, codified or
re-enacted from time to time.
1.5 In this Lease, if the context so permits or requires, words importing the
singular number only shall include the plural number and vice versa; words
importing the masculine gender only shall include the feminine gender and the
neuter gender and vice versa and words importing persons shall include
corporations.
2. PREMISES
2.1 The Landlord shall let and the Tenant shall take the Premises (the external
surfaces of the walls glass curtain walls windows frames and glass being
excluded) TOGETHER with the use in common with the Landlord and all others
having the like right of the entrances staircases landings passageways,
lavatories, lifts, escalators and central air-conditioning services serving the
Premises (whenever the same shall be operating) in the Buildings insofar as the
same are necessary for the proper use and enjoyment of the Premises and except
insofar as the Landlord or the Manager may from time to time restrict such use
for the purpose of replacing, renewing, repairing, decorating or maintaining the
same EXCEPT AND RESERVED unto the Landlord and all persons authorised by the
Landlord or otherwise entitled thereto:-
(a) the right of free and uninterrupted passage and running of water,
soil, gas, drainage, electricity and all other services or
supplies through such sewers, watercourses, conduits, pipes,
wires, cables and ducts as are now or may hereafter be in, on or
under the Premises or the raised flooring therein and serving or
capable of serving the Buildings or any adjoining or neighbouring
property together with the right to enter upon the Premises at all
times to inspect repair or maintain any such sewers, watercourses,
conduits, pipes, wires, cables and ducts;
(b) the exclusive right to install in or affix to any part of the
Buildings (other than the Premises) such flues, pipes,
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conduits, chimneys, aerials, plant, machinery and other apparatus,
signs, placards, posters and other advertising structures
whatsoever (whether illuminated or not) as the Landlord shall
think fit together with the right to repair maintain service
remove or replace the same;
(c) the right and liberty to enter upon the Premises in the
circumstances permitted hereunder;
(d) the right to subjacent and lateral support from the Premises for
the remainder of the Buildings;
(e) right of access to all common areas
for the Term yielding and paying therefor throughout the Term the Rent and the
management charges set out in Part 2 of the Fourth Schedule hereto which sums
shall be payable exclusive of rates and other outgoings and in advance clear of
all deductions, counterclaim or set-off whatsoever on the first day of each
calendar month; the first and the last of such payments to be apportioned
according to the number of days in the relevant month included in the Term.
3. RENT
3.1 The Tenant hereby agrees with the Landlord that the Tenant will throughout
the Term pay the Rent to the Landlord on the days and in the manner herein
provided in Hong Kong currency in the amount more particularly described in Part
1 of the Fourth Schedule hereto.
4. MANAGEMENT CHARGES & OTHERS
4.1 The Tenant hereby agrees with the Landlord that the Tenant will pay to the
Landlord in Hong Kong currency on the days and in the manner herein provided.
(a) MANAGEMENT CHARGES
(i) the monthly management charges (which include normal
air-conditioning charges) as set out in Part 2 of the
Fourth Schedule hereto subject to increase in accordance
with Clause 4.2 hereof; and
(ii) additional management charges (if any) payable by the
Tenant pursuant to the Deed of Mutual Covenant for the use
by the Tenant of those Common Facilities (as defined in the
Deed of Mutual Covenant) of the Buildings which are not
covered by the monthly management charges aforesaid and
additional air-conditioning charges (if any) payable by the
Tenant pursuant to the Deed of Mutual Covenant; and
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(b) INTEREST - by way of interest without any deduction counterclaim
or set-off whatsoever and on demand interest calculated on a daily
basis at a monthly rate equivalent to one and one-half percent (1
l/2%) on:-
(i) the Rent or any sum of money payable by the Tenant
hereunder and not received by the Landlord within fourteen
(14) days from the due date for payment (whether demanded
or not) from the due date aforesaid until the whole of such
sum is received by the Landlord;
(ii) any sum paid by the Landlord in the event of default by the
Tenant of its obligation to pay for the same under this
Lease from the date of payment by the Landlord until the
same is repaid to the Landlord; and
(iii) any sum which shall be properly declined by the Landlord so
as not to waive a breach of covenant from the due date
until acceptance following the remedying of the breach by
the Tenant.
4.2 INCREASE OF CHARGES
The monthly management charges referred to in Clause 4.1(a)(i) shall be
subject to increase at any time during the continuance of this Lease as
determined by the Manager in accordance with the Deed of Mutual Covenant and
upon the Landlord giving to the Tenant notice in writing of such increase.
4.3 RATES
(a) The Tenant further agrees with the Landlord that the Tenant will
pay and discharge all rates, taxes, water rates, assessments,
duties, impositions, charges and outgoings whatsoever (including
all charges and outgoings of a recurrent nature (if any) imposed
by the Deed of Mutual Covenant and/or the regulations prescribed
pursuant thereto to which the Premises are subject) now or
hereafter to be assessed, imposed, raised, charged or levied on
the Premises or any part thereof or upon the owner or occupier
thereof by Government, the Manager and/or other lawful authority
(Crown Rent, Property Tax and charges of a capital and
non-recurrent nature alone excepted) and pay or (if the same has
already been paid by the Landlord) refund to the Landlord on
demand in case any of the same are payable, assessed, imposed,
raised, charged or levied in respect of the Buildings as a whole
or any part thereof (which includes the Premises) a proper
proportion thereof to be reasonably determined by the Manager
and/or the Landlord as the amount attributable to the Premises.
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(b) In the event that an assessment to rates in respect of the
Premises shall be raised upon the Landlord direct, the Landlord
shall during the month immediately preceding any quarter in
respect of which such rates may fall due be at liberty to debit
the Tenant with the amount thereof and the same shall forthwith be
paid by the Tenant to the Landlord whereupon the Landlord shall
account for the same to the Government.
(c) In the event that no valuation of the Premises shall have been
made in accordance with the Rating Ordinance (Cap. 116) or any
statutory amendment or modification thereof for the time being in
force, the Landlord shall be at liberty to make an interim
valuation thereof and the Tenant shall, until such time as the
Premises are assessed to rates, pay to the Landlord quarterly and
in advance a sum equal to the rates which would be charged by the
Hong Kong Government for each quarter on the basis of such interim
valuation on account of the Tenant's liability under this Clause
4.3. Any over-payment or under-payment by the Tenant shall be
adjusted when a valuation under the Rating Ordinance shall have
been made known.
4.4 UTILITY CHARGES
The Tenant shall apply to the Hong Kong Electric Company Limited for the
provision of a separate electricity meter for the Premises and to apply to other
utility supply companies for similar provisions and pay and discharge all
deposits, installation charges and charges in respect of water gas electricity
telex and telephone as may be shown by or operated from the Tenant's own metered
supply or by accounts rendered to the Tenant in respect of all such utilities
consumed on or in the Premises PROVIDED that if the Landlord has already paid
the deposit and/or the installation charges in respect of the supply of water
gas electricity or telephone to the Premises, the Tenant shall reimburse the
Landlord on demand for such deposit and (as the case may be) pay to the Landlord
such amount as the Landlord may determine in respect of the installation charges
and the deposit, if any, shall be returned to the Tenant at the expiration of
the Term after deducting all outstanding liability for water gas electricity and
telephone charges (if any).
4.5 OTHER FACILITIES
(a) The Tenant hereby acknowledges that the Landlord has paid for the
installation of certain number of lines for "High Speed Data Link"
and that the Tenant may subscribe for the use of such lines
subject to availability thereof as determined by the Landlord in
its sole and absolute discretion. In the event that the Tenant
subscribes for the use of such lines, the Tenant shall pay to the
Landlord such amount as the Landlord may reasonably determine in
respect of the installation charges for such number of lines as
may be required by the Tenant.
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(b) The Tenant further acknowledges that facilities for the following
have been installed within the Buildings:-
(i) transmission and broadcasting of financial news and data;
(ii) video link; and
(iii) inter-floor communication.
The said facilities can, subject to availability thereof as
determined by the Landlord in its sole and absolute discretion, be
used by the Tenant upon payment by the Tenant of such reasonable
charges and upon such other terms and conditions as may from time
to time be determined or prescribed by the Landlord or other
person or persons entitled thereto Provided that the Tenant shall
be responsible for making all necessary arrangement with the
relevant service companies for the provision of the necessary
services.
5. TENANT'S POSITIVE COVENANTS
The Tenant hereby agrees with the Landlord as follows:-
5.1 COMPLIANCE WITH ORDINANCES, ETC
The Tenant hereby agrees with the Landlord that the Tenant shall obey and
comply with and shall indemnify the Landlord fully against any breach by the
Tenant of any ordinances, regulations, by-laws, rules, licences and requirements
of any Government or other competent authority insofar as they relate to or
affect the Premises or any works, additions or improvements therein or thereto
made by the Tenant or the use or occupation thereof or the conduct or carrying
on of the Tenant's business or the employment therein or any other act, deed,
matter or thing done, permitted suffered or omitted therein or thereon by the
Tenant or any servant, agent, employee, contractor or licensee (which term shall
include any person present in using or visiting the Premises with the Tenant's
consent, express or implied) of the Tenant and shall notify the Landlord
forthwith in writing of any notice received from any statutory or public
authority concerning or affecting the Premises or any services supplied thereto.
5.2 COMPLIANCE WITH CONDITIONS & DEED OF MUTUAL COVENANT
The Tenant shall observe, perform and comply with all the covenants,
terms and provisions of the Conditions of Sale or the Crown Lease under which
the Landlord holds the Premises and the Deed of Mutual Covenant and the House
Rules insofar as they relate to the Premises and indemnify the Landlord against
any breach or non-observance or non-compliance thereof by the Tenant.
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5.3 FITTING OUT
The Tenant shall fit out the interior of the Premises in accordance with
such plans and specifications as shall have been first submitted by the Tenant
to and approved in writing by the Landlord under Clause 5.3(b) hereof 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 and shall maintain the
Premises including the furnishings, fixtures and fittings therein or thereto (if
any) in good and substantial repair and condition to the reasonable satisfaction
of the Landlord throughout the Term Provided That nothing herein shall make the
Landlord responsible for any damages or claims arising from any defects in the
design or quality of the fitting out carried out by the Tenant. The Tenant shall
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 Premises without
the prior written approval of the Landlord, such approval not to be unreasonably
withheld.
For the purpose of fitting-out or redecorating or renovating the
Premises, the Tenant shall observe and comply with the following provisions:-
(a) APPROVAL OF PLANS - The Tenant shall at its own cost prepare and
submit to the Landlord for approval three (3) sets of suitable
drawings and specifications of the works proposed to be carried
out by the Tenant (hereinafter called the "TENANT'S WORKS") and
the schematic drawings illustrating the design and layout proposal
of the Tenant's Works (hereinafter collectively called the
"TENANT'S PLANS"). The Tenant shall include in the Tenant's Plans
the following:-
(i) detailed drawings, plans and specifications of or of any
changes in the electrical wiring and installations,
air-conditioning piping, ducting or vents or fire services
installation and/or other services;
(ii) details of the electricity consumption capacity, electrical
wiring and installation, telephone wiring, piping, ducting,
computer cabling, wiring and other arrangements (whether
underneath the raised flooring, above the false ceilings or
otherwise);
(iii) details of all lighting features;
(iv) details of partitioning, internal decoration, furnishings
and equipment;
(v) the position and details of any heavy equipment; and
(vi) such other relevant information as the Landlord may
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consider necessary.
(b) ACCEPTANCE OF PLANS - 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 it thinks fit in its
reasonable discretion and within reasonable time from the
submission of the Tenant's plans to the Landlord.
(c) FEES FOR APPROVAL & INSPECTION - The Tenant shall reimburse the
Landlord on demand the fees of all architectural, mechanical,
electrical and structural engineering consultants and other
professional's fees incurred according to fee notes or bills
rendered by any such consultants or professionals in connection
with the consideration and approval or rejection of the Tenant's
Plans and the supervision and inspection of the Tenant's Works.
The Tenant shall also pay to the Landlord on demand such amount as
the Landlord may in its absolute discretion prescribe as the
approval or vetting fees for the approval of the Tenant's Plans.
(d) COMPLIANCE WITH ORDINANCES - The Tenant shall comply with all
applicable statutes, codes, ordinances, licences and other
regulations for and shall be solely responsible for obtaining all
necessary approval from all relevant Government departments and
utility companies required for all work, performed by or on behalf
of the Tenant on the Premises. The approval by the Landlord's
agents or consultants of the Tenant's Works or the Tenant's Plans
or the inspection of the Tenant's Works shall not constitute or be
deemed to constitute any representation or certification by the
Landlord that the Tenant's Works are in compliance with the said
statutes, codes, ordinances, licences and other regulations. When
several sets of requirements must be met, the standard set by the
Landlord's consultants shall apply.
(e) PERMISSION FOR COMMENCEMENT - The Tenant will not commence the
Tenant's Works until the same shall have been approved in writing
by the Landlord and a notice shall have been given by the Landlord
that the Tenant's Works can be commenced and as soon as possible
after such approval and notice shall have been given, the Tenant
shall commence the Tenant's Works and complete them expeditiously.
(f) DESIGNATED CONTRACTORS - The following types of the Tenant's Works
shall not be carried out by any contractor other than contractors
designated by the Landlord:-
(i) the following types of the Tenant's Works relating to the
raised flooring:-
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(aa) the alignment, re-alignment or removal of the
raised flooring installation;
(bb) the creation of openings on the raised flooring
panels;
(cc) the change of the headroom or height of the raised
flooring;
(dd) the cutting or subdivision of the raised flooring
panels; and
(ee) the laying of marbles or other finishes (other than
carpet) on top of the raised flooring;
(ii) works touching or affecting the heating, ventilation and
air-conditioning system for the Buildings (including that
part of the said system installed within the Premises);
(iii) electrical works to be undertaken by the Tenant in the
common areas of the Buildings in connection with the use
and enjoyment of the Premises by the Tenant;
(iv) works touching or affecting the fire services installations
of the Building (including those within the Premises);
(v) plumbing and drainage works;
(vi) works touching or affecting the building management system
for the Buildings;
(vii) works touching or affecting the communication networks
which forms part of the Common Facilities (as defined in
the Deed of Mutual Covenant) of the Buildings; and
(viii) works touching or affecting the suspended ceiling of the
Buildings (including that within the Premises).
The contract for the above types of the Tenant's Works to be
carried out at the Premises shall be made between the Tenant and
the designated contractor. All other types of the Tenant's Works
shall be carried by contractors as approved in writing by the
Landlord, such approval not to be unreasonably withheld Provided
always that the Landlord shall not in any way be responsible or
liable for the works carried out by or the performance of such
designated or approved contractors.
(g) INFORMATION ON CONTRACTORS - The Tenant shall submit to the
Landlord by hand or via registered post at least three
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(3) days prior to the commencement of the Tenant's Works the
following information:-
(i) the name(s) and address(es) of the general contractor(s)
and other contractors designated or approved by the
Landlord whom the Tenant intends to engage for the Tenant's
Works;
(ii) the proposed commencement date of and the estimated date of
completion of the Tenant's Works; and
(iii) certificates of insurance for public liability and
workmen's compensation.
(h) COMPLIANCE WITH LANDLORD'S INSTRUCTIONS - In carrying out any
approved work under this Clause or other provisions of this Lease,
the Tenant shall cause its servants, agents, employees,
contractors, licensees and workmen to cooperate with 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 Buildings. The Tenant shall comply
with and cause its servants, agents, employees, contractors,
licensees and workmen to obey and comply with all reasonable
fitting out rules which may be prescribed by the Landlord or the
Manager and all reasonable instructions and directions which may
from time to time be given in connection with the carrying out of
such work by the Landlord, the Manager and all servants or agents
of the Landlord or the Manager.
(i) COMPLETION - As soon as practicable after completion of the
Tenant's Works, the Tenant shall provide the Landlord with a copy
of the "as-built" plans for the Tenant's Works.
(j) VARIATIONS - The Tenant shall not cause or permit to be made any
variation to the approved Tenant's Plans or the Tenant's Works
after the completion thereof except with the approval of the
Landlord, such approval not to be unreasonably withheld. The
Landlord may enter upon the Premises for the purpose of inspecting
the construction of the Tenant's Works. The Tenant shall forthwith
on demand by the Landlord and at its own cost and expense demolish
and remove any alteration or addition subsequently made to the
Tenant's Works in breach of the provisions of this Lease and
reinstate the Premises to the satisfaction of the Landlord.
(k) ELECTRICITY CHARGES FOR FITTING OUT - The Tenant shall be solely
responsible for all electricity and other utility charges incurred
in connection with or arising out of fitting out the Premises and
shall pay to the Landlord a service charge of such amount as the
Landlord may determine for the temporary supply of electricity and
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water and other attendance rendered during the fitting out period.
(1) REMOVAL OF GARBAGE - The Tenant shall remove from the Premises all
garbage, refuse and construction and decoration waste to such
location as may from time to time be designated by the Manager and
if the Tenant shall fail to do so, the Landlord may cause such
removal to be made at the cost and expense of the Tenant.
(m) DEPOSIT - As security for the due observance by the Tenant of the
terms and conditions of Clause 5.3, the Tenant shall pay to the
Landlord such an amount as may be required by the Landlord as a
fitting-out deposit which shall be refunded to the Tenant without
interest within thirty (30) days after the completion of the
Tenant's Works if there shall be no breach of any of the terms or
conditions contained in Clause 5.3.
5.4 TELEPHONE INSTALLATIONS
The Tenant shall make arrangement with the Hong Kong Telephone Company
Limited with respect to the installation of telephones in the Premises Provided
that subject to availability of telephone lines already installed by the
Landlord within the Buildings, such arrangement shall be made by the tenant
jointly with the Landlord and such installations shall be in accordance with the
requirements of the Hong Kong Telephone Company Limited and shall not unduly
interfere with the use and enjoyment of the Buildings (other than the Premises)
by the owners and/or tenants thereof.
5.5 GOOD REPAIR OF INTERIOR
With the exception of maintenance required as a result of inherent
defects of a structural nature, the Tenant shall keep all the interior of the
Premises including the raised flooring and cables and wirings installed
thereunder, interior plaster or other finishing material or rendering to walls,
floors and ceilings of the Premises and the Landlord's fixtures and fittings
therein and all additions thereto including all doors, windows, window frames,
electrical installations and wiring, light fittings, fire alarm and
fire-fighting installations and all cables, conduits, sanitary and water
apparatus comprised in and used solely for the benefit of the Premises
(hereinafter collectively called the Landlord's Fixtures and Installations) and
all other fixtures fittings and additions in or at the Premises in good, clean,
substantial and proper repair and condition and properly preserved and painted
as may be appropriate and when from time to time required by the Landlord or any
relevant Government authority and so 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 Term in like condition, fair wear and tear excepted.
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5.6 REPAIR OF GLASS CURTAIN WALL
The Tenant shall pay to or reimburse the Landlord such reasonable amount
as may be payable to the Manager or other owners of the Buildings (other than
the Premises) under the Deed of Mutual Covenant in respect of all broken or
damaged part or parts of the glass curtain wall corresponding to the Premises or
other part or parts of the Buildings (if any) whether used exclusively by the
Tenant or not if the damage is caused by the act, default, neglect or omission
of the Tenant or any of its servants, agents, employees, contractors or
licensees.
5.7 ELECTRICAL INSTALLATIONS
The Tenant shall repair and replace any electrical wiring, installation
or piping within the Premises or used exclusively by the Tenant if the same
becomes dangerous or unsafe unless the damages are caused by inherent defects in
the wiring, installation or piping made by the Landlord or if so required by the
Landlord or the relevant utility company and in so doing or in carrying out any
other works thereto at the Tenant's own instigation the Tenant shall use only
the contractor previously nominated or approved by the Landlord in writing for
the purpose. The Tenant shall permit the Landlord or its agents or servants to
test the Tenant's wiring and/or piping in the Premises at any time. The Tenant
shall indemnify the Landlord and hold it harmless against any cost damage claim
demand action or proceeding resulting from or attributable to any mal-function
or disrepair of the electrical installation, wiring or piping in the Premises.
The Tenant shall not, without the prior written consent of the Landlord (such
consent not to be unreasonably withheld), install or alter or permit or suffer
to be made any alterations in or additions to the electrical wiring,
installation or piping.
5.8 GOOD REPAIR OF TOILETS & WATER APPARATUS
The Tenant shall maintain all toilets sanitary and water apparatus as are
located within the Premises (or elsewhere in the Buildings if used exclusively
by the Tenant) in good, clean, substantial and proper repair and condition at
all times during the Term and in accordance with the Regulations of the Public
Health Department or other relevant Government authority, fair wear and tear
excepted.
5.9 CLEANING CONTRACTORS
The Tenant shall keep the Premises and every part thereof at all times in
a clean and sanitary state and condition and dispose of all refuse and rubbish
in accordance with the House Rules and shall not bring or keep or suffer to be
brought or kept in or on the Premises anything which in the opinion of the
Landlord is or may become unclean unsightly or detrimental to the Premises. The
Tenant shall, at its own expense, employ cleaning contractors nominated or
approved by the Manager pursuant to the Deed of Mutual Covenant for the cleaning
of the Premises. The Tenant shall enter into a separate agreement with such
cleaning contractors and make all payments direct to such cleaning contractors.
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The Landlord shall not assume any responsibility for the acts, omissions or
neglect of such cleaning contractors and the Tenant shall fully indemnify the
Landlord against all claims costs and damage rising out of the acts, omissions
or neglect of such cleaning contractors.
5.10 CLEANING OF DRAINS
The Tenant shall pay to or reimburse the Landlord forthwith on demand the
reasonable cost incurred by the Landlord in cleaning, clearing, repairing or
replacing any of the drains pipes or sanitary or plumbing apparatus choked,
blocked or stopped up owing to the improper or careless use or neglect thereof
by the Tenant or its servants, agents, employees, contractors or licensees and
keep the Landlord fully indemnified against any cost claim or damage caused
thereby or arising therefrom.
5.11 MAKING GOOD DEFECTS
The Tenant shall notify the Landlord of and make good at the expense of
the Tenant all defects or damage caused by the act, default, neglect or omission
of the Tenant or any of its servants, agents, employees, contractors or
licensees in and to the Premises and other parts of the Buildings.
5.12 NOTICE OF ENTRY FOR REPAIR OF ADJOINING PREMISES
The Tenant shall permit the Landlord, the Manager and their duly
authorized surveyor(s) or agent(s) and all other persons duly authorized by the
Landlord and/or the Manager with or without workmen or others and with or
without appliances at all reasonable times and upon written notice (except in
case of emergency) to enter upon the Premises for the purpose of executing
repairs and/or alterations on any adjoining premises.
5.13 TO PERMIT LANDLORD TO ENTER & VIEW
The Tenant shall permit the Landlord, the Manager and their respective
agents and all other persons duly authorized by the Landlord and/or the Manager
with or without workmen or others and with or without appliances at all
reasonable times and upon written notice (except in case of emergency) to enter
upon the Premises to view the condition or user thereof or to inspect any works
in progress and to take inventories of the fixtures and fittings therein. The
Landlord may serve a notice on the Tenant requiring the Tenant to execute such
repair for which the Tenant is liable hereunder and/or remedy breach of such
covenant herein contained on the part of the Tenant to be observed within
fourteen (14) of the date of the notice (or sooner if required) and the Tenant
shall pay to the Landlord forthwith on demand all the expenses (including
solicitors' costs and surveyor's fees) incurred by the Landlord in connection
with the preparation and service of such notice Provided that in the event of an
emergency the Landlord and/or the Manager or their respective servants or agents
may enter the Premises without notice, forcibly if necessary. For the better
observance of this provision, if the Tenant is requested by the Manager under
the Deed of Mutual Covenant
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to furnish to the Manager duplicate of the keys to the entrance doors of the
Premises and the Tenant is prepared to accept such request, the Tenant shall
furnish to the Manager duplicate of the keys to the entrance doors of the
Premises. The Tenant shall further inform the Landlord as to the presence and
nature of any security system installed by the Tenant in the Premises.
5.14 TO EXECUTE REPAIRS ON RECEIPTS OF NOTICE
The Tenant shall, on receipt of any notice issued by the Landlord
pursuant to Clause 5.13 specifying any works or repairs which are required to be
done and for which the Tenant is liable hereunder, forthwith comply with the
notice, put in hand and execute the same with all possible despatch. If the
Tenant shall not within fourteen (14) days of the date of the notice (or sooner
if required) proceed diligently with the execution of such works or repairs, the
Tenant shall permit the Landlord or its authorized representatives with all
necessary workmen, tools, materials, equipment and appliances to enter upon the
Premises and execute such works or repairs and the costs thereof shall be a debt
due from the Tenant to the Landlord, be repayable by the Tenant forthwith on
demand by the Landlord and be forthwith recoverable from the Tenant by action.
5.15 PROSPECTIVE TENANTS
During the last six (5) months of the Term, the Tenant shall allow the
Landlord to show the Premises to prospective tenants or purchasers and allow the
Landlord to exhibit without interference upon such part of the Premises as the
Landlord shall think fit a notice indicating that the Premises are to become
vacant and containing such other information in connection therewith as the
Landlord shall require and the Tenant shall not conceal such notice.
5.16 PROTECTION FROM TYPHOON
The Tenant shall take all reasonable precautions to protect the interior
of the Premises against damage by storm, typhoon, heavy rainfall or the like and
in particular to ensure that all exterior doors (if any) and windows are
securely fastened upon the threat of such adverse weather conditions.
5.17 SERVICE ENTRANCES
The Tenant shall load and unload goods, equipment, furniture or large or
heavy objects only at such times and through such goods lifts, entrances and
staircases as may from time to time be designated by the Landlord or the Manager
for such purposes Provided always that under no circumstances shall passenger
lifts be used at any time for delivery purpose.
5.18 COMMON AREAS
The Tenant shall indemnify the Landlord against the cost of any
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damage caused to any part of the common areas of the Buildings occasioned by
act, default, neglect or omission of the Tenant or any of its servants, agents,
employees, contractors or licensees.
5.19 TENANT'S SERVANTS AGENTS ETC
The Tenant shall be liable for the acts, defaults, neglects and omissions
of the Tenant's servants, agents, employees, contractors or licensees (including
any person present in, using or visiting the Premises with the consent of the
Tenant, express or implied) as if they were the acts, defaults, neglects and
omissions of the Tenant and indemnify fully the Landlord against all costs,
claims, demands, expenses or liability to any third party or loss in connection
therewith.
5.20 DIRECTORY BOARDS
The Tenant shall pay to the Landlord forthwith upon demand the cost of
affixing, repairing, altering or replacing as necessary the Tenant's name on the
directory boards provided by the Landlord or the Manager.
5.21 SECURITY
The Tenant shall ensure that the Tenant's own security system (if any)
within and at the entrance of the Premises is at all times compatible with and
if so required by the Landlord linked up to the security system (if any) for the
Buildings provided and operated by the Landlord and/or the Manager.
5.22 CHANGE OF NAME
Without prejudice to Clause 6.16, the Tenant shall, in the event of the
Tenant changing its name, notify the Landlord at least seven (7) days prior to
such change of name.
5.23 YIELD UP PREMISES & HANDOVER
The Tenant shall quietly yield up the Premises and hand over the same
together with the Landlord's Fixtures and Installations and other fixtures
fittings and additions (if any) therein and thereto at the expiration or sooner
determination of the Term in good, clean and substantial repair and condition
substantially the same as at the commencement of this Lease (fair wear and tear
excepted) notwithstanding any rule of law or equity to the contrary Provided
that where any alterations or installations of any fixtures or additions to the
Premises have been made during the Term with or without the Landlord's written
consent, the Landlord may at its absolute discretion require the Tenant at its
own expense to reinstate, remove or do away with such alterations fixtures or
additions or such part or portion thereof as the Landlord may require and make
good and repair in a proper and workmanlike manner any damage to the Premises
and/or the Landlord's Fixtures and Installations as a result thereof before
delivering up the Premises to the Landlord. The Landlord may at its absolute
discretion further require the Tenant at
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its own expense to remove its own trade fixtures and trade equipment and make
good all damages to the Premises to the reasonable satisfaction of the Landlord
including damage to the fixtures fittings and decoration within the Premises and
the Buildings caused by such removal.
5.24 INFORM LANDLORD OF DAMAGE
The Tenant shall give notice in writing to the Landlord and the Manager
or their respective agents immediately of any damage that may be caused to the
Premises or suffered by any person therein or thereon and of any accident to or
defects in the electrical installation, wiring or piping, fittings, fixtures or
other facilities provided by the Landlord.
5.25 INDEMNIFICATION OF LANDLORD
Except in the case of damage or injury caused by inherent defects of a
structural nature, the Tenant shall be wholly responsible for any damage or
injury caused to any person whomsoever or any property whatsoever whether
directly or indirectly through the defective or damaged condition of any part of
the interior of the Premises or any fixtures, fittings, installations and
additions therein including the Landlord's Fixtures and Installations for the
repair of which the Tenant is responsible hereunder or through or in any way
owing to the spread of fire or smoke or the leakage or overflow of water from
the Premises or any part thereof or through the act, neglect, default or
omission of the Tenant or any of its servants, agents, employees, contractors or
licensees and shall make good the same by payment or otherwise and indemnify the
Landlord against all costs, claims, demands, actions and legal proceedings
whatsoever made upon the Landlord by any person in respect of any such loss
damage or injury and all costs and expenses incidental thereto. For the better
observance of this Clause, the Landlord may, but shall not be obliged to, effect
at the Tenant's expense insurance cover in respect of such risks in accordance
with the provisions of this Clause 5.25 with a reputable insurance company
acceptable to the Landlord.
5.26 TENANT'S INSURANCE
The Tenant shall effect and maintain during the Term insurance cover in
respect of the following:-
(a) Third party liability
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 which might give rise to a claim for
indemnity pursuant to Clause 5.25 hereof.
(b) Glass
All glass, if any, now or hereafter on or in the Premises
excluding the glass curtain wall for its full replacement
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value.
(c) Water Damage
Against damage to the Landlord's Fixtures and Installations to the
full insurable value occurring in respect of the use or misuse of
the fire-fighting installation installed within the Premises or
the incursion of water therein.
(d) Tenants Fittings
The Tenant's fittings, goods, personal effects, stock and
equipment within the Premises against fire and extraneous perils
for their full replacement value.
The policy of insurance shall be effected with an insurance company approved by
the Landlord, such approval not to be unreasonably withheld and shall be
endorsed to show the Landlord as registered owner of the Premises and shall be
in an amount of not less than that set out in the Fifth Schedule hereto 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 the policy
is fully paid up and in all respects valid and subsisting.
6. TENANT'S NEGATIVE COVENANTS
6.1 INJURY TO WALLS
The Tenant shall not, without the prior written consent of the Landlord
(which may, in the absolute discretion of the Landlord, be withheld or granted
upon such terms and conditions as the Landlord may impose), cut, maim, injure,
drill into, ▇▇▇▇ or deface or permit or suffer to be cut, maimed, injured,
drilled into, marked or defaced any doors (other than those installed by the
Tenant), windows, window-frames, partition or structural walls (other than those
internal partition walls erected by the Tenant), glass curtain walls, ceilings,
raised floor, beams, structural members or other part of the fabric of the
Premises or any of the plumbing or sanitary or air-conditioning apparatus or
installations included therein or lay or use any floor covering or do anything
which may damage or penetrate the existing raised flooring or slab.
6.2 ALTERATION TO EXTERIOR
The Tenant shall not, without the prior written consent of the Landlord
(which may, in the absolute discretion of the Landlord, be withheld or granted
upon such terms and conditions as the Landlord may
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impose), affix or attach anything or paint or make any alteration whatsoever to
the exterior of the Premises or the common areas or allow anything to be
affixed, attached, painted, suspended or hung outside the Premises or drop
anything from the Premises.
6.3 INSIDE FACES OF WINDOWS
The Tenant shall not paint, spray, put on or adhere any thing or
substance on the inside or outside faces of the windows or the window frames or
the glass curtain walls of the Premises.
6.4 NUISANCE
The Tenant shall not cause or produce or suffer or permit to be produced
on or in the Premises any sound or noise or vibration (including sound produced
by broadcasting from television, radio or any apparatus or instrument capable of
producing or reproducing music or sound or vibration) or other acts or things in
or on the Premises which is or are or may be or become a nuisance or annoyance
to the tenants or occupiers of adjacent or neighbouring premises or to users or
customers of the same or to the Landlord or which in the opinion of the Landlord
may prejudicially affect or depreciate the Premises or the Buildings or any
adjacent or neighbouring premises. It is hereby agreed that a persistent breach
by the Tenant of this Clause shall amount a breach of this Lease which will
entitle the Landlord to exercise its right of re-entry hereunder.
6.5 AUCTIONS & SALES
The Tenant shall not conduct or permit any sale to the public by auction,
bankruptcy, close-out or other sale of things or properties of a similar nature
to take place on the Premises.
6.6 USER
(a) The Tenant shall not use the Premises or any part thereof for any
purpose other than as office Provided that no warranty is given or
deemed to be given by the Landlord as to the fitness of the
Premises for such use. In particular, the Tenant shall not alter
the lavatory comprised in the Premises for any other use.
(b) The Tenant shall not use or cause or permit or suffer to be used
any part of the Premises for gambling or for any illegal, immoral
or improper purpose or in any way so as to cause a nuisance,
annoyance, inconvenience, damage or danger to the Landlord or the
tenants or occupiers of adjacent or neighbouring premises.
(c) The Tenant shall not tout or cause or permit or suffer any touting
or soliciting for business or the distribution of any pamphlet,
notice or advertising matter outside the Premises or anywhere
within the Buildings (except inside
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the Premises) by any of the Tenant's servants, agents, employees,
contractors or licensees.
(d) The Tenant shall not use the Premises or any part thereof as
sleeping quarters or as domestic premises within the meaning of
the Landlord and Tenant (Consolidation) Ordinance or similar
legislation for the time being in force and the Tenant shall not
allow any person to remain on the Premises overnight other than
for working purposes and with prior notice to the Landlord or the
Manager Provided that the Tenant may post watchmen to look after
the contents of the Premises and the names of the watchmen shall
be registered with the Landlord.
(e) Except for the reheating of pre-prepared food for consumption by
the Tenant's employees by an approved microwave oven, the Tenant
shall not ▇▇▇▇, prepare, deliver or permit or suffer to be cooked
or prepared or delivered any food in the Premises save with the
prior written consent of the Landlord or permit any offensive or
unusual odours (as determined by the Landlord absolutely) to be
produced upon or emanate from the Premises.
(f) The Tenant shall not keep or permit or suffer to be kept any
animals or pets inside the Premises and shall take all such steps
and precautions to the satisfaction of the Landlord to prevent the
Premises or any part thereof from becoming infested by termites,
rats, mice, cockroaches or any other pests or vermin and for the
better observance of this provision, the Landlord may require the
Tenant to effect pest control for the Premises at the Tenant's
cost and expense at such intervals as the Landlord or any relevant
Government authority may direct by employing such pest
extermination contractors as the Landlord may approve, such
approval not to be unreasonably withheld.
6.7 HEAVY MACHINERY
The Tenant shall not, without the prior written consent of the Landlord
(such consent not to be unreasonably withheld but may be granted subject to such
reasonable conditions as the Landlord may impose), install or cause or permit or
suffer to be installed any equipment apparatus or machinery or any part thereof
which imposes a weight on any part of the flooring in excess of five (5) KPa or
which requires any additional electrical wiring or piping or which consumes
electricity or gas not metered through the Tenant's separate meter. The Landlord
shall be entitled to prescribe the maximum weight and permitted location of
safes and other heavy equipment and to require that the same stand on supports
of such dimensions and material to distribute the weight thereof as the Landlord
may deem necessary and the Tenant shall reimburse the Landlord all costs,
charges and expenses incurred by the Landlord in making such prescription.
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6.8 MANUFACTURE & STORAGE OF MERCHANDISE
The Tenant shall not use the Premises for the manufacture of goods or
merchandise or for the storage of goods or merchandise other than as samples or
exhibits reasonably required in connection with the Tenant's business carried on
therein or keep or store or cause or permit or suffer to be kept or stored any
extra-hazardous, inflammable or dangerous goods within the meaning of the
Dangerous Goods Ordinance and the regulations thereunder.
6.9 OBSTRUCTION IN PASSAGES
The Tenant shall not place or leave or suffer or to permit to be placed
or left by any of its servants, agents, employees, contractors or licensees any
boxes, furniture, articles or rubbish in the entrance or any of the staircases,
passages or landings or other parts of the Buildings used in common with other
tenants or the Landlord or otherwise encumber the same. The Tenant hereby agrees
to keep the Landlord indemnified against all losses, claims, damages or expenses
suffered or incurred by the Landlord as a result of a breach of this Clause.
Without prejudice to any other remedy it may have under this Lease, the Landlord
or any of its servants or agents may without any prior notice to the Tenant
remove any such obstruction and dispose of the same as it may in absolute
discretion think fit without incurring any liability therefor to the Tenant or
any other person whomsoever and the Tenant shall pay to the Landlord forthwith
on demand all costs and expenses incurred in connection with such removal.
6.10 GOODS & MERCHANDISE OUTSIDE THE PREMISES
The Tenant shall not place expose or leave or permit or suffer to be
placed exposed or left for display sale or otherwise any goods or merchandise or
thing whatsoever upon or over the ground or passages outside the Premises.
6.11 AIR-CONDITIONING
(a) The Tenant shall not install air-conditioning plant, machinery or
equipment in addition to or in place of those provided by the
Landlord.
(b) Where any air-conditioning plant, machinery or equipment for
cooling or recirculating air is installed in or about the Premises
(whether by the Landlord or the Tenant with the Landlord's
approval), the Tenant shall to the extent of the Tenant's control
over the same at all times use and regulate the same to ensure
that the air-conditioning plant, machinery or equipment is
employed to the best advantage in the conditions from time to time
prevailing.
(c) Where air-conditioning service is required by the Tenant outside
the normal business hours (i.e. from 8:00 a.m. to 6:30 p.m. every
day (Sundays and public holidays excluded)
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for Mondays to Fridays and from 8:00 a.m. to 2:00 p.m. on
Saturdays which are not public holidays) and is provided by the
Manager on the Tenant giving the Manager reasonable advance notice
of the Tenant's requirements, the Tenant shall pay to the Landlord
and/or the Manager forthwith on demand or reimburse the Landlord
such amount as the Manager may, in accordance with the Deed of
Mutual Covenant, charge for such additional air-conditioning
service Provided that nothing herein shall oblige the Landlord to
arrange for such additional air-conditioning service the provision
whereof is governed by the Deed of Mutual Covenant.
6.12 SIGNS
The Tenant shall not exhibit or display on or affix to the interior or
exterior of the Premises so as to be visible from outside the Buildings any
writing, sign, signboard or other device whether illuminated or not or affix any
writing, sign, signboard or other device in, at or above any common area, lobby,
landing, passage or corridor of the Buildings Provided always that the Tenant
shall be entitled to have its name and business displayed in lettering and/or
characters to a design and standard of workmanship approved by the Landlord on a
signboard or name-plate at the entrance of the Premises. The Landlord and/or the
Manager or their respective authorized agents shall have the right to remove at
the expense of the Tenant any signboard, sign, name-plate and decorative device
associated therewith affixed or put up or displayed without the prior written
consent of the Landlord.
6.13 AERIALS
The Tenant shall not erect any aerial on the roof or walls of the
Buildings or on the ceiling or walls of the Premises or interfere with, remove,
dismantle or alter the common aerials (if any) provided by the Landlord.
6.14 PARKING
The Tenant shall not park in, obstruct or otherwise use or permit any of
its servants, agents, employees, contractors or licensees to park in, obstruct
or otherwise use those areas of the Buildings allocated to the parking or
movement of or access for vehicles or designated as loading/unloading areas
otherwise than in accordance with the permissions and directions of the Landlord
and/or the Manager or as permitted under the House Rules.
6.15 BREACH OF INSURANCE POLICY
The Tenant shall not do or cause or permit or suffer to be done any act
or thing whereby the policy or policies of insurance on the Premises and/or the
Buildings against loss or damage by fire and/or other insurable risks and/or
claims by third parties for the time being subsisting may become void or
voidable or whereby the rate of premium or
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premia thereon may be increased and the Tenant shall pay to the Landlord
forthwith on demand all sums paid by the Landlord by way of increased premium or
premia thereon and all expenses incurred by the Landlord in and about any
renewal of such policy or policies arising from or rendered necessary by a
breach by the Tenant of this Clause.
6.16 NO SUBLETTING
The Tenant shall not assign, underlet, part with the possession of or
transfer the Premises or any part thereof or any interest therein or permit or
suffer any arrangement or transaction whereby any person who is not a party to
this Lease obtains the use, possession, occupation or enjoyment of the Premises
or any part thereof irrespective of whether any rental or other consideration is
given therefor. The lease created hereby shall be personal to the Tenant named
in this Lease. Without limiting the generality of the foregoing, the following
acts and events shall, unless approved in writing by the Landlord, be deemed to
be breaches of this Clause:-
(a) In the case of the Tenant being a partnership, the taking in of
one or more new partner whether on the death or retirement of an
existing partner or otherwise.
(b) In the case of the Tenant being an individual (including a sole
surviving partner of a partnership tenant), the death, insanity or
other disability of that individual to the intent that no right to
use, possess, occupy or enjoy the Premises or any part thereof
shall vest in the executors, administrators, personal
representatives, next of kind, trustee or committee of such an
individual.
(c) In the case of the Tenant being a corporation, the take-over,
reconstruction, amalgamation, merger, voluntary liquidation or
change in the person or persons in whom the majority of its voting
shares are vested or who otherwise has/have effective control
thereof.
(d) The giving by the Tenant of a power of attorney or similar
authority whereby the donee of the power obtains the right to use,
possess, occupy and enjoy the Premises or any part thereof or does
in fact use, possess, occupy or enjoy the same.
(e) The change of the business name of the Tenant.
6.17 COMMON FACILITIES, ETC.
The Tenant shall not make any alteration to or interfere or tamper or
permit its servants, agents, employees, contractors or licensees to make any
alteration to or interfere or tamper with any of the following other than in the
manner expressly permitted hereunder:-
(a) the raised flooring within the Premises;
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(b) the heating, ventilation and air-conditioning system for the
Buildings (including that part of system installed within the
Premises);
(c) the electrical installations for the Buildings;
(d) the fire services installations of the Buildings (including those
within the Premises);
(e) the installations for plumbing and drainage for the Buildings
(including those within the Premises);
(f) the building management system of the Buildings;
(g) the communication network which forms part of the Common
Facilities (as defined in the Deed of Mutual Covenant) of the
Buildings;
(h) the suspended ceiling of the Buildings (including that within the
Premises); and
(i) the conduits, pipes, wires, cables and ducts in, on or under the
Premises or the raised flooring therein serving or intended to
serve the Buildings or any adjoining or neighbouring property.
7. LANDLORD'S OBLIGATIONS
The Landlord hereby agrees with the Tenant as follows:-
7.1 QUIET ENJOYMENT
Subject to the Tenant duly paying the Rent and the other charges
hereinbefore mentioned on the days and in manner herein provided for and
observing and performing the agreements, stipulations, terms, conditions and
obligations herein contained, the Tenant shall have quiet possession and
enjoyment of the Premises during the Term without any interruption by the
Landlord or any person lawfully claiming under or through or in trust for the
Landlord.
7.2 CROWN RENT
The Landlord shall pay the Crown Rent, Property Tax and all other
expenses of a capital and non-recurrent nature attributable to or payable in
respect of the Premises.
7.3 MAIN STRUCTURE
The Landlord shall use best endeavours to procure that the Manager shall
keep the roof of the Buildings and the main structure and walls (including the
glass curtain walls) thereof and the mains, drains, pipes and cables therein in
a proper state of repair and condition
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Provided that the Landlord shall not be liable for breach of this Clause unless
and until prior written notice of any defect or want of repair shall have been
given by the Tenant to the Landlord and the Landlord shall have failed to notify
the Manager to carry out any such necessary repair after the lapse of a
reasonable time from the service of such notice.
7.4 AIR-CONDITIONING
The Landlord shall use its best endeavours to procure that subject to the
right of the Manager under the Deed of Mutual Covenant to change the hours for
air-conditioning services, the Manager shall provide air-conditioning services
to the Premises daily from 8:00 a.m. until 6:30 p.m. everyday (Sundays and
public holidays excluded) for Mondays to Fridays and from 8:00 a.m. to 2:00 p.m.
on Saturdays (which are not public holidays). If the Tenant shall require
additional air-conditioning services outside the times specified by the
Landlord, the Landlord shall use its best endeavours to procure that the Manager
shall provide the same to the Tenant on receiving reasonable notice of the
Tenants requirements. The charges for air-conditioning outside the times
specified by the Landlord shall be determined by the Landlord and/or the Manager
and notified to the Tenant from time to time.
7.5 FACILITIES
The Landlord shall use best endeavours to procure that the Manager shall
maintain the lifts, escalators, travelators, fire and security services
equipment, central air-conditioning system and other common facilities of the
Buildings in proper working order and keep the same in good repair.
7.6 COMPLIANCE WITH CONDITIONS
The Landlord shall comply with the provisions of the Conditions of Sale
or the Crown Lease under which the Landlord holds the Premises and shall not do
or permit any act or thing to be done (or omitted to be done) which results in
the whole or any part of the Premises being or becoming subject to re-entry
under the Conditions of Sale or the Crown Lease.
7.7 LANDLORD'S REPAIRS
The Landlord shall, upon receipt of the Tenants request therefor and
within a reasonable period, effect such repairs to the interior of the Premises
as shall be necessitated by damage caused by any defects or want of repair in
the structure of the Buildings or any part thereof or any other services or
facilities if the Landlord is liable for such repairs hereunder.
8. EXCLUSIONS
8.1 It is hereby expressly agreed and declared that the Landlord
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shall not in any circumstances be liable to the Tenant or any other person
whomsoever:-
(a) Lifts, Air-Conditioning & Other Common Facilities - in respect of
any injury, loss, damage or loss of business whatsoever which may
be suffered or sustained by the Tenant or any other person or to
any property whatsoever caused by or through or in any way owing
to any malfunction, defect in or breakdown of the lifts,
escalators, travelators, fire and security services, central
air-conditioning system, satellite and the ancillary distribution
system, backbone distribution system, the "High Speed Data Link"
system or any other services or facilities provided in the
Building or any failure, malfunction, explosion, variation,
interruption or suspension of electricity or water supply or any
other services or services provided in the Building; or
(b) Fire & Overflow Water - in respect of any injury, loss, damage or
loss of business whatsoever which may be suffered or sustained by
the Tenant or any other person or to any property whatsoever
caused by or through or in any way owing to typhoon, landslide,
subsidence of the ground, the escape of fumes, smoke, fire or any
other substance or thing or the overflow of water or vibrations
from anywhere within the Buildings or in the neighborhood or the
influx of rain water or sea water into the Buildings or the
Premises or the activity of rats or other vermin in the Buildings
or the act, neglect, default or omission of the tenants and
occupiers of the other parts of the Buildings or the defective or
damaged condition of the Premises or the Landlord's Fixtures and
Installations or any part thereof or dropping or falling of any
article whatsoever from the Buildings; or
(c) Security - for the security or safekeeping of the Premises or any
contents therein and in particular but without prejudice to the
generality of the foregoing, the provision by the Landlord and/or
the Manager of watchmen and caretakers or any mechanical or
electrical alarm systems (if any) of whatever nature shall not
create any obligation on the part of the Landlord as to the
security of the Premises or any contents therein and the
responsibility for the safety of the Premises and the contents
thereof shall at all times rest with the Tenants; or
(d) Vehicles - for the supervision of or for any damage or loss to
vehicles or accessories or injury to persons or any other damage
resulting therefrom,
and the Tenant shall indemnify and keep the Landlord fully indemnified against
all claims and demands whatsoever made upon the Landlord by any
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of the servants, agents, employees, contractors or licensees of the Tenant or
any other person claiming through or under the Tenant as a result of any such
loss or damage or injury aforesaid nor shall the Rent and other charges
hereinbefore mentioned or any part thereof ▇▇▇▇▇ or cease to be payable on
account of the happening of any of the foregoing.
9. SUSPENSION OF RENT IN CASE OF FIRE ETC.
If:-
(a) the Premises or the Buildings or any part thereof shall at any
time during the Term be destroyed or damaged or become
inaccessible or uninhabitable owing to fire, water, storm,
typhoon, defective construction, white ants, earthquake,
subsidence of the ground or any calamity beyond the control of the
Landlord and not attributable to the act, default, neglect or
omission of the Tenant or any of its servants, agents, employees,
contractors or licensees so as to render the Premises unfit for
commercial use in accordance with Clause 2.1; or
(b) at any time during the Term the Premises or the Buildings shall be
condemned as a dangerous structure or a demolition order or
closing order shall become operative in respect of the Premises or
the Buildings so as to prevent the occupation of the Premises the
happening of which is not attributable to the act, default,
neglect or omission of the Tenant or any of its servants, agents,
employees, contractors or licensees,
then the Rent hereby reserved or a fair proportion thereof according to the
nature and extent of the damage sustained or the order made shall after the
expiration of the then current calendar month be suspended until the Premises
shall be reinstated or fit for the use as aforesaid or the said order lifted, as
the case may be, Provided that:-
(i) the Landlord shall not be obliged to reinstate the Premises or the
Buildings or carry out any repairs thereto if, by reason of the
condition of the Premises or any local regulations or other
circumstances beyond the control of the Landlord, it is not
practicable or reasonable so to do; and
(ii) should the Premises or the Buildings not have been reinstated in
the meantime, either the Landlord or the Tenant may at any time
after four (4) months from the date of occurrence of such damage
or the said order give to the other of them a notice in writing to
determine this Lease and thereupon the same and everything herein
contained shall cease and be of no effect as from the date of such
notice but without prejudice to the rights and remedies of either
party against the other in respect of any
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antecedent claim or breach of the agreements, stipulations, terms
and conditions herein contained or of the Landlord in respect of
the Rent payable hereunder prior to the date off such notice.
In the event of any disagreement between the parties hereto on the application
of this Section, the matter shall be referred to a single Chartered Surveyor
appointed by mutual agreement or failing agreement to a single Chartered
Surveyor nominated by the Chairman for the time being of the Royal Institution
of Chartered Surveyors (Hong Kong and China branch) and the decision of the
Chartered Surveyor who shall be acting as an arbitrator shall be final and
binding. The costs of such appointment of the Chartered Surveyors shall be borne
by the Landlord and the Tenant in equal shares.
10. DEFAULT
It is hereby expressly agreed and declared as follows:-
10.1 If:-
(a) the Rent and/or any of the other charges payable hereunder or any
part thereof shall be in arrear for fourteen (14) days after the
same shall have become payable (whether formally demanded or not);
or
(b) the Tenant shall suspend business without the Landlord's prior
written consent; or
(c) there shall be any other breach or non-performance of any of the
stipulations, conditions or agreements herein contained and on the
part of the Tenant to be observed or performed; or
(d) the Tenant shall become bankrupt or enter into composition with
his creditors generally or being a corporation go into liquidation
whether compulsory or voluntary (save for the purposes of
amalgamation or reconstruction approved by the Landlord) or shall
suffer a receiver to be appointed; or
(e) the Tenant shall suffer execution to be levied upon the Premises
or otherwise on the Tenant's goods in Hong Kong,
then and in any such case it shall be lawful for the Landlord at any time
thereafter to re-enter on and upon the Premises or any part thereof in the name
of the whole and thereupon this Lease shall absolutely determine but without
prejudice to any right of action by the Landlord in respect of any outstanding
breach or non-observance or non-performance by the Tenant of any of the terms of
this Lease. A written notice served by the Landlord on the Tenant to the effect
that the Landlord thereby exercises the power of re-entry herein contained shall
be a full and sufficient
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exercise of such power without physical entry on the part of the Landlord
notwithstanding any rule of law or equity to the contrary.
10.2 Notwithstanding anything herein contained if the Rent, management,
air-conditioning or other charges or moneys herein reserved or any part or parts
thereof shall be in arrears (hereinafter referred to as "the Arrears") and if
the Tenant persists in its failure to pay the same after three (3) days' notice
in writing is given by the Landlord, the Landlord shall be entitled to:-
(a) recover from the Tenant as a debt the expenses incurred by the
Landlord in the course of recovering the Arrears including without
limitation:-
(i) such sum as the Landlord shall reasonably determine being
collection charges for the additional work incurred by the
Landlord's staff and/or the Manager (as the case may be) in
collecting the Arrears;
(ii) all legal charges and expenses on an indemnity basis
incurred by the Landlord for the purpose of recovering the
Arrears;
(iii) all other fees paid to debt-collectors appointed by the
Landlord for the purpose of collecting the Arrears; and
(b) disconnect or discontinue the supply of services to the Premises
and/or to the Tenant such as air-conditioning services, water,
gas, electric power, management and other services forthwith
without incurring any liability to the Tenant for any loss or
damage suffered by the Tenant as a result thereof;
Provided Always that the rights and remedies given to the Landlord by this
Clause shall be deemed cumulative remedies and shall not prejudice any right of
action or any remedy of the Landlord for the recovery of any Rent or money due
to the Landlord from the Tenant.
10.3 Any demand for or acceptance of any Rent by the Landlord or its agents
hereunder 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 agreements, stipulations, terms and
conditions herein contained and on the part of the Tenant to be observed and
performed and any such breach, non-observance or non-performance shall be deemed
to be a continuing breach of covenant and the Tenant shall not be entitled to
set up any such demand for or acceptance of rent as a defence in any action for
forfeiture or otherwise.
10.4 For the purpose of this Lease, any act, default, neglect or omission of any
servant agent employee contractor or licensee (which term shall include any
person present in using or visiting the Premises with
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the consent of the Tenant express or implied) of the Tenant shall be deemed to
be the act, default, neglect or omission of the Tenant and any act, default,
neglect or omission of any servant agent employee contractor or licensee of the
Landlord shall be deemed to be the act, default, neglect or omission of the
Landlord.
10.5 For the purposes of Part III of the Landlord and Tenant (Consolidation)
Ordinance or any statutory modification or re-enactment thereof for the time
being in force and of this Lease, the Rent and the management charges payable in
respect of the Premises shall be and be deemed to be in arrear if not paid in
advance at the times and in the manner hereinbefore provided for payment
thereof.
11. DEPOSIT
11.1 To secure the due payment of the Rent and the due performance and
observance of the terms and conditions herein contained and on the part of the
Tenant to be performed and observed, the Tenant shall on the signing hereof and
throughout the Term maintain a deposit ("the Deposit") in such sum as shall from
time to time be equivalent to the aggregate of:-
(a) two (2) months' Rent payable hereunder;
(b) three (3) months' management fees payable hereunder from time to
time (initially of the amount set out in Part 2 of the Fourth
Schedule hereto); and
(c) one (1) quarter's rates payable in respect of the Premises by
reference to rateable value of the Premises and pending valuation
of the Premises in accordance with the Rating Ordinance (Cap.
116), by reference to the interim valuation made by the Landlord
pursuant to Clause 4.3(c).
The Deposit shall remain deposited with the Landlord and shall not be withdrawn
throughout the Term and shall only be released as hereinafter provided. The
Landlord shall be entitled to deduct from the Deposit the amount of all losses
and damages sustained or incurred by the Landlord as a result of any breach,
non-observance or non-performance by the Tenant of any of the covenants, terms
or conditions herein contained. The Tenant shall forthwith on demand deposit
with the Landlord the amount so deducted or (as the case may be) an additional
amount to the intent that the Tenant shall at all times during the Term maintain
with the Landlord as Deposit a sum as shall be equivalent to the aggregate of:-
(i) two (2) months' Rent payable hereunder;
(ii) three (3) months' management fees payable hereunder from time to
time.
(iii) one (1) quarter's rates payable in respect of the Premises by
reference to rateable value of the Premises and pending valuation
of the Premises in accordance with the Rating
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Ordinance (Cap. 116), by reference to the interim valuation made
by the Landlord pursuant to Clause 4.3(c).
11.2 The Deposit shall be retained by the Landlord until the expiration of the
Term and after all the Tenant's covenants terms and conditions shall have been
duly performed and observed, it shall be repaid to the Tenant without interest
or compensation within thirty (30) days from the date of the Tenant delivering
up vacant possession of the Premises together with all fixtures and fittings
therein and thereto to the Landlord or within thirty (30) days from the date of
the full and final settlement by the Tenant of all claims made by the Landlord
in respect of the Tenant's obligations hereunder whichever shall be the later
Provided that the Landlord may prior to refund of the Deposit require the Tenant
to produce receipts for rates and other utilities covering the Term or other
evidence showing that payment thereof has been made by the Tenant during the
Term.
12. BUILDING MANAGEMENT & REGULATIONS
12.1 CHANGE OF COMMON AREAS, ETC
The Landlord or the Landlord's agent shall have the right from time to
time and at any time without the same constituting an actual or constructive
eviction of the Tenant and without incurring any liability to the Tenant in
respect thereof but causing as little inconvenience as possible to the Tenant to
erect install, restrict and/or alter the arrangement and/or the location and/or
alter the arrangement and/or the accessibility of entrances, staircases,
landings, passages, doors, doorways, corridors, lobbies, lifts, escalators,
travelators, lavatories, counters, showcases or other common areas of the
Buildings or any services or apparatus or installations serving the Buildings.
12.2 CONFLICT WITH HOUSE RULES
The House Rules shall be supplementary to the terms and conditions
contained in this Lease and shall not in any way derogate from such terms and
conditions. In the event of conflict between such House Rules and the terms and
conditions of this Lease the terms and conditions of this Lease shall prevail.
12.3 NON-ENFORCEMENT
The Landlord or the Landlord's agent shall not be liable for any loss or
damage howsoever caused arising from any non-enforcement of the Deed of Mutual
Covenant or the House Rules or non-observance thereof by any person.
12.4 DESIGNATION OF COMMON AREAS
The Landlord and/or the Manager shall be entitled to restrict, designate,
cordon off and/or partition any part or parts of the common areas and/or the
common facilities for the sole use of any tenant and/or
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32
the Manager and the Tenant shall not raise any objection thereto and shall not
have any recourse against the Landlord and/or the Manager in any manner
whatsoever.
12.5 ALTERATION AND DISPLAYS
The Landlord reserves the right from time to time to improve extend add
to or reduce the Buildings or any part thereof or in any manner whatsoever alter
or deal with the Buildings or any part thereof (other than the Premises)
Provided always that in exercising such right the Landlord will endeavour to
cause as little inconvenience to the Tenant as is practicable under the
circumstances.
12.6 NAME OF THE BUILDINGS
Subject to the terms of the Deed of Mutual Covenant, the Landlord hereby
reserves the right from time to time by giving not less than three (3) months'
notice to the Tenant to change the names of the two (2) blocks of office
premises and the podium comprised in the Buildings or any one or more of them
without thereby becoming liable to the Tenant, its servants, agents or licensees
for any damages, claims, costs or expenses suffered or incurred as a result of
or in connection with any such change.
12.7 PUBLIC ADDRESS SYSTEM
Notwithstanding anything herein contained or implied to the contrary, the
Landlord may provide and install a public address system throughout the common
areas and may play, relay or broadcast or permit any other person to play, relay
or broadcast recorded music or public announcement therein.
13. INTERPRETATION AND MISCELLANEOUS
13.1 CONDONATION NOT A WAIVER
No condoning, excusing or overlooking by the Landlord of any default,
breach, non-observance or non-performance by the Tenant at any time or times of
any of the agreements, stipulations, terms and conditions herein contained shall
operate as a waiver of the Landlord's rights hereunder in respect of any
continuing or subsequent default, breach, non-observance or non-performance or
so as to defeat or affect in any way the rights and remedies of the Landlord
hereunder in respect of any such continuing or subsequent default or breach and
no waiver by the Landlord shall be inferred from or implied by anything done or
omitted by the Landlord unless expressed in writing and signed by the Landlord.
Any consent given by the Landlord shall operate as a consent only for the
particular matter to which it relates and shall in no way be considered as a
waiver or release of any of the provisions hereof nor shall it be construed as
dispensing with the necessity of obtaining the specific written consent of the
Landlord in the future in respect of similar or other matters unless expressly
so provided.
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13.2 SERVICE OF NOTICES
Any notice required to be served on the Tenant shall be sufficiently
served if delivered to or despatched by pre-paid post to or left at the Premises
or at the last known address of the Tenant. Any notice to be served on the
Landlord shall be sufficiently served if delivered to or despatched by pre-paid
post to the registered office of the Landlord. A notice sent by hand shall be
deemed to be given upon delivery to the addressee and a notice sent by pre-paid
post shall be deemed to be given two (2) days after the date of the notice.
13.3 LANDLORD AND TENANT LEGISLATION
To the extent that the Tenant may lawfully so do the Tenant hereby
expressly agrees to deprive himself of all rights (if any) to protection against
eviction or ejectment provided by any existing legislation or by any future
enactment in substitution or amendment thereof or addition thereto to the intent
that the Tenant shall deliver up vacant possession of the Premises to the
Landlord at the expiration or sooner determination of the Term hereby created
notwithstanding any rule of law or equity to the contrary.
13.4 GENDER, ETC.
In this Lease, if the context permits or requires, words importing the
singular number shall include the plural number and vice versa and words
importing the masculine feminine or neuter gender shall include the other of
them and references to any Ordinance, regulation or other statutory provision
include references to such Ordinance, regulation or provision as from time to
time modified, codified or re-enacted.
13.5 MARGINAL NOTES
The marginal notes, headings and index 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.
13.6 STAMP DUTY
The stamp duty and Land Registry registration fees payable on this Lease
and its counterpart shall be borne by the Landlord and the Tenant hereto in
equal shares. Each of the Landlord and the Tenant shall pay its own legal costs
of and incidental to the Lease and its counterpart.
13.7 EXCLUSION OF WARRANTIES
(a) This Lease and a Side Letter of even date herewith sets out the
full agreement reached between the parties hereto and no other
representations have been made or warranties given relating to the
Landlord, the Tenant, the Buildings or the Premises and if any
such representations have been
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made or warranties given the same are hereby waived.
(b) Nothing herein contained shall confer on the Tenant any right,
interest, privilege, easement or appurtenance whatsoever mentioned
or referred to in Section 16(1) of the Conveyancing and Property
Ordinance (Chapter 219 of the Laws of Hong Kong) save those
expressly set out herein.
13.8 NO FINE OR PREMIUM PAID
The Tenant acknowledges that no fine premium key money or other
consideration has been paid by the Tenant to the Landlord or its agents for the
grant of this Lease.
13.9 INSPECTION OF PREMISES
The Tenant hereby declares and confirms that it has duly inspected the
Premises and is satisfied with the current state and condition of the Premises
and the fixtures and finishes therein. The parties hereto agree that the
Premises will be let to 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 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 and 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, regulation, 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 Premises And
the Tenant hereby further agrees to indemnify the Landlord in respect of any
breach by the Tenant of the aforesaid And in particular but without limitation
no warranty or representation is given or made by the Landlord or its agents
regarding:-
(a) the fittings and finishes or the installations and appliances (if
any) in the Premises and/or the Buildings;
(b) the state and condition of the Premises or the Buildings and the
user thereof; or
(c) the composition of the Buildings
13.10 JOINT & SEVERAL LIABILITY
Where more than one person are named in Part 3 of the First Schedule
hereto as the Tenant, the representations, warranties, agreements, undertakings
and covenants herein contained on the part of the Tenant shall be the joint and
several representations, warranties, agreements, undertakings and covenants of
such persons.
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13.11 CONFIRMATION
The Confirmors hereby confirm that the Landlord may enter into this Lease
notwithstanding the acquisition of equitable interests over the Premises by the
Confirmors.
13.12 EARLY TERMINATION
If the Landlord shall at any time during the Term enter into an agreement
for the sale of the Buildings or any part thereof including the Premises, the
Landlord shall be entitled to give to the Tenant six (6) months' notice in
writing to terminate this Lease and immediately upon the expiration of such
notice, this Lease shall absolutely determine but without prejudice to any right
of action by the Landlord in respect of any outstanding breach or non-observance
or non-performance by the Tenant of any of the terms of this Lease.
13.13 SALE SUBJECT TO LEASE
For the avoidance of doubt, it is hereby expressly declared and agreed
that if the Landlord shall at any time during the Term sell the Premises, then
as from the date of completion of the sale of the Premises by the Landlord and
subject to novation to the purchaser of the Premises of the Landlord's
obligation in respect of the Deposit, all the rights, powers, remedies, duties,
obligations and liabilities of the Landlord hereunder shall pass to and be
vested in the purchaser of the Premises and the Landlord shall be absolutely
released and discharged from all duties, obligations and liabilities hereunder
Provided that this Clause shall not in any way prejudice or affect the rights of
the Landlord or the Tenant hereunder which shall have accrued prior to the date
of completion of the sale of the Premises by the Landlord.
13.14 SPECIAL CONDITIONS
For the avoidance of doubt, it is hereby agreed that this Lease shall be
read and construed on the basis that the special conditions, if any, set out in
the Sixth Schedule hereto form an integral part of this Lease. In the event of
conflict between such special conditions and the terms and conditions
hereinbefore provided, the special conditions shall prevail.
13.15 LAW
This Lease shall be governed by and construed in accordance with the Laws
of Hong Kong. The Tenant hereby irrevocably submits to the non-exclusive
jurisdiction of the courts of Hong Kong and the States of New York and Delaware.
The Tenant hereby agrees that a judgement in any proceedings brought in any such
court may be enforced in any other jurisdiction by suit on the judgement or in
any other manner permitted by law. The submission aforesaid is non-exclusive and
the Landlord reserves the right to proceed in any other jurisdiction having or
claiming or accepting jurisdiction in respect of this Lease.
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THE FIRST SCHEDULE
THE LANDLORD: SHINE HILL DEVELOPMENT LIMITED whose registered office is
situate at 33rd Floor, Great ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇.
PART 2
THE CONFIRMORS: SHINE BELT LIMITED, FAIR PAGE LIMITED, PANHY
LIMITED and MAPLE COURT LIMITED all having their registered
offices situate at Suite 801, Asia Pacific Finance Tower,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇.
PART 3
THE TENANT: ▇▇▇▇▇▇▇ ▇▇▇▇▇ (ASIA) FINANCE whose registered office is
situate at ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇ Indies.
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THE SECOND SCHEDULE
PART 1
THE BUILDINGS: Two (2) towers of office/commercial buildings, one
of which consisting of forty-seven (47) storeys and
called "CITIBANK TOWER" and the other of which
consisting of thirty-seven (37) storeys and called
"ASIA PACIFIC FINANCE TOWER" together with the
podium called "CITIBANK PLAZA" on which "CITIBANK
TOWER" and "Asia Pacific Finance Tower
PART 2
THE PREMISES: All That the whole of the Thirty-seventh Floor of
"ASIA PACIFIC FINANCE TOWER" which is for the
purpose of identification shown coloured Pink on the
Plan attached hereto.
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38
THE THIRD SCHEDULE
THE TERM: The period of five (5) years and seven (7) months
commencing on 15 October 1993 and expiring on 14 May
1999 (both days inclusive).
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39
THE FOURTH SCHEDULE
PART 1
The Rent (excluding management charges):
Rent Payable (in Hong Kong Dollars) per
Period calendar month and exclusive of rates
------ -------------------------------------
From 15 October 1993
To 14 December 1993 rent free period
From 15 December 1993
To 14 May 1996 HK$931,336.00
From 15 May 1996
To 14 May 1999 New Rent determined in accordance with
Special Condition 2 of the Sixth Schedule
PART 2
MANAGEMENT CHARGES: HK$62,366.25 per calendar month (subject to increase
in accordance with Clause 4.2 hereof)
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THE FIFTH SCHEDULE
INSURED AMOUNT
(a) THIRD PARTY LIABILITY
(i) HK$5,000,000.00 for any one (1) accident; and
(ii) unlimited cover for the insured period.
(b) GLASS The insured amount to be approved by the Landlord.
(c) WATER DAMAGE AND TENANT'S FITTINGS Minimum of HK$500.00 per square foot
of lettable area or a lump sum of HK$500,000.00, whichever is the
greater.
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41
THE SIXTH SCHEDULE
SPECIAL CONDITIONS
1. RENT FREE PERIOD
The Tenant shall be entitled to occupy the Premises for the first two (2)
months of the Term (i.e. from 15 October 1993 to 14 December 1993) rent-free
Provided that the Tenant shall pay management charges, rates and utility charges
in accordance with the provisions of this Lease during the said period and
Provided that any delay in the completion of the fitting out work during the
said period caused by any reason whatsoever shall not in any way release the
Tenant from its obligations hereunder to pay the Rent, management charges, rates
and utility charges in accordance with the provisions of this Lease.
2. NEW RENT
2.1 The New Rent referred to in the Fourth Schedule shall be determined in
accordance with the provisions of this Paragraph 2.
2.2 The New Rent shall be determined by agreement between the Landlord and the
Tenant and such agreement shall be recorded in writing signed by the Landlord
and the Tenant.
2.3 If such agreement cannot be reached between the Landlord and the Tenant one
(1) month before the commencement of the period in respect of which the New Rent
is payable (hereinafter called "THE NEW RENT PERIOD"), the matter shall be
referred to an independent surveyor and valuer (hereinafter called "THE VALUER")
to be appointed by the Landlord and the Tenant within one (1) month before the
commencement of the New Rent Period and failing agreement as to the appointment,
shall be appointed by the Chairman for the time being of The Royal Institute of
Chartered Surveyors (Hong Kong Branch). The Valuer shall make a decision as to
the New Rent before the commencement of the New Rent Period and subject to
approval by the mortgagee of the Premises (the approval of the mortgagee not to
be unreasonably withheld), the decision of the Valuer shall be conclusive and
binding on the parties hereto.
2.4 In determining the New Rent, the Valuer shall act as an expert and not as an
arbitrator and shall take into account the open market rent for prime office
accommodation elsewhere in Central, Hong Kong and/or in similar office buildings
in Hong Kong having attributes comparable to those of the Buildings at the
commencement of the New Rent Period Provided that the Valuer shall take into
such open market rent per se and disregard all incentives (including without
limitation rent free period and decoration or removal allowances) that may have
the effect of reducing the effective return on such open market rent. The Valuer
shall act on the assumptions that as at that date:
(a) the Premises are fit for immediate occupation and use complete and
that the works, if any, carried out by the
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42
Tenant or its sub-tenants (if any and whether permitted hereunder
or otherwise) or the predecessor in title of the Tenant do not in
any way diminish or increase the rental value of the Premises and
that in case the Premises have been damaged or destroyed, they
have been fully reinstated and restored;
(b) the Premises are available for letting by a willing landlord to a
willing tenant with vacant possession and without a premium and
subject to the provisions of this Lease for a term equal to the
New Rent Period;
(c) the covenants herein contained on the part of the Tenant have been
duly performed, observed and complied with by the Tenant; and
(d) the Premises are being offered in the open market as a single
letting comprising not only the Premises but also the whole of the
33rd Floor, 36th Floor and Suites 3407, 3408, 3409, 3410 and 3411.
on the 34th Floor of Asia Pacific Finance Tower, but disregarding
the following factors:
(i) any effect on the rent of the fact that the Tenant has been
in occupation of the Premises;
(ii) any goodwill attached to the Premises by reason of the
carrying on thereat of the business of the Tenant; or
(iii) any increase in the rental value of the Premises
attributable to any improvements to the Premises or any
part thereof made during the Term including any fitting out
works carried out by and at the expense of the Tenant.
If the Valuer shall die, delay or become unwilling or incapable of acting or if
for any other reason the Chairman for the time being of the Royal Institute of
Chartered Surveyors (Hong Kong Branch) or the person acting on his behalf shall
in its absolute discretion think fit, he may by writing discharge the Valuer and
appoint another in his place.
2.5 Pending determination of the New Rent, the Tenant shall continue to pay on
account of the New Rent the Rent that was payable immediately before the
commencement of the New Rent Period and within fourteen (14) days after the
determination of the New Rent, the Tenant shall pay to the Landlord the
difference between the rent actually paid during the period pending
determination of the New Rent and the New Rent for the same period determined as
aforesaid plus such amount of interest as may be directed by the Valuer as being
reasonable.
2.6 The costs and expenses of the Valuer including the costs of his appointment
shall be borne by the Landlord and the Tenant in equal shares. The Landlord and
the Tenant shall each bear its own costs and expenses incurred in respect of or
in connection with the determination of the New Rent.
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3. OTHER CONDITIONS
The Tenant hereby acknowledges and agrees that the lease hereby granted
is subject to the condition that on or before 18 March 1994, the Tenant shall
deliver to the Landlord the following documents and the Tenant hereby undertakes
to deliver to the Landlord the following documents within the time limit
aforesaid:
(a) a certified copy of the Board resolutions of the Tenant relating to the
execution of this Lease;
(b) a Guarantee of even date herewith ("the Guarantee") executed by The
▇▇▇▇▇▇▇ Sachs Group, L.P. ("the Guarantor") in favour of the Landlord in
the same form as that already given by the Guarantor in favour of the
Landlord in relation to the 36th and Part of the 34th Floors of Asia
Pacific Finance Tower, let by the Landlord to the Tenant; and
(c) a legal opinion (in form and substance reasonably acceptable to the
Landlord) issued by an in-house Counsel of the Guarantor regarding the
legality, validity and enforceability of the Guarantee.
If the Tenant fails to comply with the aforesaid condition, the Landlord may, by
notice in writing to the Tenant, terminate this Lease.
4. CROSS DEFAULT
(a) By a Lease ("THE FIRST LEASE") dated 24 June 1992, registered in the Land
Registry by Memorial No.5337973 and made between (1) the Landlord; (2)
the Confirmors; and (3) ▇▇▇▇▇▇▇ ▇▇▇▇▇ (Asia) Limited ("THE OUTGOING
TENANT"), the Landlord let to the Outgoing Tenant all those premises more
particulary described in the Second Schedule thereto ("THE FIRST
PREMISES") subject to the terms and conditions thereof.
(b) By an Assignment ("THE ASSIGNMENT") dated 22 June 1993 and made between
(1) the Outgoing Tenant; (2) the Tenant; (3) the Landlord; and (4) the
Confirmors, the Outgoing Tenant assigned to the Tenant all the estate
right benefit and interest of the Outgoing Tenant in the First Premises
comprised in the First Lease and all the rights of the Outgoing Tenant
under the First Lease To Hold the same unto the Tenant for the residue of
the term created by the First Lease subject to payment of the rent
reserved by and to the observance and performance of the covenants
agreements and conditions contained in the First Lease and on the part of
the Outgoing Tenant to be observed and performed.
(c) By a Lease ("THE SECOND LEASE") dated 22 June 1993 and made between (1)
the Landlord; (2) the Confirmors; and (3) the Tenant, the Landlord let to
the Tenant all those premises more
- 42 -
44
particularly described in the Second Schedule thereto ("THE SECOND
PREMISES") subject to the terms and conditions thereof.
(d) By a Lease ("THE THIRD LEASE") dated 17 November 1993 and made between
(1) the Landlord; (2) the Confirmors; and (3) the Tenant, the Landlord
let to the Tenant all those premises more particularly described in the
Second Schedule thereto ("THE THIRD PREMISES") subject to the terms and
conditions thereof.
(e) The Tenant hereby expressly agrees that notwithstanding the provisions of
this Lease, the First Lease, the Second Lease and the Third Lease,
(i) the deposits made by the Tenant pursuant to Clause 11 of the First
Lease, the Second Lease and the Third Lease ("THE FIRST, SECOND
AND THIRD DEPOSITS") shall constitute security for the due payment
of the Rent payable under this Lease and the due performance and
observance by the Tenant of the terms and conditions of this Lease
as if the First, Second and Third Deposits form part of the
deposit paid by the Tenant pursuant to Clause 11 of this Lease;
and
(ii) the deposit made by the Tenant pursuant to Clause 11 of this Lease
("THE FOURTH DEPOSIT") shall constitute security for the due
payment of the Rent payable under the First Lease, the Second
Lease and the Third Lease and the due performance and observance
by the Tenant of the terms and conditions of the First Lease, the
Second Lease and the Third Lease as if the Fourth Deposit forms
part of the deposits paid by the Tenant pursuant to Clause 11 of
the First Lease, the Second Lease and the Third Lease.
(f) The Tenant further expressly agrees that any default under Clause 10.1 of
the First Lease, the Second Lease and the Third Lease will constitute a
default under Clause 10.1 of this Lease and vice versa thereby entitling
the Landlord to exercise all or any of its rights and remedies in respect
of the First Premises, the Second Premises, the Third Premises and the
Premises or any part thereof as if the First Premises, the Second
Premises, the Third Premises and the Premises had been let to the Tenant
under one single lease incorporating all the terms and conditions of this
Lease, the First Lease, the Second Lease and the Third Lease.
- 43 -
45
IN WITNESS whereof the parties hereto have executed this Lease the day
and year first before written.
SEALED with the Common Seal of ) [SEAL]
)
SHINE HILL DEVELOPMENT LIMITED and )
Lo Ka Shui ) /s/ [signature]
SIGNED by Lo Ka Shui )
Directors ) /s/ [signature]
whose signature(s) is/are verified by:-)
/s/ ▇. ▇. ▇▇▇▇▇
▇. ▇. ▇▇▇▇▇
Solicitor, Hong Kong
SEALED with the Common Seal of ) [SEAL]
)
SHINE BELT LIMITED and SIGNED by ) /s/ [signature]
Lo Ka Shui )
▇▇▇▇ ▇▇▇▇ Wan whose )
Directors ) /s/ [signature]
signature(s) is/are verified by:- )
/s/ ▇. ▇. ▇▇▇▇▇
Solicitor, Hong Kong
- 44 -
46
SEALED with the Common Seal of ) [SEAL]
)
FAIR PAGE LIMITED and SIGNED by ) /s/ [signature]
Lo Ka Shui )
▇▇▇▇ ▇▇▇▇ Wan whose ) /s/ [signature]
Directors )
signature(s) is/are verified by:- )
/s/ ▇. ▇. ▇▇▇▇▇
Solicitor, Hong Kong
SEALED with the Common Seal of ) [SEAL]
)
PANHY LIMITED and SIGNED by ) /s/ [signature]
Lo Ka Shui )
▇▇▇▇ ▇▇▇▇ Wan whose ) /s/ [signature]
Directors )
signature(s) is/are verified by:- )
/s/ ▇. ▇. ▇▇▇▇▇
Solicitor, Hong Kong
SEALED with the Common Seal of ) [SEAL]
)
MAPLE COURT LIMITED and SIGNED by ) /s/ [signature]
Lo Ka Shui )
▇▇▇▇ ▇▇▇▇ Wan whose ) /s/ [signature]
Directors )
signature(s) is/are verified by:- )
/s/ ▇. ▇. ▇▇▇▇▇
Solicitor, Hong Kong
- 45 -
47
SEALED with the Common Seal of )
)
▇▇▇▇▇▇▇ ▇▇▇▇▇ (ASIA) FINANCE AND ) /s/ ▇▇▇▇▇ ▇▇▇▇▇
)
SIGNED by ▇▇▇▇▇ ▇▇▇▇▇ DIRECTOR )
)
)
)
)
whose signature(s) is/are verified by:-)
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
whose signature are verified by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇
Solicitor, Hong Kong
- 46 -
48
[GRAPHIC OMITTED]
FLOOR PLAN 37TH FLOOR CITIBANK TOWER
49
Dated the 19th day of November 1998
CITIREALTY (HONG KONG) LIMITED
(Landlord)
and
▇▇▇▇▇▇▇ SACHS (ASIA) FINANCE
(Tenant)
-------------------------------
SUPPLEMENTAL LEASE
of
Rear Portion of 39th Floor of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
(▇▇▇▇▇▇ Lot No. 8888)
-------------------------------
REGISTERED in the Land Registry
by Memorial No. 7626220
on 8 December 1998
/s/ [ILLEGIBLE]
for Land Registrar
▇▇▇▇▇▇▇▇ Chance
Solicitors
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Ref: C0828-00227.WKMW/jwyc
50
THIS SUPPLEMENTAL LEASE is made this 19th day of November One
Thousand Nine Hundred and Ninety-eight
[STAMP]
BETWEEN:
(1) CITIREALTY (HONG KONG) LIMITED whose registered office is at ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Plaza, ▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ (hereinafter
called "the Landlord" which expression shall where the context admits
include its successors and assigns); and
(2) ▇▇▇▇▇▇▇ ▇▇▇▇▇ (ASIA) FINANCE having its principal place of business in
Hong Kong at 35th Floor, Asia Pacific Finance Tower, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ (hereinafter called "the Tenant").
WHEREAS:
(A) This Supplemental Lease is supplemental to a Lease dated the 7th day of
July 1997 ("the Lease") made between the Landlord as landlord of the one
part and the Tenant as tenant of the other part and registered in the Land
Registry by Memorial No.7196720 whereby All That Rear Portion of 39th
Floor of Citibank Tower, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ("▇▇▇
Premises") was let by the Landlord to the Tenant for the period commencing
on 1 June 1997 and expiring on 14 May 1999 (both days inclusive) ("the
Term") at such rent and upon such terms and conditions as more
particularly mentioned therein.
(B) The Tenant has requested for and the Landlord has agreed to an extension
of the Term for 12 months from 15 May 1999 to 14 May 2000 (both days
inclusive) and on the following terms and conditions.
WHEREBY IT IS AGREED as follows:-
1. The Term shall be extended for 12 months from 15 May 1999 to 14 May 2000
(both days inclusive) and the Rent payable by the Tenant to the Landlord
for the period from 15 May 1999 to 14 May 2000 shall be HK$485,892.00 per
calendar month (exclusive of Management Charges and rates).
2. The Lease shall be amended by:-
(a) deleting Clauses 3.2, 3.3, 3.4. 3.5. 3.6, 16 and 17; and
(b) deleting the words "together with an option to renew for a further
term of thirty-six (36) months in accordance with Clause 3.2" on the
second and third lines of the Third Schedule to the Lease.
3. Each party hereto shall bear its own legal costs and disbursements of and
incidental to the preparation and completion of this Supplemental Lease
but the stamp duty and Land
[STAMPS]
2
51
Registry registration fee payable on this Supplemental Lease shall be
borne by the parties hereto in equal shares.
4. Subject only to the variations and modifications herein contained, all the
other terms and conditions contained in the Lease shall remain in full
force and effect and shall be read and construed and be enforceable as if
the terms and conditions of this Supplemental Lease were inserted therein
by way of substitution or addition as the case may be.
IN WITNESS WHEREOF the parties hereto have executed this Supplemental
Lease the day and year first above written.
SIGNED by ▇▇▇▇▇ ▇▇▇▇ )
)
)
)
for and on behalf of the Landlord ) /s/ ▇▇▇▇▇ ▇▇▇▇
whose signature is verified by: )
)
/s/ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ Chance
Solicitor, Hong Kong SAR
SIGNED by )
)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ) /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
) ------------------------------
for and on behalf of the Tenant ) For and on behalf of
in the presence of/whose signature is ) ▇▇▇▇▇▇▇ Sachs (Asia) Finance
verified by :- )
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Solicitor
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Hong Kong SAR
3
52
SIDE LETTER
1. LEASE AND SUPPLEMENTAL LEASE
Reference is made to a lease made the 7th day of July 1997 between (a)
Citirealty (Hong Kong) Limited as the landlord ("the Landlord") and (b)
▇▇▇▇▇▇▇ Sachs (Asia) Finance as the tenant ("the Tenant") ("the Lease")
whereby the Landlord lets to the Tenant all those premises ("the
Premises") more particularly described in the Schedule hereto subject to
the terms and conditions thereof as extended by a supplemental lease made
the [19th] day of [November] 1998 between the same parties ("the
Supplemental Lease"). The terms defined in the Lease and Supplemental
Lease shall have the same meaning when used herein.
2. CONSTRUCTION
The parties hereto agree that the Lease and Supplemental Lease shall be
read and construed subject to the provisions hereof.
3. APPLICATION OF SIDE LETTER
(1) The parties hereto confirm and agree that the side letter previously
entered into by the parties hereto dated 7th July 1997 ("the Side
Letter") shall be amended to the extent that Clause 9 shall be
deleted and shall be replaced by the following wording:-
"Notwithstanding Clause 6.16 of the Lease, the Tenant may from time
to time during the residue of the Term assign the Lease into the
name of other companies within The ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, L.P. and
which are controlled, whether directly or indirectly as to ninety
per cent (90%) or more by the The ▇▇▇▇▇▇▇ Sachs Group, L.P. or any
entity to which all or ninety per cent (90%) or more of the assets
of The ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, L.P. may be transferred."
(2) The parties hereby confirm and agree that the Side Letter shall be
amended to the extent that Clause 6 thereof shall be deleted and
shall be replaced by the following:-
"Notwithstanding Clause 6.16 of the Lease, the Tenant may share
occupation of the Premises with ▇▇▇▇▇▇▇ Sachs (Asia) Securities
Limited and other companies which are within the group of the
companies controlled by The ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, L.P. and which are
controlled whether directly or indirectly as to ninety per cent
(90%) or more by The ▇▇▇▇▇▇▇ Sachs Group, L.P. or any entity to
which all or ninety per cent (90%) or more of the assets of The
▇▇▇▇▇▇▇ ▇▇▇▇▇ Group L.P. may be transferred."
(3) The parties hereby confirm and agree that the Side Letter shall be
amended to the extent that Clause 3 thereof shall be deleted.
53
(4) The parties hereby confirm and agree that the Side Letter shall be
amended to the extent that Clause 7.8 thereof shall be deleted.
(5) The parties hereby confirm and agree that the Side Letter shall be
amended to the extent that Clause 10 thereof shall be deleted.
4. MISCELLANEOUS
(1) Subject only to the variations and modifications herein contained
all the other terms and conditions contained in the Side Letter
shall remain in full force and effect and shall be construed and be
enforceable as if the terms and conditions of this side letter were
inserted therein by way of substitution deletion or addition as the
case may be.
(2) The parties further agree that this side letter shall not be lodged
for registration at the Land Registry and the content of this side
letter shall be kept strictly confidential.
THE SCHEDULE
The Premises
All That Rear Portion of the Thirty-ninth Floor of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ as shown hatched pink on the Plan attached to
the Lease.
IN WITNESS whereof the Landlord and the Tenant executed this Side Letter this
19th day of November 1998.
)
SIGNED by ▇▇▇▇▇ ▇▇▇▇ )
for and on behalf of the Landlord ) /s/ ▇▇▇▇▇ ▇▇▇▇ [SEAL]
whose signature(s) is/are verified by:- )
)
/s/ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ Chance
Solicitor Hong Kong SAR
SEALED with the Common Seal of )
▇▇▇▇▇▇▇ SACHS (ASIA) FINANCE ) /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ [SEAL]
and SIGNED by )
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ )
whose signature(s) is/are verified by:- )
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Solicitor
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Hong Kong SAR
-2-
54
SIDE LETTER
1. Tenancy Agreement
Reference is made to a Tenancy Agreement ("the Agreement") of even date
herewith and made between ▇▇▇▇▇ Real Estate Agency Limited as agent for the
registered owner of the Property, Fair Page Limited ("the Landlord") and ▇▇▇▇▇▇▇
▇▇▇▇▇ (Asia) Finance ("the Tenant") whereby the Landlord lets to the Tenant all
those premises ("the Premises") more particularly described in the Schedule
hereto subject to the terms and conditions of the Agreement. Terms defined in
the Agreement shall have the same meaning when used herein.
2. Construction of the Agreement
The parties hereby agree that the Agreement shall be read and construed
subject to the provisions hereof.
3. Charges for additional air-conditioning supply.
3.1 The Landlord hereby declares that the charges for additional
air-conditioning service referred to in Clause 4.04(b) of the Agreement is
currently estimated by the Manager to be:-
(a) at the rate of HK$13.40 for every two thousand (2,000) sq. ft. of lettable
area or part thereof for every hour or part thereof for long term standing
instructions; and
(b) at the rate of HK$45.00 for every two thousand (2,000) sq. ft. of lettable
area or part thereof for every hour or part thereof for ad hoc
instructions;
provided that whether instructions given shall qualify as long term standing
instructions or ad hoc instructions shall be determined by the Manager in its
absolute discretion.
3.2 Without prejudice to Clause 4.04(b) of the Agreement the Landlord shall use
its best endeavours to procure the Manager to provide the Tenant with additional
air-conditioning service if the same is required by the Tenant subject to the
Tenant complying with the terms of the Deed of Covenant relative to the
provision of additional air-conditioning service.
4. Power and Chilled Water Supply, etc.
4.1 Whereas the Landlord or its predecessor in title has permitted the Tenant
pursuant to three Side Letters dated 19th May 1994, 4th September 1995 and 11th
April 1997 in respect of prior leases or tenancy agreements in respect of the
Premises to make various connections to the tenants' main switchboards and to
install plant, machinery and equipment and make connections in the Building to
improve the power supply of the Premises and to allow for an additional chilled
water supply for the Premises, the Tenant agrees that the Tenant shall, at its
own costs and expense, keep all plant, machinery and
55
-2-
equipment installed in connection therewith and exclusively for the benefit of
the Tenant in good order and condition and properly maintained and shall execute
such repairs or replacements as may be required by the Landlord, the Manager,
the relevant Government departments or any affected utility companies provided
that:-
(a) in so far as the Manager considers that the maintenance or repair of any
of the aforesaid items is closely connected with the maintenance or repair
of the common facilities of the Building the Tenant shall allow the
Manager to execute the maintenance and or repair on behalf of the Tenant
and to pay to the Manager forthwith on demand the reasonable costs and
expenses incurred by the Manager in so doing;
(b) the Tenant shall pay the Manager forthwith on demand a fair and reasonable
proportion of the costs and expenses incurred by the Manager in
maintaining and repairing modifications to the existing plant, machinery
and equipment forming part of the common facilities of the Building which
are not solely for the benefit of the Tenant.
For the avoidance of doubt, the Tenant hereby expressly acknowledges that the
Landlord shall not in any way be responsible for the act, neglect, default or
omission of the Manager. The Tenant shall indemnify the Landlord against all
costs, claims, demands, actions and legal proceedings whatsoever made upon the
Landlord by any person in respect of any loss, damage or injury caused to any
person whomsoever or any property whatsoever whether directly or indirectly as a
result of the installation of plant, machinery and equipment made by the Tenant
or the defective or damaged condition of such plant, machinery, equipment or the
connections made by the Tenant for the purposes of obtaining the power supply
and additional chilled water supply.
4.2 For avoidance of doubt, the Tenant hereby acknowledges and agrees that its
obligations under Clause 3.23 of the Agreement shall be extended to the plant,
machinery and equipment installed pursuant to the provisions of this paragraph
as if the same were fixtures, fittings and additions made in or to the Premises.
The Tenant also undertakes at the expiration or sooner determination of the Term
to comply with any obligations entered into under the aforementioned Side
Letters to remove the said connections, plant, machinery and equipment and to
restore or reinstate any parts of the Building affected by such removal.
5. Non-Application of Provisions of the Agreement
5.1 Notwithstanding Clause 5.22(c) of the Agreement, the take-over,
reconstruction, amalgamation, merger or voluntary liquidation of the Tenant or
change in the person or persons who owns or own a majority of the Tenant's
voting shares or who otherwise has or
56
-3-
6. User of the Premises
Notwithstanding Clause 5.22 of the Agreement, the Tenant may share
occupation of the Premises with (i) ▇▇▇▇▇▇▇ Sachs (Asia) Securities Limited and
other companies which are within the group of companies controlled by the
▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, L.P. and which are controlled, whether directly or
indirectly as to ninety (90) percent or more by the ▇▇▇▇▇▇▇ Sachs Group, L.P.;
OR (ii) any entity previously approved by the Landlord in writing and to which
at least 90% of all the assets of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, L.P., has been
transferred ("the Licensee") provided that the Tenant ensures (and the Tenant
hereby undertakes to the Landlord that it will ensure) that:-
(i) the Licensee will occupy the Premises as a bare licensee only;
(ii) the Licensee will observe and perform the Tenant's obligations under
the Agreement;
(iii) prior to the expiration or determination (including but not limited
to the determination of the Term as a result of the breach of the
Agreement on the part of the Tenant) of the Term all and any right
of the Licensee to occupy the Premises or any part thereof shall be
fully and effectually extinguished and the Licensee shall cease to
occupy the Premises or any part thereof;
(iv) all the chattels, furniture, machines, plant, equipment and other
articles in on or at the Premises belonging to or in the possession
of the Licensee or the Tenant can be distressed or distrained by the
Landlord for non-payment of rent or other charges due under the
Agreement and execution can be levied upon the same; and
(v) the Licensee shall prior to its occupation sign and supply the
Landlord with an undertaking letter in the form set out in the
Appendix hereto.
7. Assignment of the Agreement
Notwithstanding Clause 5.22 of the Agreement, the Tenant may from time to
time during the residue of the Term assign the Agreement into the name of
another company within the ▇▇▇▇▇▇▇ Sachs Group, L.P. provided that the Tenant
shall obtain prior written approval of the Landlord (such approval not to be
unreasonably withheld).
8. Sub-letting
Notwithstanding Clause 5.22 of the Agreement, the Tenant may, with the
prior written consent of the mortgagee (if any) of the Premises (such consent
not to be unreasonably withheld) and subject to the consent of the Landlord as
hereinafter provided, sub-let not more than twenty-five (25) per cent of the
lettable area of Suites 3701 to 3707 on the 37th Floor of Citibank Tower ("the
Sub-lettable Portion") provided that the following provisions shall be complied
with by the Tenant:-
57
-4-
(a) if the Tenant is desirous of sub-letting the Sub-lettable Portion or any
part thereof, the Tenant shall notify the Landlord of its intention to
sub-let and shall provide the Landlord with particulars of the following:-
(i) the name of the proposed sub-tenant and other particulars thereof
which are reasonably required by the Landlord for the purpose of
deciding whether or not to approve the identity of the sub-tenant;
(ii) the nature of business proposed to be carried on by the proposed
sub-tenant at that part of the Sub-lettable Portion to be sub-let;
(iii) that part of the Sub-lettable Portion to be sub-let together with a
plan (which shall be for identification purposes only) showing the
position and dimension thereof; and
(iv) the terms and conditions of the proposed sub-letting including the
terms of the incentives and allowances, if any, to be granted to the
sub-tenant.
(b) The Tenant shall obtain the prior written consent of the Landlord to the
identity of the proposed sub-tenant and the business proposed to be
carried on by the proposed sub-tenant at that part of the Sub-lettable
Portion to be sub-let.
(c) The rent per square foot at which the Tenant offers any part or parts of
the Sub-lettable Portion for sub-letting (taking into account incentives
and allowances, if any, granted by the Tenant) shall not be less than the
rent then offered by the Landlord to prospective tenants for other
premises of a comparable size and location in the Building provided that
in the event that there shall be no other premises of a comparable size
and location in the Building then offered for rent by the Landlord, the
minimum rent at which the Tenant may offer any part or parts of the
Sub-lettable Portion for sub-letting to a sub-tenant shall be fixed by
reference to the mean of the rent then offered by the Landlord to
prospective tenants for other premises of a comparable size but in a
better location in the Building and the rent then offered by the Landlord
for other premises of comparable size but in an inferior location in the
Building.
(d) The rent per square foot at which the proposed sub-letting shall be made
(taking into account incentives and allowances, if any, granted by the
Tenant) shall be mutually agreed between the Landlord and the Tenant
provided that the agreement of the parties shall not be unreasonably
withheld.
(e) The sub-letting shall not extend beyond the expiry date of the Term and
the exercise of any right of renewal thereof shall not result in the term
of the sub-letting extending beyond the expiry date of the Term.
(f) The form of the agreement for sub-letting shall be approved by the
Landlord (the Landlord's approval not to be unreasonably withheld) and the
terms and conditions of the sub-letting (other than the incentives and
allowances, if any, to be granted to the sub-tenant) shall in all respects
be compatible with those of the Agreement and
58
-5-
shall contain agreements, undertakings and covenants no less onerous than
those imposed on the Tenant by the Agreement.
(g) All costs, charges and expenses associated with the sub-letting permitted
hereunder (including without limitation the costs of the partitioning to
be installed in the Sublettable Portion with the Landlord's prior written
consent) and the costs and expenses incurred by the Landlord in approving
the sub-letting shall be borne by the Tenant.
(h) If the Tenant shall derive a profit from the sub-letting (the said profit
being determined by comparing
(i) the effective rent per square foot of lettable area per month of the
Term payable by the Tenant to the Landlord and
(ii) the effective rent per square foot of lettable area per month of the
term of sub-letting payable by the sub-tenant to the Tenant and by
reference to the lettable area sub-let),
the Tenant shall share such profit with the Landlord in equal shares by
paying to the Landlord the appropriate amount as soon as possible and in
any event within seven (7) days after receipt of rent from the sub-tenant
on each occasion when rent is payable by the sub-tenant.
9. Fittings and Fixtures in the Premises
The Tenant hereby agrees with the Landlord to remove all fittings and
fixtures installed by any tenant of the Premises prior to the commencement of
occupation of the Premises by the Tenant and to deliver up the Premises in its
"bare-shell" condition together with the Landlord's fittings and fixtures upon
the expiry or sooner determination of the Term. For the avoidance of doubt it is
hereby declared that no warranty or representation on the part of the Landlord
is given or to be implied as to the repair, state, quality of fitness of any of
the previous tenants' fittings and fixtures.
10. Wall Separating Citibank Tower from Asia Pacific Finance Tower
Whereas the Tenant has been permitted by the Landlord or its predecessor
in title to break through the wall on the 37th Floor separating Citibank Tower
from Asia Pacific Finance Tower the Tenant shall at its costs reinstate the same
at the expiration or sooner determination of the Term.
11. Chilled Water Pipes
The Tenant shall not be responsible for the reinstatement of the chilled
water pipes running from Unit 3701-3702 which have been removed by the Tenant.
12. Glassed-in Stairs and Fire Doors
59
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The Landlord agrees that in the event that the glassed-in stairs and fire
doors do not conform in all respects with the Fire Services Department's
regulations the Landlord shall be responsible for the reinstatement of this
portion of the common areas of the Buildings at its own cost to ensure that they
do conform.
13. Non-registration
It is hereby agreed that this Side Letter shall not be lodged for
registration at the Land Registry. It is further agreed that the content of this
Side Letter shall be kept STRICTLY CONFIDENTIAL.
The Schedule
The Premises
All Those Suites 3606-3608 on the 36th Floor and 3701-3707 on the 37th
Floor of "CITIBANK TOWER" as shown coloured Pink and Pink hatched Black on the
36th and 37th Floor plans attached to the Agreement together with the right to
the exclusive use of this 4th day of December 1998.
60
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Appendix
Date:
▇▇▇▇▇ Real Estate Agency Limited
as agent for the registered owner,
Fair Page Limited
Dear Sirs,
Re: Suites 3606-3608 on 36th Floor and 3701-3707
on ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Plaza,
3 Garden Road, Hong Kong. ("the Premises")
We refer to a Tenancy Agreement of the Premises made between ▇▇▇▇▇
Real Estate Agency Limited as agent for the registered owner of the Property,
Fair Page Limited and ▇▇▇▇▇▇▇ ▇▇▇▇▇ (Asia) Finance (the "Tenant") for a term of
one year commencing on 15th May 1999 ("the Tenancy Agreement").
In consideration of your permitting us to share occupation of the
Premises with the Tenant, we hereby acknowledge and declare as follows:-
1. We have no legal or equitable interest, estate, right, title
or benefit of and in the Premises or the tenancy except as
licensee at will.
2. All the chattels, furniture, machines, plant, equipment or
other articles in on or at the Premises belonging to or in the
possession of ourselves or the Tenant can be distressed or
distrained by you for non-payment of rent or other charges due
under the Tenancy Agreement and execution can be levied upon
the same.
3. We will perform and observe all the terms covenants and
conditions on the part of the Tenant under the Tenancy
Agreement.
4. We will immediately vacate the Premises upon:
a. expiration or determination of the term of the Tenancy
Agreement;
b. any breach of the Tenancy Agreement;
c. (if applicable) if we cease to be within the same group
of companies as the Tenant.
5. We shall indemnify you and keep you indemnified against any
loss damage costs expenses claims proceedings or demands
suffered or
61
-8-
incurred by you howsoever arising in respect of our occupation
of the Premises and/or any breach of the above.
Yours faithfully,
----------------------------
For and on behalf of
62
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SEALED with the Common Seal )
)
of ▇▇▇▇▇ REAL ESTATE )
)
AGENCY LIMITED and SIGNED )
) /s/ Ma Wing Kai, ▇▇▇▇▇▇▇ [SEAL]
by Ma Wing Kai, William, )
Authorised Signatory )
)
whose signature(s) is/are verified )
)
by:- )
/s/ Avis ▇.▇. ▇▇▇
Solicitor
▇▇▇▇▇ Properties (H.K.) Limited
Hong Kong SAR
SEALED with the Common Seal )
)
of ▇▇▇▇▇▇▇ ▇▇▇▇▇ (ASIA) )
)
FINANCE and SIGNED by )
) /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ [SEAL]
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ )
)
whose signature(s) is/are verified )
)
by:- )
Director
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Solicitor
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Hong Kong SAR
63
Dated the 4th day of December 1998
▇▇▇▇▇ REAL ESTATE AGENCY LIMITED
AND
▇▇▇▇▇▇▇ ▇▇▇▇▇ (ASIA) FINANCE
-----------------------------------
TENANCY AGREEMENT
FOR
PREMISES IN ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇-▇, ▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇-▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ Plaza, 3 Garden Road,
Hong Kong.
-----------------------------------
REGISTERED in the Land Registry by
Memorial No.
on
p. Land Registrar
-----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & MASTER
SOLICITORS, &C.,
HONG KONG.
Ref.: SYCW/188831/2
ac/D5233 (081098)
64
CONTENTS
Page
SECTION I : AGREEMENT
1. Agreement 1
Parties 1
1.01 Premises 1
Term 1
Rent 1
SECTION II : PAYMENT OF RENT AND OTHER CHARGES
2.01 Rent 1
(i) Additional Rent 1
(ii) Management Charges 2
2.02 Rates etc. 2
2.03 Utility Charges and Deposits 2
2.04 Cleaning Charges 3
2.05 Other Facilities 3
SECTION III : TENANTS OBLIGATIONS
3.01 Compliance with Ordinances 3
3.02 Fitting out 4
3.03 To keep the interior in good repair 5
3.04 Repair of Glass Curtain Wall 6
3.05 Installation of wires cables and services 6
3.06 Repair of Electrical Installations 7
3.07 Good Repair of Toilets and Water Apparatus 7
3.08 Cleaning of Drains 7
3.09 Indemnification of Landlord and Insurance 7
3.10 Protection from typhoon 8
3.11 To permit Landlord to enter and view 8
3.12 To execute repairs on receipt of notice 8
3.13 Outside Windows 8
3.14 Inform Landlord of Damage 8
3.15 Cleaning and Cleaning Contractors 8
3.16 Refuse and Garbage Removal 8
3.17 Installation of Telephone Cables 8
3.18 Directory Boards 9
3.19 Contractors/Employees/Invitees and Licensees 9
3.20 Damage to Building 9
3.21 Regulations 9
3.22 User 9
3.23 Yield up Premises and Handover 9
3.24 Taxes 10
3.25 Common Facilities, etc. 10
65
SECTION IV : LANDLORD OBLIGATIONS AND RIGHTS
4.01 Quiet Enjoyment 11
4.02 Government Rent 11
4.03 Roof and Main Structure 11
4.04 Air-conditioning 11
4.05 Rights Reserved to the Landlord 12
4.06 Sale and re-development 12
SECTION V : RESTRICTIONS AND PROHIBITIONS
5.01 Installation and Alterations 13
5.02 Injury to Walls 14
5.03 No Alterations to Exterior 14
5.04 Obstructions to Outside Windows 14
5.05 Not erect gates or grilles 14
5.06 Noise 14
5.07 Signs 14
5.08 Auctions Sales 14
5.09 Illegal or Immoral Use 14
5.10 Sleeping or Domestic Use 15
5.11 Storage of Merchandise and Hazardous Goods 15
5.12 User 15
5.13 Obstructions in Passages 15
5.14 Parking & Loading 15
5.15 Deliveries and use of Passenger Lifts 15
5.16 Preparation of food and Prevention of Odours 15
5.17 Not to misuse lavatories 16
5.18 Animals, Pets and Infestation 16
5.19 No Touting 16
5.20 Breach of Government Lease or Conditions or Deed of
Mutual Covenant 16
5.21 Breach of Insurance Policy 16
5.22 Alienation 16
5.23 Advertising of Premises 17
SECTION VI : EXCLUSIONS
6.01 Lifts/Air-conditioning/Utilities 17
6.02 Fire and Overflow of Water 18
6.03 Security 18
SECTION VII : ABATEMENT OF RENT
7.01 Suspension of Rent in case of Fire, etc 18
SECTION VIII : DEFAULT
66
8.01 Default 19
8.02 Interest 19
8.03 Acceptance of Rent 20
8.04 Acts of Employees Invitees and Licensees 20
8.05 Distraint 20
SECTION IX : DEPOSIT
9.01 Deposit 20
9.02 Increase in Deposit 20
9.03 Repayment of Deposit 21
SECTION X : REGULATIONS
10.01 Introduction of Regulations 21
10.02 Conflict 21
SECTION XI : INTERPRETATION AND MISCELLANEOUS
11.01 Marginal Notes, Headings and Index 21
11 02 "the Building" 21
11.03 Normal Business Hours 21
11.04 Gender 21
11.05 Name of Building 22
11.06 Alterations To the Building 22
11.07 Condonation not a waiver 22
11.08 Letting Notices and Entry 22
11.09 Service of Notice 22
11.10 Stamp Duty and Costs 22
11.11 Deed of Mutual Covenant 22
11.12 No Key Money 23
11.13 Entire Agreement 23
SECTION XII : SPECIAL CONDITIONS
12 Special Conditions 23
FIRST SCHEDULE
Part I Parties 24
Part II The Building and the Premises 24
Part III Term 24
Part IV Rent free period 24
SECOND SCHEDULE
Part I Particulars of Rent 25
Part II Management Charges 25
Part III Deposit 25
67
THIRD SCHEDULE
User 25
FOURTH SCHEDULE
Special Conditions 25
Signatures 28
plan(s) annexed
68
SECTION 1
AGREEMENT
Agreement 1 This Tenancy Agreement is made this 4th day of
December One thousand nine hundred and ninety eight
BETWEEN
Parties (i) ▇▇▇▇▇ REAL ESTATE AGENCY LIMITED whose registered
office is at 14th floor, Cityplaza 3, 14 Taikoo
Wan Road, Taikoo Shing, Hong Kong ("the Landlord"
which expression shall include its successors in
title and assigns) of the one part and
(ii) The party of whom particulars are set out in Part
1 of the First Schedule hereto. ("the Tenant") of
the other part
NOW IT IS HEREBY AGREED as follows:-
Premises 1.01 The Landlord hereby agrees to let to the Tenant and
the Tenant hereby agrees to take a tenancy of ALL THOSE
the Premises ("the Premises") forming part of all that
Building ("the Building") respectively more particularly
described in Part II of the First Schedule TOGETHER WITH
the use in common with the Landlord and all others
having the like right of (i) the driveways, entrances,
staircases, landings and passages in or adjacent to the
Building in so far as the same are necessary for the
proper use and enjoyment of the Premises; (ii) the lift
service and air-conditioning service in the Building and
(iii) the free and uninterrupted passage and running of
water soil gas electricity and other services through
the sewers drains pipes cables wires and other service
media in or upon the Building or the raised floors
therein and serving the Premises except in so far as the
Landlord or the service company or agent for the time
being appointed as manager of the Building ("the
Manager") may from time to time
Term restrict such use FOR THE TERM specified in Part III of
the First Schedule hereto ("the Term") YIELDING AND
PAYING therefor throughout the Term the rent set
Rent out in Part I of the Second Schedule (subject to a
rent-free period as provided for and subject to the
terms as set out in Part IV of the First Schedule) and
by way of additional rent the additional
air-conditioning charges (from time to time payable) and
the Management Charges as set out in Part II of the
Second Schedule which rent and additional rent shall be
paid exclusive of rates in advance free and clear of all
deductions and set-off on the first day of each calendar
month throughout the Term the first and last of such
payments to be apportioned according to the number of
days in the calendar month in which the Term commences
or ends.
SECTION II
PAYMENT OF RENT AND OTHER CHARGES
2. The Tenant hereby agrees with the Landlord as
follows:-
Rent 2.01 To pay on the days and in the manner hereinbefore
provided without deduction or set off in Hong Kong
Currency the rent and by way of further or
Additional Rent additional rent in respect of the Premises.-
[STAMPS]
69
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Management Charges (i) Management Charges (which includes
air-conditioning during Normal Business Hours) for
management services provided and amounts expended
in relation to the management and maintenance of
the Building from time to time payable by the
Tenant as set out in Part II of the Second
Schedule
(ii) in addition to the Management Charges referred to
in Part II of the Second Schedule, if at any time
or times during the Term the cost of providing the
management service shall have increased, the
Landlord shall have the right to increase the
amount of the Management Charges payable by the
Tenant to cover the increase in the cost to the
Landlord since in the first instance the date of
commencement of the Term and thereafter since the
date of the last increase and a notice in writing
served by the Landlord on the Tenant notifying the
Tenant of an increase in the Management Charge
shall be served but (in the absence of manifest
error) the Landlord's assessment shall be
conclusive and binding upon the Tenant.
(iii) additional Management Charges (if any) payable by
the Tenant pursuant to the Deed of Mutual Covenant
for the Building for the use by the Tenant of
those Common Facilities (as defined in the Deed of
Mutual Covenant) which are not covered by the
Management Charges.
(iv) any charges for additional air-conditioning
services as provided in Clause 4.04(b) of Section
IV.
Rates etc 2.02 To pay and discharge all rates, water rates, taxes
assessments, duties, impositions, charges (including all
charges and outgoings (if any) imposed by the Deed of
Mutual Covenant and/or the regulations pursuant thereto)
and outgoings of an annual or recurring nature or as
approximately charged by the Manager now or hereafter to
be imposed or levied on the Premises or upon the owner
or occupier in respect thereof by the Manager,
Government of the Hong Kong Special Administrative
Region of the People's Republic of China or other lawful
authority (Government Rent, Property Tax alone excepted)
Without prejudice to the generality of this sub-clause
the Tenant shall pay all rates imposed on the Premises
quarterly in advance in the first place to the Landlord
who shall settle the same with the Government of the
Hong Kong Special Administrative Region of the People's
Republic of China and in the event of the Premises not
yet having been assessed to rates the Tenant shall until
such time as the Premises are assessed to rates pay to
the Landlord quarterly and in advance a sum equal to the
rates which would be charged by the Government of the
Hong Kong Special Administrative Region of the People's
Republic of China for each quarter on the basis of a
rateable value equal to twelve months' rent payable by
the Tenant, on account of the Tenant's liability under
this Clause;
Utility 2.03 To pay and discharge or reimburse the costs of all
Charges deposits and charges in respect of the installation of
meters and the supply of water, electricity,
70
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and Deposits telephone and other outgoings as may be shown by or
operated from the Tenant's own separately metered
supplies or by accounts rendered to the Tenant by the
appropriate utility companies in respect of all such
utilities consumed on or in the Premises.
Cleaning Charges 2.04 To pay the cost of the daily cleaning of the
Premises including where the Tenant occupies the entire
floor of the passenger and the service lift lobbies on
the floor(s) of the Building on which the Premises are
situated and of the removal of litter therefrom
Other Facilities 2.05 (a) The Tenant hereby acknowledges that the
Landlord has paid for the installation of a
certain number of lines for "High Speed Data
Link" and that the Tenant may subscribe for
the use of such lines subject to
availability as determined by the Landlord
or the Manager in their sole and absolute
discretion. In the event that the Tenant
subscribes for the use of such lines, the
Tenant shall pay to the Landlord such amount
as the Landlord or the Manager may determine
in respect of the use of and the
installation charges for such number of
lines as may be required by the Tenant
(b) The Tenant further acknowledges that
facilities for the following have been
installed within the Building.-
(i) transmission and broadcasting of
financial news and data,
(ii) video link; and
(iii) inter-floor communication
These facilities can, subject to availability as
determined by the Landlord or the Manager in its
sole and absolute discretion, be used by the
Tenant upon payment by the Tenant of such Charges
and upon such other terms and conditions as may
from time to time be determined or prescribed by
the Landlord or other person or persons entitled
thereto Provided that the Tenant shall be
responsible for making all necessary arrangement
with the relevant service companies or the Manager
for the provision of the necessary services.
SECTION III
TENANT'S OBLIGATIONS
3 The Tenant hereby agrees with the Landlord -
Compliance 3.01 To obey comply with and to indemnify the Landlord
with against the breach of all ordinances, regulations,
Ordinances bye-laws, rules and requirements of any Governmental or
other competent authority or the Manager or pursuant to
the Deed of Mutual Covenant, Deed of Mutual Grant and
all supplemental deeds and the
71
-4-
regulations relating to the use and occupation of the
Premises by the Tenant or any other act, deed, matter or
thing done, permitted, suffered or omitted therein or
thereon by the Tenant or any employee agent licensee or
permitted sub-tenant of the Tenant and without prejudice
to the foregoing to obtain and maintain in force and to
observe and comply with the terms of any approval
licence or permit required by any Governmental or other
competent authority or the Manager in connection with
the Tenant's use and occupation of the Premises prior to
the commencement or in connection with the carrying on
of the Tenant's business and to indemnify the Landlord
against the consequences of any breach of this
provision;
Fitting out 3.02 To fit out the interior of the Premises in
accordance with such plans and specifications as shall
have been first submitted to and approved by the
Landlord and the Manager respectively in writing in a
good and proper workmanlike manner and in all respects
in a style and manner appropriate to a first class
office building, such fitting out to include but not be
limited to the following.-
(i) Connection and reticulation of all
electrical wiring including wiring to light
fittings together with control switching etc
within the Premises (whether underneath the
raised flooring above the false ceilings or
otherwise);
(ii) All floor finishes and partitioning within
the Premises provided that any partitioning
installed by the Tenant within the Premises
shall be dry partitioning only;
(iii) Any alteration to the sprinkler system
necessitated by the Tenant's layout of the
Premises the same to be in all respects in
accordance with all permits and consents and
in compliance with the requirements of the
Fire Services Department;
(iv) Any alteration to the air-conditioning
ducting that may be required by the Tenant's
internal layout of the Premises;
(v) Internal decoration, furnishings and
specialized Tenant's equipment;
(vi) Any alteration to the raised flooring
including the alignment, realignment or
removal of the raised flooring system, the
creation of openings in the raised floor
panels and the cutting or sub-division of
the raised floor panels;
(vii) Any other fitting out, installation,
alteration, decoration or partitioning
within the Premises,
Provided:
72
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(A) that the Tenant will subject as hereinafter
mentioned use in connection with its
fitting-out and decoration and furnishing
works only contractors or sub- contractors
in respect of whom the prior approval in
writing of the Landlord and the Manager
shall have been obtained such approval not
to be unreasonably withheld or delayed or
who shall be nominated by the Landlord IT
BEING AGREED that in no circumstances shall
any work be commenced or be permitted to be
commenced by any contractor who shall not
first have been approved in writing by the
Landlord and the Manager AND THAT in any
event any and all work involving any
alteration to or modification of or in any
way associated with the sprinkler system,
the security system, the plumbing and
drainage system and piping and the fixed
air-conditioning ducting, chilled water
pipes and air-conditioning controls, raised
flooring, suspended ceilings, communications
networks and the Common Facilities (as
defined in the Deed of Mutual Covenant)
shall be carried out only by contractors
nominated by the Landlord. All works to be
carried out by the Tenant its contractors or
sub-contractors shall be carried out in
accordance with the FITOUT RULES to be
issued by the Landlord and/or the Manager
from time to time and to be signed by the
Tenant prior to commencement of Tenant's
works and the Tenant will pay to the
Landlord such reasonable fitting out fees
(including but not limited to (1) a fee for
approval of plans and (2) a fee for
temporary services during fit out) as may be
reasonably charged by the Landlord;
(B) that the Tenant will not cause or permit to
be made any subsequent variation to the
approved fitting out plans and
specifications or to the approved interior
design or layout of the Premises without the
previous approval in writing of the Landlord
and the Manager such approval not to be
unreasonably withheld or delayed and in the
event of such approval being requested it
shall be a condition precedent to the
granting thereof that the Tenant shall pay
to the Landlord any reasonable fees and or
costs properly incurred by the Landlord in
consulting its architect and/or specialist
consultants in respect of such variations;
To keep the 3.03 (a) To keep and maintain at the expense of the
Interior in Tenant all the interior parts of the
good repair Premises including the flooring raised
flooring and cables and wires installed
thereunder the interior plaster or other
finishing material or rendering to walls
floors and ceilings and the Landlord's
fixtures and fittings therein including
(without limitation) all doors, windows,
electrical installations and wiring, light
fittings, suspended ceilings, fire fighting
apparatus and air-conditioning ducting and
all waste, drain, water and other pipes and
sanitary apparatus and fittings therein and
all painting, papering and decoration
thereof in good clean tenantable substantial
and proper repair and condition and as may
be appropriate
73
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from time to time properly painted and
decorated (fair wear and tear excepted);
(b) At the expense of the Tenant to replace from
time to time all Landlord's fixtures and
fittings and appurtenances in the Premises
which may be or become beyond repair at any
time;
(c) At the expiration or sooner determination of
the Term, to deliver up the Premises and all
fittings, fixtures and additions therein and
thereto other than tenants' fixtures and
fittings to the Landlord in good clean and
tenantable condition and repair in
accordance with its covenant to repair
contained herein;
Repair of Glass 3.04 The Tenant shall pay to or reimburse the Landlord
Curtain Wall such amount as may be payable to the Manager or other
owners of the Building under the Deed of Mutual Covenant
in respect of all broken or damaged parts of the glass
curtain wall corresponding to the Premises or other
parts of the Buildings (if any) whether used exclusively
by the Tenant or not.
Installation of 3.05 (i) To install all wires pipes and cables and
wires cables other services serving the Premises in and
and services through the ducts trunkings and conduits in
the Building provided for such purposes and
at all times in accordance with the
reasonable directions of the Landlord and
the Manager and not to install any such
wires pipes cables or other services without
first providing the Landlord and the Manager
with full particulars and a fully detailed
plan and diagram of such intended
installation and obtaining the Landlord's
and the Manager's consent such consent not to
be unreasonably withheld or delayed in
regard thereto;
(ii) To provide to the Landlord a full coloured
diagram of all electrical wiring to be
installed by the Tenant within or serving or
connected to the Premises and/or within the
ducts, trunkings or conduits provided within
the Building for the installation of
electrical and/or fibre-optical or other
wires or cables or means of passing
receiving or transmitting information and
all telephone and other service wires
conduits and cables installed by or at the
order of the Tenant and to clearly label and
in accordance with any directions given by
the Landlord colour-code all such wires
conduits and cables to identify the same as
being the Tenant's and if required by the
Landlord at the expiration or sooner
determination of the Term at the Tenant's
expense to remove the same from all ducts
conduits or trunkings within the Building
taking care not to disturb damage or
interfere with any wires cables or other
means of communication belonging to the
Landlord or to other occupiers of any part
or parts of the Building that may have been
installed within any such ducts conduits or
trunkings and making good any damage caused
by the Tenant in so doing and the Tenant
will indemnify and hold the
74
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Landlord harmless against any claim action
or demand that may be brought by any person
suffering any loss or damage or interference
with business or inconvenience caused by or
arising from the Tenant's actions in
complying with its obligations hereunder;
Repair of 3.06 To repair or replace if so required by the
Electrical appropriate utility company, authority or statutory
Installations undertaker as the case may be under the terms of the
Electricity Supply Ordinance or any statutory
modification or re-enactment thereof or any Orders in
Council or Regulations made thereunder all the
electrical wiring installations and fittings within the
Premises installed by the Tenant and the wiring from the
Tenant's Meter or Meters to the Premises and to permit
the Landlord, the Manager, their agents or servants to
test the Tenant's wiring in the Premises at any time
upon reasonable prior notice except in the case of
emergency;
Good Repair of 3.07 To maintain all toilets and sanitary and water
Toilets and apparatus located within the Premises (or elsewhere if
Water Apparatus used exclusively by the Tenant its employees invitees
and licensees) in good clean and tenantable state and in
proper repair and condition at all times during the Term
to the satisfaction of the Landlord and in accordance
with the Regulations of the Public Health or other
Government Authority concerned;
Cleaning 3.08 To pay on demand to the Landlord the cost incurred
of Drains by the Landlord in cleansing and clearing any of the
drains in the Building that become choked or stopped up
owing to the mis-use of any toilet or water or sanitary
or drainage equipment by the Tenant or its employees
invitees contractors or licensees;
Indemnification 3.09 To be wholly responsible for any loss damage or
of Landlord injury caused to any person whomsoever or to any
and Insurance property whatsoever directly or indirectly through the
defective or damaged condition or operation of any part
of the interior of the Premises or any machinery or
plant or any fixtures or fittings or wiring or piping
therein for which the Tenant is responsible hereunder or
in any way caused by or owing to the spread of fire
smoke or fumes or the leakage or overflow of water of
whatsoever origin from the Premises or any part thereof
or through the act default or neglect of the Tenant its
servants agents contractors licensees partners or
customers and to make good the same by payment or
otherwise and to indemnify the Landlord against all
costs claims demands actions and legal proceedings
whatsoever made upon the Landlord by any person in
respect of any loss damage or injury as aforesaid and
all costs and expenses incidental thereto AND for the
better observance of the Tenant's obligations in regard
to the foregoing TO INSURE or at the discretion of the
Landlord permit the Landlord at the Tenant's expense and
in the name of the Tenant to effect and maintain
insurance cover to the reasonable satisfaction of the
Landlord with ▇▇▇▇▇ Insurance Company Limited in respect
of all such risks as aforesaid the Policy of Insurance
so effected to be endorsed to show the interest of the
Landlord therein and to be in such amount as may
reasonably be determined by the Landlord and to contain
a provision that the insurance cover thereby effected
and the terms and conditions thereof may not be altered
modified restricted or cancelled without the express
prior written consent of the Landlord and whenever
required so to do by the Landlord to
75
-8-
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;
Protection 3.10 To take all necessary and appropriate precautions
from typhoon to protect the interior of the Premises from storm or
typhoon damage;
To permit 3.11 To permit the Landlord its agents and all persons
Landlord to authorized by it with or without workmen or others and
enter and view with or without appliances at all reasonable times and
upon prior written notice (save in the case of an
emergency) to enter upon the Premises to view the
condition thereof and to take inventories of the
fixtures and fittings therein and to carry out any work
or repair required to be done provided that in the event
of an emergency the Landlord its servants or agents may
enter without notice and forcibly if need be and the
Landlord shall exercise its rights in this respect in a
manner that is reasonable in all the circumstances and
shall make good any damage caused;
To execute 3.12 To make good all defects and wants of repair to the
repair on Premises within the space of one month from the receipt
receipt of of written notice from the Landlord to repair and make
notice good the same, and if the Tenant shall fail to execute
such works or repairs as aforementioned to permit the
Landlord to enter upon the Premises and execute the same
and the cost thereof shall be a debt due from the Tenant
to the Landlord and be recoverable forthwith by action;
Outside Windows 3.13 To keep all windows of the Premises closed at all
times,
Inform Landlord 3.14 To give notice to the Landlord or its agent of any
of Damage damage that the Premises may suffer and of any defect in
the water and gas pipes electrical wiring or fittings,
fittings fixtures or other utility supply equipment
provided by the Landlord directly the Tenant becomes
aware of any such damage or defect,
Cleaning and 3.15 To keep the Premises including where the Tenant
Cleaning occupies the entire floor the passenger and service lift
Contractors lobbies on the floor(s) of the Building on which the
Premises are situated at all times in a clean and
sanitary state and condition, and for the better
observance hereof to employ as cleaners of the Premises
(at the expense of the Tenant) a firm of specialist
cleaners to be nominated or approved by the Landlord or
the Manager,
Refuse and 3.16 To be responsible for the removal of refuse and
Garbage garbage from the Premises to such location within or
Removal adjacent to the Building as shall be specified by the
Landlord or the Manager from time to time and to use
only such type of refuse container as is specified by
the Landlord or the Manager from time to time. In the
event of the Landlord or the Manager providing a
collection service for refuse and garbage the same shall
be used by the Tenant to the exclusion of any other
similar service and the Tenant shall bear the cost of
such service;
Installation 3.17 Subject to sub-clause 3.02(a)(A) of this Clause the
Tenant shall
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of Telephone make its own arrangements with regard to the
Cables installation of telephones or other communication
systems in the Premises, but the installation of
telephone and communication lines outside the Premises
must be in the common ducting provided in the Building
for that purpose and in all respects in accordance with
the directions of the Landlord and the Manager,
Directory 3.18 To pay the Landlord immediately upon demand the
Boards cost of affixing repairing or replacing as necessary the
Tenant's name in lettering to the directory board at
the entrances to the Building and to the directory
board on the floor on which the Premises are situated,
Contractors 3.19 To be liable for any act default negligence or
Employees omission of the Tenant's contractors employees invitees
Invitees and licensees or permitted sub-tenants as if it were the act
Licensees default negligence or omission of the Tenant and to
indemnify the Landlord against all costs claims demands
expenses or liability to any third party in connection
therewith,
Damage to 3.20 To pay to or indemnify the Landlord immediately on
Building demand the costs of repairing any part of the Building
or any of the lifts or other services and facilities
installed therein that may be damaged by reason of any
act default or neglect on the part of the Tenant its
agents servants invitees or licensees;
Regulations 3.21 To obey and comply with such Regulations as may
from time to time be made or adopted by the Landlord in
accordance with Section X hereof or the Manager in
accordance with the Deed of Mutual Covenant;
User 3.22 To use the Premises for the purposes described in
the Third Schedule and for no other purposes whatsoever;
Yield up 3.23 To yield up the Premises with all fixtures fittings
Premises & and additions therein and thereto (but excluding the
Handover Tenant's movable chattels) at the expiration or sooner
determination of this Agreement in good clean and
tenantable repair and condition in accordance with the
stipulations hereinbefore contained together with all
keys giving access to all parts of the Premises Provided
That where the Tenant has made any alterations or
installed any fixtures fittings or additions in or to
the Premises and notwithstanding that the Landlord's
consent for so doing may have been obtained or have been
given or be deemed to have been given the Landlord may
at its sole discretion require the Tenant at the
Tenant's sole cost and expense to reinstate or remove or
do away with all or any such alterations fixtures
fittings or additions or any part or portion thereof and
to make good and repair in a proper and workmanlike
manner any damage to the Premises and the Landlord's
fixtures and fittings therein as a result thereof before
delivering up the Premises to the Landlord PROVIDED
FURTHER THAT without limitation to the generality of the
foregoing it is hereby expressly agreed that:-
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(i) if the Tenant removes any of the raised floor
panels with or without the approval of the
Landlord the Tenant shall at its own risk cost and
expense store all panels so removed and shall upon
the expiration or sooner determination of this
Agreement at its cost and expense reinstate the
raised floor panels at the relevant part of the
Premises to the satisfaction of the Landlord, and
(ii) if the Tenant carries out any other work to the
raised flooring system with or without the
approval of the Landlord the Tenant shall upon the
expiration or sooner determination of this
Agreement, at its own cost and expense reinstate
the raised flooring system to the same condition
as at the commencement of this Agreement to the
satisfaction of the Landlord and to the extent to
which such reinstatement cannot be effected to the
satisfaction of the Landlord the Tenant shall at
its own cost and expense replace the relevant part
of the raised flooring system to the satisfaction
of the Landlord,
Taxes 3.24 To pay or reimburse the Landlord on demand as
additional rent any sales tax value added tax (or any
tax of a similar nature) if required by any applicable
law.
Common 3.25 The Tenant shall not make any alteration to or
Facilities, etc interfere or tamper or permit its servants, agents,
employees, contractors or licensees to make any
alteration to or interfere or tamper with any of the
following other than in the manner expressly permitted
hereunder:-
(a) the raised flooring within the Premises;
(b) the heating, ventilation and air-conditioning
system for the Building (including that part of
system installed within the Premises);
(c) the electrical installations for the Building;
(d) the fire services installations of the Building
(including those within the Premises);
(e) the installations for plumbing and drainage for
the Building (including those within the
Premises);
(f) the building management system of the Building;
(g) the communication network which forms part of the
Common Facilities (as defined in the Deed of
Mutual Covenant) of the Building;
(h) the suspended ceiling of the Building (including
that within the Premises); and
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(i) the conduits, pipes, wires, cables and ducts in,
on or under the Premises or the raised flooring
therein serving or intended to serve the Building
or any adjoining or neighbouring property
SECTION IV
LANDLORD'S OBLIGATIONS AND RIGHTS
4 The Landlord agrees with the Tenant as follows:-
Quiet Enjoyment 4.01 To permit the Tenant (duly paying the rent, the
additional air-conditioning charges, the Management
Charges, rates and other payments hereby agreed to be
paid on the days and in manner herein provided for
payment of the same and observing and performing the
agreements stipulations terms conditions and obligations
herein contained) to have quiet possession and enjoyment
of the Premises during the Term without unreasonable
interruption by the Landlord or any person lawfully
claiming under or through or in trust for the Landlord;
Government Rent 4.02 To pay the Government Rent, Property Tax and other
charges of a capital nature attributable to or payable
in respect of the Premises;
Roof and Main 4.03 To procure the Manager to maintain the main
Structure structure roofs main electricity supply cables main
drains water pipes main walls and exterior window frames
of the Building Provided that the Landlord shall not be
liable for breach of this Clause unless and until
written notice of any defect or want of repair shall
have been given to the Landlord by the Tenant and the
Landlord shall have failed to take reasonable steps to
procure the repair or remedy the same within a
reasonable period after the service on it of such
notice;
Air-conditioning 4.04 (a) The Landlord shall subject to Sub-clause
4.05(c) of this Section and to Sub-clause
6.01(i) of Section VI of this Agreement and
to the right of the Manager under the Deed
of Mutual Covenant to change the hours for
air-conditioning services procure the
Manager to provide for the Premises during
Normal Business Hours as hereinafter defined
an air-conditioning service;
(b) Subject to Sub-clause 4.05(c) of this
Section and to Sub-clause 6.01(i) of Section
VI of this Agreement the Landlord shall
procure the Manager to provide to the Tenant
an air-conditioning service outside Normal
Business Hours as specified hereunder upon
request being made by the Tenant to the
Landlord and/or the Manager as appropriate.
The cost for such additional hours of
air-conditioning service including the cost
of running the necessary air-conditioning
plant and equipment shall be reasonably
determined by the Landlord and/or the
Manager whose decision shall be final and
notified to the Tenant from time to
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time and shall be paid on demand by the
Tenant to the Landlord as additional rent;
Rights Reserved 4.05 It is hereby agreed and expressly confirmed that
to the Landlord the following rights are excepted and reserved to the
Landlord (its successors and assigns and all persons
having the like right) and the Manager throughout the
Term:-
(a) the right of free and uninterrupted passage and
running of water, soil, gas, drainage, electricity
and all other services or supplies through such
sewers, watercourses, conduits, pipes, wires,
cables and ducts as are now or may hereafter be
in, on or under the Premises and serving or
capable of serving the Building or any adjoining
or neighbouring property TOGETHER WITH the right
to enter upon the Premises upon prior notice
(except in case of emergency) to inspect repair
replace or maintain any such sewers, watercourses,
conduits, pipes, wires, cables and ducts making
good any damage caused,
(b) the full and free right and liberty to enter upon
the Premises in the circumstances in which the
agreements by the Tenant contained in these
presents permit such entry and in particular but
without prejudice to the generality of the
foregoing the right to enter into and upon the
Premises at all times upon prior notice (except in
case of emergency) for the purpose of obtaining
access to and egress from any adjoining premises
or any machinery or switch rooms or the like
remaining under the control of the Landlord and/or
the Manager and located on any of the floors of
the Building on which any portion of the Premises
is situated making good any damage caused;
(c) the right from time to time on giving reasonable
notice to the Tenant (such notice not to be
required in case of emergency or breakdown) and
causing as little inconvenience to the Tenant as
reasonably possible to suspend the
air-conditioning system, lifts, escalators (if
any), electric power, water supply and any other
building service provided in or serving the
Building for the purpose of servicing,
maintaining, repairing, renewing, improving or
replacing the same and any of them
Sale and 4.06 If at any time during the Term the Landlord shall
re-development resolve to redevelop the 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 notification from the Landlord) then in
any of such events the Landlord shall be entitled to
give six months' notice in writing during the Term
terminating this Agreement and immediately upon the
expiration of such notice this Agreement and everything
herein contained shall cease and be void but without
prejudice to the rights and remedies of either party
against the other in respect of any antecedent claim or
breach of any of the agreements or stipulations herein
set out.
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SECTION V
RESTRICTIONS AND PROHIBITIONS
5. The Tenant agrees with the Landlord and undertakes:-
Installation and 5.01 (a) Not to make or permit or suffer to be made
Alterations any alterations in or additions to the
Premises or to the sprinkler system,
electrical wiring installations,
air-conditioning ducting lighting fixtures
or other Landlord's fixtures or to install
any plant apparatus or machinery (other than
normal office machinery) therein without
first having obtained the written consent of
the Landlord and/or the Manager,
(b) Not to place on any part of the Premises any
object of any kind which imposes an
excessive load or strain on the Premises or
the Building at a location not previously
approved in writing by the Landlord. The
Tenant shall apply to the Landlord for a
written approval to the proposed positioning
of such object. Thereafter the Tenant shall
not move such object from the approved
location without the written approval of the
Landlord first having been obtained. All
reasonable and proper fees incurred by the
Landlord including the obtaining of the
approval of the Landlord's architects as to
the location of such object shall be borne
by the Tenant and payment therefor may be
imposed as a pre-requisite to the Tenant
receiving such permission.
(c) Not to install any air-conditioning plant or
equipment of any kind on or within or at any
part of the Premises without the prior
consent of the Landlord in writing AND the
Tenant shall comply with the directions and
instructions of the Landlord and the Manager
regarding installation and shall at its own
expense be responsible for their periodic
inspection maintenance and repair and for
the replacement of defective wiring and the
Tenant shall be strictly liable for any
damage caused by the installation operation
defect or removal of such units;
(d) Not to make or permit or suffer to be made
any alterations in or additions to the
mechanical or electrical installations in
the Building nor to install or permit or
suffer to be installed any equipment,
apparatus or machinery which exceeds the
loading of the electrical installations in
the Building nor to install or permit or
suffer to be installed any equipment,
apparatus or machinery which exceeds the
loading of the electrical main or wiring or
which consumes electricity not metered
through the Tenant's separate meter;
(e) Not to make or permit or suffer to be made
any alterations to any installation or
fixture so as to affect or be likely to
affect the supply of water, electricity or
other utility or service to or in the
Building;
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Provided that where approval permission or
consent from the Landlord shall be required
it shall not be unreasonably withheld or
delayed,
Injury to 5.02 Not to cut maim or injure or permit or suffer to be
Walls or Floors cut maimed or injured any doors windows window frames
walls beams slabs structural members raised floors or
other part of the fabric of the Premises or lay or use
any floor covering or do anything which may damage or
penetrate the raised flooring or slab;
No Alterations 5.03 Not to affix anything or paint or make any
or Exterior alteration whatsoever to the exterior of the Premises,
Obstructions to 5.04 Not to block up, darken or obstruct or obscure any
Outside Windows of the windows or lights belonging to the Premises;
Not erect gates 5.05 Not without the prior written consent of the
grilles Landlord such consent not to be unreasonably withheld or
delayed to erect or install doors, gates, grilles,
shutters or other similar installation whatsoever
whether temporary or permanent at the doorway or
entrance to the Premises or at any of the fire exits
therefrom or erect any such door or grille or shutter or
gate that might in any way contravene the regulations
from time to time in force of the Fire Services
Department or other competent authority concerned, nor
in any other respect to contravene the said regulations,
Noise 5.06 Not to cause or produce or suffer or permit to be
produced on or in the Premises any sound or noise
(including sound produced by broadcasting from
Television, Radio and any apparatus or instrument
capable of producing or reproducing music and sound) or
any vibration or resonance or other form of disturbance
or other acts or things in or on the Premises which is
or are or may be or become a nuisance or annoyance to
the tenants or occupiers of adjacent or neighbouring
premises within the Building or in any neighbouring
building;
Signs 5.07 Not without the prior written approval of the
Landlord to exhibit or display within or on the exterior
of the Premises any writing sign signboard or other
device whether illuminated or not which may be visible
from outside the Premises nor without the Landlord's
prior written consent to affix any writing sign
signboard or other device in at or above any Common
Area, lobby, landings or corridors of the Building;
Auction Sales 5.08 Not to conduct or permit any auction fire
bankruptcy close out or similar sale of things or
properties of any kind to take place on the Premises;
Illegal or 5.09 Not to use or cause permit or suffer to be used any
Immoral Use part of the Premises for gambling or for any illegal
immoral or improper purposes or in any way so as to
cause nuisance annoyance inconvenience or damage or
danger to the Landlord or the tenants or occupiers of
adjacent or neighbouring premises;
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Sleeping or 5.10 Not to use or permit the Premises or any part
Domestic Use thereof to be used as sleeping quarters or as domestic
premises within the meaning of any ordinance for the
time being in force or allow any person to remain on the
Premises overnight without first obtaining the
Landlord's permission in writing for so doing,
Storage of 5.11 Not to use the Premises for the manufacture of
Merchandise and goods or merchandise or for the storage of goods or
Hazardous Goods merchandise other than in small quantities consistent
with the nature of the Tenant's trade or business by way
of samples and exhibits nor to keep or store or cause or
permit or suffer to be kept or stored thereat any arms
or ammunition, gun-powder, salt-▇▇▇▇▇, petroleum,
liquified petroleum gas, butane gas, kerosene or other
explosive or dangerous hazardous or prohibited goods
within the meaning of the Dangerous Goods Ordinance (Cap
295) and the regulations made thereunder or any
Statutory modification or re-enactment thereof from time
to time in force;
User 5.12 Not to use the Premises for any purpose other than
the purpose specified in the Third Schedule and in
particular but without prejudice to the generality of
the foregoing not to use the Premises for the purpose of
a Buddhist hall or temple or for the performance of the
ceremony known as ▇▇ ▇▇▇▇ ([Chinese writing]) or for any
similar ceremony or for any other religious purpose or
the performance of any religious ceremony,
Obstructions in 5.13 Not to place or leave or suffer or permit to be
Passages placed or left by any contractor employee invitee
licensee or permitted sub-tenant of the Tenant any boxes
furniture articles or rubbish in the entrance or any of
the staircases passages or landings of the Building used
in common with other tenants or the Landlord or
otherwise encumber the same,
Parking & Loading 5.14 Not to park any vehicle in or obstruct or otherwise
use or permit any vehicle to be parked in or be
obstructed or otherwise used by any employee agent
licensee or permitted sub-tenant of the Tenant any of
those areas of the Building allocated to parking or for
the movement of or access for vehicles or designated as
loading/unloading areas other than in accordance with
the Regulations made from time to time by the Landlord;
Deliveries and 5.15 Not without the prior written consent of the
use of passenger Landlord and/or the Manager to take delivery to the
lifts Premises or furniture or other large objects during
Normal Business Hours as hereinafter defined and not to
cause or suffer or permit passenger lifts to be used for
delivery purposes at any time or load or permit or
suffer to be loaded into any service lift or passenger
lift in the Building an excessive weight;
Preparation of 5.16 Except for the reheating of pre-prepared food for
food and consumption by the Tenant's employees by an approved
prevention microwave oven Not to ▇▇▇▇ or prepare or permit or
suffer to be cooked or prepared any food in the Premises
or permit any offensive or unusual odours to be produced
upon or emanate from the Premises,
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Not to misuse 5.17 Not to use or permit or suffer to be used any
lavatories lavatory facilities whether shared with other tenants or
occupiers of the Building or reserved exclusively for
the use of the Tenant for any purpose other than that
for which they are intended and not to throw or permit
or suffer to be thrown into any W.C. pan, urinal, basin
sink or other lavatory fitting any foreign or
deleterious substance of any kind and to pay to or
indemnify the Landlord on demand the cost of any
breakage, blockage or damage resulting from a breach of
this provision;
Animals, pets 5.18 Not to keep or permit or suffer to be kept any
and infestation animals or pets inside the Premises and to take all such
steps and precautions to the reasonable satisfaction of
the Landlord as shall be necessary to prevent the
Premises or any part thereof from becoming infested by
termites rats mice roaches or any other pests or vermin
and for the better observance hereof the Landlord may
require the Tenant to employ at the Tenant's cost such
pest extermination contractors as the Landlord may
nominate and at such reasonable intervals as the
Landlord may direct;
No Touting 5.19 Not to tout or solicit or procure or permit any
touting or soliciting for business or the distribution
of any pamphlets notices or advertising matter outside
the Premises or anywhere within the Building by any of
the Tenant's servants agents licensees or permitted
sub-tenants;
Breach of 5.20 Not to commit any breach of the provisions of the
Government Lease Government Lease or Conditions under which the Landlord
or Conditions holds the Premises or of the Deed of Mutual Covenants
or Deed of Mutual (if any) or any Sub-Deed of Mutual Covenants affecting
Covenants the Building and to indemnify the Landlord against the
consequences of any such breach;
Breach of 5.21 Not to cause suffer or permit to be done any act or
Insurance Policy thing whereby the policy or policies of insurance on the
Premises against damage by fire or liability to third
parties for the time being subsisting may become void or
voidable or whereby the rate of premium or premia
thereon may be increased and to repay to the Landlord on
demand all sums paid by the Landlord by way of increased
premium or premia thereon and all expenses incurred by
the Landlord in and about any renewal of such policy or
policies arising from or rendered necessary by such
breach;
Alienation 5.22 The Tenant shall not assign underlet or otherwise
part with the possession of the Premises or any part
thereof in any way whether by way of subletting lending
sharing or other means whereby any person or persons not
a party to this Agreement obtains the use or possession
of the Premises or any part thereof irrespective of
whether any rental or other consideration is given for
such use or possession and in the event of any such
transfer sub-letting sharing assignment or parting with
the possession of the Premises (whether for monetary
consideration or not) this Agreement shall absolutely
determine and the Tenant shall forthwith vacate the
Premises on notice to that effect from the Landlord. The
Tenancy shall be personal to the Tenant named in the
First Schedule to this Agreement and without in any way
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limiting the generality of the foregoing the following
acts and events shall unless approved in writing by the
Landlord be deemed to be breaches of this Clause:-
(a) In the case of a tenant which is a partnership the
taking in of one or more new partners whether on
the death or retirement of an existing partner or
otherwise,
(b) In the case of a tenant who is an individual
(including a sole surviving partner of a
partnership tenant) the death insanity or
disability of that individual to the intent that
no right to use possess occupy or enjoy the
Premises or any part thereof shall vest in the
executors administrators personal representatives
next of kin trustee or committee of any such
individual;
(c) In the case of a tenant which is a corporation any
take-over reconstruction amalgamation merger
voluntary liquidation or change in the person or
persons who owns or own a majority of its voting
shares or who otherwise has or have effective
control thereof;
(d) The giving by the Tenant of a Power of Attorney or
similar authority whereby the donee of the Power
obtains the right to use possess occupy or enjoy
the Premises or any part thereof or does in fact
use possess occupy or enjoy the same;
(e) The Change of the Tenant's business name without
the previous written approval of the Landlord
which shall not be unreasonably withheld if the
change of the Tenant's business name does not in
the opinion of the Landlord conflict with or
prejudice the business or reputation or other
interests of the Landlord or of any associated
company of the Landlord;
Advertising of 5.23 Not to erect upon the Premises, the Building or any
Premises part thereof any sign or display advertising the
Premises or any part thereof available for letting or
sub-letting or issue any pamphlet publicity or
advertisement in any form whatsoever with regard to any
proposed letting or sub-letting of the Premises
SECTION VI
EXCLUSIONS
6.01 IT IS HEREBY FURTHER EXPRESSLY AGREED AND DECLARED
that except in the case of the Landlord's gross
negligence the Landlord shall not in any circumstances
be liable to the Tenant or any other person whomsoever:-
Lifts, (i) In respect of any loss of profit or of business or
Air-conditioning loss of life or loss, injury or damage to person
Utilities or property or for any disruption or inconvenience
caused to or suffered or sustained by the Tenant
or any other person caused by or through or in any
way owing to or arising out of or connected with
any
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defect in or breakdown or suspension of service of
the lifts air-conditioning system, electric power
or water supplies, satellite and ancillary
distribution system, backbone distribution system,
the High Speed Data link or any other building
service provided in or serving the Building, or
Fire and overflow (ii) In respect of any loss of profit or of business or
of water loss of life or loss injury or damage to person or
property or for any disruption or inconvenience
caused to or suffered or sustained by the Tenant
or any other person caused by or through or in any
way owing to or arising out of or connected with
any escape of fumes smoke fire or any other
substance or thing or the overflow of water from
anywhere within the Building or in any way
attributable to fire storm tempest flood Act of
God or other inevitable accident, or
Security (iii) For the security or safekeeping of the Premises or
any contents therein and in particular but without
prejudice to the generality of the foregoing the
provision of watchmen and caretakers shall not
create any obligation on the part of the Landlord
as to the security of the Premises or any contents
therein and the responsibility for the safety of
the Premises and the contents thereof shall at all
times rest with the Tenant.
SECTION VII
SUSPENSION OF RENT
Suspension of 7.01 If the Premises or the Building or any part thereof
rent in case shall at any time during the Term be destroyed or
of fire etc. damaged or become inaccessible owing to fire water storm
typhoon defective construction white ants earthquake
subsidence of the ground or any calamity beyond the
control of the Landlord so as to render the Premises
unfit for commercial use or inaccessible and the policy
or policies of insurance for such risk effected by the
Landlord shall not have been vitiated or payment of the
policy moneys refused in whole or in part in consequence
of any act or default of the Tenant or if at any time
during the continuance of this tenancy the Premises
shall be condemned as a dangerous structure or a
demolition order or closing order shall become operative
in respect of the Premises then the rent and other
charges hereby reserved or a fair proportion thereof
according to the nature and extent of the damage
sustained or order made shall be suspended, rent and
other charges paid in advance in respect of the current
month being refunded, until the Premises shall again be
rendered accessible and fit for commercial use PROVIDED
THAT in circumstances when the whole or substantially
the whole of the Premises have been rendered
inaccessible or unfit for commercial use and should the
Premises not have been reinstated in the meantime either
the Landlord or the Tenant may at any time after six
months from the occurrence of such damage or destruction
or order give to the other of them notice in writing to
determine this Agreement and thereupon the same and
everything herein contained shall cease and be void as
from the date of the occurrence of such destruction or
damage or order or of the Premises becoming inaccessible
or unfit for commercial use but without prejudice to the
rights and
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remedies of either party against the other in respect of
any antecedent claim or breach of the agreements
stipulations terms and conditions herein contained or of
the Landlord in respect of the rent payable hereunder
prior to the coming into effect of the suspension.
SECTION VIII
DEFAULT
8. It is hereby expressly agreed and declared as
follows:-
Default 8.01 If the rent and/or the additional air-conditioning
charges and/or the Management Charges and/or any other
moneys payable hereunder or any part thereof shall be in
arrear for seven (7) days after the same shall have
become payable (whether formally demanded or not) or if
there shall be any breach or non-performance of any of
the stipulations conditions or agreements herein
contained and on the part of the Tenant to be observed
or performed or if the Tenant shall stop or suspend
payment of its debts or be unable to or admit inability
to pay its debts as they fall due or enter into any
scheme of arrangement with its creditors or have an
encumbrancer take possession of any of its assets or
have a receiving order made against it or in such
circumstance as aforesaid fail to satisfy any judgement
that may be given in any action against it after final
appeal or go into liquidation (save for the purposes of
amalgamation or reconstruction) or if the Tenant shall
suffer execution to be levied upon the Premises or
otherwise on the Tenant's goods or if in such
circumstances as aforesaid the Tenant shall suspend or
cease or threaten to suspend or cease to carry on its
business or should any event occur or proceeding be
taken with respect to the Tenant in any jurisdiction to
which the Tenant is subject which has an effect
equivalent or similar to any of the events or
circumstances described above then and in any such case
it shall be lawful for the Landlord at any time
thereafter to re-enter on and upon the Premises or any
part thereof in the name of the whole and thereupon this
Agreement shall absolutely determine but without
prejudice to any right of action or non-observance or
non-performance by the Tenant of any of the terms of
this Agreement. A written notice served by the Landlord
on the Tenant in manner hereinafter provided to the
effect that the Landlord thereby exercises the power of
determination and/or re-entry hereinbefore contained
shall be a full and sufficient exercise of such power
without physical entry on the part of the Landlord
notwithstanding any statutory or common law provision to
the contrary. All costs and expenses including legal
costs incurred by the Landlord in demanding payment of
the rent and other charges payable hereunder (if the
Landlord elects to demand) and in exercising its rights
and/or remedies or in attempting to do so shall be paid
by the Tenant and shall be recoverable from the Tenant
as a debt,
Interest 8.02 Notwithstanding anything herein contained in the
event of default in payment of rent or other monies
payable by the Tenant hereunder (whether formally
demanded or not) the Tenant shall pay to the Landlord on
demand daily interest on all such sums outstanding at
the daily simple interest rate of 0.07% calculated from
the
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date on which the same shall be due for payment (in
accordance with the provisions contained in that behalf
herein) until the date of payment provided that the
demand and/or receipt by the Landlord of interest
pursuant to this Clause shall be without prejudice to
and shall not affect the right of the Landlord to
exercise any other right or remedy hereof (including but
without prejudice to the generality of the foregoing the
right of re-entry) exercisable under the terms of this
Agreement;
Acceptance of 8.03 The acceptance of any rent by the Landlord shall
Rent 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 agreements stipulations terms and
conditions herein contained and on the part of the
Tenant to be observed and performed,
Acts of Employees 8.04 For the purpose of these presents any act default
Invitees and neglect or omission of any guest visitor servant
Licensees contractor employee agent invitee licensee or permitted
sub-tenant of the Tenant shall be deemed to be the act
default neglect or omission of the Tenant,
Distraint 8.05 For the purposes of Part III of the Landlord and
Tenant (Consolidation) Ordinance (Chapter 7) and of
these presents, the rent payable in respect of the
Premises shall be and be deemed to be in arrear if not
paid in advance at the times and in the manner
hereinbefore provided for payment thereof.
SECTION IX
DEPOSIT
Deposit 9.01 The Tenant shall on the signing hereof deposit with
the Landlord the sum or sums specified in Part III of
the Second Schedule to secure the due observance and
performance by the Tenant of the agreements stipulations
terms and conditions herein contained and on the part of
the Tenant to be observed and performed which deposit
shall be held by the Landlord throughout the currency of
this Agreement free of any interest to the Tenant with
the right for the Landlord (without prejudice to any
other right or remedy hereunder) to deduct therefrom the
amount of any rent rates and other charges payable
hereunder and 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
of the agreements, stipulations obligations or
conditions. In the event of any deduction being made by
the Landlord from the deposit in accordance herewith
during the currency of this Agreement the Tenant shall
forthwith on demand by the Landlord make a further
deposit equal to the amount so deducted and failure by
the Tenant so to do shall entitle the Landlord forthwith
to re-enter upon the Premises and to determine this
Agreement as hereinbefore provided.
Increase in 9.02 The amount of the deposit shall be increased
Deposit following each and any review in rent to market rent or
increase Management Charges to a sum equal to THREE
months rent at the rate payable after the review in
question plus THREE
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months Management Charges at the rate at that time
payable by the Tenant pursuant to Sub-clause 2.01 of
Section II and the Tenant shall make payment to the
Landlord of such additional sum as shall be required to
bring the deposit up to the appropriate amount within
seven (7) days of each rent review or increase and the
provisions of this Section IX shall apply to such
further deposits
Repayment of 9.03 Subject as aforesaid the deposit and any further
Deposit deposits paid shall be refunded to the Tenant by the
Landlord without interest within thirty days after the
expiration or sooner determination of this Agreement and
delivery of vacant possession to the Landlord and after
settlement of the last outstanding claim by the Landlord
against the Tenant for any arrears of rent rates and
other charges and for any breach non-observance or
non-performance of any of the agreements stipulations
terms and conditions herein contained and on the part of
the Tenant to be observed or performed whichever shall
be the later.
SECTION X
REGULATIONS
Introduction of 10.01 The Tenant shall observe such Regulations as may
Regulations from time to time be in force for the proper operation
and maintenance of the Building.
Conflict 10.02 Such Regulations shall be supplementary to the
terms and conditions contained in this Agreement and
shall not in any way derogate from such terms and
conditions. In the event of conflict between such
Regulations and the terms and conditions of this
Agreement the terms and conditions of [ILLEGIBLE]
Normal Business [ILLEGIBLE] The term "Normal Business Hours" for the
Hours purposes or this Agreement means the hours other than on
Sundays and Public Holidays, between 8:00 a.m. and 6:30
p.m. on each Monday to Friday and between 8:00 a.m. and
2:00 p.m. on each Saturday (Public Holidays excepted).
Gender 11.04 In this Agreement unless the context otherwise
requires words importing the singular number shall
include the plural number and vice versa and words
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importing a gender shall include every gender and
references to persons include bodies corporate or
unincorporate
Name of Building 11.05 The Landlord is not liable to compensate the
Tenant for any loss expense or inconvenience caused to
the Tenant as a consequence of any change of name of the
Building.
Alterations To 11.06 The Landlord reserves the right from time to time
the Building to improve extend add to or reduce the Building or in
any manner whatsoever to alter or deal with the Building
and the Landlord shall exercise its rights in this
respect in a manner that is reasonable in all the
circumstances
Condonation not 11.07 No condoning, excusing or overlooking by the
a waiver Landlord of any default, breach or non-observance or
non-performance by the Tenant at any time or times of
any of the agreements stipulations terms and conditions
herein contained shall operate as a waiver of the
Landlord's rights hereunder in respect of any continuing
or subsequent default, breach or non-observance or
non-performance or so as to defeat or affect in any way
the rights and remedies of the Landlord hereunder in
respect of any such continuing or subsequent default or
breach and no waiver by the Landlord shall be inferred
from or implied by anything done or omitted by the
Landlord, unless expressed in writing and signed by the
Landlord. Any consent given by the Landlord shall
operate as a consent only for the particular matter to
which it relates and shall in no way be considered as a
waiver or release of any of the provisions hereof nor
shall it be construed as dispensing with the necessity
of obtaining the specific written consent of the
Landlord in the future, unless expressly so provided.
Letting Notices 11.08 During the three months immediately before the
and Entry expiration or sooner determination of the Term the
Landlord shall be at liberty to affix and maintain
without interference upon any external part of the
Premises a notice stating that the Premises are to be
let and such other information in connection therewith
as the Landlord shall reasonably require and upon prior
notice to enter the Premises with such other persons for
the purpose of viewing the Premises on reasonable notice
during Normal Business Hours
Service of Notice 11.09 Any notice required to be served on the Tenant
shall be sufficiently served if delivered or despatched
by post to or left at the Premises. Any notice required
to be served on the Landlord shall be sufficiently
served if delivered or despatched by registered post to
its registered office from time to time. A notice sent
by post or registered post shall be deemed to be given
at the time and date of posting
Stamp Duty and 11.10 Each of the parties hereto shall bear its own
Costs legal costs in relation to the preparation approval and
execution of this Agreement. The stamp duty hereon and
Land Registry fees (if any) shall be borne by the
Landlord and the Tenant in equal shares.
Deed of Mutual 11.11 The Tenant shall observe and comply with and
perform all the
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Covenant covenants terms and provisions in any Deed of Mutual
Covenant and Management Agreement now or at any future
time in force relating to the Building so far as they
relate to the Premises and shall not in any way cause
the Landlord to be in breach of the provisions of the
same and shall indemnify the Landlord against the breach
non-observance or non-performance thereof.
No Key Money 11.12 The Tenant hereby expressly declares that for the
grant of the Term no key money or premium or
construction money or other consideration otherwise than
the rent and other payments herein expressly reserved
and expressed to be payable has been paid or will be
payable to the Landlord or to any person whomsoever.
Entire Agreement 11.13 This Agreement sets out the full agreement between
the parties. No warranties or representations express or
implied of any kind other than those set out herein (if
any) are or have been made or given by the Landlord or
by anybody on his behalf and if any such warranties or
representations express or implied have been made, the
same are withdrawn or deemed to have been withdrawn
immediately before the execution of this Agreement.
SECTION XII
SPECIAL CONDITIONS
Special 12. The parties hereto further agree that they shall
Conditions respectively be bound by and entitled to the benefit of
the Special Conditions set forth in Schedule 4.
IN WITNESS whereof the parties have caused this document to be
executed the day and year first above written.
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THE FIRST SCHEDULE ABOVE REFERRED TO
PART I
LANDLORD : ▇▇▇▇▇ REAL ESTATE AGENCY LIMITED as agent for the
registered owner of the Property, Fair Page Limited.
REGISTERED : ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ 3, 14 Taikoo Wan Road,
OFFICE Taikoo Shing, Hong Kong.
TENANT : ▇▇▇▇▇▇▇ SACHS (ASIA) FINANCE
PLACE OF : Cayman Islands
INCORPORATION
PRINCIPAL PLACE :
OF BUSINESS
PART II
THE BUILDING : The multi-storeyed commercial/office building erected as
part of the development erected on Inland Lot No. 8888
and known as: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
THE PREMISES : All That Portion of the Thirty Sixth (36th) Floor of the
Building known as Suites Nos.3606-3608 and All That
Portion of the Thirty Seventh (37th) Floor of the
Building known as Suites 3701-3707 as shown coloured
Pink and Pink hatched Black on the 36th and 37th Floor
Plans hereto annexed provided that the Tenant shall be
entitled to the exclusive use of the area coloured Green
on the 37th Floor Plan and all the rights, obligations
and liabilities of the Landlord and the Tenant under
this Agreement with respect to the Premises shall extend
to the said area.
PART III
TERM : A term of ONE (1) YEAR commencing on the 15th day of May
1999 and expiring on the 14th day of May 2000.
PART IV
RENT FREE : NIL
PERIOD
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THE SECOND SCHEDULE ABOVE REFERRED TO
PART I
RENT
The rent shall be HK$1,213,992.00 per month (exclusive of government rates,
management fees and all other outgoings) payable monthly in advance by way of
cheque on its due date.
PART II
MANAGEMENT CHARGES
The Management Charge that will be payable with effect from the commencement of
the Term will be HK$124,902.00 per month (subject to review)
PART III
9.01 of Section IX (subject to review) shall be in the sum of HK$4,016,682.00
THE THIRD SCHEDULE ABOVE REFERRED TO
USER
The Tenant will use the Premises for commercial offices for the purposes of the
Tenant's business only and for no other purpose whatsoever
THE FOURTH SCHEDULE ABOVE REFERRED TO
SPECIAL CONDITIONS
1. FITTING OUT
All additional fitting out or decoration work of the Premises shall be at
the cost of the Tenant and the Tenant hereby agrees to the following:-
i. The Tenant's contractors shall be approved or nominated by the
Landlord in writing prior to commencement of any fitting out works
such approval not to be unreasonably withheld or delayed.
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ii. Four complete sets of fitting out plans shall be submitted to the
Landlord for approval prior to commencement of any fitting out
works.
iii. The Tenant shall act and behave in accordance with the Fitting Out
Guide and House Rules set by the Landlord and/or the Manager.
iv. All decoration, fitting out works, installation works and all
adjustments of common facilities should be done in accordance with
the requirements of the Landlord and/or regulation of the government
or other relevant competent authorities and at the Tenant's costs.
2. DESIGNATED AREAS
The Tenant hereby agrees not to erect or install any fixtures or fittings
or put any heavy machinery or equipment over or in any way block the
access to the ceiling of that portion of the Premises as shown coloured
Pink hatched Black on the Plan(s) attached hereto so as to allow free and
easy access thereto by the Landlord and/or the Manager for the
installation, maintenance or alterations of the conduits, cables, wires,
ducts and trunkings below the raised flooring or above the suspended
ceiling thereof.
3. TRANSFER OF DEPOSIT
Notwithstanding any provision to the contrary contained herein, it is
hereby expressly agreed by the parties hereto that:-
(a) Upon the signing of this Agreement/upon the commencement of the
Tenancy Term herein (as the case may be) the total sum of
HK$3,922,356.34 being the deposit ("the previous deposit") held by
the Landlord under three Tenancy Agreements dated 19th May 1994,
19th May 1994 and 10th April 1997 made between the Landlord and the
Tenant in respect of the Premises ("the previous Tenancy Agreement")
shall be transferred and carried over to this Agreement as part
payment of the Deposit and the Tenant shall upon the signing of this
Agreement pay to the Landlord a further sum of HK$94,325.66 which
together with the previous deposit shall be the Deposit.
(b) In the event that the Tenant shall (either before or after the date
hereof) have breached any of the terms and conditions contained in
the previous Tenancy Agreement which on the part of the Tenant is to
be observed and performed up to and inclusive of the date of the
expiration of the contractual term or sooner determination of the
previous Tenancy Agreement, then the Landlord shall be entitled to
deduct from the Deposit such amount as may be required towards
remedying the same insofar as it may be possible (without prejudice
to any other rights or remedies available to the Landlord for breach
of the previous Tenancy Agreement) and in such circumstances and as
a condition precedent to the commencement of this Agreement the
Tenant shall forthwith on demand by the Landlord pay a further sum
to the Landlord (to be held as part of the Deposit) equal to the
amount so deducted and failure by the Tenant so to do shall entitle
the Landlord to forfeit the tenancy hereby created or maintained and
to re-enter upon the Premises and to determine this Agreement
(and/or the previous Tenancy Agreement (as appropriate)) without
prejudice to any other right which the Landlord may have against the
Tenant and the balance of the Deposit (if any) shall be absolutely
forfeited as and for liquidated damages (and not as penalty).
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(c) For the avoidance of doubt this Agreement shall take effect subject to and
with the benefit of the previous Tenancy Agreement until expiry of the
contractual term or sooner determination of the previous Tenancy Agreement
and so that any breach in the obligations and restrictions on the part of
the Tenant in the previous Tenancy Agreement shall be a breach of this
Agreement and vice versa.
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For and on behalf of
▇▇▇▇▇ REAL ESTATE AGENCY LIMITED
SIGNED by /s/ [ILLEGIBLE] )
)
) /s/ [ILLEGIBLE]
)
for and on behalf of the Landlord )
)
in the presence of:- )
/s/ Whamly Lin
Whamly Lin
Legal Assistant
SIGNED by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ )
)
)
)
for and on behalf of The Tenant )
)
verified by ) /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Director
-----------------------------
For and on behalf of
▇▇▇▇▇▇▇ ▇▇▇▇▇ (Asia) Finance
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Solicitor
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Hong Kong SAR
RECEIVED the day and year first above )
written the sum of HONG KONG DOLLARS FOUR )
MILLION AND SIXTEEN THOUSAND SIX HUNDRED AND )
EIGHTY TWO being the Deposit payable by the ) HK$4,016,682.00
Tenant hereunder on the signing hereof ) ===============
(whereof HK$3,922,356.34 is transferred from )
96
[GRAPHIC OMITTED]
37TH FLOOR PLAN
97
5.26 Tenant's Insurance
The Tenant shall effect and maintain during the Term insurance cover in
respect of the following:-
(a) Third party liability
In respect of liability for loss or injury or damage to any person
or property whatsoever caused through or by any act, neglect,
default or omission of the Tenant which might give rise to a claim
for indemnity pursuant to Clause 5.25 hereof.
(b) Glass
All glass, if any, now or hereafter on or in the Premises excluding
the glass curtain wall for its full replacement value.
(c) Water Damage
Against damage to the Landlord's Fixtures and installations to the
full insurable value occurring in respect of the use or misuse of
the fire-fighting installation installed within the Premises or the
incursion of water therein.
(d) Tenants Fittings
The Tenant's fittings, goods, personal effects, stock and equipment
within the Premises against fire and extraneous perils for their
full replacement value.
The policy of insurance shall be effected with an insurance company approved by
the Landlord, such approval not to be unreasonably withheld and shall be
endorsed to show the Landlord as registered owner of the Premises and shall be
in an amount of not less than that set out in the Fifth Schedule hereto 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 the policy
is fully paid up and in all respects valid and subsisting.
6. TENANT'S NEGATIVE COVENANTS
6.1 Injury To Walls
The Tenant shall not, without the prior written consent of the Landlord
(which may, in the absolute discretion of the Landlord, be withheld or granted
upon such terms and conditions as the Landlord may impose), cut, maim, injure,
drill into, ▇▇▇▇ or deface or permit or suffer to be cut, maimed, injured,
drilled into, marked or defaced any doors (other than those installed by the
Tenant), windows, window-frames, partition or structural walls (other than those
internal partition walls erected by the Tenant), glass curtain walls, ceilings,
raised floor, beams, structural members or other part of the fabric
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98
of the Premises or any of the plumbing or sanitary or air-conditioning apparatus
or installations included therein or lay or use any floor covering or do
anything which may damage or penetrate the existing raised flooring or slab.
6.2 Alteration to Exterior
The Tenant shall not, without the prior written consent of the Landlord
(which may, in the absolute discretion of the Landlord, be withheld or granted
upon such terms and conditions as the Landlord may impose), affix or attach
anything or paint or make any alteration whatsoever to the exterior of the
Premises or the common areas or allow anything to be affixed, attached, painted,
suspended or hung outside the Premises or drop anything from the Premises.
6.3 Inside Faces of Windows
The Tenant shall not paint, spray, put on or adhere any thing or substance
on the inside or outside faces of the windows or the window frames or the glass
curtain walls of the Premises.
6.4 Nuisance
The Tenant shall not cause or produce or suffer or permit to be produced
on or in the Premises any sound or noise or vibration (including sound produced
by broadcasting from television, radio or any apparatus or instrument capable of
producing or reproducing music or sound or vibration) or other acts or things in
or on the Premises which is or are or may be or become a nuisance or annoyance
to the tenants or occupiers of adjacent or neighbouring premises or to users or
customers of the same or to the Landlord or which in the opinion of the Landlord
may prejudicially affect or depreciate the Premises or the Buildings or any
adjacent or neighbouring premises. It as hereby agreed that a persistent breach
by the Tenant of this Clause shall amount to a breach of this Lease which will
entitle the Landlord to exercise its right of re-entry hereunder.
6.5 Auctions & Sales
The Tenant shall not conduct or permit any sale to the public by auction,
bankruptcy, close-out or other sale of things or properties of a similar nature
to take place on the Premises.
6.6 User
(a) The Tenant shall not use the Premises or any part thereof for any
purpose other than as offices Provided that no warranty is given or
deemed to be given by the Landlord as to the fitness of the Premises
for such use. In particular, the Tenant shall not alter the lavatory
comprised in the Premises for any other use.
(b) The Tenant shall not use or cause or permit or suffer to be used any
part of the Premises for gambling or for any illegal, immoral or
improper purpose or in any way so as to cause any nuisance,
annoyance, inconvenience, damage or danger to the Landlord or the
tenants or occupiers of adjacent or neighbouring premises.
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99
(c) The Tenant shall not tout or cause or permit or suffer any touting
or soliciting for business or the distribution of any pamphlet,
notice or advertising matter outside the Premises or anywhere within
the Buildings (except inside the Premises) by any of the Tenant's
servants, agents, employees, contractors or licensees.
(d) The Tenant shall not use the Premises or any part thereof as
sleeping quarters or as domestic premises within the meaning of the
Landlord and Tenant (Consolidation) Ordinance or similar legislation
for the time being in force and the Tenant shall not allow any
person to remain on the Premises overnight other than for working
purposes and with prior notice to the Landlord or the Manager
Provided that the Tenant may post watchmen to look after the
contents of the Premises and the names of the watchmen shall be
registered with the Landlord.
(e) Except for the reheating of pre-prepared food for consumption by the
Tenant's employees by an approved microwave oven, the Tenant shall
not ▇▇▇▇, prepare, deliver or permit or suffer to be cooked or
prepared or delivered any food in the Premises save with the prior
written consent of the Landlord or permit any offensive or unusual
odours (as determined by the Landlord absolutely) to be produced
upon or emanate from the Premises.
(f) The Tenant shall not keep or permit or suffer to be kept any animals
or pets inside the Premises and shall take all such steps and
precautions to the satisfaction of the Landlord to prevent the
Premises or any part thereof from becoming infested by termites,
rats, mice, cockroaches or any other pests or vermin and for the
better observance of this provision, the Landlord may require the
Tenant to effect pest control for the Premises at the Tenant's cost
and expense at such intervals as the Landlord or any relevant
Government authority may direct by employing such pest extermination
contractors as the Landlord may nominate or approve such approval
not to be unreasonably withheld.
6.7 Heavy Machinery
The Tenant shall not, without the prior written consent of the Landlord
(such consent not to be unreasonably withheld but may be granted subject to such
reasonable conditions as the Landlord may impose), install or cause or permit or
suffer to be installed any equipment apparatus or machinery or any part thereof
which imposes a weight on any part of the flooring in excess of five (5) KPa or
which requires any additional electrical wiring or piping or which consumes
electricity or gas not metered through the Tenant's separate meter. The Landlord
shall be entitled to prescribe the maximum weight and permitted location of
safes and other heavy equipment and to require that the same stand on supports
of such dimensions and material to distribute the weight thereof as the Landlord
may deem necessary and the Tenant shall reimburse the Landlord all costs,
charges and expenses incurred by the Landlord in making such prescription.
6.8 Manufacture & Storage of Merchandise
The Tenant shall not use the Premises for the manufacture of goods or
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100
merchandise or for the storage of goods or merchandise other than as samples or
exhibits reasonably required in connection with the Tenant's business carried on
therein or keep or store or cause or permit or suffer to be kept or stored any
extra-hazardous, inflammable or dangerous goods within the meaning of the
Dangerous Goods Ordinance and the regulations thereunder.
6.9 Obstruction in Passages
The Tenant shall not place or leave or suffer or to permit to be placed or
left by any of its servants, agents, employees, contractors or licensees any
boxes, furniture, articles or rubbish in the entrance or any of the staircases,
passages or landings or other parts of the Buildings used in common with other
tenants or the Landlord or otherwise encumber the same. The Tenant hereby agrees
to keep the Landlord indemnified against all losses, claims, damages or expenses
suffered or incurred by the Landlord as a result of a breach of this Clause.
Without prejudice to any other remedy it may have under this Lease, the Landlord
or any of its servants or agents may without any prior notice to the Tenant
remove any such obstruction and dispose of the same as it may in absolute
discretion think fit without incurring any liability therefor to the Tenant or
any other person whomsoever and the Tenant shall pay to the Landlord forthwith
on demand all costs and expenses incurred in connection with such removal.
6.10 Goods & Merchandise Outside the Premises
The Tenant shall not place expose or leave or permit or suffer to be
placed exposed or left for display sale or otherwise any goods or merchandise or
thing whatsoever upon or over the ground or passages outside the Premises.
6.11 Air-Conditioning
(a) The Tenant shall not install air-conditioning plant, machinery or
equipment in addition to or in place of those provided by the
Landlord.
(b) Where any air-conditioning plant, machinery or equipment for cooling
or recirculating air is installed in or about the Premises (whether
by the Landlord or the Tenant with the Landlord's approval), the
Tenant shall to the extent of the Tenant's control over the same at
all times use and regulate the same to ensure that the
air-conditioning plant, machinery or equipment is employed to the
best advantage in the conditions from time to time prevailing.
(c) Where air-conditioning service is required by the Tenant outside the
normal business hours (normal business hours being from 8:00 a.m. to
6:30 p.m. every day (Sundays and public holidays excluded) for
Mondays to Fridays and from 8:00 a.m. to 2:00 p.m. on Saturdays
which are not public holidays) and is provided by the manager on the
Tenant giving the Manager reasonable advance notice of the Tenant's
requirements, the Tenant shall pay to the oblige the Landlord to
arrange for [ILLEGIBLE]
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air-conditioning service the provision whereof is governed by the
Deed of Mutual Covenant.
6.12 Signs
The Tenant shall nor exhibit or display on or affix to the interior or
exterior of the Premises so as to be visible from outside the Building any
writing, sign, signboard or other device whether illuminated or not or affix any
writing, sign, sideboard or other device in, at or above any common area, lobby,
landing, passage or corridor of the Buildings Provided always that the Tenant
shall be entitled to have its name and business displayed in lettering and/or
characters to a design and standard of workmanship approved by the Landlord on a
signboard or name-plate at the entrance of the Premises. The Landlord and/or the
Manager or their respective authorized agents shall have the right to remove at
the expense of the Tenant any signboard, sign, name-plate and decorative device
associated therewith affixed or put up or displayed without the prior written
consent of the Landlord.
6.13 Aerials
The Tenant shall not erect any aerial on the roof or walls of the
Buildings or on the ceiling or walls of the Premises or interfere with, remove,
dismantle or alter the common aerials (if any) provided by the Landlord.
6.14 Parking
The Tenant shall not park in, obstruct or otherwise use or permit any of
its servants, agents, employees, contractors or licensees to park in, obstruct
or otherwise use those areas of the Buildings allocated to the parking or
movement of or access for vehicles or designated as loading/unloading areas
otherwise than in accordance with the permissions and directions of the Landlord
and/or the manager or as permitted under the House Rules.
6.15 Breach Of Insurance Policy
The Tenant shall not do or cause or permit or suffer to be done any act or
thing whereby the policy or policies of insurance on the Premises and/or the
Buildings against loss or damage by fire and/or other insurable risks and/or
claims by third parties for the time being subsisting may become void or
voidable or whereby the rate of premium or premia thereon may be increased and
the Tenant shall pay to the Landlord forthwith on demand all sums paid by the
Landlord by way of increased premium or premia thereon and all expenses incurred
by the Landlord in and about any renewal of such policy or policies arising from
or rendered necessary by a breach by the Tenant of this Clause.
6.16 No Subletting
The Tenant shall nor assign, underlet, part with the possession of or
transfer the Premises or any part thereof or any interest therein or permit or
suffer any arrangement or transaction whereby any person who is not a party to
this Lease obtains the use, possession, occupation or enjoyment of the Premises
or any part thereof irrespective of whether any rental or other consideration is
given therefor. The lease created hereby shall be personal to the Tenant named
in this Lease. Without limiting the generality of the
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foregoing, the following acts and events shall, unless approved in writing by
the Landlord, be deemed to be breaches of this Clause:-
(a) In the case of the Tenant being a partnership, the taking in of one
or more new partner whether on the death or retirement of an
existing partner or otherwise.
(b) In the case of the Tenant being an individual (including a sole
surviving partner of a partnership tenant), the death, insanity or
other disability of that individual to the intent that no right to
use, possess, occupy or enjoy the Premises or any part thereof shall
vest in the executors, administrators, personal representatives,
next of kin, trustee or committee of such an individual.
(c) In the case of the Tenant being a corporation, the take-over,
reconstruction, amalgamation, merger, voluntary liquidation or
change in the person or persons in whom the majority of its voting
shares are vested or who otherwise has/have effective control
thereof.
(d) The giving by the Tenant of a power of attorney or similar authority
whereby the donee of the power obtains the right to use, possess,
occupy and enjoy the Premises or any part thereof or does in fact
use, possess, occupy or enjoy the same.
{e) The change of the business name of the Tenant.
6.17 Common Facilities, etc.
The Tenant shall not make any alteration to or interfere or tamper or
permit its servants, agents, employees, contractors or licensees to make any
alteration to or interfere or tamper with any of the following other than in the
manner expressly permitted hereunder:-
(a) the raised flooring within the Premises;
(b) the heating, ventilation and air-conditioning system for the
Buildings (including that part of system installed within the
Premises);
(c) the electrical installations for the Buildings;
(d) the fire services installations of the Buildings (including those
within the Premises);
(e) the installations for plumbing and drainage for the Buildings
(including those within the Premises);
(f) the building management system of the Buildings;
(g) the communication network which forms part of the Common Facilities
(as defined in the Deed of Mutual Covenant) of the Buildings;
(h) the suspended ceiling of the Buildings (including that within the
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Premises); and
(i) the conduits, pipes, wires, cables and ducts in, on or under the
Premises or the raised flooring therein serving or intended to serve
the Buildings or any adjoining or neighbouring property.
7. LANDLORD'S OBLIGATIONS
The Landlord hereby agrees with the Tenant as follows:-
7.1 Quiet Enjoyment
Subject to the Tenant duly paying the Rent and the other charges
hereinbefore mentioned on the days and in manner herein provided for and
observing and performing the agreements, stipulations, terms, conditions and
obligations herein contained, the Tenant shall have quiet possession and
enjoyment of the Premises during the Term without any interruption by the
Landlord or any person lawfully claiming under or through or in trust for the
Landlord.
7.2 Government Rent
The Landlord shall pay the Government Rent and Property Tax and all other
expenses of a capital and non-recurrent nature attributable to or payable in
respect of the Premises.
7.3 Main Structure
The Landlord shall use its best endeavours to procure that the Manager
shall keep the roof of the Buildings and the main structure and walls (including
the glass curtain walls) thereof and the mains, drains, pipes and cables therein
in a proper state of repair and condition Provided that the Landlord shall not
be liable for breach of this Clause unless and until prior written notice of any
defect or want of repair shall have been given by the Tenant to the Landlord and
the Landlord shall have failed to notify the Manager to carry out any such
necessary repair after the lapse of a reasonable time from the service of such
notice.
7.4 Air-Conditioning
(a) The Landlord shall use its best endeavours to procure that subject
to the right of the Manager under the Deed of Mutual Covenant to
change the hours for air-conditioning services, the Manager shall
provide air-conditioning services to the Premises daily from 8:00
a.m. until 6:30 p.m. everyday (Sundays and public holidays excluded)
for Mondays to Fridays and from 8:00 a.m. to 2:00 p.m. on Saturdays
(which are not public holidays). If the Tenant shall require
additional air-conditioning services outside the times specified by
the Landlord, the Landlord shall procure that the Manager shall
provide the same to the Tenant on receiving reasonable notice of the
Tenant's requirements. The charges for air-conditioning outside the
times specified by the Landlord shall be determined by the Landlord
and/or the Manager and notified to the Tenant from time to time.
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(b) If the Tenant so requests, the Landlord shall use its best
endeavours to procure that the Manager shall permit the Tenant to
make connection from the chilled water supply system of the
Buildings so as to obtain daily 24 hours chilled water supply for
the air handling unit intended to serve the computer room to be
installed by the Tenant within the Premises with the prior approval
of the Landlord. The charges for such supply of chilled water shall
be determined by the Landlord and/or the Manager and notified to the
Tenant from time to time.
7.5 Facilities
The Landlord shall use its best endeavours to procure that the Manager
shall maintain the lifts, escalators, travelators, fire and security services
equipment, central air-conditioning system and other common facilities of the
Buildings in proper working order and keep the same in good repair.
7.6 Compliance with Conditions
The Landlord shall comply with the provisions of the Conditions of Sale or
the Government Lease under which the Landlord holds the Premises and shall not
do or permit any act or thing to be done (or omitted to be done) which results
in the whole or any part of the Premises being or becoming subject to re-entry
under the Conditions of Sale or the Government Lease.
7.7 Landlord's Repairs
The Landlord shall, upon receipt of the Tenant's request therefor and
within a reasonable period, effect such repairs to the interior of the Premises
as shall be necessitated by damage caused by any defects or want of repair in
the structure of the Buildings or any part thereof or any other services or
facilities if the Landlord is liable for such repairs hereunder.
8. EXCLUSIONS
8.1 It is hereby expressly agreed and declared that the Landlord shall not in
any circumstances be liable to the Tenant or any other person whomsoever:-
(a) Lifts, Air-Conditioning & Other Common Facilities - in respect of
any injury, loss, damage or loss of business whatsoever which may be
suffered or sustained by the Tenant or any other person or to any
property whatsoever caused by or through or in any way owing to any
malfunction, defect in or breakdown of the lifts, escalators,
travelators, fire and security services, central air-conditioning
system, satellite and the ancillary distribution system, backbone
distribution system, the "High Speed Data Link" system or any other
services or facilities provided in the Building or any failure,
malfunction, explosion, variation, interruption or suspension of
electricity or water supply or any other services or services
provided in the Building; or
(b) Fire & Overflow Water - in respect of any injury, loss, damage or
loss of business whatsoever which may be suffered or sustained by
the Tenant or any other person or to any property whatsoever caused
by or through or in any way owing to typhoon, landslide,
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subsidence of the ground, the escape of fumes, smoke, fire or any
other substance or thing or the overflow of water or vibrations from
anywhere within the Buildings or in the neighbourhood or the influx
of rain water or sea water into the Buildings or the Premises or the
activity of rats or other vermin in the Buildings or the act,
neglect, default or omission of the tenants and occupiers of the
other parts of the Buildings or the defective or damaged condition
of the Premises or the Landlord's fixtures and Installations or any
part thereof or dropping or falling of any article whatsoever from
the Buildings; or
(c) Security - for the security or safekeeping of the Premises or any
contents therein and in particular but without prejudice to the
generality of the foregoing, the provision by the Landlord and/or
the Manager of watchmen and caretakers or any mechanical or
electrical alarm systems (if any) of whatever nature shall not
create any obligation on the part of the Landlord as to the security
of the Premises or any contents therein and the responsibility for
the safety of the Premises and the contents thereof shall at all
times rest with the Tenants; or
(d) Vehicles - for the supervision of or for any damage or loss to
vehicles or accessories or injury to persons or any other damage
resulting therefrom,
and the Tenant shall indemnify and keep the Landlord fully indemnified against
all claims and demands whatsoever made upon the Landlord by any of the servants,
agents, employees, contractors or licensees of the Tenant or any other person
claiming through or under the Tenant as a result of any such loss or damage or
injury aforesaid nor shall the Rent and other charges hereinbefore mentioned or
any part thereof ▇▇▇▇▇ or cease to be payable on account of the happening of any
of the foregoing.
9. SUSPENSION OF RENT IN CASE OF FIRE ETC.
If:-
(a) the Premises or the Buildings or any part thereof shall at any time
during the Term be destroyed or damaged or become inaccessible or
uninhabitable owing to fire, water, storm, typhoon, defective
construction, white ants, earthquake, subsidence of the ground or
any calamity beyond the control of the Landlord and not attributable
to the act, default, neglect or omission of the Tenant or any of its
servants, agents, employees, contractors or licensees so as to
render the Premises unfit for commercial use in accordance with
Clause 2.1; or
(b) at any time during the Term the Premises or the Buildings shall be
condemned as a dangerous structure or a demolition order or closing
order shall become operative in respect of the Premises or the
Buildings so as to prevent the occupation of the Premises the
happening of which is not attributable to the act, default, neglect
or omission of the Tenant or any of its servants, agents, employees,
contractors or licensees,
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then the Rent hereby reserved or a fair proportion thereof according
to the nature and extent of the damage sustained or the order made
shall after the expiration of the then current calendar month be
suspended until the Premises shall be reinstated or fit for the use
as aforesaid or the said order lifted, as the case may be, Provided
that:-
(i) the Landlord shall not be obliged to reinstate the Premises or
the Buildings or carry out any repairs thereto if, by reason
of the condition of the Premises or any local regulations or
other circumstances beyond the control of the Landlord, it is
not practicable or reasonable so to do; and
(ii) should the Premises or the Buildings not have been reinstated
in the meantime, either the Landlord or the Tenant may at any
time after four (4) months from the date of occurrence of such
damage or the said order give to the other of them a notice in
writing to determine this Lease and thereupon the same and
everything herein contained shall cease and be of no effect as
from the date 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 the agreements,
stipulations, terms and conditions herein contained or of the
Landlord in respect of the Rent payable hereunder prior to the
date of such notice.
In the event of any disagreement between the parties hereto on the application
of this Section, the matter shall be referred to a single professional Surveyor
appointed by mutual, agreement or failing agreement to single professional
Surveyor nominated by the President for the time being of the Hong Kong
Institute of Surveyors and China branch) and the decision of the professional
Surveyor who shall be acting as an arbitrator shall be final and binding. The
costs of such appointment of the professional Surveyor shall be borne by the
Landlord and the Tenant in equal shares.
10. DEFAULT
It is hereby expressly agreed and declared as follows:-
10.1 If:-
(a) the Rent and/or any of the other charges payable hereunder or any
part thereof shall be in arrear for fourteen (14 days after the same
shall have become payable (whether formally demanded or not); or
(b) the Tenant shall suspend business without the Landlord's prior
written consent; or
(c) there shall be any other breach or non-performance of any of the
stipulations, conditions or agreements herein contained and on the
part of the Tenant to be observed or performed; or
(d) the Tenant shall become bankrupt or enter into composition with
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his creditors generally or being a corporation go into liquidation
whether compulsory or voluntary (save for the purposes of
amalgamation or reconstruction approved by the Landlord) or shall
suffer a receiver to be appointed; or
(e) the Tenant shall suffer execution to be levied upon the Premises or
otherwise on the Tenant's goods in Hong Kong.
then and in any such case it shall be lawful for the Landlord at any time
thereafter to re-enter on and upon the Premises or any part thereof in the name
of the whole and thereupon this Lease shall absolutely determine but without
prejudice to any right of action by the Landlord in respect of any outstanding
breach or non-observance or non-performance by the Tenant of any of the terms of
this Lease. A written notice served by the Landlord on the Tenant to the effect
that the Landlord thereby exercises the power of re-entry herein contained shall
be a full and sufficient exercise of such power without physical entry on the
part of the Landlord notwithstanding any rule of law or equity to the contrary.
10.2 Notwithstanding anything herein contained if the Rent, management,
air-conditioning or other charges or moneys herein reserved or any part or parts
thereof shall be in arrears (hereinafter referred to as "the Arrears") and if
the Tenant persists in its failure to pay the same after three (3) days' notice
in writing is given by the Landlord, the Landlord shall be entitled to:-
(a) recover from the Tenant as a debt the expenses incurred by the
Landlord in the course of recovering the Arrears including without
limitation:-
(i) such sum as the Landlord shall reasonably determine being
collection charges for the additional work incurred by the
Landlord's staff and/or the Manager (as the case may be) in
collecting the Arrears;
(ii) all legal charges and expenses on an indemnity basis incurred
by the Landlord for the purpose of recovering the Arrears;
(iii) all other fees paid to debt-collectors appointed by the
Landlord for the purpose of collecting the Arrears; and
(b) disconnect or discontinue the supply of services to the Premises
and/or to the Tenant such as air-conditioning services, water, gas,
electric power, management and other services forthwith without
incurring any liability to the Tenant for any loss or damage
suffered by the Tenant as a result thereof,
Provided Always that the rights and remedies given to the Landlord by this
Clause shall be deemed cumulative remedies and shall not prejudice any right of
action or any remedy of the Landlord for the recovery of any Rent or money due
to the Landlord from the Tenant.
10.3 Any demand for or acceptance of any Rent by the Landlord or its agents
hereunder 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
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or non-performance by the Tenant of any of the agreements, stipulations, terms
and conditions herein contained and on the part of the Tenant to be observed and
performed and any such breach, non-observance or non-performance shall be deemed
to be a continuing breach of covenant and the Tenant shall not be entitled to
set up any such demand for or acceptance of rent as a defence in any action for
forfeiture or otherwise.
10.4 For the purpose of this Lease, any act, default, neglect or omission of any
servant agent employee contractor or licensee (which term shall include any
person present in using or visiting the Premises with the consent of the Tenant
express or implied) of the Tenant shall be deemed to be the act, default,
neglect or omission of the Tenant and any act, default, neglect or omission of
any servant agent employee contractor or licensee of the Landlord shall be
deemed to be the act, default, neglect or omission of the Landlord.
10.5 For the purposes of Part III of the Landlord and Tenant (Consolidation)
Ordinance or any statutory modification or re-enactment thereof for the time
being in force and of this Lease, the Rent and the management charges payable in
respect of the Premises shall be and be deemed to be in arrear if not paid in
advance at the times and in the manner hereinbefore provided for payment
thereof.
11. DEPOSIT
11.1 To secure the due payment of the Rent and the due performance and
observance of the terms and conditions herein contained and on the part of the
Tenant to be performed and observed, the Tenant shall on the signing hereof and
throughout the Term maintain a deposit ("the Deposit") in such sum or sums as
specified in Part 3 of the Fourth schedule hereto.
The Deposit shall remain deposited with the Landlord and shall not be withdrawn
throughout the Term and shall only be released as hereinafter provided.
The Landlord shall be entitled to deduct from the Deposit the amount of all
losses and damages sustained or incurred by the Landlord as a result of any
breach, non-observance or non-performance by the Tenant of any of the covenants,
terms or conditions herein contained. The Tenant shall forthwith on demand
deposit with the Landlord the amount so deducted.
11.2 The Deposit shall be retained by the Landlord until the expiration of the
Term and after all the Tenant's covenants terms and conditions shall have been
duly performed and observed, it shall be repaid to the Tenant without interest
or compensation within thirty (30) days from the date of the Tenant delivering
up vacant possession of the Premises together with all fixtures and fittings
therein and thereto to the Landlord or within thirty (30) days from the date of
the full and final settlement by the Tenant of all claims made by the Landlord
in respect of the Tenant's obligations hereunder whichever shall be the later
Provided that the Landlord may prior to refund of the Deposit require the Tenant
to produce receipts for rates and other utilities covering the Term or other
evidence showing that payment thereof has been made by the Tenant during the
Term.
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12. BUILDING MANAGEMENT & REGULATIONS
12.1 Change of Common Areas, etc
The Landlord or the Landlord's agent shall have the right from time to
time and at any time without the same constituting an actual or constructive
eviction of the Tenant and without incurring any liability to the Tenant in
respect thereof but causing as little inconvenience as possible to the Tenant to
erect install, restrict and/or alter the arrangement and/or the location and/or
alter the arrangement and/or the accessibility of entrances, staircases,
landings, passages, doors, doorways, corridors, lobbies, lifts, escalators,
travelators, lavatories, counters, showcases or other common areas of the
Buildings or any services or apparatus or installations serving the Buildings.
12.2 Conflict with House Rules
The House Rules shall be supplementary to the terms and conditions
contained in this Lease and shall not in any way derogate from such terms and
conditions. In the event of conflict between such House Rules and the terms and
conditions of this Lease the terms and conditions of this Lease shall prevail.
12.3 Non-enforcement
The Landlord or the Landlord's agent shall not be liable for any loss or
damage howsoever caused arising from any non-enforcement of the Deed of Mutual
Covenant or the House Rules or non-observance thereof by any person.
12.4 Designation of Common Areas
The Landlord and/or the manager shall be entitled to restrict, designate,
cordon off and/or partition any part or parts of the common areas and/or the
common facilities for the sole use of any tenant and/or the manager and the
Tenant shall not raise any objection thereto and shall not have any recourse
against the Landlord and/or the Manager in any manner whatsoever.
12.5 Alteration and Displays
The Landlord reserves the right from time to time to improve extend add to
or reduce the Buildings or any part thereof or in any manner whatsoever alter or
deal with the Buildings or any part thereof (other than the Premises) cause as
little (ILLEGIBLE) the landlord will endeavour to circumstances.
12.6 Name of the Buildings
Subject to the terms of the Deed of Mutual Covenant, the Landlord hereby
reserves the right from time to time by giving less than three (3) months'
notice to the Tenant to change the names of the two (2) b1ocks of office
premises and the podium comprised in the Buildings or any one or more of them
without thereby becoming liable to the Tenant, its servants, agents or licensees
for any damages, claims, costs or expenses suffered or incurred as a result of
or in connection with any such change.
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12.7 Public Address System
Notwithstanding anything herein contained or implied to the contrary, the
Landlord may provide and install a public address system throughout the common
areas and may play, relay or broadcast or permit any other person to play, relay
or broadcast recorded music or public announcement therein.
13. INTERPRETATION AND MISCELLANCEOUS
13.1 Condonation Not a Waiver
No condoning, excusing or overlooking by the Landlord of any default,
breach, non-observance or non-performance by the Tenant at any time or times of
any of the agreements, stipulations, terms and conditions herein contained shall
operate as a waiver of the Landlord's rights hereunder in respect of any
continuing or subsequent default, breach, non-observance or non-performance or
so as to defeat or affect in any way the rights and remedies of the Landlord
hereunder in respect of any such continuing or subsequent default or breach and
no waiver by the Landlord shall be inferred from or implied by anything done or
omitted by the Landlord unless expressed in writing and signed by the Landlord.
Any consent given by the Landlord shall operate as a consent only for the
particular matter to which it relates and shall in no way be considered as a
waiver or release of any of the provisions hereof nor shall it be construed as
dispensing with the necessity of obtaining the specific written consent of the
Landlord in the future in respect of similar or other matters unless expressly
so provided.
13.2 Service of Notices
Any notice required to be served on the Tenant shall be sufficiently
served if delivered to or dispatched by prepaid post to or left at the Premises
or at the last known address of the Tenant. Any notice to be served on the
Landlord shall be sufficiently served if delivered to or dispatched by pre-paid
post to the registered office of the Landlord. A notice sent by hand shall be
deemed to be given upon delivery to the addressee and a notice sent by pre-paid
post shall be deemed to be given two (2) days after the date of the notice.
13.3 Landlord and Tenant Legislation
To the extent that the Tenant may lawfully so do the Tenant hereby
expressly agrees to deprive himself of all rights (if any) to protection against
eviction or ejection provided by any existing legislation or by any future
enactment in substitution or amendment thereof or addition thereto to the intent
that the Tenant shall deliver up vacant possession of the Premises to the
Landlord at the expiration or sooner determination of the Term hereby created
notwithstanding any rule of law or equity to the contrary.
13.4 Gender, etc.
In this Lease, if the context permits or requires, words importing the
singular number shall include the plural number and vice versa and words
importing the masculine feminine or neuter gender shall include the other of
them and references to any Ordinance, regulation or other statutory provision
include references to such Ordinance, regulation or provision as from time to
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time modified, codified or re-enacted.
13.5 Marginal Notes
The marginal notes, headings and index 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.
13.6 Stamp Duty
The stamp duty and Land Registry registration fees payable on this Lease
and its counterpart shall be borne by the Landlord and the Tenant hereto in
equal shares. Each of the Landlord and the Tenant shall pay its own legal costs
of and incidental to the Lease and its counterpart.
13.7 Exclusion of Warranties
(a) This Lease sets out the full agreement reached between the parties
hereto and no other representations have been made or warranties
given relating to the Landlord, the Tenant, the Buildings or the
Premises and if any such representations have been made or
warranties given the same are hereby waived.
(b) Nothing herein contained shall confer on the Tenant any right,
interest, privilege, easement or appurtenance whatsoever mentioned
or referred to in Section 16(1) of the Conveyancing and Property
Ordinance (Chapter 219 of the Laws of Hong Kong) save those
expressly set out herein.
13.8 No Fine or Premium Paid
The Tenant acknowledges that no fine premium key money or other
[ILLEGIBLE] Premises will be let to 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 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 and 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,
regulation, 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
Premises And the Tenant hereby further agrees to indemnify the Landlord in
respect of any breach by the Tenant of the aforesaid And in particular but
without limitation no warranty or representation is given or made by the
Landlord or its agents regarding:-
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(a) the fittings and finishes or the installations and appliances (if
any) in the Premises and/or the Buildings;
(b) the state and condition of the premises or the Buildings and the
user thereof; or
(c) the composition of the Buildings.
13.10 Joint & Several Liability
Where more than one person are named in Part 2 of the First Schedule
hereto as the Tenant, the representations, warranties, agreements, undertakings
and covenants herein contained on the part of the Tenant shall be the joint and
several representations, warranties, agreements, undertakings and covenants of
such persons.
13.11 Sale Subject to Lease
For the avoidance of doubt, it is hereby expressly declared and agreed
that if the Landlord shall at any time during the Term sell the Premises or any
part thereof ("the Sale Portion), then as from the date of completion of the
sale of the Sale Portion by the Landlord and subject to novation to the
purchaser of the Sale Portion of the Landlord's obligation in respect of the
Deposit or the relevant portion of the Deposit, all the rights, powers,
remedies, duties, obligations and liabilities of the Landlord hereunder relating
to the Sale Portion shall pass to and be vested in the purchaser of the Sale
Portion and the Landlord shall be absolutely released and discharged from all
duties, obligations and liabilities hereunder relating to the Sale Portion
Provided that this Clause shall not in any way prejudice or affect the rights of
the Landlord or the Tenant hereunder which shall have accrued prior to the date
of completion of the sale of the Sale Portion by the Landlord.
13.12 Special Conditions
For the avoidance of doubt, it is hereby agreed that this Lease shall be
read and construed on the basis that the special conditions, if any, set out in
the Sixth Schedule hereto form an integral part of this Lease. In the event of
conflict between such special conditions and the terms and conditions
hereinbefore provided, the special conditions shall prevail.
13.13 Law
This Lease shall be governed by and construed in accordance with the laws
of Hong Kong. The Tenant hereby submits to the non-exclusive jurisdiction of the
courts of Hong Kong.
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THE FIRST SCHDULE
PART 1
THE LANDLORD: SHINE HILL DEVLOPMENT LIMITED whose registered office is
situate at 33rd Floor, Great ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇.
PART 2
THE TENANT: ▇▇▇▇▇▇▇ ▇▇▇▇▇ (ASIA) FINANCE whose registered office is
situate at P O Box 2O9, Grand Cayman, Cayman Islands, British
Virgin Islands.
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THE SECOND SCHEDULE
PART 1
The Buildings: Two (2) towers of office/commercial buildings, one of which
consisting of forty-seven (47) storeys and called "Citibank
Tower" and the other of which consisting of thirty-seven (37)
storeys and called "Asia Pacific Finance Tower" together with
the podium called "Citibank Plaza" on which "Citibank Tower"
and "Asia Pacific Finance Tower" stand. Provided that the
numbering of the floors has been made on the basis that the
highest floor of Citibank Tower is designated as the 50th
Floor.
PART 2
The Premises: All Those the whole of Thirty-fifth Floor, Thirty-sixth
Floor, Thirty-seventh Floor and Suites 3901, 3902, 3903,
3904, 3905, 3906, 3910 and 3911 on the Thirty-ninth
Floor of "Asia Pacific Finance Tower" as shown coloured
Pink and Pink hatched Black on the Plans attached
hereto.
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THE THIRD SCHEDULE
The Term: The period of One (1) YEAR commencing on l5 May 1999 and
expiring on 14 May 2000 (both days inclusive).
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THE FORTH SCHEDULE
PART 1
The Rent (exclusive of rates and management charges):
Rent payable (in Hong Kong Dollars) per
Period calendar month
From 15 May 1999
to 14 May 2000 HK$3,205,800.00 apportioned as follows:-
Unit Rent
---- ----
The whole of 35/F HK$856,544.00
The whole of 36/F HK$864,812.00
The whole of 37/F HK$864,812.00
Suites 3901, 3902, 3903,
3904, 3905, and 3906 HK$447,876.00
Suites 3910 and 3911 HK$171,756.00
Part 2
Management Charges: HK$329,827.50 per calendar month (subject to increase in
accordance with Clause 4.2 hereof) apportioned as follows:-
Unit Rent
---- ----
The whole of 35/F HK$88,125.20
The whole of 36/F HK$88,975.85
The whole of 37/F HK$88,975.85
Suites 3901, 3902, 3903,
3904, 3905, and 3906 HK$46,079.55
Suites 3910 and 3911 HK$17,671.05
Part 3
Deposit: HK$9,002,971.41 apportioned as follows:-
Unit Rent
---- ----
The whole of 35/F HK$2,661,206.42
The whole of 36/F HK$2,192,440.01
The whole of 37/F HK$2,490,024.01
Suites 3901, 3902, 3903,
3904, 3905, and 3906 HK$1,138,721.23
Suites 3910 and 3911 HK$520,579.74
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117
THE FIFTH SCHEDULE
INSURED AMOUNT
(a) Third Party Liability
(i) HK$5,000,000.00 for any one (1) accident; and
(ii) unlimited cover for the insured period.
(b) Glass
The insured amount to be approved by the Landlord.
(a) Water Damage and Tenant's Fittings
Minimum of HK$500.00 per square foot of lettable area or a lump sum
of HK$500,000.00, whichever is the greater.
35
118
THE SIXTH SCHEDULE
SPECIAL CONDITIONS
1. Landlord's Fixtures & Fittings
Without prejudice to Clause 13.8 of the Lease, the Landlord shall
provide the following fixtures and fittings which are based on the Landlord's
specifications:
(a) Concrete floor;
(b) The Buildings' proprietary raised flooring system to be installed
throughout the office to a standard height of approximately five (5)
inches above the structural floor level;
(c) internal surfaces of the external walls and core walls with plaster
finish and emulsion paint in white. colour up to false ceiling
soffit; whereas for any dry partition walls, there will be no finish
and touching-up on them;
(d) an acoustic ceiling system on a modular grid incorporating general
light fittings for office use (other than decorative lighting and
without wiring) and supply air ducts with VAV boxes linked from the
central, air-conditioning system of the Buildings;
(e) automatic sprinkler system;
(f) MCS boards for the Premises installed at the meter room; and
(g) curtain wall and/or windows.
The Landlord will also provide the Tenant with ceiling tiles in boxes and the
Tenant shall be solely responsible for the installation of the ceiling tites.
2. Designated Areas
Except as otherwise agreed by the Landlord the Tenant hereby agrees
not to erect or install any fixtures or fittings or put any heavy machinery or
equipment over or in any way block the access to the ceiling of the portion of
the Premises as shown coloured "Pink hatch Black" and the Area coloured "Green"
on the Plans attached hereto so as to allow free and easy access thereto by the
Landlord and/or the Manager for the installation, maintenance or alteration of
the conduits, cables, wires, ducts and trunkings below the raised flooring or
above the suspended ceiling thereof provided always that the Landlord and/or the
Manager shall have access upon prior appointment to be mutually agreed ( save
and except in case of an emergency) and provided that the Landlord and/or the
Manager shall cause as little disturbance to the Tenant's business as is
practicable and the Landlord shall make good any damage thereby caused with all
due diligence.
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119
3. Exclusive Use of Corridor
The Tenant shall during the subsistence of the Term, be allowed to
have the exclusive use of a portion of the corridor on the 39th Floor adjacent
to Suites 3910 and 3911 of the Premises which for the purpose of identification
is shown coloured Green on the 39th Floor Plan attached hereto ("the Green
Area") and all the obligations and liabilities of the Tenant under the Lease
with respect to the Premises shall extend to the Green Area. The Landlord hereby
acknowledges that the Tenant may at its own expense with the Landlord's approval
erected a new entrance door at position as marked Red on the said 35th Floor
Plan Provide that the Tenant shall upon written demand by the Landlord forthwith
reinstate the Green Area to common corridor with such standard finishes and
accessories as specified by the Landlord.
The Tenant also agrees that exclusive use of the Green Area shall be subject to
the discretion of the Landlord. The Tenant further agrees to bear and pay any
rates payable on the Green Area as may be imposed by the Government from time to
time.
4. User of the Premises
Notwithstanding clause 6.6 of this Lease, the Tenant may share
occupation of the Premises with ▇▇▇▇▇▇▇ ▇▇▇▇▇ (Asia) L.L.C., ▇▇▇▇▇▇▇ Sachs (Asia
Securities) Limited and other companies which are within the group of companies
controlled by The ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, L.P. ("the Guarantor") and which are
controlled, whether directly or indirectly as to ninety percent (90%) or more by
▇▇▇▇▇▇▇ Sachs Group, L.P. or any entity to which all or substantially all of the
assets of The ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, L.P. may be transferred.
5. Non-Registration
It is hereby agreed that this Lease shall not be lodged for
registration at the Land Registry.
6. Confidentiality
The Tenant hereby agrees and undertakes to keep the contents of this
Lease, in particular, the term and the rental of the Lease strictly confidential
and shall not disclose the same to any third party without the consent of the
Landlord. The above obligations shall not apply: where (a) disclosure is made as
a result of to which ▇▇▇▇▇▇▇ Sachs (Asia) Finance or its affiliates is subject
or submits a subpoena, requirement or official request made to ▇▇▇▇▇▇▇ ▇▇▇▇▇
(Asia) Finance or its affiliates from any competent judicial, administrative,
legislative or regulatory or self-regulating authority or body or stock exchange
to which ▇▇▇▇▇▇▇ Sachs (Asia) Finance or its affiliates is subject or submits;
or (b) the information becomes available in the public domain other than as a
result of disclosure by ▇▇▇▇▇▇▇ ▇▇▇▇▇ (Asia) Finance, its affiliates, partners,
employees, directors, officers or advisors.
37
120
IN WITNESS WHEREOF the parties hereto have executed this Lease the day
and year first before written.
SEALED with the Common Seal of )
)
SHINE HILL DEVELOPMENT LIMITED )
)
and SIGNED by Lo Ka Shui )
) /s/ Lo Ka Shui [SEAL]
Lo Kai Shui )
)
whose signature(s) is/are verified )
)
by:- )
/s/ ▇▇▇▇▇▇▇ P.O. ▇▇▇
▇▇▇▇▇▇▇ P.O. Hui
Solicitor Hong Kong SAR.
SEALED with the Common Seal of )
)
▇▇▇▇▇▇▇ SACHS (ASIA) FINANCE )
)
and SIGNED by )
) /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ [SEAL]
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ )
)
whose signature(s) is/are verified )
)
by:- )
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Solicitor
Hong Kong
38
121
[GRAPHIC OMITTED]
35TH FLOOR PLAN
122
[GRAPHIC OMITTED]
36TH FLOOR PLAN
123
[GRAPHIC OMITTED]
37TH FLOOR PLAN
124
[GRAPHIC OMITTED]
39TH FLOOR PLAN
125
[GRAPHIC OMITTED]
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇ LETTER
1. LEASE
Reference is made to a Lease ("the Lease") of even date herewith
and made between Shine Hi11 Development Limited as the Landlord and ▇▇▇▇▇▇▇
▇▇▇▇▇ (Asia) Finance as the Tenant whereby the Landlord lets to the Tenant all
those premises ("the Premises") more particularly described in the Schedule
hereto subject to the terms and conditions thereof. Terms defined in the Lease
shall have the same meaning when used herein.
2. CONSTRUCTION OF LEASE
The parties hereto hereby agree that the Lease shall be read and
construed subject to the provisions hereof.
3. Non-Application of Provisions of Leasing Documents
3.1 Clause 10.1(b) of the Lease shall not apply notwithstanding the inclusion
thereof in the Lease.
3.2 Notwithstanding Clause 6.16(c) of the Lease, the takeover, reconstruction,
amalgamation, merger or voluntary liquidation of the Tenant or change in the
person or persons in whom the majority of the voting shares of the Tenant are
vested or who otherwise has/have effective control thereof shall not be deemed
to be a breach of Clause 6.16 of the Lease if the same shall have been approved
by the Landlord, such approval not to be unreasonably withheld.
4. Sub-Letting
4.1 Notwithstanding Clause 6.16(c) of the Lease, the Tenant may, with the prior
written consent of the mortgagee of the Premises (such consent not to be
unreasonably withheld) and subject to the consent of the Landlord as hereinafter
provided, sub-let not more than twenty-five
1
127
percent (25%) of the lettable area of the Premises ("the Sub-lettable Portion")
Provided that the fol1owing provisions shall be complied with by the Tenant:-
(a) If the Tenant is desirous of sub-letting the Sub-lettable Portion or
any part thereof, the Tenant shall notify the Landlord of its
intention to sublet and shall provide the Landlord with the
particulars of the following:-
(i) the name of the proposed sub-tenant and other particulars
thereof which are reasonably required by the Landlord for the
purpose of deciding whether or not to approve the identity of
the sub-tenant;
(ii) the nature of business proposed to be carried on by the
proposed sub-tenant at that part of the Sub-lettable Portion
to be sub-let;
(iii) that part of the Sub-lettable Portion to be sub-let together
with a plan (which shall be for identification purposes only)
showing the position and dimension thereof; and
(iv) the terms and conditions of the proposed sub-letting including
the terms of the incentives and allowances, if any, to be
granted to the sub-tenant.
(b) The Tenant shall obtain the prior written consent of the Landlord to
the identity of the proposed sub-tenant and the business proposed to
be carried on by the proposed sub-tenant at that part of the
Sub-lettable Portion to be sub-let.
(c) The rent per square foot at which the Tenant offers any part or
parts of the Sub-lettable Portion for sub-letting (taking into
account incentives and allowances, if any, granted by the New
Tenant) shall not be less than the rent then offered by the Landlord
for other premises of a comparable size and location in the
Buildings Provided that in the event that there shall be no other
premises of a comparable size and location in the Buildings, the
minimum rent at which the Tenant offers any part
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128
or parts of the Sub-lettable Portion for sub-letting shall be fixed
by reference to the mean of the rent then offered by the Landlord
for other premises of comparable size but in a better location in
the Buildings and the rent then offered by the Landlord for other
premises of comparable size but in an inferior location in the
Buildings.
(d) The rent per square foot at which the proposed sub-letting shall be
made (taking into account incentives and allowances, if any, granted
by the New Tenant) shall be mutually agreed between the Landlord and
the Tenant Provided that the agreement of the parties shall not be
unreasonably withheld.
(e) The sub-letting shall not extend beyond the expiry date of the Term
and the exercise of any right of renewal therefor shall not result
in the term of the sub-letting extending beyond the expiry date of
the Term.
(f) The form of the agreement for sub-letting shall be approved by the
Landlord (the Landlord's approval not to be unreasonably withheld)
and the terms and conditions of the sub-letting (other than the
incentives and allowances, if any, to be granted to the sub-tenant)
shall in all respect be compatible with those of the Second Lease
and shall contain agreements, undertakings and covenants no less
onerous than those imposed on the Tenant by the Lease.
(g) All costs, charges and expenses associated with the sub-letting
permitted hereunder (including without limitation the costs of the
partitioning to be installed in the Sub-lettable Portion with the
Landlord's prior written consent) and the costs and expenses
incurred by the Landlord in approving the sub-letting shall be borne
by the Tenant.
(h) If the Tenant shall derive a profit from the sub-letting (the said
profit being determined by comparing (i) the effective rent per
square foot of lettable area per month of the Term payable by the
Tenant to the Landlord and (ii) the effective rent per square foot
of lettable area per month of the term of sub-letting payable by the
sub-tenant to the Tenant and by reference to the
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129
lettable area sub-let), the Tenant shall share such profit with the
Landlord in equal shares by paying to the Landlord an appropriate
amount as soon as possible and in any event within seven (7) days
after receipt of rent from the sub-tenant on each occasion when rent
is payable by the sub-tenant.
5. Power & Chilled Water Supply, etc.
5.1 The Landlord shall permit the Tenant to make connections from such tenants'
main switchboards in the Buildings as the Landlord may reasonably designate so
as to allow for the following normal power supply:
(a) a dedicated 500 AMP 3 phase power supply for the 35th Floor of the
Premises;
(b) a dedicated 500 AMP 3 phase power supply for the 36th Floor of the
Premises;
(c) a dedicated 300 AMP 3 phase power supply for the 37th Floor of the
Premises;
(d) a dedicated 200 AMP 3 phase power supply for Suites 3901-3906 on 39th
Floor of the Premises; and
(e) a dedicated 60 AMP 3 phase power supply for Suites 3910-3911 on 39th Floor
of the Premises;
The Tenant hereby acknowledges that prior to the date hereof, connections have
been made for part of the aforesaid normal power supply to the extent set out
below;
(i) a dedicated 500 AMP 3 phase power supply to the 35th Floor of the
Premises;
(ii) a dedicated 500 AMP 3 phase power supply for the 36th Floor of the
Premises;
(iii) a dedicated 350 AMP 3 phase power supply for the 37th Floor of
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130
the Premises;
(iv) a dedicated 200 AMP 3 phase power supply to Suites 3901-3906 on the 39th
Floor of the Premises; and
(v) a dedicated 60 AMP 3 phase power supply for Suites 3910-3911 on the 39th
Floor of the Premises.
5.2 The Landlord shall permit the Tenant to purchase connections from such
emergency generators in the Bui1ding as the Landlord may reasonably designate so
as to allow for the following emergency power supply:
(a) a dedicated 300 AMP 3 phase power supply for the 35th Floor of the
Premises;
(b) a dedicated 300 AMP 3 phase power supply for the 36th Floor of the
Premises.
(c) a dedicated 150 AMP 3 phase power supply for the 37th Floor of the
Premises;
(d) a dedicated 150 AMP 3 phase power supply for Suites 3901-3906 and
3910-3911 on the 39th Floor of the Premises; and
The Tenant hereby acknowledges that prior to the date hereof, connections have
been made for part of the aforesaid emergency power supply to the extent of 300
AMP 3 phase power supply for the 35th Floor of the Premises; 400 AMP 3 phase
power supply for the 36th Floor of the Premises; 150 AMP 3 phase power supply
for the 37th Floor of the Premises; 150 AMP 3 phase power supply for Suites
3901-3906 and 3910-3911 on the 39th Floor of the Premises.
5.3 The Landlord shall permit the Tenant to make connections from the chilled
water supply system for the buildings which is backed up by emergency power so
as to allow for the following chilled water supply:
(a) 10 litres per second for the 35th Floor of the Premises;
5
131
(b) 10 litres per second for the 36th Floor of the Premises;
(c) 10 litres per second for the 37th Floor of the Premises;
(d) 4.0 litres per second for Suites 3901-3906 on the 39th Floor of the
Premises; and
(e) 0.7 litre per second for Suites 3910-3911 on the 39th Floor of the
Premises.
The Tenant shall pay to the Manager forthwith on demand such charges as the
Manager from time to time prescribe for the supply of chilled water as
aforesaid. The Tenant hereby acknowledges that prior to the date hereof, part of
the aforesaid chilled water supply has been provided to two (2) equipment rooms
and a dealing room within the Premises.
5.4 Except as expressly provided herein to the contrary, Clause 5.3 of the Lease
shall apply to all works to be carried out by the Tenant for the purposes of
obtaining power supply and chilled water supply referred to in this Paragraph 5.
For the avoidance of doubt, the Tenant shall at its own cost and expense prepare
and submit to the Landlord for the Landlord's approval detailed drawings and
specifications for the works proposed to be carried out by the Tenant for the
said purposes (including without limitation, modifications, if any, required to
be made to the existing plant, machinery and equipment forming part of the
Common Facilities of the Buildings).
5.5 The Tenant is permitted to use such part of the Common Areas of the
Buildings as may reasonably be required by the Tenant for the purpose of
erecting ducts for linking from the 35th Floor of the Premises to the 36th Floor
of the Premises computer cables, telephone cable and other wires and piping
reasonably required in connection with the business of the Tenant or the
permitted occupants of the Premises.
5.6 The Tenant shall be solely responsible for obtaining all necessary approvals
from all relevant Government departments and utility companies for the
connections required for the purpose of obtaining the power supply and chilled
water supply and for the erection of ducts referred to in the foregoing
provisions of this
6
132
Paragraph 5 and the electricity consumption resulting from such connections and
erection.
5.7 The Tenant shall be solely responsible for all costs of such plant,
machinery and equipment (including without limitation, cables, wiring and
energy meters) as may be required for the purposes of making the necessary
connections in order to obtain the power supply and chilled water supply and
for the erection of ducts referred to in the foregoing provisions of this
Paragraph 5 and all costs, charges and expenses of and incidental to the
installation of such plant, machinery and equipment and such connections
(including without limitation, modifications to the existing plant, machinery
and equipment forming part of the Common Facilities of the Buildings which are
exclusively for the benefit of the Tenant) and such erection Provided that where
modifications to the existing plant, machinery and equipment forming part of the
Common facilities of the Buildings are not solely for the benefit of the Tenant,
the Tenant shall be responsible for a fair and reasonable proportion of the
costs, charges and expenses therefor.
5.8 The Tenant shall, at its own cost and expense, keep all plant, machinery and
equipment installed pursuant to Paragraph 5.7 which are exclusively for the
benefit of the Tenant and the ducts erected pursuant to Paragraph 5.5 in good
order and condition and properly maintained and execute such repair or
replacement as may be required by the Landlord, the Manager, the relevant
Government departments or utility companies Provided that:
(a) insofar as the Manager considers that the maintenance or repair of any of
the aforesaid items is closely connected with the maintenance or repair of
the Common Facilities of the Buildings, the Tenant shall allow the Manager
to execute the maintenance and/or repair on behalf of the Tenant and pay
to the Manager forthwith on demand the reasonable costs and expenses
incurred by the Manager in so doing; and
(b) the Tenant shall pay to the Manager forthwith on demand a fair and
reasonable proportion of costs and expenses incurred by the Manager in
maintaining and repairing modifications to the existing plant, machinery
and equipment forming part of the Common Facilities of the Buildings which
are not solely for the
7
133
benefit of the Tenant.
For the avoidance of doubt, the Tenant hereby expressly acknowledges that
the Landlord shall not in any way be responsible for the act, neglect, default
or omission of the Manager. The Tenant shall indemnify the Landlord against all
costs, claims, demands, actions and legal proceedings whatsoever made upon the
Landlord by any person in respect of any loss, damage or injury caused to any
person whomsoever or any property whatsoever whether directly or indirectly as a
result of the installation of plant, machinery and equipment or erection of
ducts made by the Tenant pursuant to Paragraph 5.7 or 5.5 or the defective or
damaged condition of such plant, machinery, equipment or ducts or the
connections made by the Tenant for the purposes of obtaining the power supply
and chilled water supply referred to in this Paragraph 5.
5.9 For the avoidance of doubt, the Tenant hereby acknowledges and agrees that
its obligations under Clause 5.23 of the Lease shall be extended to the plant,
machinery and equipment installed and ducts erected pursuant to the provisions
of this Paragraph 5 as if the same were fixtures fittings and additions made in
or to the Premises.
6. Charges for Additional Air-conditioning Supply
6.1 The Landlord hereby declares that the charges for additional
air-conditioning service referred to in Clause 6.11(c) of the Lease is currently
estimated by the Manager to be:-
(a) at the rate of HK$13.40 for every Two Thousand (2,000) square feet of
lettable area or part thereof for every hour or part thereof for long term
standing instructions; and
(b) at the rate of HK$45 for every Two Thousand (2,000) square feet of
lettable area or part thereof for every hour or part thereof for ad hoc
instructions;
Provided that whether instructions given shall qualify as long term
standing instructions shall be determined by the Manager in its reasonable
discretion.
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134
6.2 Without prejudice to Clause 6.11(c) of the Lease, the Landlord shall use its
best endeavours to procure the Manager to provide the Tenant with additional
air-conditioning service if the same is required by the Tenant subject to the
Tenant complying with the terms of the Deed of Mutual Covenant relative to the
provision of additional air-conditioning service.
7. Staircases
7.1 The Tenant hereby confirms and the Landlord hereby acknowledges that the
Tenant has constructed one (1) staircase leading from the 34th Floor of the
Premises to the 35th Floor of the Premises, one (1) staircase leading from the
35th Floor of the Premises to the 36th Floor of the Premises and two (2)
staircases leading from the 35th Floor of the Premises to the 37th Floor of the
Premises (collectively "the Staircases") Provided that:
(a) no warranty is given or deemed to be given by the Landlord as to the
position at which the Staircases can be constructed or the time required
for the construction thereof;
(b) the Tenant shall be solely responsible for obtaining at its own cost and
expense all necessary approvals from the Building Authority and other
relevant Government authorities required for such Staircases and shall in
all respects comply with the provisions of Clause 5.3 of the Lease as if
the Staircases from part of the Tenant's Works therein mentioned; and
7.2 For the avoidance of doubt, the Tenant shall, if the Landlord so requires,
at its own costs and expenses remove and demolish the Staircases and make good
any damage to the Premises caused by such demolition including but not limited
to the reinstatement of the relevant portions of the ceiling and floor slab
within the Premises to its original state at the expiration or sooner
determination of the Term.
8. Car Parking Spaces
The Landlord shall, during the subsistence of the Term,
9
135
grant to the Tenant a licence to use ten (10) car parking spaces in the
Basements of the Buildings to be designated from time to time by the Landlord
subject to payment by the Tenant of such standard rate of licence fees and upon
such other standard terms and conditions as the Landlord may in its discretion
impose for car parking spaces in the Buildings.
9. Non-Registration
It is hereby agreed that this Side Letter shall not be lodged for registration
at the Land Registry. It is further agreed that the contents of this Side Letter
shall be kept STRICTLY CONFIDENTIAL.
10
136
THE SCHEDULE
THE PREMISES
All Those the whole of THIRTY-FIFTH FLOOR, THIRTY-SIXTH
FLOOR, THIRTY-SEVENTH FLOOR and SUITES 3901, 3902, 3903, 3904, 3905,
3906, 3910 and 3911 on the THIRTY-NINTH FLOOR of "Asia Pacific
Finance Tower" as shown coloured Pink and Pink hatched Black on the Plans
attached to the Lease.
11
137
IN WITNESS whereof the Landlord and the Tenant have executed this Side
Letter this 2nd DAY day of November 1998.
SEALED with the Common Seal of )
)
SHINE HILL DEVELOPMENT LIMITED )
)
and SIGNED by Lo Ka Shui )
) /s/ Lo Ka Shui [SEAL]
Lo Ka Shui )
)
whose signature(s) is/are verified )
)
by:- )
/s/ ▇▇▇▇▇▇▇ P.O. ▇▇▇
▇▇▇▇▇▇▇ P.O. Hui
Solicitor, Hong Kong SAR.
SEALED with the Common Seal of )
)
▇▇▇▇▇▇▇ SACHS (ASIA) FINANCE )
)
and SIGNED by )
) /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ [SEAL]
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ )
)
whose signature(s) is/are verified )
)
by:- )
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Solicitor
Hong Kong
Solicitor, Hong Kong SAR.
12